Harrington v. State

• Decision Date: 14 January 1992
• Docket Number: No. 64S00-8901-CR-00018,64S00-8901-CR-00018
• Citation: 584 N.E.2d 558
• Parties: Allen G. HARRINGTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 558

584 N.E.2d 558

Allen G. HARRINGTON, Appellant, v. STATE of Indiana, Appellee.

No. 64S00-8901-CR-00018.

Supreme Court of Indiana.

Jan. 14, 1992.

Rehearing Denied March 4, 1992.

James V. Tsoutsouris, Porter County Public Defender, Terry E. Johnston, Valparaiso, for appellant.

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

PER CURIAM.

A jury trial in 1985 resulted in appellant's conviction of Murder, Ind.Code 35-42-1-1, for which he received an enhanced sentence of sixty (60) years. On direct appeal, this Court reversed and remanded for a new trial. Harrington v. State (1987), Ind., 516 N.E.2d 65 (Givan and Pivarnik, JJ., dissenting). Upon retrial to a jury, appellant again was convicted of Murder and sentenced to the maximum term of sixty years.

The facts are: In December of 1981, appellant began dating a co-worker, Sue Bouche, and soon moved in with her. He and Bouche agreed to get married. Apparently vexed by appellant spending weekends with his children, she broke their engagement and dated other men. A few days later, she reinitiated their relationship and this cycle of separation and reconciliation initiated by Bouche went on for two additional years.

The last reconciliation occurred on March 2, 1985 wherein Bouche promised she would marry appellant and remain faithful to him. One evening a few days later, appellant encountered Bouche in a bar; she stated she was with her girl friends and requested that appellant leave, which he did, only to have several more drinks, brood over this latest rejection, and grow suspicious that Bouche in fact was with another man.

He drove to her apartment but despite sensing she was home could raise no one. He then went to his own apartment, retrieved a rifle and a shotgun, and returned to Bouche's apartment. He let himself in with a key Bouche had given him, walked to the bedroom, opened the door, switched on the light, and discovered Bouche nude in bed with a man he had never seen before, one Christopher Kupec. Appellant fired one shot across the bed, striking the far wall; Kupec exited the bed as appellant reloaded the shotgun, and as he was crouched alongside the dresser appellant shot and killed him.

Meanwhile, Bouche slipped out into the living room, where appellant followed her. He stated his intention to kill himself, and a struggle ensued over the shotgun. When it discharged, the recoil injured Bouche's hand; she then locked herself in the bathroom and eventually was able to talk appellant into putting down the shotgun. Appellant checked on Kupec, ascertained he was dead, then telephoned his brother. Police subsequently arrived, and appellant was arrested.

Appellant contends the trial court erred in denying his pretrial motion for change of judge based upon the judge's bias and prejudice against appellant as manifested in his reaction to the reversal of appellant's first conviction. At the hearing on the motion, defense counsel requested the court take judicial notice of two letters the court had written after being notified of the reversal. One letter, dated December 30, 1987, was addressed to the Deputy Attorney General representing the State on appeal and stated the trial judge "was very disappointed in the Supreme Court's opinion," that his refusal of appellant's tendered instruction regarding the State's burden of negating sudden heat was harmless error, and that the majority opinion was "nit-picking." This letter went on to ask the Deputy Attorney General to file a petition for rehearing and indicates a copy was to be sent to the trial prosecutor.

The other letter, dated January 18, 1988, was written to one of the Justices of this Court who dissented to the reversal of appellant's first conviction. In part, the letter stated:

I appreciate your minority position in the above case. The State has filed a Petition for Rehearing and hopefully the Supreme Court will give it some serious consideration.

I did ask the Deputy Attorney General if they would file the Petition for Rehearing, which I have never done before. I hope that isn't being out of line for a trial court to do so....

I admit that the [trial] Court should have given Defendant's tendered instruction, but feel that the error should not be of a reversible nature....

The trial court denied the motion for change of judge.

Appellant maintains the trial court's letters constitute ex parte communications in violation of Canon 3 of the Code of Judicial Conduct, section (A)(4), which states, "[a] judge should ... neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding," and section (A)(6), which states, "[a] judge should abstain from public comment about a pending or impending proceeding in any court...."

The impropriety of the letters written by the trial court is obvious. When writing to the Deputy Attorney General he adopted the position of the State of Indiana, forsaking his stance of neutrality, as is further evidenced by his sending a copy of the letter to the trial prosecutor but not to appellant or his defense counsel. The letter to a member of this Court was to a member favoring his position after the fact and thus was not an impermissible communication attempting to influence a decision. The writing of the letters, however, standing alone, even though violative of Canon 3, does not dispose of the issue.

In a criminal proceeding, a ruling on a change of judge motion is discretionary; on review, a clear abuse of discretion must be shown. Coates v. State (1989), Ind., 534 N.E.2d 1087. Such abuse exists only where there is an undisputed claim of prejudice or where the judge has expressed an opinion on the merits of the controversy before him. Id. Here, the trial court denied harboring prejudice against appellant, and his opinion, as expressed in the letters, revealed more an antipathy toward being reversed on appeal than a prejudice against appellant. These facts are thus distinguishable from those presented in appellant's cited case of State ex rel. Neal v. Hamilton Circuit Court (1967), 249 Ind. 102, 230 N.E.2d 775, where we mandated an additional change of judge after the first special judge remarked prior to trial "that [the relator] had been asking for it and got what he deserved by being held in contempt." Id. at 103, 230 N.E.2d at 775.

Moreover, even if the trial court's letters in the case at bar were to be construed as expressions of bias against appellant, prejudice, to be reversible, must be shown by the trial conduct of the judge and not merely inferred from his subjective views. Wallace v. State (1985), Ind., 486 N.E.2d 445, cert. denied, (1986) 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 723. Hence, as in Smith v. State (1985), Ind., 474 N.E.2d 71, 74, while perhaps "[these statements do] indicate that the trial judge had a predisposed opinion as to appellant's guilt at the state of the second trial ... [they do] not indicate whether the trial judge was able to conduct the trial impartially despite his personal opinion." We thus must turn to the instances of claimed prejudice during trial in order to resolve the issue.

Appellant contends that during the second trial the judge demonstrated bias, prejudice and hostility toward him, his defense and his counsel, resulting in the denial of a fair trial. A fair trial before an impartial judge is an essential element of due process; the trial court thus has the duty to remain impartial and refrain from making unnecessary comments or remarks. Abernathy v. State (1988), Ind., 524 N.E.2d 12. As reiterated by Chief Justice Shepard in Abernathy,

[T]he jurors' customary respect for the judge "can lead them to accord great and perhaps decisive significance to the judge's every word and intimation. It is therefore essential that the judge refrain from any actions indicating any position other than strict impartiality."

Id. at 13 (quoting Kennedy v. State (1972), 258 Ind. 211, 226, 280 N.E.2d 611, 620-21). Accordingly, in assessing the following instances of allegedly prejudicial conduct on the part of the trial court, our task is to discern whether the judge allowed his "disappointment" regarding our reversal of appellant's first conviction as expressed in the letters discussed above to be imparted to the jury via conduct tangibly partial to the State during the second trial.

During defense counsel's cross-examination of one of the arresting officers as to whether the officer found a beer can or bottle in appellant's car on the night of the crime, and after the officer had answered the same question twice in the same manner, the trial judge asked counsel to proceed. Later, defense counsel asked if the officer gave appellant a breathalyzer test to which he answered, "No." When counsel began to badger the witness on the subject, the trial court stated that the questioning was getting repetitious. Counsel objected to the judge objecting to his questions, and the judge informed him that the court could object and asked counsel to proceed. When defense counsel was cross-examining another officer, the court informed him the witness had already answered the question.

During direct examination of appellant, while he was explaining how he had discovered on one occasion that Bouche had lied about spending the night with another man, the judge interjected as follows:

THE COURT: [Defense counsel], I think a lot of these things are fine, but I realize these people were going together for four or five years. You don't have to have every confrontation they've had. Bring it up to '85 anyway and get this thing moving.

[Defense counsel]: I'll try to quicken it up as soon as possible.

THE COURT: I would appreciate it. There's no dispute about it. These people were going together through these years off and on and had some arguments of conflict. A little background's fine, but I don't think we have to go through every date or every...