Fox v. State

• Decision Date: 19 October 1999
• Docket Number: No. 54A01-9809-CR-324.,54A01-9809-CR-324.
• Citation: 717 N.E.2d 957
• Parties: Bruce FOX, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

717 N.E.2d 957

Bruce FOX, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 54A01-9809-CR-324.

Court of Appeals of Indiana.

October 19, 1999.

Rehearing Denied December 17, 1999.

Michael A. Dvorak, Dvorak Fellrath & Dvorak, South Bend, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

SHARPNACK, Chief Judge

Bruce Fox appeals his convictions for four counts of child molesting¹, three as class C felonies and one as a class B felony. Fox raises four issues which we restate as:

1) whether the trial court abused its discretion when it refused to dismiss a juror for cause and refused to allow Fox to exercise a peremptory strike after the juror had been selected;

2) whether Fox's counsel was ineffective for failing to make a record of voir dire and sidebar conferences and for failing to disclose that an attorney working for his firm was married to a deputy prosecutor working in the county where he was tried;

3) whether the trial court's jury instruction on reasonable doubt constituted fundamental error; and

4) whether the trial court abused its discretion by admitting a video taped interview into evidence.

We affirm.

The facts most favorable to the judgment follow. The State charged Fox with four counts of child molesting his two step daughters. After a jury trial, Fox was found guilty as charged. The trial court sentenced Fox to a total of eighteen years.

I.

The first issue is whether the trial court abused its discretion when it refused to dismiss a juror for cause and refused to allow Fox to exercise a peremptory strike after the juror had been selected. Fox requests our review of this issue despite the parties' stipulation not to record the voir dire proceedings.

To preserve an issue for appellate review a defendant must comply with Indiana Appellate Rule 7.2. Reed v. State, 702 N.E.2d 685, 689 (Ind.1998). That rule places the burden on the appellant to present to the appellate court a record that is complete with respect to the issues raised on appeal and to ensure that the appellate court has a transcript of the appropriate trial proceedings. Id. "A failure to provide a complete record may result in a waiver of the issue." Id. Indiana Appellate Rule 7.2(A)(3)(c) sets forth the procedure for preparing evidence for review of proceedings when no transcript was made.² Our supreme court has stated that "[f]ailure to comply with this rule precludes appellate review of any alleged errors attributed to nonrecordation." Emmons v. State, 492 N.E.2d 303, 305 (Ind.1986).

Here, the parties did not follow the procedure set forth in App. R. 7.2(A)(3)(c). See App. R. 7.2(A)(3)(c). However, the trial judge and defense counsel discussed this issue on the record as a preliminary matter before beginning the trial. Both the defense counsel and the trial judge recounted their recollection of the voir dire as it related to the selection of the juror in question. The discussion was as follows:

"MR. SANDY [defense counsel]: Unfortunately, we didn't choose to record voir dire. Mr. Mills, one of the jurors initially seated in the box was passed for cause and thereby tentatively placed on the jury. And the next time I was up with new jurors, I read the witness list of the State and asked if anyone was acquainted with any of the witnesses. Mr. Mills raised his hand even though he wasn't the one that we were interrogating and indicated he knew Lieutenant Richard Wilson. I inquired into it and they apparently have worked together for as I recall twenty or twenty-five years. He knows him very well. He would tend to—he indicated, I believe and I'll try to do this the best I can, I questioned him and asked if he would tend to believe Mr. Wilson more than some other police officer and he said he would have to. I said, Mr. Wilson is probably a major witness for the State and that we will be tempting to contradict his testimony and his actions. I didn't know he was in here. Oh. His actions have through cross-examination and other evidence and would he tend to be more likely to believe Mr. Wilson in spite of that and he might if he didn't know him and he said he was afraid he would. The court questioned him when I made a challenge for cause and as I can best summarize it and the Court may have a different version, he was asked if he would follow the law and he said, he would try to. He was asked initially if his knowledge and acquaintanceship with Mr. Wilson might tend to make him believe him more and he said, he was afraid it might. The Judge denied the challenge for cause. I then attempted to challenge him for entry and the Judge denied that. So we would object to the venire as far as Juror Mills is concerned.

COURT: Well, my recollection of the thing is a little different is that. But the reason I rejected the peremptory is because of the rule I gave everybody at the pre-trial conference and told everybody that's the rule we're going to follow. And once you accepted them unless there was cause—found to be cause peremptory challenge wasn't available and I stand on that. My feeling about this is in generally was that Mr. Mills was doing his level best to be honest with all of us. That while he worked with Mr. -what's his name, Wilson? Of course, I'm at a lose [sic] to understand that if he's the key witness why none of this was gone into when we started the voir dire on the jury. It would seem to me that was the most important thing to go into and I think I suggested to counsel before we came in here you guys know who the witnesses are, something to that affect. You're going to ask them who they are, because I don't know who they are. I just know who's on the witness list and that doesn't mean they are going to testify. But my recollection of what Mr. Mills said was that he worked with him, he's a light and welder guy or something for the city. He knew Wilson. He knew him better when he was a policeman rather than now when apparently he's a detective, is that right? He used to see him quite often when he was a uniform officer and he did in fact know him. That he didn't have a social or personal relationship with him, but he was well acquainted with him. And he told me he would do his very best to render a fair and impartial verdict in this case. I do not believe there was cause shown and that's the way I called it."

Record, pp. 298-301 (emphasis added). We conclude that the above portion of the record is sufficient for us to review the merits of Fox's claims.

To begin, we will address whether the trial court abused its discretion when it refused to dismiss Juror Mills for cause. The grant or denial of a challenge for cause to a prospective juror is within the trial court's discretion and we will only reverse the trial court when its decision is illogical or arbitrary. Bradley v. State, 649 N.E.2d 100, 106 (Ind.1995),reh'g denied. Within the jury selection process, the challenge procedure has the purpose of ensuring a fair trial by an impartial jury. Id. We defer substantially to trial judges on the decision to dismiss a juror because they see the jurors firsthand and are in a much better position to assess a juror's ability to serve without bias and decide the case according to law. Jervis v. State, 679 N.E.2d 875, 881-882 (Ind.1997).

Here, once empanelled, Juror Mills expressed that he knew one of the individuals on the witness list. As a result, Fox's counsel requested a challenge for cause. Fox's counsel and the trial court judge questioned Juror Mills. The judge stated that Juror Mills said that "he would do his very best to render a fair and impartial verdict in this case." Record, p. 301. The judge determined that Fox had not shown cause and that, as such, he did not dismiss Juror Mills. The trial judge here was in a much better position than we are to assess Juror Mills' ability to serve without bias and decide the case according to law. See Jervis, 679 N.E.2d at 881-882. We note that the purpose of voir dire is to determine whether prospective jurors can render a fair and impartial verdict in accordance with the law and evidence. See Bradley, 649 N.E.2d at 106. The trial judge's questioning revealed that Juror Mills could render a fair and impartial verdict here. See id. Therefore, we conclude that the trial court's decision was not illogical or arbitrary and we will not reverse its decision. See id.

Next, we will address whether the trial court abused its discretion when it refused to allow Fox to exercise a peremptory strike after Juror Mills had been selected. Our supreme court has held that the trial judge may impose reasonable limitations on the exercise of peremptory challenges so long as neither party is required to strike or accept the prospective jurors without having had the opportunity to consider the other party's voir dire. Davis v. State, 481 N.E.2d 387, 388 (Ind. 1985).

In this case, the trial court set forth the policy that once a juror was impaneled, that juror could only be excused for cause. Here, after Juror Mills had been selected, and another group of potential jurors was being questioned, Juror Mills expressed that he knew someone on the witness list. Consequently, Fox requested the dismissal of Juror Mills through the use of a peremptory challenge. Fox could have inquired as to whether Juror Mills knew any of the witnesses prior to his selection, but he did not. The trial court's rule regarding the exercise of peremptory challenges was given to the parties at a pretrial conference. We conclude that the trial court's limitation on the use of peremptory challenges was reasonable. See Davis, 481 N.E.2d at 388. Therefore, we find that the trial court did not err in refusing Fox's request to dismiss Juror Mills. See id.

II.

The second issue is whether Fox's counsel was ineffective. He begins by arguing that his counsel was ineffective because he...