Brown v. State

• Citation: 17 Ind.Dec. 296,247 N.E.2d 76,252 Ind. 161
• Decision Date: 29 April 1969
• Docket Number: No. 1068S175,1068S175
• Parties: Samuet Henry BROWN, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

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247 N.E.2d 76 252 Ind. 161 Samuet Henry BROWN, Appellant,
v.
STATE of Indiana, Appellee. No. 1068S175. Supreme Court of Indiana. April 29, 1969.

[252 Ind. 164]

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Lorin H. Kiely, Phillip L. Kiely, Evansville, for appellant.

John J. Dillon, Atty. Gen., James H. Voyles, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

This is an appeal by Samuel Henry Brown from a verdict and judgment of guilty of second degree murder. Trial was by jury in the Vanderburgh Circuit in June of 1968. Judgment was entered sentencing the appellant to the Indiana State Prison for life and disfranchisement for a period of seventeen (17) years.

The assignment of error presents the following questions included in appellant's motion for new trial:

1. The court erred in overruling defendant's written motion to strike out parts of the indictment.

2. The court erred in overruling motion to quash the indictment.

3. The court erred and abused its discretion in overruling defendant's motion for a change of venue from Vanderburgh County.

4. The court erred in overruling the objection of defendant to the introduction and admission into evidence as a part of the State's case-in-chief on direct examination (State's witness Ronald Hewitt) State's exhibit #3.

5. The court erred in overruling the defendant's introduction of State's exhibits numbered 8 and 9 as part of direct examination of State's witness Edward Saulsberry.

6. Court erred in overruling defendant's motion for a directed verdict of not guilty of the charge against him at the close of State's case-in-chief and again at the close of all the evidence.

7. That the verdict of the jury is contrary to law.

[252 Ind. 165] 8. That the verdict of the jury is not sustained by sufficient evidence.

The appellant presents no argument on alleged errors one (1) and two (2) above and therefore said asserted errors are waived. Waggoner v. State,227 Ind. 269, 85 N.E.2d 642.

POINT THREE (3).

The appellant contends the trial court erred and abused its discretion in overruling the motion for a change of venue from Vanderburgh County.

As part of the hearing on the petition for a change of venue the appellant placed in evidence five items from Evansville newspapers which are summarized as follows:

Defendant's Exhibit #1 was a front page news story in the Evansville Press of February 23, 1968, with inset pictures of Amiel Culver, the victim, and Samuel Henry Brown. The store contains a statement that 'police are holding * * * Brown, 50, of 844 Lincoln as the suspect in the case'. The article also quoted a Detective Captain as saying that 'Brown will face preliminary murder charges tonite in City Court.' The article also reported that Ronald Hewitt had rushed to Culver's aid and was himself shot and was in critical condition at a local hospital. The article contained sketchy details of the occurrence and indicated that the shooting had followed an argument between 'Brown and Culver over money'. The article also contained a record of Brown's several previous convictions and paroles. It further stated

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that at the time of the reported shooting Brown was then on parole from a similar offense.

Defendant's Exhibit #2 was a front page news story published in the Evansville Courier, February 24, 1968, concerning the preliminary hearing in city court. It also contained an inset picture of the victim, Amiel Culver. This article also contained a picture of Brown and his two attorneys showing them sitting at counsel table while present in city court for the preliminary hearing. The article related short re sume § of the testimony at the hearing.

[252 Ind. 166] Defendant's Exhibit #3 was a copy of an editorial in the Evansville Press published on February 27, 1968, titled 'The Police Department's Goof'. The first paragraph indicated the police officials should lose no time fixing responsibility for the misplacement of a Kentucky warrant for the arrest of Brown. The editorial commented that this 'police department goof may have cost Amiel Culver his life.' It also criticised the department for its failure to check their records claiming that if they had, they would have known Brown 'had a long police record dating back to 1938 and contained four felony convictions.' This was followed by an admonition 'that the people of the community have a right to expect better of their police department.'

Defendant's Exhibit #4 was a news story which appeared in the Evansville Press on March 15, 1968, with an insert picture of Ronald Hewitt, who had allegedly been shot by Brown as he came to the aid of Amiel Culver on February 23, 1968. The picture showed Hewitt poking a finger through the bullet hole of the sweater he had been wearing at the time of the shooting. The article quoted Hewitt as stating 'I said a prayer in the ambulance for Mr. Culver, hoping he would not die * * * but it was too late.' The article concluded by saying that Samuel Henry Brown had been indicted for second degree murder by the grand jury.

Defendant's Exhibit #5 was published on March 29, 1968, and was a section of the daily column 'BISH SAYS'. This article referred to two checks being forwarded to Ronald Hewitt by the wife and daughter of Amiel Culver, the slain groceryman, with a statement in the letter of inclosure, 'This is for a wonderful guy who would have given his life to save a friend.'

It was stipulated that said articles, column, and editorial were duly authenticated copies of said newspapers and were duly circulated throughout Vanderburgh County.

On April 1, 1968, at the hearing on the motion for change of venue there was also evidence presented by Reverend Brown, brother of the appellant, who testified that he was of the opinion the appellant could not receive a fair and impartial trial in Vanderburgh County by reason of said news [252 Ind. 167] stories. He also testified that recent acts of vandalism by Negroes on Lincoln Avenue on the previous Thursday 'would affect his brother's having a fair and impartial trial in Vanderburgh County.'

Sumuel Henry Brown, the appellant, a 50 year old Negro also testified that the items contained in the editorial, the daily column, and news stories represented in exhibits 1 through 5 had been read by him and he had determined he could not have a fair and impartial trial in Vanderburgh County because of them. He also testified specifically that exhibit #3 was prejudicial because it stated 'but for the police department goof that this probably wouldn't have happened'. Also he testified that the various articles detailing his criminal record prior to his trial would be prejudicial to him in Vanderburgh County, whether or not he took the stand to testify.

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On re-cross examination by the prosecuting attorney the record also reveals the following questions and answers:

'Q. Just a minute, Mr. Brown. You know you have the right, your attorney does, to interrogate every one of the prospective jurors to see if they have read anything about you, you know that, don't you?

A. Yes.

Q. Don't you believe that you can find 12 people in Vanderburgh County, that haven't read about you, that wouldn't be prejudiced?

A. I don't know, the way it has been circulated, I don't know.' (our emphasis)

The state did not file any counter-affidavits and did not introduce any evidence to contradict, deny or rebut the defendant's presentation at the hearing.

With specific reference to the five (5) exhibits noted above, the appellant cites the cases of Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Rubenstein v. State (Tex.Cr.App.1966), 407 S.W.2d 793; Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; and [252 Ind. 168] Estes v. State (1965), 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, as authority for his contention that the trial court committed reversible error in overruling his motion for a change of venue from Vanderburgh County.

To determine the application of said cases, it will be necessary to analyze the record of facts as revealed in the reported cases against the tenor, number and extensiveness of prejudicial contents, if any, in the articles contained in exhibits 1 through 5 in the case at bar. It should be noted that the five items of publicity as revealed by the record were published between February 23, 1968 and March 29, 1968. The appellant's trial began June 25, 1968, almost three months after the last publication.

The appellant in support of his contention of error quotes from Sheppard v. Maxwell, supra, as follows:

'With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion. * * * Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should * * * transfer it to another county not so permeated with publicity.'

The appellant specifically contends that the extensive pre-trial publicity against him made it impossible for him to have a fair and impartial trial.

With regard to Sheppard, supra, the appellee states that 'It is incongruous that any comparison could be made concerning the facts of constitutional guarantees in that case with the case at bar.' Upon an examination of the Sheppard case, we find that several pages of the opinion were devoted to a discussion of news stories prior to and during the trial, to telecasts by various stations in the Cleveland area, and debates which were staged or broadcast over several radio and television stations tending to pre-judge Sheppard's guilt before and during his trial. A nationally recognized news commentator[252 Ind. 169] in a broadcast over a Cleveland station 'likened Sheppard to a perjurer and compared the episode to Alger Hiss' confrontation with Whittaker Chambers.' The record was replete with quotations from news stories, headlines and editorials including the following: an editorial demanding, 'Why isn't Sam Sheppard in Jail...