Emmons v. State, 884S319

CourtSupreme Court of Indiana
Citation492 N.E.2d 303
Docket NumberNo. 884S319,884S319
PartiesRichard S. EMMONS, Appellant, v. STATE of Indiana, Appellee.
Decision Date16 May 1986

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Kenneth P. Williams, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Richard S. Emmons appeals from his jury conviction for two class B felonies, attempted robbery, Ind. Code Sec. 35-42-5-1 (Burns 1985) and Ind. Code Sec. 35-41-5-1 (Burns 1985), and criminal confinement, Ind. Code Sec. 35-42-3-3 (Burns 1985). The trial court imposed concurrent terms of imprisonment of fifteen years.

Appellant has raised several issues in this direct appeal, but we find one of those issues to be dispositive and therefore address it alone: defendant argues the trial court abused its discretion by refusing to record voir dire proceedings.

Emmons was originally scheduled to be tried in early 1983, but he requested a continuance on two occasions and the trial court granted both motions. These motions had caused groups of potential jurors to be called and released. A new venire was called for Emmons' trial on January 3, 1984, then released and ordered to reappear the following day. This venire was released again on January 4th because Emmons had been hospitalized that morning and the trial postponed.

On January 3rd, defense counsel had filed a written request that all courtroom proceedings, including voir dire, be recorded. The trial court summarily denied this request. On January 14th, local newspapers reported that prior continuances were accorded Emmons and that on January 4th he had been rushed to the hospital emergency room for treatment of a drug overdose. On January 19th, defense counsel renewed his motion to have all courtroom proceedings recorded, petitioned for the appointment of a special venire to serve as prospective jurors, and requested individual voir dire. The court denied defendant's requests.

The motion for special venire was based upon the inconvenience associated with the jury venire's appearance and release on both January 3rd and 4th. He claimed that a special jury call was necessary because the existing venire could not be presumed to be unbiased in view of their knowledge that the defendant had also been granted prior continuances which had caused fruitless trips to the courthouse in 1983. Defendant requested permission to conduct voir dire of each juror outside the presence of the others because of the potential prejudice which he attributed to the newspaper accounts and the inferences therefrom. Emmons wanted individual voir dire of the prospective jurors to ferret out bias.

On January 24th the trial commenced and the jury venire was sworn. When voir dire examination commenced, defendant orally requested to have voir dire recorded; again the request was denied. After voir dire was completed, some jurors were excused for cause and the defendant exercised ten peremptory challenges; the jury was accepted. 1 Ultimately, the jury found the defendant guilty.

Preparing for appeal, defense counsel filed a written statement of evidence pursuant to Ind. Rules of Appellate Procedure, Rule 7.2(C). His statement was:

That during the selection of the jury at the trial of said Richard S. Emmans [sic], the Court inquired of the jury venire as a whole as to whether any of the jurors had read or heard news accounts of the trial. Thereafter no fewer than eleven (11) prospective jurors raised their hand.

Defendant requested that voir dire be recorded because pretrial publicity had become a concern and he wished to preserve the issue of juror bias for appeal. Emmons argues that the trial court's denial of the several requests he made constituted an abuse of discretion and denied him access to appellate review. We agree.

It is axiomatic that the trial court has broad discretionary power to regulate the form and substance of voir dire. Marbley v. State (1984), Ind., 461 N.E.2d 1102. Moreover, trial judges are authorized to

arrange and provide for the taking down and recording by mechanical devices, any and all oral evidence and testimony given in all causes and hearings, including both questions and answers ... and the recording of any other oral matter occurring during the hearing in any proceedings ... for the purpose of facilitating and expediting the trial of causes and the appeals therefrom. (Emphasis added.)

Ind. Rules of Criminal Procedure, Rule 5; Ind. Rules of Trial Procedure, Rule 74. This Court has enunciated a standard for reviewing the exercise of the judicial discretion which has been granted to the trial courts:

The term "sound judicial discretion" always brings into question on appeal whether discretion was "wisely or unwisely" exercised, or "unreasonably exercised", or constituted "prejudicial abuse" of discretion; or, as stated by the Supreme Court of the United States, whether its exercise was "clearly erroneous". It would appear that the descriptions, as above recited, when used by the various courts, very aptly and accurately express the exact judicial meaning of the term "abuse of discretion." Generally speaking there are two conditions which must be shown to exist to justify a court of appellate jurisdiction in setting aside a ruling made by a trial court in the exercise of judicial discretion:

1) that the action complained of must have been unreasonable in the light of all attendant circumstances or it must have been clearly...

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16 cases
  • Bardonner v. State
    • United States
    • Indiana Appellate Court
    • 12 Marzo 1992
    ...to ascertain whether prospective jurors can render a fair and impartial verdict in accordance with the law and evidence. Emmons v. State (1986), Ind., 492 N.E.2d 303. It plays a critical role in assuring criminal defendants that their Sixth Amendment right to an impartial jury will be honor......
  • Bradley v. State
    • United States
    • Indiana Supreme Court
    • 30 Marzo 1995
    ...determine "whether prospective jurors can render a fair and impartial verdict in accordance with the law and evidence." Emmons v. State (1986), Ind., 492 N.E.2d 303, 305. Within the jury selection process, the challenge procedure has the purpose of ensuring a fair trial by an impartial jury......
  • Oswalt v. State
    • United States
    • Indiana Supreme Court
    • 22 Octubre 2014
    ...cannot perform these tasks is the mechanism parties 19 N.E.3d 246 and trial courts use to achieve an impartial jury. Emmons v. State, 492 N.E.2d 303, 305 (Ind.1986). Peremptory challenges are “an important auxiliary tool” for that purpose. Whiting, 969 N.E.2d at 29. They give parties the ne......
  • State v. Koch
    • United States
    • Wisconsin Court of Appeals
    • 26 Agosto 1987
    ...whether prospective jurors can render a fair and impartial verdict in accordance with the law and the evidence, Emmons v. State, 492 N.E.2d 303, 305 (Ind. 1986). If even one member of a jury harbors a material prejudice, the right to trial by an impartial jury is impaired. After Hour Weldin......
  • Request a trial to view additional results

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