Green v. State
| Decision Date | 31 July 2001 |
| Docket Number | No. 20A03-0007-CR-00257.,20A03-0007-CR-00257. |
| Citation | 753 N.E.2d 52 |
| Parties | Michael C. GREEN, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Nancy A. McCaslin, McCaslin & McCaslin, Elkhart, for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellee.
Appellant, Michael C. Green, challenges his jury convictions for reckless homicide, as a Class C felony1 and five counts of criminal recklessness, as Class C felonies.2 Upon appeal, Green contends that the trial court erred in denying both his motion for change of venue from the county and his motion to suppress statements he made to law enforcement officers while hospitalized for treatment of his injuries.
We affirm.
The facts most favorable to the verdict reveal that on July 26, 1999, Green was driving his green Oldsmobile northbound at a high rate of speed on County Road 9 near Elkhart, Indiana. On this same day, James L. Slaight, his wife, and their four children were traveling southbound on County Road 9 in the family's white Dodge Caravan. Although Green was northbound, he was traveling in the southbound lane of traffic. As Green attempted to re-enter the northbound lane of traffic, he lost control of his automobile, crossed back into the southbound lane and collided nearly head-on with the Slaight van. As a result of the accident, four-year-old Hope Slaight was killed, and the other members of the Slaight family were seriously injured. Green also sustained injuries and was treated at Elkhart General Hospital immediately following the accident. The State charged Green with reckless homicide as a Class C felony and five counts of criminal recklessness, also Class C felonies.
Prior to trial, Green filed a verified motion for change of venue from the county to "secure a fair and impartial trial on the grounds that there exists so great a prejudice against the Defendant in this county by reason of extensive and adverse publicity in the newspapers and television relating to the offense charged...." Record at 51. In support of his motion, Green attached an exhibit listing eighteen related newspaper articles and copies of these articles. On October 22, 1999, Green supplemented his motion with an additional exhibit detailing sixty-eight news and radio items related to the incident, the investigation, the victims' conditions and fundraisers. Green contended that it would be "impossible to obtain a fair and impartial jury in this case" and that he feared the prospective jurors might harbor "preconceived bias and prejudice against Mr. Green as a result of all of the publicity and all of the television that has appeared." Record at 420, 424-25. Green believed an impartial juror was one "unacquainted with this case, in this community, who [has not] heard anything about it...." Record at 424. On October 25, 1999, the trial court, finding that Green had failed to show that an impartial jury could not be seated, denied the motion for change of venue.
On March 14, 2000, Green filed a motion to suppress the statements he made to police officers while being treated at the hospital. Green asserted that his statements were not voluntary because he was suffering from physical injuries, was disoriented and unable to think clearly, and under the influence of pain medication. In addition, Green asserted that he was entitled to Miranda warnings based upon the custodial nature of the questioning. According to Green, the questioning was custodial because "[u]nder his circumstances, a reasonable person would not feel at liberty to leave." Record at 121. At the March 20, 2000 hearing upon the motion to suppress, the trial court heard testimony and argument by both parties. Testimony revealed that Green was questioned both in the x-ray room, prior to being x-rayed, and in the treatment room following the x-rays. According to Green, he was in extreme pain as the result of his injuries, had been given morphine, and was going in and out of consciousness during the questioning. Green further testified that he was not told he was suspected of criminal activity at the time he was questioned. According to Officer Starcevich, he was dispatched to the hospital for the purpose of questioning those involved in the collision to "identify all of the parties that were involved in the crash, and assess them, as to the extent of their injuries, and also if there was anybody there that could be interviewed, I was going to interview them and find out what happened, because I really didn't know what happened." Record at 471. Officer Starcevich testified there were no suspects of criminal activity at the time he went to the hospital to question the parties and that he did not give Green the Miranda warnings because Green was not a suspect. Officer Starcevich stated that prior to questioning the parties, he spoke with the emergency room doctor who advised that Green had not yet received any medication or treatment. According to Officer Starcevich, Green did not lose consciousness while he was being questioned. Officer Starcevich testified that he questioned Green concerning his name, address, place of employment, date of birth, social security number, what vehicle he was in at the time of the collision, whether he was alone in the vehicle, whether he was the driver of the vehicle, what he had been doing prior to the collision, and the speed at which the vehicle was traveling at the time of the collision. The trial court, finding that Green was not entitled to Miranda warnings because the officers had not yet focused upon him and that his statements were not made as the result of a custodial interrogation, denied the motion to suppress.
A jury trial commenced on March 21, 2000. Forty-five prospective jurors were called. During voir dire, several prospective jurors indicated that they were familiar with the case, either through pre-trial publicity, fundraising activities, or familiarity with the Slaight family, and some indicated that they were unable to set aside their preconceived opinions concerning the case. In addition, prospective jurors Gruver, Wagner, and Heckaman indicated that they would tend to believe the testimony of a police officer over another witness. However, when later questioned by the court, Gruver and Wagner both indicated that they would approach weighing the testimony of a police officer in the same manner as they would any other witness. Mr. Wagner was selected to serve on the jury, but Mr. Gruver and Mr. Heckaman were not.3 At the conclusion of voir dire, ten prospective jurors were dismissed and four were seated during the first panel; six were dismissed and two were seated during the second panel; three were dismissed and four were seated during the third panel; two were dismissed and one was seated during the fourth panel; and, the sole prospective juror called was seated during the fifth panel. The jury convicted Green as charged on all counts.
Green contends that the trial court erred in denying his motion for change of venue from the county. In particular, Green argues that he was prejudiced by the denial of his motion both because the media coverage was so pervasive that it was impossible for an impartial jury to be selected and because the "cumulative effect of the earlier voir dire could only lead to the conclusion that the statements impacted the remaining jurors to the degree that it would have been difficult, if not impossible, for those remaining to render an impartial decision...." Appellant's Brief at 18.
We review a trial court's denial of a motion for change of venue for an abuse of discretion. Specht v. State, 734 N.E.2d 239, 241 (Ind.2000). To prevail, a defendant must establish both prejudicial pretrial publicity and the jurors' inability to set aside preconceived notions of guilt and render an impartial verdict based upon the evidence. Id. Pretrial publicity is prejudicial when it contains either inflammatory material that is not admissible at trial or when it misstates or distorts the evidence. Clemens v. State, 610 N.E.2d 236, 240 (Ind.1993); Barnes v. State, 693 N.E.2d 520, 525 (Ind.1998). However, mere exposure to press coverage will not suffice. Barnes, 693 N.E.2d at 524; Specht, 734 N.E.2d at 241; see also Ind. Code § 35-37-1-5(b) (Burns Code Ed. Repl.1998) (providing that prospective juror may be allowed to serve despite existence of preconceived notions of guilt stemming from pretrial publicity, so long as juror states and court concludes that the juror can render a verdict based upon the law and the evidence presented). A trial court does not abuse its discretion where voir dire reveals that the seated jurors were able to set aside any preconceived notions of guilt and render a verdict based upon the evidence. Elsten v. State, 698 N.E.2d 292, 294 (Ind.1998). Furthermore, we presume that a juror's testimony in this regard during voir dire is truthful, unless the defendant shows a "general atmosphere of prejudice throughout the community." Brown v. State, 563 N.E.2d 103, 105 (Ind.1990).
In support of his motion, Green cited to the evidence of publicity he presented at the motion for change of venue hearing and the statements made by prospective jurors during voir dire that they had either read or heard about the collision or participated in fundraising efforts for the Slaight family. To be sure, the pretrial publicity in this case was prejudicial. On August 12, 1999, the South Bend Tribune published an article entitled "Crash suspect has jail record." Record at 67. The article detailed Green's criminal history and included information concerning convictions that were not admissible during the trial.4 Other newspaper articles contained similar criminal history information.5 Clearly these newspaper articles contained inflammatory, inadmissible...
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