Brown v. State
| Decision Date | 16 March 1977 |
| Docket Number | No. 376S75,376S75 |
| Citation | 266 Ind. 82,56 Ind.Dec. 605,360 N.E.2d 830 |
| Parties | James Mitchell BROWN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
David W. Foley, Mullin, Foley & Gilroy, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.
The Appellant, James Mitchell Brown, was convicted on September 24, 1975, of commission of or attempt to commit a felony while armed with a deadly weapon. Ind.Code § 35--12--1--1 (Burns 1975). The jury fixed a determinate sentence of imprisonment for twenty years. The Appellant filed his motion to correct errors on December 15, 1975. This appeal is taken from the denial of that motion on December 18, 1975.
In order to set out the facts of this case, we consider first the contention that the Appellant's conviction was not supported by sufficient evidence. The evidence at trial revealed that on June 30, 1975, Charlie Dye's Liquor Locker in Indianapolis was robbed by two men at about 10:30 p.m. While one man stood at the front of the store's counter and held a gun on those present, the other man took money from the store cash register. Several cartons of cigarettes and a watch from one of the store's employees were also taken.
William Jones, the employee whose watch was stolen, identified the Appellant at trial as the robber holding the gun. Another eye-witness, Jane Bostmer, also identified the Appellant as one of the robbers. She also testified that she had seen the Appellant a number of times when he patronized the Knotty Pine Cafe, where she had worked. Her testimony further revealed that the other robber, who she could not identify, had a gun in his 'back pocket.'
Luther Nuckols, a bus driver for the Indianapolis Metro system, testified that on June 30, 1975, at 10:30 p.m., he was operating a bus and observed two men run out of a liquor store. They ran in front of his bus and into an automobile. After seeing one of the men take a pistol out of a sack and put it in his belt, he wrote down the license number of the car and notified police. He described the car as a blue 1964 or 1965 Valiant. Indianapolis police subsequently stopped an automobile matching that description and bearing the license number copied by Nuckols. The Appellant was one of the men in that car. He was identified at the scene of his arrest by one of the robbery victims as one of the perpetrators of that crime.
In reviewing the sufficiency of evidence, this Court does not judge the credibility of witnesses or weigh evidence. We look at the evidence most favorable to the State and the reasonable inferences to be drawn from that evidence. A verdict will not be disturbed if there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt. Young v. State (1975), Ind., 332 N.E.2d 103; Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686; Jackson v. State, (1971) 257 Ind. 477, 275 N.E.2d 538.
The Appellant challenges the sufficiency of the evidence in this case on two grounds. First, it is asserted that the evidence failed to establish the identity of the robbers. Second, it is urged that the use of a deadly weapon was not established. We find no merit in these contentions.
In arguing that the identity of the robbers was not established, the Appellant attacks the testimony of the witnesses placing the Appellant at the scene of the crime. We are asked essentially to judge the credibility of these witnesses and weigh the evidence accordingly. This we cannot do. In support of the argument that the use of a deadly weapon was not established, it is pointed out that no weapon was admitted into evidence. While the State must prove the use of a deadly weapon to prove the crime for which the Appellant was convicted, Ind.Code § 35--12--1--1 (Burns 1975), it is not necessary to introduce that weapon into evidence. See Henderson v. State (1976), Ind., 343 N.E.2d 776.
On September 17, 1975, the Appellant filed a verified petition for change of venue from the judge. The trial court denied this petition on September 24, 1975. The Appellant urges reversible error in the denial of this petition on two grounds. First, he contends that the ten day period of Criminal Rule 12 in which such a change of judge must be granted had not expired. Second, it is contended that the petition should not have been denied without a hearing.
Under Criminal Rule 12, an application for change of judge is to be filed within ten days after a plea of not guilty. When such timely application is made, the first such motion by a defendant must be granted as of right. State ex rel. Benjamin v. Criminal Court of Marion County (1976), Ind., 341 N.E.2d 495. In this case, however, application was not made in a timely fashion. The Appellant entered a plea of not guilty on July 9, 1975. As already noted his petition for change of judge was not filed until September 17, 1975.
The Appellant offered to plead guilty on August 8, 1975, and was told at the time by the trial court that it would not be bound by the recommendation of the State. The Appellant then changed his mind. Then again, on September 9, 1975, the Appellant offered to plead guilty and the court told him it would not be bound by a sentence of ten years recommended by the State. The Appellant then again withdrew his plea of guilty. These offers to plead guilty do not extend the time within which a defendant must ask for a change of venue. To interpret the rule otherwise is to invite circumvention through the manipulation of pleas.
Appellant further contends that he was improperly denied a hearing on his motion for change of venue which alleged as a basis thereof that the judge was prejudiced because he heard the defendant's tendered pleas of guilty which were withdrawn on August 8 and September 9. Criminal Rule 12 provides for untimely applications only in a case where the defendant first obtains knowledge of the grounds for the change after the time has run. In this case the grounds for the change, the offers to plead guilty, was a self-serving act of the Appellant which could be manipulated as a basis for a claim of prejudice. There were no facts regarding the offers to plead guilty outside of those already before the court. A hearing would have added nothing in the way of additional evidence. It was not newly discovered evidence of prejudice within the contemplation of Criminal Rule 12. All the evidence here was fully before the trial court when it made its ruling denying the motion for change of judge filed on September 17. The ruling of the trial court may be reviewed only for an abuse of discretion. Cade v. State (1976), Ind., 352 N.E.2d 473. We do not think the trial court abused its discretion in this case.
The Appellant raises three issues related to the selection of his jury. Two of these issues center around Ind.Code § 35--1--30--4 (Burns 1975), which reads in part:
'Challenges for cause.--The following shall be good causes for challenge to any person called as a juror in any criminal trial:
Fifteenth. If he is not a member of the regular panel, that he has served on a jury within twelve (12) months immediately preceding the trial.'
The Appellant's first contention involving this statute is that the 'regular panel exceeded the lawful number of twelve (12) members.' This statement by itself fails to state any error prejudicial to the Appellant. It is based upon Benadum v. State (1914), 182 Ind. 510, 107 N.E. 8, a case which appears sufficiently confused to merit only brief mention. That case does indeed state that the 'regular panel' cannot be composed of more than twelve members. The citation in that decision to statutory provision for the number of jurors which are to serve on a criminal jury, presently Ind.Code § 35--1--30--1 (Burns 1975), indicates that the terms 'jury' and 'regular panel' were being used interchangeably. This is not correct and the Appellant's reliance on Benadum is misplaced.
The term 'regular panel' refers to the list of prospective jurors called pursuant to statute from which a jury is selected. Calvert v. State (1968), 251 Ind. 119, 239 N.E.2d 697; Ind.Code § 34--1--19--1 (Burns 1973). As many persons are to be summoned to serve on a jury panel as the trial court shall specify. Ind.Code § 33--15--22--1 (Burns 1975). This number may certainly exceed the number of persons needed to sit on a jury itself.
The Appellant also argues that challenges for cause to two members of the jury were erroneously overruled because they had prior jury experience within the past year. The Appellant states that they were not part of the regular panel, and we can only guess that this is based on the supposition that the regular panel can consist of no more than twelve members. We think it best to end this tangled argument by noting that the record shows that all of the prospective jurors of this trial were members of the regular panel.
The third contention regarding the composition of the Appellant's jury is that the Appellant's 'rights were violated since the jury was composed of persons who had immediate prior jury service and who were willing and eager to serve.' The jury service complained of here occurred in the same term of service as the trial of this cause. When a juror is summoned to present himself for jury duty, it is expected that he or she may serve on a jury in more than one case during his or her term of service. Hence the exception of § 35--1--30--4, '(i)f he is not a member of the regular panel. . . .' The prior jury service of the jurors in this case would not, by itself, disqualify them from service in this case.
The assertion that the jurors in this case were 'willing and eager' to serve stems from the jury selection process employed by the trial court. The record shows that approximately one thousand summonses were issued by ...
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