Jarver v. State

• Decision Date: 03 November 1976
• Docket Number: No. 1175S316,1175S316
• Citation: 265 Ind. 525,356 N.E.2d 215
• Parties: Frank JARVER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 215

356 N.E.2d 215

265 Ind. 525

Frank JARVER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1175S316.

Supreme Court of Indiana.

Nov. 3, 1976.

Rehearing Denied Jan. 3, 1977.

Patrick E. Donoghue, Sweeney, Fox, Sweeney, Winski & Dabagia, Michigan City, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

This is a direct appeal from the LaPorte County Superior Court. The defendant (appellant) was convicted of second degree murder for a stabbing death which occurred in the Indiana State Prison at Michigan City on July 2, 1973, and was sentenced to imprisonment for life. At the time this incident occurred, the defendant was an inmate at the prison and had served approximately ten years of a fifteen year determinate sentence for an armed robbery conviction. The victim was a fellow inmate.

In bringing this appeal of his conviction, the defendant assigns the following trial court rulings as reversible errors.

(1) Denial of his pre-trial motion for change of venue.

(2) Denial of his motion to dismiss the indictment.

(3) Overruling of his objection to the introduction into evidence at trial of testimony given before the grand jury.

(4) Refusal to give his tendered final instruction number six.

(5) Denial of his motion to be released on bail.

I

Defendant alleged in his motion for a change of venue that pre-trial publicity and general bias of the citizens of LaPorte County against the inmates of the prison prejudiced his right to a fair and impartial trial. He concedes that the decision on such a motion is a matter properly within the trial court's discretion. McFarland v. State, (1975) Ind., 336 N.E.2d 824; Gatchett v. State, (1973) 261 Ind. 109, 300 N.E.2d 665; Dickens v. State, (1973) 260 Ind. 284, 285 N.E.2d 613; but he maintains that the denial of his motion in the instant case was an abuse of this discretion.

Clearly a trial court may not act arbitrarily in the exercise of its discretion, but must be guided by sound principles. In Brown v. State, (1969) 252 Ind. 161, 247 N.E.2d 76, Justice Hunter, writing for the majority, expressly articulated the rights which the trial court should weigh in determining a motion for a change of venue.

'Suffice it to say in this regard, we believe it is necessary to the determination of the right to said change of venue for the trial court to consider and weigh all factors and rights surrounding the case. The right of the news media to fairly and accurately report the news; the right of the defendant to a fair trial before an impartial tribunal free of the influence of generated prejudice and inflamed passions in the community; and the right of the citizens to fully comprehend and analyze the portent and direction of the administration of our court system are elements necessary to the attainment of justice.' (At p. 172, 247 N.E.2d at p. 83, emphasis in the original)

Although an application for a change of venue establishes a prima facie basis for granting the change, the applicant has the burden of bolstering the credibility of the application, and it is nevertheless within the trial court's discretion to weigh both documentary and oral testimony to determine its credibility, even if it is uncontroverted. Brown v. State, supra. In the instant case the trial court ruled on the defendant's motion after having conducted a hearing at which the defendant produced copies of the newspaper articles and verbatim transcripts of the radio announcements he purported to be inflammatory. We here reproduce, in relevant part, the text of that pre-trial publicity:

Newspaper article dated January 22, 1974:

'A Superior Court 1 grand jury was impaneled this morning to hear evidence in two stabbing deaths. Chief Deputy Prosecutor Michael Brennan said he would present evidence * * * in the July 2 knifing of Indiana State Prison Inmate Bennie Sturgeon, 26, Lafayette. * * * Sturgeon died after being stabbed in the chest during a dispute in the prison's dining room. State police said Sturgeon had been in a fight involving four or five inmates, and although police said there were two suspects, no charges have been filed. First Sgt. Neary, the state police investigator assigned to the prison, and an inmate were in the courthouse this morning, apparently waiting to be called as grand jury witnesses in the Sturgeon case. Sturgeon had been serving a 2-to-5 year burglary term from Tippecanoe County.'

Newspaper article dated January 23, 1974:

'A Superior Court 1 grand jury returned a three-count indictment against an Indiana State Prison inmate in the July 2 fatal stabbing of another inmate * * * Frank Jarver, 41, was indicted on charges of first and second degree murder and voluntary manslaughter, said Michael Brennan * * * Jarver is accused of stabbing fellow inmate Bennie Sturgeon * * * in the chest. The stabbing occurred during a fight in the prison dining room involving four or five inmates, state police said. Jarver was sentenced in 1964 to 15 years for commision of a felony while armed.'

Newspaper article dated January 25, 1974:

'An Indiana State Prison inmate, accused of murdering another inmate last summer, appeared uncooperative in Superior Court 1 this morning. Frank Jarver, 41, answered his name when he appeared before Judge Norman Sallwasser, then said little else. Jarver sat down in a chair at the defense table, and despite efforts by Judge Sallwasser and two prison guards to convince him to stand and look at the judge, Jarver refused to continue with the preliminary appearance.'

Radio news announcement of January 23, 1974:

'A Superior Court grand jury returned a three-count indictment against * * * 41 year-old Frank Jarver. Jarver, who was sentenced from Marion County on October 1, 1964 to serve a 15-year term for the commission of a felony while armed is accused in the death of 26-year-old Bennie Sturgeon of Lafayette. Sturgeon was stabbed during a melee in the prison dining room and died about three hours later at St. Anthony Hospital.'

Radio news announcement of January 25, 1974:

'An Indiana State Prison inmate, indicted on murder charges in the stabbing death of another inmate, remained generally mute today during an initial appearance in Superior Court #1. The inmate, 41-year-old Frank Jarver, refused to answer many of the questions put to him by Judge Norman Sallwasser and refused to stand but sat slumped in a chair at the Defense table. After extensive urging by the judge, Jarver finally asked for a two week continuance to give him time to seek the employment of an attorney. Jarver was indicted Tuesday by a grand jury on charges of first and second degree murder and voluntary manslaughter in the July 2, 1973 stabbing death of 26-year-old Bennie Sturgeon. The incident occurred during a melee in the prison's dining room.'

Radio announcement of February 8, 1974:

'An Indiana State Prison inmate today entered pleas of not guilty to all three counts of an indictment returned against him by a Superior Court grand jury on January 22. The inmate, 41-year-old Frank Jarver, was indicted on charges * * * in connection with the stabbing death of another inmate. Jarver is accused of stabbing * * * Bennie Sturgeon in the neck and chest during a melee in the prison dining room * * *.'

We cannot characterize the foregoing publications as likely to have built 'a huge wave of passion,' Sheppard v. Maxwell, (1966) 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, or that it was '(a) build-up of prejudice * * * clear and convincing,' Irvin v. Dowd, (1961) 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. Furthermore, these news items were published more than one year prior to the selection of the jury for the defendant's trial. We cannot say that in these circumstances the trial court abused its discretion by denying the motion for a change of venue.

II

The defendant argues that the trial court committed error by refusing to dismiss the grand jury's indictment pursuant to Ind.Code 1971, 35--3.1--1--4, which makes a defective grand jury proceeding, as defined by Ind.Code 1971, 35--3.1--1--7, sufficient grounds for such a dismissal. Ind.Code 1971, 35--3.1--1--7 provides that:

(b) A grand jury proceeding is defective when:

(1) The grand jury was illegally constituted; or

(2) The proceeding was conducted before fewer than five (5) grand jurors; or

(3) Fewer than five (5) grand jurors concurred in the finding of the indictment; or

(4) For any other ground arising out of the grand jury proceeding which heretofore would have been cause for abatement of the action. (Emphasis added)

It is Defendant's contention that the grand jury proceedings were defective under 35--3.1--1--7(b)(4) in that one of the grand jurors would have been subject to challenge under Ind.Code 1971, 35--1--15--11(7), because 'such a state of mind exist(ed) on his part in reference to the party charged that he (could) not act impartially and without prejudice to the substantial rights of the challenger.' The causes for a plea in abatement, however, were the same as those for a motion to quash. Ewbanks Indiana Criminal Law, Symmes Edition, § 247, hence it appears that Defendant is in error in his premise that bias and prejudice of a grand jury would render an indictment defective, but we need not meet that issue.

Under Ind.Code 1971, 35--3.1--1--8, prescribing the procedure to be followed on a motion to dismiss an indictment, section (e) provides:

(e) The court may deny the motion without conducting a hearing thereon only if:

(1) The moving papers do not allege a ground constituting a legal basis for the motion pursuant to section 4 (35--3.1--1--4) of this chapter; or

(2) The motion is...