May v. State

Decision Date23 September 1991
Docket NumberNo. 48A02-9010-CR-568,48A02-9010-CR-568
Citation578 N.E.2d 716
PartiesWilliam C. MAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1
CourtIndiana Appellate Court

John M. Eisele, Anderson, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

BARTEAU, Judge.

William C. May appeals after being convicted by a jury of escape, battery, four counts of confinement and two counts of criminal recklessness. He was sentenced to one hundred and seven years, the maximum possible imprisonment.

The evidence favorable to the verdict revealed that in the early afternoon on January 6, 1989 May overpowered the police officer who was driving him back to detention in the Madison County jail after transport to a hospital for medical treatment. May took the officer's sidearm, used the officer's key to release himself from handcuffs, and at gunpoint forced the officer to drive him to a house in Anderson, in search of Sharen Beeman, his then estranged, now former wife, whose allegation of rape and confinement had led to May's detention in the jail pending trial.

The officer escaped at the moment he stopped the car. May entered the house, found Beeman, along with two other women, and took all three hostage. The other two women escaped within the next few minutes. During those first minutes, May fired the gun twice, in the direction of, first, one of the women, and second, a police officer who had hastened to the scene after encountering the officer from whose custody May had escaped. After an eighteen-hour standoff, May threw down his gun, released Beeman, and surrendered.

May raises six issues for our review, restated as:

1. Was May entitled to appointment of a special judge to preside over his trial?

2. Was May denied a fair trial by appearing before the jury in leg shackles?

3. Did May's convictions for battery and confinement of the police officer from whom he escaped violate the prohibition against double jeopardy?

4. Did May receive effective assistance of counsel?

5. Did the trial judge adequately explain imposition of enhanced and consecutive sentences?

6. Did May have enough time to review his presentence report?

We affirm the convictions, but remand for a more detailed sentencing statement. Additional facts are supplied where necessary.

SPECIAL JUDGE

Pre-trial, May moved for appointment of a special prosecutor, for a special judge, and for a special judge to rule on the first two motions. The trial judge, the Honorable Thomas Newman, Jr., granted the third motion. After a hearing, the special judge granted May's motion for a special prosecutor, but denied the motion for a special judge.

During the course of the stand-off, negotiations between May and the authorities had yielded an agreement for May's surrender in exchange for dismissal of the pending rape charge if Beeman would recant her accusation, along with a limit to May's culpability from the escape and hostage situation and a promise to not prosecute Beeman for false swearing if she recanted her accusations of rape. The agreement was reduced to writing by Prosecutor Lawler, who signed it. When May insisted that the one-page document should also be signed by a judge, Judge Newman was called upon for his signature. Those signatures prompted May's motions--he argued that he planned to raise an issue concerning the agreement at trial, that Prosecutor Lawler and Judge Newman would be called as witnesses, and that they therefore should be disqualified from the case.

A hearing was held before a special judge in August, 1989, some seven months after May's desperate hours. Prosecutor Lawler testified that during the stand-off, he had telephoned Judge Newman at two or three o'clock in the morning, asking him to come to the Anderson Police Station to sign the document. Judge Newman described his memory of the occasion as "vague." He remembered reading and signing the document, and acknowledged his signature, but could not remember whether it was meant to be "some sort of plea agreement." Judge Newman's testimony was "I cannot remember what the intent or the meaning of it was." Record at 257. Judge Newman further testified that he did not speak with May at that time, that he did not participate in drafting the agreement, that he had formed no opinion as to May's guilt, that he harbored no bias one way or the other in the case, and that he believed he could be fair in presiding over May's trial.

In arguing that Judge Newman should have recused himself, or that the special judge should have granted the motion for a special judge, May directs our attention to the rules of judicial ethics:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

Ind.Code of Judicial Conduct 3(C)(1)(a).

The ruling of a trial judge, or, in this case, of a special judge, on a motion for change of judge is reviewed only for abuse of discretion. Ind.Crim.Rule 12. "The law presumes that a judge is unbiased and unprejudiced in matters which come before him. The record must show actual bias and prejudice against the defendant before a conviction will be reversed on the ground that the trial judge should have been so disqualified." Beverly v. State (1989), Ind., 543 N.E.2d 1111, 1115 (no showing of actual prejudice or bias although trial judge had signed probable cause affidavit and arrest warrant). See also Brim v. State (1984), Ind., 471 N.E.2d 672 (no abuse of discretion in denying motion where trial judge presided over defendant's aborted guilty plea hearing and accepted guilty plea from co-defendant that included factual basis implicating defendant); Jones v. State (1981), Ind.App., 416 N.E.2d 880 (no error where trial judge had presided over bench trial resulting in conviction of co-defendant; no showing of personal prejudice); Stacks v. State (1978), 175 Ind.App. 525, 372 N.E.2d 1201, reh'g denied, trans. denied (holding no abuse of discretion for non-recusal where trial judge rejected plea agreement but played no part May alleges no specific instances of bias or prejudice by Judge Newman. Moreover, we have reviewed the trial transcript and found nothing to indicate a prejudiced judge. Based on Judge Newman's testimony, and consistent with the foregoing cases, we see here no abuse of discretion. 2 May's reliance on Stivers v. Knox County Dept. of Pub. Welfare (1985), Ind.App., 482 N.E.2d 748 is unpersuasive because of the factual differences between that case and his.

in negotiating terms, and defendant failed to allege specific acts of prejudice by judge during trial).

LEG SHACKLES AT TRIAL

Just before, and again during voir dire, May moved for release from leg irons. The trial judge denied both motions, which May characterizes as reversible error, arguing that because of the configuration of the courtroom, the jury venire could see he was shackled, thereby prejudicing him in their eyes and depriving him of his presumption of innocence.

A comprehensive analysis of the "shackled defendant" issue appears in Coates v. State (1985), Ind.App., 487 N.E.2d 167. From Coates we learn that due process under the federal constitution includes the right of an accused "to appear before a jury free of physical restraints." Id. at 168. This right forestalls disparagement of the accused's presumption of innocence, allows the accused to take notes and otherwise participate in the defense free of distraction, and protects the dignity of our criminal justice system. Id. at 168-69.

However, "the right to appear at trial unrestrained is not absolute ... and can be denied if necessary to prevent the escape of the defendant, maintain courtroom decorum, or ensure the safety of persons present in the courtroom." Id. at 169. This issue is committed to the discretion of the trial judge, who must support, with facts and reasons sufficient for meaningful appellate review, a decision to restrain the accused. Id. Error by the trial judge is subject to harmless error analysis. Id. at 170.

The trial judge's decision to restrain May appears to have been influenced by the facts of the case. Evidence favorable to the verdict, entered through the testimony of Officer Cole, the deputy sheriff who drove May to and from the hospital, was that when driven from jail to the hospital, May was handcuffed, in leg irons, and in the back seat of the police cruiser, separated from Cole by the "cage," or screen barrier. However, on the return trip, Cole released the leg irons and allowed May to ride in the front seat. From that vantage, May was able to overpower Cole by hitting him in the head with his handcuffed hands after diverting Cole's attention.

From the record, it appears that May attended the trial free of handcuffs, but restrained by leg irons. Ruling on May's motion for freedom from restraint, the trial judge stated:

The Court will take every precaution to secure that no juror sees him in leg shackles. Mr. May will come ... into the Courtroom before the jury ... so he can be seated with his legs under the counsel table so nobody can see.... And then the jury will be excused and leave the Courtroom before Mr. May does. The Court does not want the jury to see Mr. May's shackles, but the Court also feels like due to the history in this case and the attempts that have been allegedly made by the defendant that [motion to release restraint will be denied].

Record at 314-15.

Although we cannot ascertain the meaning of the trial judge's reference to "the attempts that have been allegedly made," the reference to "the history in this case" is all too clear--May was on trial for escape through violent means. Although the trial judge made no finding that May posed a threat of escape or...

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