Hurt v. State
| Decision Date | 29 September 1977 |
| Docket Number | No. 3-975A204,3-975A204 |
| Citation | 367 N.E.2d 1109,174 Ind.App. 351 |
| Parties | Raymond R. HURT, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
John F. Hoehner, Valparaiso, for appellant.
Theodore L. Sendak, Atty. Gen., K. Richard Payne, Deputy Atty. Gen., Indianapolis, for appellee.
The appellant Raymond R. Hurt was charged by information with robbery. After a trial by jury on March 6 and 7, 1975, the jury was unable to reach a verdict. On Monday, March 10, 1975, a second trial commenced and Hurt was convicted of robbery 1 in violation of IC 1971, 35-13-4-6 (Burns Code Ed.). After a pre-sentence investigation, the trial court imposed sentence of 10 to 25 years and ordered that Hurt serve the sentence consecutively to a sentence he is currently serving at the Indiana State Prison.
The evidence reveals that on July 11, 1974, Robert Hyde managed a gasoline station in Portage, Indiana. Daylight had already arrived when at 5:50 A.M. Hyde noticed a yellow automobile with a black vinyl top pull into the empty station and stop in front of the office door. While Hyde's back was to the door, a man came in and inquired whether Hyde had a "pop machine." After Hyde replied in the negative, the man advised him not to turn around. Hyde turned around to see a man holding a gun in his left hand. The man demanded money and took $42 from the frightened Hyde. Hyde observed his assailant in the lighted office for a period of four to five minutes from a distance of three to fix feet. During the trial Hyde described his assailant as a man in his late twenties, about five feet ten inches tall, 170 pounds, with long black hair and a full beard, and dressed in light-colored shirt and pants. In court Hyde positively identified Hurt as the man who robbed him.
Hurt first contends that the trial court erred in ordering that the sentence of 10 to 25 years imposed herein be served consecutively to a sentence he is now serving. Hurt was on parole from the Indiana State Prison at the time he was charged with the present offense. He argues that only the Indiana Parole Board has authority to order him to serve the sentence herein consecutively.
IC 1971, 11-1-1-11 (Burns Code Ed.), provides, in pertinent part:
"Any prisoner who commits a crime while at large upon parole and who is convicted and sentenced therefor may be required by the board to serve such sentence after the original sentence has been completed."
The Indiana Parole Board thus has discretion to decide whether the second sentence imposed upon a parolee should run concurrent with or consecutive to the completion of the first sentence. Alcorn v. State (1972), 258 Ind. 185, 279 N.E.2d 800. The Indiana Parole Board is a part of the executive department of our State government. See, IC 1971, 11-1-1-7 (Burns Code Ed.). The courts may not usurp the functions of the executive department of government. Columbia Properties v. St. Bd. Tax Commrs. (1953), 232 Ind. 262, 111 N.E.2d 891 (cert. denied); Tucker v. State (1941), 218 Ind. 614, 35 N.E.2d 270; Article 3, § 1, Constitution of Indiana.
In ordering that Hurt serve the present sentence consecutively to the sentence he is already serving, the trial court encroached upon the authority of the Parole Board, contrary to the separation of powers doctrine as stated in Article 3, § 1, Constitution of Indiana. The order that Hurt serve the sentence herein consecutively must be vacated.
Hurt next contends that the trial court erred in failing to hold a hearing on his verified motion for a change of venue from the county, filed pursuant to Ind.Rules of Procedure, Criminal Rule 12. Hurt filed his verified motion before selection of the jury commenced in his second trial. Hurt attached to his motion two newspaper articles which reported failure of the jury in his first trial to agree on a verdict, one of which discussed the evidence in the case. He argued that the articles were so prejudicial as to require a change of venue from the county.
Ind.Rules of Procedure, Criminal Rule 12, supra, provides in pertinent part:
"Upon the filing of a properly verified application, a change of venue from the county shall be granted in all cases punishable by death and may be granted in all other cases when in the court's discretion cause for such change is shown to exist after such hearing or upon such other proof as the court may require."
Hurt principally relies upon Hanrahan v. State (1968), 251 Ind. 325, 241 N.E.2d 143, wherein the court construed language in former Supreme Court Rule 1-12C identical to the language of Criminal Rule 12, supra, quoted above. In Hanrahan the record revealed that the prosecution did not present any answer or evidence to rebut the appellant's verified motion for change of venue from the county and that the appellant was not afforded a hearing or an opportunity to present evidence before the trial court summarily overruled his motion. The court held:
(251 Ind. at 334, 241 N.E.2d at 148.)
An examination of the record reveals that this case is distinguishable from Hanrahan v. State, supra. At the time Hurt's attorney made his motion for change of venue from the county he stated, "I think my reasons for the request are sufficiently put forth in the motion itself . . . ", which indicates that counsel did not plan to offer any evidence beyond the two exhibits attached to the motion. The State refuted the application by arguing that the articles themselves were insufficient to justify the change of venue. The prosecutor suggested, and the trial judge agreed, that voir dire examination would permit the court to determine whether any of the prospective jurors had read the articles and whether such knowledge would affect their impartiality. The trial judge assured counsel that any prospective juror who had read the article and formed opinions about the case would be removed for cause. During the ensuing voir dire examination, three jurors acknowledged having read one of the articles. None of the three remembered any details of the story, and all indicated to the judge that if selected as jurors their decision would be based only upon the evidence heard in the trial. Finally, when the trial court afforded Hurt's attorney the opportunity to inquire further on the subject, he declined.
The trial court had the discretion to determine the credibility of Hurt's verified application for change of venue from the county. Hanrahan v. State, supra. In making that determination the trial court was required to weigh the content of the exhibits of publicity and determine their effect on the "public attitude" toward the defendant. Brown v. State (1969), 252 Ind. 161, 173, 247 N.E.2d 76, 83. The record in this case shows that the trial court afforded Hurt the opportunity to support his motion with additional evidence and to explore the impact of the newspaper articles on the prospective jurors. The record demonstrates that the trial court did not abuse its discretion in denying Hurt's motion for change of venue from the county.
Hurt next contends that the trial court committed reversible error in informing the prospective jurors during voir dire that the jury in the former trial was unable to reach a decision. He argues that the trial judge was prohibited from referring to the prior trial by IC 1971, 35-1-42-2 (Burns Code Ed.), which provides:
"The granting of a new trial places the parties in the same position as if no trial had been had; the former verdict cannot be used or referred to, either, in the evidence or in the argument."
This statute would prohibit the use of the former trial being used or referred to in the evidence or in the argument. In the case at bar the trial judge made mention of the prior proceedings as a necessary introductory remark preceding voir dire examination of the jury necessitated by Hurt's motion. This in and of itself does not demonstrate reversible error.
Hurt further asserts that the judge's remark prejudiced his trial by planting a "seed of puzzlement" in the minds of the prospective jurors. Hurt has the burden to show that he was placed in a position of grave peril as a result of the judge's remark. See, Dewey v. State (1976), Ind. 345 N.E.2d 842, 847.
The alleged improper remark occurred near the beginning of voir dire in the following statement:
The context of the statement reveals that the judge's remark was prefatory to his voir dire of the prospective jurors...
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...State ex rel. Indiana State Board of Finance v. Marion County Superior Court, Ind., 396 N.E.2d 340 (1979); and, Hurt v. State, Ind.App. 367 N.E.2d 1109 (1977). It has long been held that art. 3, § 1, relates solely to the state government and officers and their duties under one of the separ......
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