Dickens v. State

• Decision Date: 03 May 1973
• Docket Number: No. 1270S295,1270S295
• Citation: 260 Ind. 284,295 N.E.2d 613,36 Ind.Dec. 275
• Parties: Jane Frances DICKENS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 613

295 N.E.2d 613

260 Ind. 284

Jane Frances DICKENS, Appellant, v. STATE of Indiana, Appellee.

No. 1270S295.

Supreme Court of Indiana.

May 3, 1973.

Vance M. Waggoner, Rushville, for appellant.

Thoeodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Jane Frances Dickens, appellant (defendant below) from a conviction in the Morgan Superior Court for murder in the second degree. The appellant was charged with second degree murder by the Morgan County Grand Jury on January 19, 1970. Appellant filed a motion for change of venue from the judge on March 3, 1970, and upon granting of the motion, the Honorable Sidney H. Showalter, Judge of the Bartholomew Superior Court, was selected as Special Judge. Thereafter, appellant filed a motion for change of venue from the county, which was denied. She was tried by a jury which returned a verdict of guilty on June 12, 1970. On June 18, 1970, appellant was sentenced to the Indiana Women's Prison for not less than fifteen (15) nor more than twenty-five (25) years. A motion to correct errors was filed and overruled, resulting in this appeal.

Appellant presents three major specifications of error:

(1) The trial court's lack of jurisdiction over the defendant-appellant;

(2) Defendant-appellant's denial of a fair trial; and

(3) Insufficiency of the evidence to sustain a conviction for murder in the second degree.

Appellant contends that the trial court had no jurisdiction over her for the following reasons: (1) her arrest was illegal; (2) the Grand Jury was improperly constituted; and (3) the court incorrectly entered a plea of not guilty. We find no merit in any of these arguments.

This Court has consistently held that the legality of an arrest only has relevancy on appeal when the admissibility of evidence obtained pursuant to an illegal arrest is an issue in the case. Farmer v. State (1971), Ind., 275 N.E.2d 783; Wells v. State (1971), Ind., 267 N.E.2d 371. No such issue is before this Court.

Furthermore, we have held that an illegal arrest in and of itself neither affects the validity of a conviction for a crime nor dispossesses the trial court of jurisdiction. Dickens v. State (1970), 254 Ind. 388, 260 N.E.2d 578.

Appellant challenged the composition of the Morgan County Grand Jury arguing that medical doctors, dentists and lawyers have been systematically excluded. Upon a hearing the trial court overruled the appellant's plea in abatement. The only ground for sustaining the plea in abatement presented by the appellant was the bare allegation found therein. The appellant totally failed to adduce any evidence in support of her allegation. Therefore, the trial court was correct in overruling the appellant's plea in abatement.

Appellant's contention that the trial court erroneously entered a plea of not guilty on her behalf is specious. IC 1971, 35--1--24--2 (Ind.Ann.Stat. § 9--1202 (1956 Repl.)) establishes the procedure regarding pleas when the defendant fails to plead at the appropriate time.

'If a defendant stand mute or refuse to plead to an indictment of affidavit, a plea of not guilty must be entered by the court and the trial proceeds.'

In this case the trial court, immediately after announcing that appellant's plea in abatement was overruled, requested that appellant enter a plea. She declined to do so. The trial court accordingly entered a plea of not guilty. Therefore, the trial court acted in strict accordance with the terms of the above-mentioned statute by entering such a plea.

Appellant has clearly failed to demonstrate that the trial court lacked jurisdiction over her person.

Appellant alleges that the trial court erred in overruling her motion for change of venue from Morgan County. As a result, she contends, she was denied a fair trial due to the pervasive atmosphere of prejudice and excitement extant in the county.

In 1970 CR. 12 provided for one change of venue as a matter or right in all cases punishable by death. In all other cases the granting of changes of venue from the county are within the sound discretion of the trial court and must be predicated upon a showing of good cause. The rule further requires a hearing of relevant facts to evaluate the merits of such a motion and to determine whether good cause has been established.

This Court has consistently held that in order to establish good cause for a discretionary change of venue, an adequate showing of bias and prejudice must be made. Burton v. State (1973), Ind., 292 N.E.2d 790; Brown v. State (1969), 252 Ind. 161, 247 N.E.2d 76. That is to say, the defendant must produce evidence of community bias or prejudice sufficient to convince the trial judge that the defendant cannot obtain a fair trial in that county.

Specifically, the appellant alleges that she could not be tried by disinterested jurors because of eight newspaper articles appearing in the Martinsville Daily Reporter prior to trial, the sheriff's alleged enmity toward appellant's counsel and remarks made by the Judge of Morgan Superior Court concerning the instant case prior to trial, which unfortunately were broadcast by a local radio station.

The issue before this Court is whether the appellant has made a sufficient showing of community bias to justify the granting of a new trial.

We believe the aforementioned newspaper articles to be generally innocuous in character, and therefore clearly not prejudicial or inflammatory. The first article announcing appellant's arrest, appeared on January 9, 1970. The last article appeared on February 18, 1970. The trial commenced June 11, 1970--almost four months after the appearance of the last article. For the most part, the articles were nothing more than pure news accounts of the preliminary proceedings, e.g., 'Sheriff Witness before Jury,' 'Grand Jury Still in Session,' 'Plea in Murder Case Continued.' It should be noted that under these headlines--none of which were overly bold or banner-type--appeared news of other pending cases. The only headline which may have bordered on the sensational was one in fairly large print appearing at the upper right hand corner of the front page: 'Said Mrs. Dickens: 'I shot him' When Officer Entered Door.'

It is uncontroverted that the Judge of Morgan Superior Court commented on the instant case on a radio program. The judge stipulated to such fact. The appellant alleges--and in fact testified--that she heard the show in question. Her recollection of the judge's remarks are as follows:

'Well, he started off with now--the case I am sure you are all wanting to hear about--and then he went on to talk about--you know--Jane Dickens--and a--about asking--my attorneys asking for a Change of Venue and he said a few words after that and he laughed and said--we will see.'

While we strongly disfavor the judge's reprehensible behavior, we are unable to conclude that his comments constitute grounds for reversal. There simply is no evidence to support an allegation of widespread comunity bias brought on by the judge's remarks. Furthermore, it should be noted that the appellant moved for and was granted a change of judge. Subsequently, a special judge was duly appointed.

Appellant's contention that the sheriff disliked her counsel and as a result poisoned the minds of the community is totally unsupported by the evidence.

After examining the foregoing allegations of prejudice--both separately and cumulatively--we are constrained from concluding that the appellant established community bias, prejudice or predisposition sufficient to justify a reversal on due process grounds. The appellant has failed to adduce any evidence in support of her allegations. The trial court acted properly within its discretion by denying the appellant's motion for change of venue from the county. However, we do believe that publicly-made pre-trial judicial statements regarding a pending case should arouse great suspicion in the minds of trial judges and should be closely scrutinized before a change of venue from the county is denied.

Appellant argues that there was insufficient evidence to support a conviction for murder in the second degree. It must be remembered that this Court, when reviewing sufficiency of the evidence on appeal, will not weigh the evidence nor determine the credibility of the witnesses. Only that evidence most favorable to the State and the reasonable inferences to be drawn therefrom will be considered. As long as there is substantial evidence of probative value sufficient to establish every material element of the crime beyond a reasonable doubt, the verdict will not be disturbed. Jackson v. State (1971), Ind., 275 N.E.2d 538; Shelton v. State (1972), Ind., 290 N.E.2d 47; Burton v. State (1973), Ind., 292 N.E.2d 790.

The record reveals the following facts:

The appellant and deceased had been married for several years. Appellant had initially refused to marry deceased until he quit drinking. He did quit and they were subsequently married. However, about a year and a half later he resumed his drinking and from that time until his demise he would intermittently abstain and resume. At the time of his death and several weeks prior thereto, he had been drinking heavily and taking amphetamines (diet pills)...