Chatman v. State, 1273S250

Citation334 N.E.2d 673, 263 Ind. 531
Case DateSeptember 23, 1975
CourtSupreme Court of Indiana

Anthony V. Luber, South Bend, Kenneth M. McDermott, Plymouth, for appellant-defendant.

Theodore L. Sendak, Atty. Gen., Henry O. Sitler, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

PRENTICE, Justice.

Defendant (Appellant) was charged by indictment with murder in the first degree in connection with the death of the decedent who was shot to death in St. Joseph County. He was convicted of murder in the second degree in a trial by jury held in Marshall County and sentenced to life imprisonment. His appeal presents sixteen issues which will be here related in the order of their appearance in his brief.


Defendant was charged in St. Joseph County where the crime was committed. He appeared four times before the court without counsel, and at his request three continuances for arraignment for more time in which to employ counsel were granted. Ultimately, after the lapse of seventy days, the court appointed counsel. On the following day, which was the occasion of the fourth appearance and the day scheduled for arraignment, the defendant again stated that he was without counsel, whereupon the court advised him of the appointment on the preceding day and that such counsel would serve until such time as private counsel was employed. The cause was again continued for arraignment, this time for seven days to November 6, 1972. The defendant appeared in person and by counsel on November 6 and filed a motion for a change of venue from the county for cause verified by the defendant. The motion was granted, and the case was venued to Marshall County.

The record was received in Marshall County on November 29 and docketed on December 1, at which time the matter was set for arraignment on December 8. On December 8, the defendant appeared in person and by his appointed counsel, who was reappointed by the Marshall Circuit Court, was arraigned and entered a plea of not guilty. During the arraignment hearing, the defendant advised the court that he wanted to be returned to and tried in St. Joseph County because he had family and friends there, did not believe that he could get a fair trial in Marshall County and wanted some black people on the jury. The court explained that they were not present at that time to select a jury or to entertain a change of venue motion, that the defendant would have an opportunity later to challenge jurors he did not want and that he could file a motion for a change of venue later, if he desired. At Defendant's request, joined in by the State, the defendant was then returned to St. Joseph County Jail for convenience of visitation.

It is the defendant's contention that although he requested the change of venue from St. Joseph County, the had a right under the Sixth and Fourteenth Amendments to the Constitution of the United States and under Article 1, Section 13 of the Constitution of Indiana to be tried there, that the motion for a change was a waiver that could only be given intelligently and voluntarily and that such waiver could not be presumed from a silent record.

There are a number of reasons why the defendant is entitled to no relief under this assignment, the most obvious one being that we are not concerned with a mere waiver implied from the circumstances but rather with a specific written request filed by the defendant and in the record. The court cannot be required to determine and record the mental processes, motives and awareness of a defendant upon every motion and every ruling throughout a criminal proceeding.

The law does require that a guilty plea be vacated unless it can be demonstrated from the record that it was voluntarily, knowingly and intelligently entered; and a waiver of the important constitutional rights implicit in a guilty plea may not be presumed from a silent record. As has been said, a plea of guilty is itself a conviction and not a mere confession. Nothing remains but to give judgment and determine punishment. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. It is altogether reasonable, therefore, that the court go to great lengths to protect accused persons from the consequences of guilty pleas and erect strong barriers against the possibility of such pleas being induced by fraud, fear, force or ignorance. But we are not here concerned with a judgment resting upon a waiver or a motion, but rather with a selection of the forum. If we are to regard the motion for a change of venue as a waiver--which in a sense it is--it, nevertheless, relates only to the selection of the forum, not to the judgment, and a defendant granted a change of forum continues to be surrounded with all relevant constitutional safeguards.


Under these assignments, the defendant challenges the constitutionality of the alibi statute (Burns Ind.Stat.Ann. § 9--1631, IC 35--5--1--1); and he asserts that it was error for the court to require him to disclose the identity of his alibi witnesses and to preclude his tendered witness, James Martin, from testifying because he had not been named on the list of alibi witnesses. In support of these contentions, he cites Wardius v. Oregon (1973), 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82, wherein the Supreme Court of the United States held the alibi statute of Oregon unconstitutional by reason of its failure to provide for reciprocal discovery by the defendant of the state's alibi rebuttal witnesses. We believe, however, that the defendant has no standing with respect to either of these exceptions.

In Wardius v. Oregon (supra), the appellant had tendered alibi witnesses without having first complied with the statutory requirement of notice and identification. The trial court refused to permit his alibi witnesses to testify. The defendant in the case at bar, gave alibi notice and identified six alibi witnesses, three of whom testified and placed him in the City of Detroit, Michigan at or near the time the crime was committed. The State did not rebut the testimony of any of these witnesses; consequently, the defendant could not have been harmed by the absence of a statutory provision providing for reciprocal notice as to alibi rebuttal witnesses. The possibility of the State's having surprised the defendant with alibi rebuttal witnesses is, in this case, of academic interest only.

Following examination and cross examination of the aforementioned three alibi witnesses, the defendant called James Martin to the stand and preliminarily identified him as the husband of alibi witness, Margaret Martin, whereupon the State objected to his testifying by reason of his not having been previously identified as an alibi witness. The court sustained the objection, and the witness was not interrogated further. We cannot determine if the defendant might have been prejudiced by the exclusion of Mr. Martin's testimony, as we do not know what his testimony, if allowed, would have been. Error, if any, in the exclusion fo testimony must be brought into the record by an offer to prove, and the defendant made no such offer. Marposon v. State (1972), 259 Ind. 426, 287 N.E.2d 857; Burnett v. State (1975), Ind.App., 322 N.E.2d 125.


The defendant filed a motion to suppress with respect to the gun, bullets and a bullet clip (State's Exhibits 1, 2 and 3) that had been confiscated when he was arrested in Detroit as previously related. Basis for the motion was that the search by the Detroit police was unconstitutional. The arresting officer testified that he and his anti-crime-in-the-street 'task force' stopped the defendant and his companions because of out-of-state license plates, erratic driving and the thought that they might be lost and that, in the process, he saw the defendant remove a gun from underneath his coat and lean forward with it. The exhibits were taken from underneath the front seat, and the defendant was arrested for carrying a concealed weapon.

At the hearing upon the motion to suppress, the defendant and those with him at the time of the aforementioned arrest refuted the officer's testimony. They denied that the defendant was driving erractically, that he took the gun from his pocket and placed it under the seat and that the officer could have observed it even if he had.

The defendant's sole argument upon this issue related to the credibility of the witnesses and the weight of the evidence at the hearing upon the motion to suppress. The evidence was conflicting. We cannot say that the trial judge erred in overruling the motion. He was the trier of the fact upon that issue and as such was the judge weight and credibility. Hubble v. State (1973), 260 Ind. 655, 299 N.E.2d 612; Bledsoe v. State (1975), Ind., 329 N.E.2d 592.


The trial court sustained a motion in limine precluding the defendant from offering evidence of his acquittal in a Michigan trial upon a charge of carrying a concealed weapon. It appears that the weapon he was charged with concealing was the one with which the decedent was killed. The defendant speculates that the disclosure of his acquittal would have discredited the testimony of the police officer who arrested him in Michigan and testified at the murder trial that the defendant was in possession of the weapon at the time of the arrest in Michigan--which was the day following the murder.

We do not agree that the defendant's acquittal on the concealed weapon charge was relevant to the murder charge. An acquittal upon a criminal charge is not an indication that the trier of fact found...

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