Henderson v. State

• Citation: 271 Ind. 633,395 N.E.2d 224
• Decision Date: 27 September 1979
• Docket Number: No. 1178S267,1178S267
• Parties: Edward L. HENDERSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 224

395 N.E.2d 224

271 Ind. 633

Edward L. HENDERSON, Appellant, v. STATE of Indiana, Appellee.

No. 1178S267.

Supreme Court of Indiana.

Sept. 27, 1979.

Nile Stanton, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Edward L. Henderson was convicted, after a trial by jury, of first-degree murder, in the Lake Superior Court, Criminal Division, and was sentenced to life imprisonment on November 7, 1974. His conviction was appealed to the Indiana Supreme Court and was affirmed. Henderson v. State, (1976) 264 Ind. 334, 343 N.E.2d 776. On February 2, 1978, appellant filed a petition for post-conviction relief. After some extended pleading procedures and hearings, the court, on March 29, 1978, entered its findings of fact and conclusions of law, finding that Henderson had failed to establish any ground for relief and that he had waived all rights to establish grounds for relief on the specifications he assigned in his petition. Appellant's motion to correct errors was overruled by the court and this appeal followed.

Four issues are raised in this appeal based on alleged errors in the rulings of the trial court concerning the selection of the jury, prosecutorial comments, the giving of an instruction and the cumulative impact of the above alleged errors.

I.

Appellant attempted to raise the issue of the selection of his jury at his post-conviction hearing based on a claim of a statistically significant disparity between the number of black prospective jurors and the number of blacks in the county. He claimed that this resulted in his jury failing to be racially reflective of the population of the county. Appellant had placed into evidence the entire proceedings of the original trial. This entire record was before the judge in the post-conviction hearing. The court found on the basis of that record that the make-up of the prospective jurors and the selection of the jury by the parties was not questioned or objected to in any way by appellant at his original trial, was not raised in his motion to correct errors or in his appeal to the Supreme Court. On the basis of this record, the trial court found that the appellant had waived this issue as a basis for post-conviction relief.

At the post-conviction hearing counsel for appellant made an offer to prove in which he proposed calling a statistical expert who allegedly would show that by examining the order book entries of the Clerk of Lake County and showing the names and addresses of all petit jurors from 1969 to 1974, together with the geographical location of their residence, their race and other data, that the odds against having the racial composition of the jury pool for Henderson's specific case by chance alone was 10,000 to 1. The court refused this offer and refused any further testimony on the issue on the grounds that the petitioner had waived it. The appellant does not question the accuracy of the record. He admits that no objection was made nor any question raised before the trial court, in the motion to correct errors or in the appeal taken to this court.

We have previously held that the purpose of the post-conviction remedies is to give the appellant an opportunity to raise issues that were unknown or unavailable to him at the time of his original appeal. We stated in Dull v. State, (1978) Ind., 372 N.E.2d 171, 173-4, "Where the defense of waiver is raised we have already noted that a petitioner must then present some substantial basis or circumstance which would satisfactorily mitigate his failure to pursue or perfect a remedy through normal procedural channels, I. e., rebut the legal validity of the waiver defense." This language was taken from Langley v. State, (1971) 256 Ind. 199, 267 N.E.2d 538. Since the issue of the make-up of the jury and its selection processes was apparent and available to the appellant at the time of his trial, his motion to correct errors, and his appeal to this Court, and appellant did not raise it, the trial judge properly found that he had waived this issue in the post-conviction proceeding.

II.

Appellant's next allegation of error concerns prosecutorial statements. The appellant points out that during the trial while defense counsel was cross-examining a State's witness, the prosecuting attorney objected to a question and made the statement, "There is no evidence of self-defense in this case." During final argument to the jury, the prosecutor made the statement, "There is no evidence indicating that the defendant did not premeditate upon this." It is appellant's contention that these statements prejudiced Henderson's right to refrain from testifying at his trial, and that they referred to his failure to testify and amounted to improper comments upon such failure.

Again the record shows that the defendant made no objection to either of these statements at the time nor did he move the court to have them stricken or to admonish the jury to disregard them nor did he move for a mistrial on the basis of their prejudicial effect. Nothing about these statements was raised in the motion to correct errors nor on the appeal to this Court. The State again raised the defense of waiver on this issue and the appellant countered by claiming that the trial judge has an affirmative duty to protect the defendant from improper prosecutorial comment relating to the defendant's failure to testify and that therefore, since the court did not Sua sponte take action, there is fundamental error presented even though the defense did not object to these statements or raise this issue as error prior to this appeal.

Although appellant's basic proposition is correct, it does not apply to this situation. Fundamental error is error that is so prejudicial to a defendant's rights that he could not have had a fair trial. If it appears that adhering to the normal rules of appellate procedure would result in the waiver of an error which is so harmful that it operates to deny the appellant fundamental due process, this Court may by-pass those rules. Blow v. State, (1978) Ind., 372 N.E.2d 1166. Cf. Teague v. State, (1978) Ind., 379 N.E.2d 418. Here, appellant is claiming that the trial judge should have, Sua sponte, admonished the prosecutor to refrain from these statements and should have instructed the jury to disregard them. A trial judge is not required to take an active part in the trial of the cause to assist or to override counsel in the strategies employed in examining witnesses, objecting or failing to object and in generally managing and directing the lawsuit. It is the duty of a trial judge to preside in a strictly impartial manner and to refrain from undue interference and participation in the proceedings. Brannum v. State, (1977) Ind., 366 N.E.2d 1180.

The comments of the prosecutor made no reference to the appellant's failure to testify. Taken in context the first comment occurred as follows:

Q. Did he (Brady) have arguments with any number of people frequently?

BY MR. TOOMEY:

Objection your Honor. There is no evidence of self-defense in this case.

BY THE COURT:

What is the ground of your objection?

BY MR. TOOMEY:

I have stated it your Honor. Irrelevancy."

The second comment occurred in final argument and focused on the element of premeditation as follows:

"He left the apartment, Brady was gone already as was the victim and when Gayle went downstairs after the Defendant left, he was gone and no where in sight and nobody saw him until he came back from wherever he went, but this...