McChristian v. State

Decision Date05 November 1979
Docket NumberNo. 1178S269,1178S269
PartiesBoyd McCHRISTIAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court
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.

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.

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. 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

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, the decision to grant a separate trial is within the sound discretion of the trial court and is reviewable only for abuse of that discretion. Tewell v. State, (1976) 264 Ind. 88, 339 N.E.2d 792. Here, the defendant has not established such abuse.

ISSUE III

Defendant next contends the trial court erred when it elected to sentence him to life imprisonment upon the charge of inflicting injury in the commission of a robbery. Rather, he asserts that he should have been sentenced to ten (10) years upon the count of committing a felony (robbery) while armed.

Defendant recognizes that this Court addressed a similar issue in Thomas v. State, (1976) 264 Ind. 581, 348 N.E.2d 4. In Thomas the appellant was convicted of attempted commission of a felony (robbery) while armed and of inflicting physical injury while attempting to commit robbery. He was sentenced to twenty (20) years for the attempted armed robbery and to life imprisonment for the infliction of injury. On appeal we held that, pursuant to Ind.Code § 35-4.1-4-6(d) (Burns § 35-8-1A-6(d) 1975), 1 the conviction and sentence for attempted armed robbery was to be set aside. The Court, however, upheld the life sentence.

Defendant acknowledges that the Court has reviewed this issue in prior cases and has held against his position. Nevertheless, he asks the Court to "reconsider its position," based upon the following:

"1. The case at bar, is not of such aggravated nature as to warrant this harsh sentence.

2. The State should not be allowed to charge both crimes, but should be made to choose one crime. This violates the defendant's right to 'due process.' U.S. Constitution, Amendments 5 and 14.

3. The Trial Court is given to (sic) wide a latitude in sentencing in this situation with no legal guidelines for deciding the sentence."

These arguments, however, are not supported by any authority and, in our opinion, are outweighed by contra-considerations.

ISSUE IV

Defendant asserts that he was not properly identified as the person who committed the crimes charged, that the evidence was insufficient to prove the infliction of a physical injury, and that the "necessary criminal intent" was not proven. When called upon to review sufficiency questions, this Court will examine only the evidence most favorable to the State and all reasonable inferences to be drawn therefrom, in order to determine if there existed sufficient evidence of probative value to support the jury's verdict. Baum v. State, (1976) 264 Ind. 421, 345 N.E.2d 831. This Court will neither reweigh the evidence nor judge the credibility of the witnesses. Robinson v. State, (1977) 266 Ind. 604, 365 N.E.2d 1218.

The record reflects that State's witnesses Smith, Concannon, and Hamilton all identified the man seated to the left of the deputy prosecutor as the one who carried the shotgun and who injured Smith. Apparently, although it is not entirely clear, the basis of the defendant's argument is that the record does not reflect who was seated to the prosecutor's left.

In Lindsey v. State, (1971) 257 Ind. 78, 272 N.E.2d 458, the record indicated that the witness, when asked if she saw the defendant in court, merely pointed. The Court noted that the defendant had cited no authority for his assertion that the record Here, as in Lindsey, the defendant has referred only to testimony which, standing alone, was probably insufficient, but he has ignored other probative and effective testimony that supplied the deficiency. In addition to the testimony of the three State's witnesses, an accomplice, who also testified for the State, referred to the defendant by name and testified to the defendant's participation in the crimes. It is recognized that a defendant may be identified by name. Preston...

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