Clemens v. State

• Decision Date: 11 March 1993
• Docket Number: No. 34S00-9103-CR-248,34S00-9103-CR-248
• Citation: 610 N.E.2d 236
• Parties: James L. CLEMENS, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 236

610 N.E.2d 236

James L. CLEMENS, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 34S00-9103-CR-248.

Supreme Court of Indiana.

March 11, 1993.

Rehearing Denied May 11, 1993.

Susan K. Carpenter, Public Defender, Eugene C. Hollander, Indianapolis, Special Asst. to the Office of the State Public Defender, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Murder and Neglect of a Dependent Resulting in Serious Bodily Injury, a Class B felony. He received concurrent sentences of sixty (60) years and ten (10) years, respectively.

The facts are: In November of 1989, appellant and his wife lived in Kokomo with their three children, including Jerrel and Jordan, their three-year-old twins. Appellant, laid off from his job at a packing plant in Logansport, served as primary caretaker for the children while their mother worked second shift at Chrysler. Appellant had surreptitiously moved back in with his wife and children in October 1989 after having been court-ordered in a CHINS case the previous November to reside elsewhere. Since then numerous "accidents" had befallen Jerrel, including falling off his bunk bed and down the basement stairs, which had resulted in serious bruising for which his parents had failed to seek medical treatment. On November 2, Mrs. Clemens planned to take the children to the doctor for treatment of a fungal infection as well as a spot on Jerrel's leg. Appellant told her not to show Jerrel's leg to the doctor for fear he would notify child welfare authorities. Evidence showed that appellant would become enraged and resort to corporal punishment whenever one of the twins would have a potty-training accident.

When Mrs. Clemens went to wake the children that morning, she found to her surprise that appellant had already left the house taking Jerrel with him. She took the other children to the doctor at the appointed time, and when they returned home about 1:30 p.m. she found a suicide note, appellant lying on the kitchen floor, and rat poison all around. Appellant's family then arrived, explaining he had called them about a car accident involving Jerrel. After authorities were notified, appellant was treated at the scene and at the hospital. He was released when his only injuries were found to be a small bump on his forehead and a small abrasion on his chest. Jerrel, however, was found to be dead, covered up in the back seat of appellant's car.

Appellant explained he had taken Jerrel along with him on a job interview and while driving, he slammed on his brakes to avoid hitting another car which caused Jerrel, who was standing on the front seat, to be thrown into the windshield. Appellant claimed that because Jerrel was having trouble breathing, he administered CPR and drove back to Kokomo to find a hospital. When Jerrel died on the way, appellant drove on home because he feared no one would believe his story. He then telephoned his parents in Muncie and left a suicide note for his wife, although he could not bring himself to commit suicide.

Investigation revealed no blood on the car or on Jerrel's body. He did have bruises about his neck and upper body and small cuts on his forehead, chest and hand. Some of the bruises had not been observed previously by his mother. An autopsy revealed numerous bruises and injuries of various ages, including a lacerated pancreas and torn mesentery (abdominal connective tissue). The cause of death was determined to be battered child syndrome evidenced by extensive blunt force abdominal trauma with resultant internal bleeding. These injuries to Jerrel were found to be remarkably similar to ones suffered the previous year by his twin brother, Jordan.

On November 6, 1989, both appellant and his wife were charged by information with neglect of a dependent resulting in serious bodily injury. On November 13, the autopsy report was released to the police and the following day, appellant was charged in a second count with murder.

Appellant contends the trial court erred in denying his motions for change of venue from Howard County, for a test jury to demonstrate the need for a change of venue, and for sequestration of the jury. In support, he details the extensive pretrial publicity, including numerous newspaper articles and radio news reports disseminated from the day after Jerrel's death up to the day before trial a year later. The news coverage reported events as they unfolded and became known to the authorities. They reported in specific detail information including appellant's interview with police and the coroner's conclusion that appellant's accident scenario "is to be considered absolutely absurd."

In a pretrial hearing, appellant presented evidence of the extensive pretrial publicity and requested a test jury to demonstrate the existence of community bias and prejudice. At the State's request, the trial court deferred his ruling until voir dire had been completed. The judge then concluded that appellant's trial had not generated any more publicity than had previous cases in the county, and that past test juries had not been helpful. He denied appellant's motions. Appellant then moved to sequester the jury, which also was denied. He maintains he was denied a fair trial due to community outrage as evidenced by the widespread media coverage, the fact that trial counsel had personally lost friends merely by representing appellant, and the fact the trial court on its own excused fifteen prospective jurors from the panel of sixty at the outset of voir dire.

As appellant acknowledges, citing Gillie v. State (1984), Ind., 465 N.E.2d 1380 and other cases, in order to obtain a change of venue he bears the burden of showing that community prejudice exists which would prevent his obtaining a fair trial in that community, and to prevail on appeal from the denial of his motion he must demonstrate an abuse of the trial court's discretion. As the State points out, citing Evans v. State (1990), Ind., 563 N.E.2d 1251, to establish such an abuse of discretion, appellant must demonstrate both prejudicial pretrial publicity and juror inability to render an impartial verdict on the evidence.

To support a change of venue, appellant must show the publicity contained either inflammatory material not admissible at trial or misstatements or distortions of the evidence. Id. This appellant has not done; the pretrial publicity in the instant case consisted only of factual information later presented during trial; while undoubtedly prejudicial, it was not "prejudicial" in a change-of-venue context as it was merely cumulative of evidence admissible at trial. Nor has appellant satisfied the second prong by showing the seated jurors were unable to set aside any preconceived notions of guilt and decide the case on the evidence. Appellant cites no portion of the voir dire revealing unresolved partiality on the part of any jurors who heard his trial. Appellant has failed to demonstrate an abuse of the trial court's discretion in denying his motion for change of venue.

As for appellant's motion for a test jury, in Boyd v. State (1986), Ind., 494 N.E.2d 284, 294, cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987), this Court stated: "Defendant cites us to no authority for a test jury, and we know of none. Such a body is unknown to our legal process. Defendant does not tell us how it is to be drawn, constituted or to deliberate. We find no error in the court's denial of this procedure." Later, in Burdine v. State (1987), Ind., 515 N.E.2d 1085, 1092, this Court concluded "that while a trial court is not obligated to grant a request for a test jury, the court is not prohibited from granting it either. Such a request lies within the sound discretion of the trial court." Appellant has not demonstrated how he was harmed by the failure to conduct a test jury to quantify community bias. He has shown no prejudice on the part of the seated jurors. We thus find no abuse of discretion in the trial court's denial of his motion for a test jury.

As for appellant's motion to sequester the jury, he recognizes that in all cases not charged as a capital offense, sequestration is a matter of trial court discretion, citing Harris v. State (1985), Ind., 480 N.E.2d 932, and that he now shoulders the burden of establishing whether any jurors were actually exposed to prejudicial publicity, citing Sanders v. State (1981), Ind., 428 N.E.2d 23. Appellant argues the aforementioned pretrial publicity satisfies his burden, particularly the lengthy newspaper article recounting the sequence of events published the day before trial began.

For purposes of jury sequestration motions, however, the publicity at issue is not pretrial coverage but rather that generated and reported during the trial itself; to demonstrate prejudicial exposure, appellant must show that someone on the jury was exposed to media coverage during the trial and that sequestration would have avoided particular juror prejudice. See Rankin v. State (1990), Ind., 563 N.E.2d 533. Having failed to establish any such exposure, appellant has not demonstrated any abuse of discretion in denying his motion to sequester the jury.

The trial court did not err in denying appellant's motions for change of venue, sequestration and a test jury.

Appellant contends the trial court erred in refusing to give his tendered instruction on the defense of accident. His Proposed Final Instruction No. 8 would have informed the jury that prohibited conduct may be excused when it is the result of an accident and defined the three elements of the affirmative defense of accident. On review of the trial court's refusal of a tendered instruction, we apply a tripartite test: 1) whether the instruction correctly states the law; 2) whether there is evidence in the record to support giving it; and 3) whether its substance was covered...