Jaske v. State

Decision Date25 April 1990
Docket NumberNo. 48A02-8701-CR-00021,48A02-8701-CR-00021
Citation553 N.E.2d 181
PartiesRobert Allen JASKE, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
CourtIndiana Appellate Court

BUCHANAN, Judge.

In our original opinion appearing as Jaske v. State (1989), Ind.App., 539 N.E.2d 492 (Buchanan, J. dissenting), 1 we reversed Jaske's conviction for conspiracy to commit escape on the grounds that the trial court failed to appoint a special prosecutor because the Madison County Prosecutor had represented Jaske in post-conviction relief proceedings relating to a prior murder conviction for which Jaske was incarcerated at the time of escape.

We now grant the State's petition for rehearing, vacate our original opinion, and affirm Jaske's conviction for conspiracy to commit escape in all respects.

I.

The facts most favorable to the judgment reveal that Jaske was serving a life sentence for murder at the Pendleton, Indiana Reformatory in February, 1985. While imprisoned, Jaske devised an escape plan involving the aid of "mercenaries" through an advertisement he placed in "Soldier of Fortune Magazine."

After the plan was discovered by the police, Jaske was convicted with eight others, of conspiracy to commit escape, a class C felony.

Prior to trial, Jaske petitioned the court for appointment of a special prosecutor. In relevant part, the petition provided:

"1. That the Defendant herein is presently charged in the above entitled cause with the offense of conspiracy to commit escape, a Class C felony;

2. That the said charges were filed by the Madison County Prosecutor's office by the Madison County Prosecutor, William F. Lawler, Jr.;

3. That Chief Deputy Prosecutor, Thomas J. Broderick, Jr., is the Deputy Prosecuting Attorney assigned to prosecute this case;

. . . . .

5. That, prior to being elected as Prosecuting Attorney for the present term, William F. Lawler, Jr., represented the Defendant in a Petition for Post Conviction Relief with regard to his conviction for first degree murder arising out of the Superior Court of St. Joseph County, State of Indiana. That upon his election and taking office in January, 1983, the said William F. Lawler, Jr., did resign as Defendant's attorney and turned the case over to other counsel for continued representation on the Petition for Post Conviction Relief;

6. That, the said William F. Lawler, Jr., did, during the course of his representation of Defendant obtain knowledge of facts which are closely interwoven with the facts upon which the present prosecution is based;

7. That, pursuant to I.C. 33-14-1-6, the Defendant requests the appointment of a Special Prosecutor for the reason that this Prosecutor and, therefore, all persons on his staff and/or associated with him in the private practice of law have a conflict of interest due to the elected Prosecutor's representation of this Defendant at some time in the past. That, in addition, the appointment of a Special Prosecutor is necessary to avoid the appearance of impropriety."

Record at 88-89.

The majority in our previous decision concluded that Lawler and his staff should have been disqualified because proof of Jaske's lawful detention for murder was an element of the State's conspiracy case, thus satisfying the substantial relationship test announced in State ex rel. Meyers v. Tippecanoe Cty. Ct. (1982), Ind., 432 N.E.2d 1377. However, as our supreme court concluded in Meyers, supra, the disqualification of a prosecutor is favored only when a serious doubt arises as to whether the prosecuting attorney's knowledge of a former client's prior case will prejudice the defendant. The record in this case reflects that Prosecutor Lawler represented Jaske in a post-conviction relief setting only, and was not involved in matters relating to Jaske's guilt or innocence of the prior murder. Moreover, Lawler did not complete his representation of Jaske in the post-conviction proceeding because he resigned as counsel following his election to the prosecutor's office. While it is incumbent upon the State to prove that a defendant was lawfully confined when prosecuting for escape, see Grimes v. State (1983), Ind., 454 N.E.2d 388; Hamp v. State (1973), 157 Ind.App. 567, 301 N.E.2d 412, this is all that is required. The record before us simply does not demonstrate that the facts Lawler might have acquired during his representation of Jaske in the post-conviction proceedings were closely interwoven with the prosecution of the subsequent escape charge. In truth, Jaske never enlightens us with any specificity as to the "facts which are closely interwoven with the facts upon which the present prosecution is based."

All the State's burden consists of is to demonstrate that the defendant was lawfully incarcerated. There is no requirement like the one requiring that a prior conviction must be proved if a defendant is to be sentenced as an habitual offender. See Meyers, supra. The relationship between Lawler's representation of Jaske as temporary defense counsel during the post-conviction relief action and Lawler's prosecution of Jaske for escape is minimal at best. The disqualification of a prosecutor is to prevent him from using, to his former client's detriment, information that was obtained from the client in confidence. Sears v. State (1983), Ind., 457 N.E.2d 192; Havens v. State (1981), Ind., 429 N.E.2d 618. The petitioner must demonstrate that he has been prejudiced by the prosecutor's previous representation. See Sears, supra; Meyers, supra. Jaske has made no such showing.

Under these circumstances we conclude that the prosecution of Jaske on the escape charge was not so substantially related to Lawler's former representation of Jaske in the post-conviction relief proceeding as to require disqualification.

The trial court did not err in denying Jaske's request for appointment of a special prosecutor.

II.

Because we grant rehearing on the above issue, we now address the remaining issues Jaske raises on direct appeal:

A. Whether the trial court erred in denying Jaske's motion for a separate trial?

B. Whether the trial court improperly refused to dismiss the charging information?

C. Whether the trial court improperly limited Jaske's cross-examination of State's witness Tom Davidson?

D. Whether it was error to deny Jaske's motion for change of judge on the grounds of bias and prejudice?

E. Whether evidence of a co-conspirator's participation was improperly admitted at trial?

A.

The trial court did not err in denying Jaske's request for a separate trial. Ind.Code 35-34-1-11 (1988) authorizes the grounds for severance of trials which provides in relevant part:

"(b) Whenever two (2) or more defendants have been joined for trial in the same indictment or information and one (1) or more defendants move for a separate trial because another defendant has made an out-of-court statement which makes reference to the moving defendant but is not admissible as evidence against him, the court shall require the prosecutor to elect:

(1) a joint trial at which the statement is not admitted into evidence;

(2) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted; or

(3) a separate trial for the moving defendant.

In all other cases, upon motion of the defendant or the prosecutor, the court shall order a separate trial of defendants whenever the court determines that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant."

The decision to grant or deny a motion for separate trials rests with the discretion of the trial court. Huffman v. State (1989), Ind., 543 N.E.2d 360; Hicks v. State (1989), Ind., 536 N.E.2d 496. To determine whether the trial court abused its discretion, we consider the events which actually occurred at trial and not the allegations contained in the motion for severance. Huffman, supra, Parr v. State (1987), Ind., 504 N.E.2d 1014.

Jaske correctly claims that a confession or admission of the existence of conspiracy by a co-conspirator after apprehension or arrest is inadmissible because it is not in furtherance of the conspiracy as to other fellow conspirators. Patton v. State (1961), 241 Ind. 645, 175 N.E.2d 11; Montgomery v. State (1982), Ind.App., 439 N.E.2d 646, trans. denied. He contends that it was error to admit the testimony of Judy Turpen (Turpen), a newspaper reporter. Turpen interviewed co-defendant Paul Buffington (Buffington) subsequent to the arrest. At trial, Turpen testified that Buffington told her the following:

"Q. Did he (Buffington) advise you as to whether or not he knew why he was coming to Anderson?

A. Yes.

Q. And, what did he tell you?

A. He said he knew there was an escape. He didn't know any details of what was to happen until he got there.

Q. And, did he indicate to you when he was going to find out the actual details?

A. When he arrived.

. . . . .

Q. Did you ask what, if anything, he was to be paid for this?

A. Yes.

Q. And, what did he tell you?

A. $10,000.00."

Record at 4910-11. Contrary to Jaske's contention, this testimony did not implicate him in the crime. Moreover, the trial judge admonished the State and Turpen that there was to be no mention of any other co-defendant during Turpen's testimony. Because the admissions Buffington made to Turpen did not incriminate Jaske, no prejudice resulted and the trial judge did not err in denying the motion for severance. See Smith v. State (1987), Ind., 516 N.E.2d 1055; Resnover v. State (1987), Ind., 507 N.E.2d 1382.

B.

The trial court properly denied Jaske's motion to dismiss the charging information. Jaske was charged with conspiracy...

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