McChristian v. State, No. 1178S269

Docket NºNo. 1178S269
Citation396 N.E.2d 356, 272 Ind. 57
Case DateNovember 05, 1979
CourtSupreme Court of Indiana

Page 356

396 N.E.2d 356
272 Ind. 57
Boyd McCHRISTIAN, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1178S269.
Supreme Court of Indiana.
Nov. 5, 1979.

[272 Ind. 58]

Page 357

Richard D. Gilroy, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant), together with Larry D. Ingram, was charged with commission of a felony while armed, to wit: robbery, Ind.Code § 35-12-1-1 (Burns 1975 § 10-4709) and inflicting physical injury in the commission of robbery, Ind.Code § 35-13-4-6 (Burns 1975 § 10-4101). In a joint trial by jury, he was found guilty of both charges and was sentenced to life imprisonment upon the charge of inflicting injury in the commission of robbery. The trial court, at sentencing was silent as to the charge of robbery. The following issues are raised on appeal:

(1) Whether the trial court erred in denying the defendant's motion for a change of judge.

(2) Whether the trial court erred in denying the defendant's motion for a separate trial.

(3) Whether the trial court erred in sentencing the defendant upon the charge of inflicting physical injury in the commission of a robbery rather than upon the charge of committing robbery while armed.

(4) Whether the verdict was supported by sufficient evidence.

(5) Whether the life sentence imposed upon the defendant was unconstitutional or too severe.

(6) Whether the trial court erred in overruling the defendant's motion to quash the information as having been untimely filed.

[272 Ind. 59] ISSUE I

Defendant's first assignment of error is the trial court's refusal to grant his motion for a change of judge. On September 4, 1975, the defendant waived formal arraignment and entered a plea of not guilty to both charges. A motion for change of judge was filed with the trial court on January 15, 1976. Following a hearing, the motion was denied.

Page 358

Defendant concedes his motion was not timely under Ind.R.Cr.P. 12 which requires the defendant to file such a motion within ten days of his plea. Nevertheless, he argues that his motion should have been granted.

Defense counsel cites Beck v. State, (1961) 241 Ind. 231, 171 N.E.2d 696, for the proposition that a defendant can move for a change of judge whenever bias or prejudice is discovered. Defendant, however, overlooks that the Court in Beck, found the right to a change of judge "exists for recently learned prejudice upon a proper affidavit for change * * *." (Emphasis added.) 241 Ind. at 234-235, 171 N.E.2d at 698. Here, the defendant did not satisfy the requirements of the fourth paragraph of Ind.R.Cr.P. 12, which provides an exception to the general deadline and which states in pertinent part:

"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 * * *."

While defendant's application was verified and did allege newly discovered bias, it did not disclose when or how the alleged bias was first discovered, the facts warranting a change, or showing why such cause was not discovered earlier. This Court has previously recognized that a trial court may properly deny such an application where it contains none of the required allegations. Meyers v. State, (1977) Ind., 364 N.E.2d 760.

Additionally, Defendant recognizes that the trial court's ruling on a motion for change of judge will be set aside only for abuse of discretion. [272 Ind. 60] Ind.R.Cr.P. 12; Cade v. State, (1976) 264 Ind. 569, 348 N.E.2d 394. Defendant urges, however, that the trial court did, in fact, abuse its discretion. To support this, the defendant argues that the evidence at the hearing supported his motion and, therefore, that he was entitled to a change of judge.

Contrary to Defendant's contention, the record of the hearing shows that the defendant could not relate any specific allegations of prejudice or bias. His chief complaints were that his co-defendant's bond was lower than his own and that he did not believe he could get a "just sentence" if found guilty.

It has been stated: "It is incumbent upon the Appellant to show a clear abuse of discretion by the trial court." Cade, supra, 264 Ind. at 575, 348 N.E.2d at 399. The defendant has failed to show such abuse.

ISSUE II

The defendant, who was tried with his co-defendant, Larry Ingram, next argues that the trial court erred in failing to grant his motion for a separate trial. This allegation is premised upon an oral statement given by Ingram to the police and repeated by the investigating officer at trial.

Defendant first alludes to a violation of the pronouncement made by the United States Supreme Court in Bruton v. United States, (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. In Bruton, the Court held that in a joint trial the admission of the non-testifying defendant's extra-judicial statements violates the co-defendant's Sixth Amendment right to confront witnesses. In this case, however, Ingram took the stand in his own defense and was available for cross-examination. Thus, the admission of Ingram's out-of-court statement was not improper and the defendant was not denied his right to confrontation. Gutierrez v. State, (1979) Ind., 386 N.E.2d 1207; Tippitt v. State, (1977) 266 Ind. 517, 364 N.E.2d 763; Ortiz v. State, (1976) 265 Ind. 549, 356 N.E.2d 1188. There was no Bruton violation here.

Defendant also claims he should have been granted a separate trial because parts of Ingram's prior statement "solidified the case against him." Additionally, the defendant asserts that the trial court

Page 359

abused its discretion when it refused to grant his motion because the defense presented by Ingram and testimony given [272 Ind. 61] by him apparently was detrimental to the defendant. The defendant, however, has no right to be protected from damaging evidence. Frith v. State, (1975) 263 Ind. 100, 325 N.E.2d 186. Further,...

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18 practice notes
  • Richey v. State, No. 1280S442
    • United States
    • Indiana Supreme Court of Indiana
    • October 6, 1981
    ...a harsher punishment on defendant. App.Rev.Sen. Rule 2; Clay v. State, (1981) Ind., 416 N.E.2d 842; McChristian v. State, (1979) Ind., 396 N.E.2d 356. For all the foregoing reasons, the judgment of the trial court should be Judgment affirmed. GIVAN, C. J., and DeBRULER, PRENTICE and PIVARNI......
  • Lee v. State, No. 71S00-9605-CR-00310
    • United States
    • Indiana Supreme Court of Indiana
    • September 10, 1997
    ...235 (citing Smith v. State, 474 N.E.2d 973 (Ind.1985)). See also Holifield v. State, 572 N.E.2d 490, 495 (Ind.1991); McChristian v. State, 272 Ind. 57, 61, 396 N.E.2d 356, 359 (1979). "Such protection would result in separate trials as a matter of right for all cases with more than one defe......
  • Johnson v. State, No. 379S81
    • United States
    • Indiana Supreme Court of Indiana
    • January 23, 1980
    ...to commit a specific criminal act may be inferred from the voluntary Page 362 commission of the act, McChristian v. State, (1979) Ind., 396 N.E.2d 356, we believe there was ample evidence from which the jury could infer that the defendant intended to commit Finally, defendant argues that th......
  • Hobson v. State, No. 483S147
    • United States
    • Indiana Supreme Court of Indiana
    • December 5, 1984
    ...party himself." In addition, the motion does not contain the specific statements required by Crim.R. 12. See McChristian v. State, (1979) 272 Ind. 57, 59, 396 N.E.2d 356, Defendant also concedes that the ruling on a motion for a change of judge will be set aside only for an abuse of discret......
  • Request a trial to view additional results
18 cases
  • Richey v. State, No. 1280S442
    • United States
    • Indiana Supreme Court of Indiana
    • October 6, 1981
    ...a harsher punishment on defendant. App.Rev.Sen. Rule 2; Clay v. State, (1981) Ind., 416 N.E.2d 842; McChristian v. State, (1979) Ind., 396 N.E.2d 356. For all the foregoing reasons, the judgment of the trial court should be Judgment affirmed. GIVAN, C. J., and DeBRULER, PRENTICE and PIVARNI......
  • Lee v. State, No. 71S00-9605-CR-00310
    • United States
    • Indiana Supreme Court of Indiana
    • September 10, 1997
    ...235 (citing Smith v. State, 474 N.E.2d 973 (Ind.1985)). See also Holifield v. State, 572 N.E.2d 490, 495 (Ind.1991); McChristian v. State, 272 Ind. 57, 61, 396 N.E.2d 356, 359 (1979). "Such protection would result in separate trials as a matter of right for all cases with more than one......
  • Johnson v. State, No. 379S81
    • United States
    • Indiana Supreme Court of Indiana
    • January 23, 1980
    ...to commit a specific criminal act may be inferred from the voluntary Page 362 commission of the act, McChristian v. State, (1979) Ind., 396 N.E.2d 356, we believe there was ample evidence from which the jury could infer that the defendant intended to commit Finally, defendant argues that th......
  • Hobson v. State, No. 483S147
    • United States
    • Indiana Supreme Court of Indiana
    • December 5, 1984
    ...himself." In addition, the motion does not contain the specific statements required by Crim.R. 12. See McChristian v. State, (1979) 272 Ind. 57, 59, 396 N.E.2d 356, Defendant also concedes that the ruling on a motion for a change of judge will be set aside only for an abuse of discreti......
  • Request a trial to view additional results

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