Carter v. State

• Decision Date: 01 August 1983
• Docket Number: No. 1281S374,1281S374
• Citation: 451 N.E.2d 639
• Parties: Earl G. CARTER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 639

451 N.E.2d 639

Earl G. CARTER, Appellant, v. STATE of Indiana, Appellee.

No. 1281S374.

Supreme Court of Indiana.

Aug. 1, 1983.

Sharon Carroll Clark, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Earl G. Carter was found guilty by a jury in the Hamilton Superior Court of confinement, a class B felony, rape, a class A felony, and criminal deviate conduct, a class A felony. He subsequently was sentenced by the trial judge to prison terms of fifteen years for confinement, forty years for rape and forty years for criminal deviate conduct. Appellant now directly appeals and raises the following eight issues for our consideration:

1. whether the trial court erred by denying Appellant's motions for change of venue and change of judge;

2. whether the trial court erred by denying Appellant's motion to be let to bail prior to trial;

3. whether the trial court erred by denying Appellant's motion for continuance during trial;

4. whether the trial court erred by admitting into evidence proof that Appellant previously was convicted of theft;

5. whether the trial court erred by permitting an allegedly improper cross-examination of Appellant during trial;

6. whether the trial court erred in applying the rape-shield statute to certain evidence;

7. whether Appellant's convictions were supported by sufficient evidence; and

8. whether the trial court committed certain errors in sentencing Appellant.

The facts of this case are that Appellant and Clayton Nunn, Jr., offered the victim, S.N., a ride to find her husband. After S.N. got into their automobile, Appellant and Nunn took her to a secluded place where they raped her and forced her to perform oral sex on them. Appellant and Nunn threatened S.N. with a knife and a broken beer bottle. They then took her to a motel where they took pictures of her having intercourse and acts of deviate sexual conduct with them. Appellant and Nunn finally left S.N. several miles from her home.

I

Appellant claims that the trial judge committed reversible error by denying his several motions for change of venue from the county and from the judge. He first filed a motion for change of venue from the county on April 29, 1980. After a hearing, this motion was denied. A second motion for change of venue from the county was filed on June 18, 1980. This motion also was considered and subsequently was denied. On September 23, 1980, Appellant moved for a change of venue from the judge. After another hearing, said motion was denied. After the jury was selected, Appellant renewed his motions for change of venue from the judge and from the county but both were summarily denied.

The applicable statutes and rule, Ind.Code Sec. 35-1-25-1 (Burns 1979), Sec. 35-1-25-4 (Burns 1979) and Ind.R.Crim.P. 12, entitled Appellant to a change of venue from the county and/or judge only upon a showing of prejudice. The granting or overruling of both motions was discretionary with the trial judge. The instant issue, therefore, is whether or not the trial judge abused his discretion in this particular case. Appellant admits that he has the burden to prove such abuse.

Appellant's first motion for change of venue from the county was based upon the extensive news coverage of this crime and upon the small number of blacks residing in Hamilton County. The second motion for change of venue from the county again was directed to the media coverage but additionally alleged that Appellant was prejudiced by the recent trial in Hamilton County of his co-defendant. Appellant's argument only generally refers to the allegedly prejudicial news coverage and to the fact that Hamilton County has few black people residing in it. Nowhere does Appellant demonstrate that impressions or opinions were formed by specific jurors on the basis of these alleged prejudices. There is no showing that any jurors were aware of the particulars of this case prior to being sworn. There is no showing that any jurors were aware of the opinions expressed in the press or had formed opinions which would prevent them from rendering an impartial verdict. Appellant does not show that he exhausted his peremptory challenges during voir dire of the jury panel. Accordingly, no basis is presented to us to find that the trial court erred by denying Appellant's motions for change of venue from the county. Underhill v. State, (1981) Ind., 428 N.E.2d 759; Sage v. State, (1981) Ind., 419 N.E.2d 1286; Grooms v. State, (1978) 269 Ind. 212, 379 N.E.2d 458, cert. denied (1979) 439 U.S. 1131, 99 S.Ct. 1053, 59 L.Ed.2d 93. Moreover, Appellant's second motion for change of venue from the county was not verified and therefore did not properly present the issue to the trial court and to this Court. That alleged issue is waived. Underhill v. State, supra; Barber v. State, (1979) 270 Ind. 624, 388 N.E.2d 511; Franks v. State, (1973) 261 Ind. 315, 302 N.E.2d 767.

The basis for Appellant's motion for change of venue from the judge was the fact that the same trial judge trying Appellant's case had tried the cause involving co-defendant Clayton Nunn, Jr. Appellant claims that since this trial judge tried co-defendant Nunn and gave Nunn lengthy sentences, this trial judge impliedly was prejudiced against him and could not give him a fair and impartial trial. A judge is not disqualified to try a case merely because he previously heard the case of a co-participant in a separate proceeding. Jones v. State, (1981) Ind.App., 416 N.E.2d 880. Appellant raises no issue regarding the denial of his motion for change of judge from which this Court can find that the trial judge abused his discretion.

II

Appellant next argues that the trial court erred by denying him his constitutional right to a reasonable bail pending trial. This issue is now moot and therefore will not be considered as grounds for reversal in this appeal. State v. Vore, (1978) 268 Ind. 340, 375 N.E.2d 205 (discussion on mootness); Holguin v. State, (1971) 256 Ind. 371, 269 N.E.2d 159.

III

After the jury was given the trial court's preliminary instructions, Appellant moved for a continuance due to the pregnancy of the prosecuting witness. During the presentation of Appellant's evidence, trial counsel again moved for a continuance in order to produce additional witnesses in Appellant's behalf. Neither of these motions were verified and the second continuance motion did not comply with Ind.Code Sec. 35-1-26-1 (Burns 1979) [repealed effective September 1, 1982]. Since Appellant's motions were not based upon any statutory grounds, the rulings on said motions were within the trial court's sound discretion and will be upheld on appeal in the absence of a clear showing of an abuse of discretion. Brewer v. State, (1981) Ind., 417 N.E.2d 889, cert. denied (1982) --- U.S. ----, 102 S.Ct. 3510, 73 L.Ed.2d 1384; Drollinger v. State, (1980) Ind., 408 N.E.2d 1228; Gerber v. State, (1972) 258 Ind. 171, 279 N.E.2d 542, reh. denied. There is no claim or inference that the prosecuting witness' pregnance was a result of the rape for which Appellant was tried. After all, the trial was held more than nine months after the date of the alleged offense and the witness was five months pregnant on the date of her testimony. Appellant's only argument is that the jury might have had special feelings of consideration and sympathy for the witness in her pregnant state. There is no showing that this alleged attitude of the jury was based on any fact learned from any examination of the jury and is therefore speculative. The trial judge observed the situation, including the voir dire of the jury and the appearance of the witnesses, and denied the motion. We have no grounds before us to find that the trial judge abused his discretion in denying Appellant's motions.

During Appellant's case-in-chief, Appellant's trial counsel orally stated to the trial court that there were certain witnesses whom Appellant requested to call but that he had not been able to locate them nor determine what their testimony would be. Appellant's counsel also said that it appeared that the value of their testimony would be marginal at best, but nonetheless requested a continuance to attempt to find them and to positively ascertain the value of their testimony. The trial court summarily denied this motion and Appellant rested. Appellant now does not identify these witnesses nor indicate what their testimony might be. He therefore does not show how he was prejudiced nor how the outcome of his trial might have been different with their appearance and testimony. Appellant merely makes a general statement that there were other witnesses whom he wanted to call and the trial court refused his request. Under these facts and circumstances, we cannot say that the trial court abused its discretion by denying Appellant's motion. There is no error on this issue.

IV

Appellant claims that the trial court erred by allowing him to be cross-examined about a prior theft conviction because he claims the theft conviction was a misdemeanor and not a felony. The theft conviction occurred in 1978; the code section then applicable, Ind.Code Sec. 35-43-4-2 (Burns 1979), stipulated theft to be a class D felony. Even though what might generally be considered a misdemeanor penalty may have been assessed, Appellant's 1978 theft conviction was a felony conviction. This court previously has held that prior convictions for theft are admissible for impeachment purposes. Fletcher v. State, (1976) 264 Ind. 132, 340 N.E.2d 771. Accordingly, the trial court properly admitted cross-examination on Appellant's prior theft conviction.

Appellant now also argues that he should not have been cross-examined about one of his prior burglary convictions since that conviction has been vacated. The State shows, however, that Appellant was incorrect on this fact. The record shows that Appellant was...