McConnell v. State

Decision Date30 June 1982
Docket NumberNo. 781S181,781S181
PartiesMickey C. McCONNELL, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

James V. Tsoutsouris, Public Defender of Porter County, John F. Hoehner, Chief Deputy Public Defender, Valparaiso, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Mickey C. McConnell, defendant-appellant, was found guilty of Fraud, Ind.Code § 35-43-5-4 (Burns Repl.1979), in a jury trial in Porter Superior Court on January 16, 1981. That same day defendant was found to be an Habitual Offender. On February 11, 1981, defendant was sentenced to thirty-four (34) years in prison. He now appeals.

Defendant raises six errors on appeal, concerning: 1) whether the trial court failed to maintain its requisite impartiality and abused its discretion in denying a change of judge; 2) whether the trial court erred in granting the State's motion for continuance and allowing the State to file a habitual offender charge one day prior to trial; 3) whether the trial court erred in allowing certain exhibits, such as a wallet, driver's license, and other cards, to be admitted into evidence; 4) whether the trial court erred in failing to grant defendant's motion for mistrial; 5) whether the trial court erred in admitting defendant's criminal record into evidence at the habitual offender phase of the trial; and 6) whether the trial court imposed an excessive sentence.

The evidence most favorable to the State shows that defendant McConnell was arrested by a Valparaiso police officer at a filling station after purchasing gasoline with a stolen credit card. Defendant was identified by the owner, Charles M. Schroeder, as the individual who purchased $10.00 worth of gasoline from Mr. Schroeder on November 1, 1979, using a credit card bearing the name of Thomas Mattern and forging the name of the owner to the charge slip. The credit card had been stolen from the purse of Mr. Mattern's wife and had been reported stolen by the Matterns to Sohio, the issuer of the credit card. A wallet found on the seat of the automobile defendant was driving at the time of his arrest contained credit cards, a social security card, and a driver's license, bearing the names of various persons. Defendant identified himself to the police by several names including Jonathan Pranitis, Harry Jewel, P. Jewel, R. Wease, and Elvin Bray. Defendant was in the habit of using other aliases, in addition to the ones already mentioned.

The trial date was set for January 14, 1981. On that day, the State filed a motion for continuance, stating that more time was needed to file an habitual offender count and also that the court calendar was congested. The trial court granted the continuance but indicated it was "not necessarily for the reason stated in the request for the continuance" and rescheduled the jury trial for the following day, January 15, 1981.

I.

Counsel for the defendant overheard the trial judge on the telephone in his chambers, talking to two witnesses in the state of Ohio about their coming to Indiana to testify as witnesses for the State. Defendant contends that it was improper for the judge to discuss the case with witnesses for one of the parties and therefore filed a motion for change of judge. It was the expressed opinion of defense counsel that by discussing the case with witnesses for the State, the judge had shown partiality and was compelled to disqualify himself from hearing the matter.

This motion for change of judge was verified but was signed by defendant's counsel rather than by defendant himself. The trial judge denied the motion and gave the following reasons:

THE COURT: Okay. The Court will address itself to the Motion for Change of Judge and will indicate that the Court did contact two prospective witnesses for the State, who live in the State of Ohio. The Court's sole reason for contacting these two people was to ascertain if they would voluntarily be present this week so that we could proceed with the case. The Court contacted them at a time the jury was here and the Prosecutor for the State indicated he was not sure at that time if these people could be available and what date they would be available. So the sole purpose of the Court contacting them was to ascertain when to start this jury trial, whether to start it this week or have to reset the case and start it at a time when they would be able to be present. The Court did not discuss the case with them or discuss their testimony with them. The Court does not know them, has never seen them before. One of the two prospective witnesses indicated that they (sic) would like to return to their (sic) state the same day that they (sic) testified here and wanted some indication from the Court about approximately how long their (sic) testimony would be, and the Court, based on the Probable Cause Information, indicated it did not feel their testimony should be too long and would be able to return to Ohio the same day that they (sic) testified here. So that being the only contact by the Court, the Court thinks that the Verified Motion for Change of Judge should be denied, and the Court now denies same.

Record at 114.

Defendant cites as reversible error the action of the trial judge in discussing this matter with the witnesses and subsequently denying the motion for change of judge. We agree with the defendant's assertion that the trial judge must refrain from acting with partiality. Griffin v. State, (1981) Ind., 415 N.E.2d 60, 62; Brandon v. State, (1979) Ind., 396 N.E.2d 365, 371; Brannum v. State, (1977) 267 Ind. 51, 53, 366 N.E.2d 1180, 1182. However, an examination of the record indicates that the judge did not act improperly. As the trial judge indicated in his statement in the record, the sole reason for calling the witnesses was to determine their availability at the trial the next day so that he would be able to meet his responsibilities of managing the court's operation by knowing whether or not this cause could be presented to the jury. Out-of-state witnesses cannot, of course, be required to answer to subpoena from a state court and apparently the prosecuting attorney had uncertain commitments from the witnesses. There is no allegation or showing here that the judge did anything further than assure himself from the witnesses that they could and would be present to testify on the following day. The witnesses in question were Thomas Mattern and his wife. It was Thomas Mattern's credit card that was used by defendant to obtain gasoline on credit from Charles Schroeder, the owner of a filling station in Valparaiso, Indiana, by presenting the credit card to Mr. Schroeder and signing Mr. Mattern's name on the credit receipt. Thomas Mattern's testimony consisted of identification of his credit card, a statement that to his knowledge the credit card was in the custody of his wife and was stolen from her purse, that the theft of the card was reported to the issuer of the card, Sohio, that he did not know the defendant and had never seen him before and that he had not given the defendant nor anyone else permission to use his credit card. Thomas Mattern's wife confirmed this testimony. Neither of the Matterns were able to identify the defendant nor was any of their testimony directed at him personally. In view of this, it is difficult to see how the defendant was unduly prejudiced by the action of the trial judge in directly talking to these witnesses to ascertain whether or not their presence could be expected in the Porter Superior Court. The jury was the trier of fact and the testimony of these witnesses together with their credibility was to be determined by the jury and not by the trial judge. The trial judge therefore did not abuse his discretion in denying the motion for change of venue from the judge.

Defendant raises another issue relating to the testimony of the Matterns. When Thomas Mattern was on the stand and testified for the State, defense counsel indicated to the judge, out of the presence of the jury, that he wished to take the witness on voir dire to question him regarding his discussion of his testimony with the judge the day before. The judge indicated to trial counsel that he would not permit such voir dire and denied the request. After witness Mattern had testified for the State, defense counsel, on cross-examination, asked the witness if he had talked to Judge Douglas in regard to the case. Judge Douglas stopped counsel from questioning the witness any further on that subject, indicating to counsel that he had already placed in the record a statement revealing that he had talked to the witnesses about their presence so that he would know whether or not he could set the case for trial and he felt the matter was not relevant to the jury and beyond the scope of direct examination. Counsel was therefore not permitted to cross-examine the witness on this area.

Defendant now assigns as reversible error the conduct of the trial judge in not permitting him to pursue the subject on cross-examination. In view of the facts and circumstances set out above, it does not appear that the trial judge abused his discretion in limiting cross-examination of the Matterns. While it is true that the right of a defendant to confront witnesses includes the right of full, adequate, and effective cross-examination, Pointer v. Texas, (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Lagenour v. State, (1978) 268 Ind. 441, 376 N.E.2d 475; Sears v. State, (1972) 258 Ind. 561, 282 N.E.2d 807, this Court has also held that the scope of cross-examination is, as a general matter, subject to the trial court's discretion. Haak v. State, (1981) Ind., 417 N.E.2d 321, 322; Ashbaugh v. State, (1980) Ind., 400 N.E.2d 767, 772; Murphy v. State, (1977) 267 Ind. 184, 194, 369 N.E.2d 411, 416. The testimony of the Matterns, although of primary importance to the State, consisted...

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    ...Defendant had a right to reasonable notice and an opportunity to be heard regarding the habitual offender claim. McConnell v. State, (1982) Ind., 436 N.E.2d 1097, 1102; Barnett v. State, (1981) Ind., 429 N.E.2d 625, 626. He did have adequate notice, and in addition, even though the court af......
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