Brewer v. State

• Decision Date: 18 June 1979
• Docket Number: No. 678S118,678S118
• Parties: William James BREWER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 648

390 N.E.2d 648

271 Ind. 122

William James BREWER, Appellant, v. STATE of Indiana, Appellee.

No. 678S118.

Supreme Court of Indiana.

June 18, 1979.

Keith A. Dilworth, Richmond, for appellant.

Theo. L. Sendak, Atty. Gen., Gordon E. White, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Judge.

On February 8, 1978, after a jury trial in Wayne Circuit Court, appellant Brewer was found guilty of committing a felony while armed. He received a sentence of fifteen years imprisonment. The crime in question is the robbery of "Mr. Pizza" in Richmond, Indiana, on March 24, 1975.

Three errors are alleged in this appeal: (1) whether the trial court erred in denying appellant's motion for change of venue from the county; (2) whether the trial court erred in admitting into evidence certain in-custody statements made by appellant to a police officer; and (3) whether the evidence is sufficient to sustain the conviction.

The facts pertinent to disposition of this appeal are as follows. On March 24, 1975, appellant and another man entered "Mr. Pizza" in Richmond and ordered a pizza and two cokes from Everett Hunter, who was working there at the time. The appellant wore a nylon stocking on his head, pulled down just above the eyebrows; the other man wore dark glasses. Mr. Hunter made the pizza and placed the cokes on the counter. The subject wearing dark glasses produced a gun, pointed it at Mr. Hunter, and said nothing. Appellant pulled the stocking down over his face. Mr. Hunter stepped back and appellant and the other man reached over the counter into the cash drawer, taking approximately two hundred dollars. Both men then turned and walked out.

On April 22, 1975, Mr. Hunter saw appellant enter "Mr. Pizza" again. Mr. Hunter called the police, who apprehended appellant. Mr. Hunter then went to police headquarters and, after examining a series of pictures, identified appellant as one of the men who had robbed him. Appellant was then placed under arrest.

At appellant's first trial, the jury was unable to reach a verdict and a mistrial was declared. Before the cause was called for trial a second time, appellant moved for a change of venue from the county. This motion was denied. Appellant's motion to suppress the oral statements made to a police officer was also denied by the trial court.

I.

Appellant first challenges the trial court's denial of his motion for change of venue. According to his motion, his reasons for desiring a change of venue were as follows:

"1. That the defendant has had trouble in the Wayne County Jail since his incarceration in December of 1977.

2. That the defendant feels that Richmond, Indiana is one big family that will not give him a fair second trial.

3. That this trial is the second trial on the same charges; the first trial ending in a jury that was unable to reach a decision.

4. That the trouble in the Wayne County Jail is of recent origin and was not known, nor could it have been discovered with due diligence by the defendant within the time allotted for filing a motion for a change of venue.

5. That as a result of the said trouble in the jail the information in paragraphs two and three becomes critical and would prevent the defendant from receiving a fair trial in Wayne County, Indiana."

Record at 117.

The burden is on the defendant to produce evidence of community bias sufficient to convince the trial judge that he cannot receive a fair trial in that particular county. Daniels v. State, (1976) 264 Ind. 490, 493, 346 N.E.2d 566, 568; Dickens v. State, (1973) 260 Ind. 284, 288, 295 N.E.2d 613, 616. At the hearing on appellant's motion, his testimony was basically a reiteration of that motion:

Mr. Dilworth : Now, William, would you tell the Judge what kind of trouble you've had at the jail that's caused you to feel you're unable to get a fair trial?

Brewer : Well, Your Honor, the trouble that I had in the Wayne County Jail has ceased, has ceased now but in the beginning, I was getting a fair, a fair treatment and (sic) incident occurred there and I don't think it was fair and I feel as though that everybody in Richmond knows each other and the jury will probably know some of the people that work at the Wayne County Jail and I would just like to have a change of venue if any way possible for my own, my best interests, I would say.

Mr. Dilworth : William, is there any other reason other than what you've just told the Judge here that you feel that you wouldn't get a fair trial here in Richmond?

Brewer : Yes, there is. I think you are the same Judge that I last time I was in Court, I think you're the same Judge and I fail to appear in Court due to the fact I didn't have funds to hire my own attorney which I told you I was going to hire my own attorney, that I didn't want to go to court with a state appointed attorney and that's just I guess because I'm facing so much time. I don't feel I'll get a fair trial. That's probably the reason because I'm facing as much time as I'm facing which might be relevant, which might not even make sence (sic) to you, you know, but to me, it's the way I feel.

Mr. Dilworth : I have nothing further, Your Honor.

The Court : Mr. Van Middlesworth?

Mr. Van Middlesworth : I have nothing other than I have not understood the grounds for the change of venue.

The Court : Well, I guess what we're dealing with now is, do you have any questions you want to ask the witness and then we'll hear argument.

Mr. Van Middlesworth : No, Your Honor.

The Court : You may stand down. Oh, let me ask you, as I understand it, this matter in the jail, there's nothing specific as far as that which would lead you to believe that anyone on the outside who might end up on this jury would have any knowledge of it, other than you feel Richmond is a close-knit community and therefore there's the chance that somebody who might end up on the jury may have heard about the incident or know somebody at the jail, is that what you're saying basically?

Brewer : Basically that's what I'm saying, Your Honor.

The Court : Well, based upon what's been presented to me, it would appear that any need to protect the defendant can be accomplished by the jury selection process and although this is a serious case, I think when the jury is selected, if there's any problem as far as knowledge of any prior proceedings in this matter, otherwise we can get to that so that in fact a fair trial does occur. So I don't believe there's been sufficient showing to permit the Court to grant a change of venue and therefore that motion is denied.

Record at 484-89.

In spite of the trial court's suggestion that community bias could be discovered in the jury selection process, it appears that appellant did not raise the question further by challenging the jurors either for cause or peremptorily, and that appellant did, in fact, accept the jury. Thus, under Morris v. State, (1977) 266 Ind. 473, 475, 364 N.E.2d 132, 135, "no question is presented to this court on this issue." See Grooms v. State, (1978) Ind., 379 N.E.2d 458. Even if appellant did use the processes available to him for discovering jurors who were not impartial, he has failed to present a sufficient record of evidence of such alleged partiality. Consequently, any alleged error on this subject is not available for review by this court. Morris v. State, Supra; State v. Irvin, (1973) 259 Ind. 610, 291 N.E.2d 70.

II.

Defendant next argues that the trial court erred in admitting into evidence statements made by the appellant to the police. Appellant contends that he was not informed by the interrogating officer that he was under arrest for armed robbery, and that the statements he subsequently made were therefore involuntary and inadmissible.

The question of the admissibility of incriminating statements is largely to be controlled by determining from the totality of the circumstances, whether the statements were made voluntarily. Arch v. State, (1978) Ind., 381 N.E.2d 465, 468; Richardson v. State, (1978) Ind., 373 N.E.2d 874, 875. In this case, the interrogating officer read to appellant his rights and the waiver form, and appellant signed a waiver of rights form prior to making the statement. This occurred less than one hour after he was taken into custody. The interrogating officer testified that ap...