Kail v. State

• Decision Date: 21 September 1988
• Docket Number: No. 16A01-8708-CR-184,16A01-8708-CR-184
• Parties: Kenneth KAIL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 799

528 N.E.2d 799

Kenneth KAIL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 16A01-8708-CR-184.

Court of Appeals of Indiana,

First District.

Sept. 21, 1988.

Robert W. Hammerle, Daniel J. Coffey, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Kail appeals his conviction of Dealing in Marijuana, a class D felony ¹ and Possession of a Schedule I Controlled Substance, a class D felony. ² We affirm.

FACTS

On August 29, 1986, an Indiana State Police Trooper, while on air patrol, discovered a marijuana patch in Ripley County. A search warrant was obtained for the property and Kenneth Kail and his wife were arrested for possession and cultivation of marijuana. Thereafter, a search warrant was obtained for the Kails' residence in Decatur County. The following items were recovered in the search of the Kails' residence: over 500 grams of marijuana, scales, baggies, mushrooms containing the drug Psilocyn, approximately $9,000.00 in cash, several books and magazines on how to grow marijuana, and a large number of partially consumed marijuana cigarettes. The search also revealed a seedbed in the attic.

Kail originally was charged on September 2, 1986, with a single count of Dealing in Marijuana, a class D felony. On December 23, 1986, the original information was amended to include two (2) additional counts: Possession of Psilocyn and Possession of Diazepam, both class D felonies. Following trial by jury, Kail was found guilty on Counts I and II, and not guilty on Count III. He was sentenced to a total of eight (8) years, two (2) years suspended, and received a $10,000.00 fine. Kail's motions for an appeal bond were denied. He now appeals his conviction and sentence.

ISSUES

1. Did the trial court err in denying the defendant's motion for a change of judge?

2. Did the trial court err in denying the defendant's pre-trial motion to suppress?

3. Were the convictions supported by sufficient evidence?

4. Did the trial court err in sentencing the defendant to four (4) years on each count to run consecutively?

5. Did the trial court err in denying the defendant's petition for an appeal bond?

DISCUSSION AND DECISION

Issue One

Kail argues that the trial court erred in overruling his motion for change of judge. He contends first that he was denied a fair hearing because the trial judge testified without taking an oath or being subject to cross-examination. Specifically, he challenges the trial court's statements regarding his rejection of Kail's guilty plea agreement. At trial Kail suggested that the judge take an oath if he intended to testify, however, the judge stated that an oath would not be necessary. Thereafter, Kail's attorney did not object to the judge's statements on the record. Failure to object at trial results in waiver of the issue. Beland v. State (1985), Ind., 476 N.E.2d 843, 845. Furthermore, Kail's Motion to Correct Errors does not include the due process challenge to the hearing. Constitutional questions, like other issues, which are not specifically presented in a motion to correct errors are not properly preserved for appellate review. Indiana Rules of Procedure, Trial Rule 59; Kennedy v. State (1974), 162 Ind.App. 518, 520, 319 N.E.2d 883, 884. Kail has waived any complaint that he was denied due process because the trial judge was not under oath.

Kail is correct that changes of judge are governed by Indiana Rules of Procedure, C.R. 12 and Indiana Code section 35-36-5-2 which provide in pertinent part:

"The defendant and the state may obtain a change of judge if the judge:

(1) Is biased or prejudiced against the moving party and that the moving party cannot obtain a fair trial before the judge; ...

A motion made under this section must be verified or accompanied by an affidavit specifically stating facts showing that at least one of these causes exists.

The motion must be filed within the time limitations specified in Indiana Rules of Criminal Procedure."

I.C. Sec. 35-36-5-2.

"In criminal actions and proceedings to enforce a statute defining an infraction, a motion for change of judge or change of venue from the county shall be verified or accompanied by an affidavit signed by the Criminal Defendant or the Prosecuting Attorney setting forth facts in support of the statutory basis or bases for the change. Any opposing party shall have the right to file counter-affidavits within ten days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion.

"In any criminal action, no change of judge or change of venue from the county shall be granted except within the time herein provided.

"An application for a change of judge or change of venue from the county shall be filed within ten days after a plea of not guilty, or if a date less than ten days from the date of said plea, the case is set for trial, the application shall be filed within five days after setting the case for trial. Provided, that where a cause is remanded for a new trial by the Supreme Court, such application must be filed not later than ten days after the party has knowledge that the cause is ready to be set for trial.

"Provided, however, that if the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, he may file the application, which shall be verified by the party himself specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion."

C.R. 12.

Clearly, under C.R. 12, a decision concerning a change of judge in a criminal case will be reversed only for an abuse of discretion. Hicks v. State (1987), Ind., 510 N.E.2d 676, 678. The record must show actual bias and prejudice against the defendant for such a decision to be reversed. Thomas v. State (1985), Ind., 486 N.E.2d 531, 533. As examples of alleged bias, Kail cites the trial court's rejection of his proposed plea agreement and the judge's statement before receiving a pre-sentence report that he intended to impose a jail term if Kail were found guilty. Kail also emphasizes that the trial court denied his petition for an appeal bond and sentenced him to the maximum term allowed by law. In sum, Kail argues that he was denied a fair sentencing hearing. We disagree.

We must presume that a judge is unbiased and unprejudiced. In order to overcome this presumption, the moving party must establish that the trial judge has a personal prejudice concerning one of the parties. Lasley v. State (1987), Ind., 510 N.E.2d 1340, 1341. The fact that a trial judge ruled against a defendant on several motions and had sentenced him to the maximum term at a prior trial did not constitute prejudice per se. Id. at 1342. Bias or prejudice which would warrant reversal exists only where the judge has expressed an opinion on the merits of the case, in other words, on the issue of guilt or innocence. Wallace v. State (1986), Ind., 486 N.E.2d 445, 456, cert. denied 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 723. Prejudice must be shown by the conduct of the trial judge and not inferred from the judge's subjective views. Id. Also, the rejection of a plea bargain is not sufficient to establish bias or prejudice. Beland, 476 N.E.2d at 845. Kail has failed to establish bias or prejudice on the part of the trial judge in this case. Clearly, the denial of a petition for an appeal bond and the rejection of a proposed plea agreement do not denote bias. Furthermore, we do not believe that the trial judge's comment that he would impose an executed sentence if Kail were found guilty necessarily shows bias. First, the comment does not bear upon the merits of the case, that is, upon Kail's guilt or innocence. In addition, we note that the comments were made in the context of a pre-trial conference discussion of a proposed plea agreement. Finally, Kail did not receive the maximum sentence allowed by law since two (2) years were suspended. The sentence he received was within the statutory limits, and we see no bias or prejudice in the conduct of the trial judge. Kail's motion for a change of judge was properly denied.

Issue Two

Before addressing the merits of Kail's search and seizure argument, the state contends that Kail waived his objection to the evidence discovered in the search by failing to properly object when the evidence was introduced at trial. Allegations of error in overruling a motion to suppress are not preserved for appellate review unless the record reveals a proper objection when the evidence is offered at trial. Andrews v. State (1982), Ind., 441 N.E.2d 194, 198. Likewise, it is incumbent upon the defendant to specify the grounds upon which the objection is premised. Abner v. State (1985), Ind., 479 N.E.2d 1254, 1259. In Abner, our supreme court held the following objection insufficient to preserve error: the defendant objected "for reasons that we previously argued in chambers." Id.

In contrast, Kail's hearing on the motion to suppress was conducted on the day of trial and was included in the record on appeal. The first time the state mentioned the search warrant, Kail's attorney and the judge engaged in the following dialogue:

"MR. COFFEY: Judge, it appears to be a copy. I have no objection to being a copy but at this time I do renew the objection that we have had a few moments ago with respect to the issuance of the warrant and any subsequent search after the issuance of that warrant.

"JUDGE: The objection is noted and overruled.

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