Haybron v. State, 279S36

Decision Date27 November 1979
Docket NumberNo. 279S36,279S36
Citation272 Ind. 190,396 N.E.2d 891
PartiesJohn HAYBRON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Charles H. Graddick, Gary, for appellant.

Theo. L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of robbery and of habitual criminality and was sentenced to life imprisonment. This direct appeal presents two issues:

(1) Whether the trial court erred in denying Defendant's motion for a change of venue from the county for cause.

(2) Whether the evidence was sufficient to sustain the verdict of guilty upon the charge of robbery.

ISSUE I

On the morning the trial was scheduled to commence, the defendant filed a written motion for a change of venue from the county predicated upon the publication on the prior day of two adverse news stories in the Daily Post Tribune. A hearing was had upon the motion and the articles referred to were introduced into evidence. The motion was taken under advisement, and the cause proceeded to the selection of the jury.

At the commencement of the voir dire examination of the prospective jurors, the judge inquired of the entire array if any had read the aforementioned news articles. One of the veniremen acknowledged that he had, and he was excused. The motion for a change of venue from the county, previously taken under advisement, was overruled.

"The decision upon a motion for a change of venue is a matter within the trial court's discretion. * * * An applicant for a change of venue has the burden to establish the grounds for such change, and it is the duty of the trial court to determine, from the evidence, if such grounds have, in fact, been proved. In so doing, the trial court assesses the evidence, both as to weight and credibility. It may not act arbitrarily, but it has much discretion, and even though the application and evidence be uncontroverted it, nevertheless, establishes but a prima facie basis which is not binding upon the court." Mendez v. State, (1977) 267 Ind. 67, 367 N.E.2d 1081, and cases there cited.

A change of venue from the county for cause is granted when it is demonstrated either that there is such wide-spread bias in the community as to render it improbable that an impartial jury can be obtained, or that there is a high probability of such wide-spread bias. In the case before us, although the publications cited had the potential to engender such bias, the voir dire examination of the jury array demonstrated that it had not had that effect. From the record before us, it appears that the only venireman who might have been affected by the news items was excused. Thus we can...

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7 cases
  • Underhill v. State
    • United States
    • Indiana Supreme Court
    • December 3, 1981
    ...community that an impartial jury cannot be obtained. Irvin v. Dowd, (1961) 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Haybron v. State, (1979) Ind., 396 N.E.2d 891. Here, the record reveals each juror selected swore that he or she could be fair and impartial. Only one of the selected juror......
  • Gillie v. State
    • United States
    • Indiana Supreme Court
    • July 9, 1984
    ...will not be disturbed, absent a clear showing of abuse. Dorton v. State, (1981) Ind., 419 N.E.2d 1289, 1294; Haybron v. State, (1979) 272 Ind. 190, 191, 396 N.E.2d 891, 892; Mendez v. State, (1977) 267 Ind. 67, 70, 367 N.E.2d 1081, 1083. The Defendant bears the burden of showing that commun......
  • Hare v. State
    • United States
    • Indiana Supreme Court
    • August 22, 1984
    ...the high probability or existence of such widespread bias in the community that an impartial jury cannot be obtained. Haybron v. State, (1979) 272 Ind. 190, 396 N.E.2d 891. Defendant does not show nor does he claim that the prospective jurors in the new panel had indicated they had preconce......
  • Robinson v. State
    • United States
    • Indiana Supreme Court
    • April 7, 1983
    ...exceeded its discretion. Underhill v. State, (1981) Ind., 428 N.E.2d 759; Dorton v. State, (1981) Ind., 419 N.E.2d 1289; Haybron v. State, (1979) Ind., 396 N.E.2d 891. It was for the defendant to show that an impartial jury would be impossible because of the high probability or existence of......
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