Burton v. State

• Citation: 292 N.E.2d 790,35 Ind.Dec. 275,260 Ind. 94
• Decision Date: 26 February 1973
• Docket Number: No. 671S174,671S174
• Parties: Samuel BURTON, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 790

292 N.E.2d 790

260 Ind. 94

Samuel BURTON, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 671S174.

Supreme Court of Indiana.

Feb. 26, 1973.

Rehearing Denied May 2, 1973.

James L. Brand, Greenfield, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

This is an appeal by Samuel Burton, Jr., appellant (defendant below) from a conviction in the Henry Circuit Court for first degree murder (felony murder). The Marion County Grand Jury charged the defendant with first degree murder on August 21, 1969. The indictment consisted of two counts--one for first degree murder and the other for felony murder. The defendant was tried by a jury, which returned a guilty verdict on November 20, 1970. A motion to correct errors was filed and overruled resulting in the present appeal.

Appellant raises several specifications of error which we will consider individually. Due to voluminous facts, they will be set out in connection with the relevant allegation of error.

I

Appellant contends that the trial court erred in failing to grant the appellant's request for a change of venue. He further argues that venue was not proved in Henry County. We believe that the trial court was correct in its denial and that the cause was properly venued to Henry County.

The apellant's argument regarding the court's failure to grant the requested change is two-pronged: a defendant may receive more than one change of venue upon a showing of good cause or alternatively the trial court should grant the requested change as a matter of law when the state fails to file counter-affidavits denying appellant's allegations of bias and prejudice.

As a preface to our analysis of appellant's arguments, it is important to note that the appellant received three requested changes of venue: Marion to Hamilton; Marion to Hancock (after the cause had been remanded to Marion Criminal Court); and Hancock to Henry. The changes were effectuated pursuant to the striking procedures found in CR. 12. The appellant, after agreeing to a date for trial, moved for a fourth change of venue based on 'bias and prejudice of the people of said county against him and his defenses herein.' A hearing was held and subsequently the motion was denied on grounds that the appellant failed to make an adequate showing of prejudice and bias.

In 1970, CR. 12 provided for one change of venue as a matter of right in all cases punishable by death. First degree murder was such a case and the trial court acted in conformity therewith. Thereafter all changes are within the discretion of the trial court and must be predicated on a showing of good cause. Two such changes were granted. However, the appellant argues that still another change should have been granted for good cause shown. We do not agree with the latter contention. Change of venue is a procedural safeguard employed by courts under our rules to help maximize the possibilities for a fair trial untainted by community bias and predisposition. To this end, a trial judge, in his discretion, should grant additional changes of venue if an adequate showing of bias and prejudice has been made. See Brown v. State (1969), 252 Ind. 161, 247 N.E.2d 76; State ex rel. Schaaf v. Rose (1943), 222 Ind. 96, 51 N.E.2d 856; State ex rel Gannon v. Porter Circuit Court (1959), 239 Ind. 637, 159 N.E.2d 713; Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (U.S. Supreme Court cites with approval and construes gannon).

In Brown, supra, this Court said:

'We hold that it was within the discretion of the trial court to weigh the evidence comprised of both documentary and oral testimony and determine its credibility in light of the purpose sought to be obtained. . . . The trial court had the right to weigh the content of the exhibits and determine their effect on the 'public attitude' toward the defendant.' 252 Ind. at 173, 247 N.E.2d at 83.

We held that such determination must be made after the defendant has received a fair hearing on his application for change. Such a hearing was conducted in the instant case.

Viewing the record of that hearing in a light most favorable to the State, there is no evidence to support the appellant's allegation of community bias and prejudice in Henry County. The evidence adduced by the appellant is as follows: (1) the sheriff may or may not have liked the defendant and may have called him a son of a bitch; (2) the sheriff's wife, the jail matron, did not like the defendant; (3) fellow inmates in jail on at least two occasions called defendant a nigger; (4) several inmates (five or six) articulated a dislike for defendant at the time they were released from jail; (5) an article concerning the case had appeared in an Indianapolis newspaper; and (6) a Henry County attorney, not involved in the case, testified that several Henry County residents questioned him regarding the case. He testified as follows:

'Not by name, except they referred to him as the man that . . . the inquiry has been to me whether or not I had anything to do with the fellow from Indianapolis who shot the newspaperman. That's the way it was referred to me.'

There simply is no evidence that the jury was in any way prejudiced or biased or that the community as a whole exhibited a 'pattern of deep and bitter prejudice.' Irvin v. Dowd, supra, 366 U.S. at 727, 81 S.Ct. at 1645. The U.S. Supreme Court characterized the facts of Irvin as follows:

'For example petitioner's first motion for a change of venue from Gibson County alleged that the awaited trial of petitioner had become the cause celebre of this small community--so much so that curbstone opinions not only as to petitioner's guilt but even to what punishment he should receive, were solicited and recorded on the public streets by a roving reporter, and later were broadcasted over the local stations. A reading of the 46 exhibits which petitioner attached to his motion indicates that a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his trial.' 366 U.S. at 725, 81 S.Ct. at 1644.

In Brown, supra, we held that the trial court did not exceed its discretion in denying the defendant's application for a change of venue from Vanderburgh County. In that case, the defendant presented uncontroverted evidence consisting of five newspaper articles, including an editorial, a daily column and news stories, which appeared in the Evansville newspapers prior to trial and the testimony of both the defendant and his brother articulating their fear that the defendant would not receive a fair trial due to all the publicity. We believe that the appellant in the case at bar presented a weaker argument for community prejudice than did the defendant in Brown and that his motion for a change of venue was properly denied.

Proof of venue is also controverted by the appellant. He mistakenly believes venue was not proved in Henry County the county to which his cause was transferred pursuant to his request for change of venue. In Watts v. State (1950), 229 Ind. 80, 95 N.E.2d 570 this Court addressed itself to the issue now in controversy:

'In this state, a change of venue from the county can only be taken by the defendant. The proof therefore that the change of venue . . . was taken under our statutes is in and of itself sufficient to show that appellant took the change of venue.' (Our emphasis.) 229 Ind. at 89, 95 N.E.2d at 574.

Upon the appellant's motion, the trial court ordered the change pursuant to the striking provisions of CR. 12 and, therefore, the statutory requirements for a change of venue were clearly satisfied. We believe venue was conclusively established in Henry County and that any contrary arguments are frivolous and without foundation.

II

The appellant specifies the following as error with respect to his confession:

(1) he was never properly and fully advised of his constitutional rights prior to the time the statements were made;

(2) he did not voluntarily and knowingly waive his constitutional rights and his confession was not voluntary.

(3) he was incapable of voluntarily and knowingly waiving his constitutional rights because he was under the influence of drugs. Appellant relies on the following prescription in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which he believes has, in part, been disregarded by the Indianapolis Police Department:

'We hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' (Our emphasis.) 384 U.S. at 478, 86 S.Ct. at 1630.

The issue, therefore, is whether the warnings given to the appellant conform to the requirements of Miranda and more specifically, was he apprised of his right to an attorney prior to any questioning.

In order to determine the adequacy and timeliness of the warnings, we must examine the testimony offered at the hearing on the appellant's motion to suppress. A homicide captain, present at the time of the arrest (about 12:45 P.M.), testified that at that time the suspect was advised as follows:

'He was advised that he had a right to remain silent . . . that anything that he did say could be used against him later in court...