Judge v. State
| Decision Date | 18 December 1995 |
| Docket Number | No. 45A03-9402-CR-52,45A03-9402-CR-52 |
| Citation | 659 N.E.2d 608 |
| Parties | Robert JUDGE, Richard Defouw, Eric Sammons, and Michael Schmedicke, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Bruce Carr, Robert J. Henke, Carr & Henke, Lake Station, for appellants.
Pamela Carter, Attorney General, Janet L. Parsanko, Geoff Davis, Deputy Attorneys General, Indianapolis, for appellee.
Appellants-defendants Robert Judge, Richard Defouw, Eric Sammons, and Michael Schmedicke (collectively "defendants") appeal their convictions for obstructing pedestrian traffic, Class B misdemeanors, and criminal trespass, Class A misdemeanors. The facts relevant to appeal are summarized below.
On the morning of March 20, 1993, employees of the Merrillville, Indiana Planned Parenthood Clinic 1 (Clinic) arrived at work to find a group of individuals blocking the doors and walking around the Clinic. According to them, they were attempting to educate Clinic patients regarding the dangers surrounding abortion procedures and to stop any abortions which may have been scheduled that day. As a result of their efforts, both employees and patients were denied access to the building. The Clinic did not open.
Soon thereafter, police were summoned to the scene. Upon arrival, police discovered approximately 200 individuals in front of the Clinic. A number of individuals were also blocking the Clinic doors. Over a public address (PA) system the group was generally instructed and those blocking the doors were personally instructed, that the Clinic was located on private property, they were trespassing, and if they did not leave the premises immediately, they would be arrested. No one left.
The police then arrested those persons blocking the doors to the Clinic. During arrest, some individuals stood when police approached. Some were shackled to concrete and steel devices. Others kneeled, sat down, passed out literature, or made themselves limp while police attempted to handcuff and carry them to police and fire vehicles.
In total, 27 individuals were tried for events occurring at the Clinics. The defendants were among those convicted of obstructing pedestrian traffic and criminal trespass. For purposes of sentencing, the 27 individuals were placed in three groups: A, B, and C. Defendants were placed in Group A. As such, the trial court sentenced them each to one year imprisonment and a $5,000.00 fine for their criminal trespass convictions. For their convictions for obstructing pedestrian traffic, the trial court sentenced them to a 180-day jail term and a $500.00 fine. The sentences, which were to be served consecutive to one another, were suspended. The trial court also placed defendants on a two-year probationary term; ordered them to perform 500 hours of community service at a local hospital or care center; and as part of an eight-hour community service project, ordered them to attend a reproductive health lecture sponsored by Planned Parenthood. Pursuant to the order, and without a provision for good credit against the original sentence, any defendant refusing to attend the eight-hour lecture was required to spend a day in jail for each hour of the lecture missed. Defendants appeal their convictions.
On appeal, they raise several issues which we consolidate into five:
(1) whether the trial court erred in excluding certain evidence and an instruction on the defense of necessity;
(2) whether the trial court erred in conducting an ex parte communication with the prosecution;
(3) whether the trial court erred in sentencing;
(4) whether the trial court erred in ruling on certain discovery matters; and
(5) whether the trial court violated their constitutional rights by imposing the lecture requirement.
Defendants contend the trial court erred in excluding certain evidence and a jury instruction supporting a necessity defense. As they point out, this defense is available in Indiana. See Toops v. State (1994), Ind.App., 643 N.E.2d 387, 388-389 (). It is also true that a defendant is entitled to any defense which is founded in the evidence. Smith v. State (1989), Ind., 547 N.E.2d 817, 820. However, a trial court is not obligated to admit evidence or instruct a jury on a theory which has no legal relevance to facts of the case. See Wielgus v. Lopez (1988), Ind.App., 525 N.E.2d 1272, 1274.
Defendants cite, among other authorities, numerous scientific, political, and legal treatises which discuss the ramifications of abortion. Yet, a lengthy discussion on the moral, ethical, psychological, physiological or political implications of the practice is unnecessary at this time. Debate regarding abortion is shrouded in controversy. It also goes without saying the choice of a woman to seek an abortion is a topic upon which "[m]en and women of good conscience can disagree." Planned Parenthood v. Casey (1992), 505 U.S. 833, 850, 112 S.Ct. 2791, 2806, 120 L.Ed.2d 674, 697. Nonetheless, subject to state regulation, abortion is a medical procedure which the American legal system deems not only lawful but a protected privacy right of constitutional dimension. See Roe v. Wade (1973), 410 U.S. 113, 164, 93 S.Ct. 705, 732, 35 L.Ed.2d 147, 183; Casey, 505 U.S. at 851, 112 S.Ct. at 2807, 120 L.Ed.2d at 699; Conn v. Conn (1988), Ind.App., 525 N.E.2d 612, 615, aff'd 526 N.E.2d 958 (); IND.CODE § 16-34-2-1, et seq. (1993 Ed.) (regulations surrounding abortion procedures); 18 U.S.C. § 248 (Federal Access to Clinic Entrances Act). 2
(Citations omitted.). Thus, as a matter of law, the defense of necessity is unavailable to justify or excuse defendants' criminal actions under the circumstances of this case. See People v. Berquist (1993), 239 Ill.App.3d 906, 181 Ill.Dec. 738, 744, 608 N.E.2d 1212, 1218 (); Egger v. State (Tex.App.--El Paso 1991) 817 S.W.2d 183, 186 (). 4
Upon being convicted, defendants were informed by the trial court that it intended on having them attend a lecture sponsored by Planned Parenthood at the Clinic. The lecture was expected to educate them as to the wide range of services, beyond abortion procedures, offered by family planning facilities such as Planned Parenthood. In the interim between conviction and sentencing, a discussion took place between the trial court and Planned Parenthood regarding defendants' attendance at the lecture. Because they were not present, defendants argue their right to an impartial judge was compromised by this discussion.
In order to gain reversal on the basis of an ex parte communication, the defendants must show prejudice resulted from the communication. Moffatt v. State (1989), Ind., 542 N.E.2d 971, 974. The focus is not on its substance but rather the impact the communication had upon the impartiality of the trial judge. Austin v. State (1988), Ind.App., 528 N.E.2d 792, 794. In our review, unless evidence suggests otherwise, we assume the judge would have disqualified himself had his impartiality been reasonably called into question. Id.
The trial court acknowledged the conversation in open court during sentencing on October 12, 1993. At that time, the trial court explained to defendants the discussion dealt merely with the lecture format and Planned Parenthood's objections to defendants presence in the Clinic. The prosecution had remained silent throughout the conversation. Having already been convicted, and the trial court having previously committed itself to the lecture requirement, defendants have failed to show how they were prejudiced by the communication.
In related issues, but without cogent argument or citation to authority, defendants also allege their rights to effective assistance of counsel and fundamental fairness in the proceedings were compromised by this communication. The issues are waived. See Ind.Appellate Rule 8.3(A)(7) ().
IND.CODE § 35-38-2-2.3(a)(5) (1993 Ed.) (Emphasis added.). This language implies that restitution must reflect "actual loss" to the victim. Batarseh v. State (1...
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