Capps v. State

• Citation: 268 Ind. 614,377 N.E.2d 1338
• Decision Date: 06 July 1978
• Docket Number: No. 777S474,777S474
• Parties: Dennis Ray CAPPS, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 1338

377 N.E.2d 1338

268 Ind. 614

Dennis Ray CAPPS, Appellant, v. STATE of Indiana, Appellee.

No. 777S474.

Supreme Court of Indiana.

July 6, 1978.

Leroy K. New, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Jack R. O'Neill, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Dennis Capps was charged with first degree murder, Ind.Code § 35-13-4-1 (Burns 1975) repealed October 1, 1977. Prior to trial he filed an application for change of venue from the county, which was denied. Following trial by jury, he was convicted of second degree murder, Ind.Code § 35-1-54-1 (Burns 1975) repealed October 1, 1977, and was sentenced to life imprisonment.

On appeal Capps contends that as a criminal defendant not charged with a crime punishable by death, he was denied equal protection and due process of law in that his request for a change of venue from the county was subject to a hearing and discretionary ruling by the trial court by Ind.R.Crim.P. 12, while Ind.R.Tr.P. 76 grants an automatic change from the county to defendants in civil cases, simply upon the filing of an application therefore.

Appellant concedes that he is not as a defendant in a criminal matter a member of a judicially recognized "suspect" class, but contends that we should nevertheless apply the test of strict scrutiny because the added burden cast on criminal defendants by Criminal Rule 12 infringes a fundamental right, i. e., the right to a trial by an impartial jury. We are, of course, bound to accept the general grant of jury trial for serious offenses in the Sixth Amendment as a fundamental right. Duncan v. Louisiana, (1968) 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. This Court in Sidle v. Majors, (1976) 264 Ind. 206, 341 N.E.2d 763, defined fundamental rights for equal protection purposes as "those which have their origin in the express terms of the constitution or which are necessarily to be implied from those terms." The right to a change of venue is not equivalent to the general grant of jury trial and is not found expressly in or necessarily implied from the terms of our constitutions. The right to a change of venue is adjunct to the main right to trial by jury and, like voir dire examination of prospective jurors and the peremptory challenge, is one of several avenues open to the accused to vindicate his interest in being fairly tried. However, while the role is important it does not require the use of the more rigorous equal protection test. Martin v. State, (1974) 262 Ind. 232, 317 N.E.2d 430, (rehearing). See Groppi v. Wisconsin, (1971) 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571. Moreover, the accused who seeks a change of venue from the county does so because he perceives that he will benefit thereby. The rule of court subjects such perceptions to close judicial examination and an ultimate determination by the trial judge, subject to appeal, but there is nothing in such requirements which subjects the right to a trial before an impartial jury to a risk of loss or diminution. We are, therefore, satisfied that we are not dealing here with an infringement of a basic, fundamental right and that the traditional standard for evaluating appellant's claim is appropriate.

Under the traditional equal protection test, the rule of court is clothed with a presumption of constitutionality and the disparate treatment of two classes will pass muster if there is a differential trait of the classes which is reasonably related to the purposes of the rule. Martin v. State, supra. The change of venue from the county is available to the parties in a civil case and to the defendant in a criminal case. The procedure for moving the trial to a different county is...