McDaniel v. State

• Decision Date: 12 May 1978
• Docket Number: No. 677S420,677S420
• Parties: Gary A. McDANIEL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 228

375 N.E.2d 228

268 Ind. 380

Gary A. McDANIEL, Appellant, v. STATE of Indiana, Appellee.

No. 677S420.

Supreme Court of Indiana.

May 12, 1978.

Michael E. Hunt, Monroe County Public Defender, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of second degree murder and sentenced to an indeterminate term of fifteen to twenty-five years. The evidence shows that on August 15, 1975, appellant was arrested and brought to Bloomington City Court for arraignment on charges of malicious trespass and housebreaking to commit violence. Captain Donald Owens of the Bloomington Police Department escorted the appellant. The charges were read to him and when the court set bond at $500, the appellant pleaded for reduction of bond. The court refused and Captain Owens then escorted appellant from the courtroom. Scuffling noises were heard in the hallway and a shot was fired. Appellant was heard to say, "I didn't mean to shoot anyone. I was trying to kill myself." Captain Owens received the fatal gunshot wound during the encounter.

The sole witness to the incident was Robert McDaniel, brother of the appellant. He testified that as they reached the stairway, appellant attempted to return to the courtroom. Owens grabbed him and as the two men fell to the floor Owens' gun fell from his holster. The two struggled and the gun went off, the bullet striking Captain Owens.

Appellant moved for a change of venue from Monroe County and its contiguous counties. The trial court conducted a hearing and thereafter granted the motion for change of venue from Monroe County, but denied the motion as to the contiguous counties. Appellant failed to strike from the list of counties contiguous to Monroe and jurisdiction was resumed by the Monroe Circuit Court. Appellant contends it was reversible error for the court to have denied his motion.

Indiana CR. 12 gives criminal defendants an absolute right to one change of venue from the county in all capital cases. Appellant was granted this change of venue. The question of whether to grant the change beyond the contiguous counties lies within the discretion of the trial court and will not be reversed unless an abuse of discretion is shown. McFarland v. State, (1975) 263 Ind. 657, 336 N.E.2d 824. The newsclippings attached to the motion for change of venue failed to show a pattern of deep and bitter prejudice as required by Irvin v. Dowd, (1961) 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. The press coverage in the case at bar merely exhibits the normal reaction of news media to a story of this magnitude. It is merely the everyday reporting of the criminal justice processes. The trial court "had the right to weigh the content of the exhibits and determine their effect on the 'public attitude' toward the defendant." Brown v. State, (1969) 252 Ind. 161, 173, 247 N.E.2d 76, 83. The trial court's decision to limit the change of venue to the counties contiguous to Monroe was not an abuse of judicial discretion in view of the evidence presented to him. By failing to strike from the list of counties submitted the appellant waived his right to a change of venue under Indiana CR. 12. We therefore hold there was no error in the trial court's resumption of jurisdiction in the case and the proceeding with trial in Monroe County.

Appellant next contends the trial court erred in overruling his motion in limine thereby permitting the State to impeach him during his testimony by exploring his two prior arrests and guilty pleas to the charge of theft by check, for which judgment was withheld. He argues that because judgment was never rendered he was not actually convicted of a crime. Convictions for crimes involving dishonesty or false statements may be used for impeachment purposes. Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d 210. The crime of theft is a crime of dishonesty. Fletcher v. State, (1976) 264 Ind. 132, 340 N.E.2d 771. In State v. Redman, (1915) 183 Ind. 332, 109 N.E. 184, this Court held that when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant. In the case at bar, appellant made a judicial confession. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea. We hold the trial court did not err in overruling the motion in limine.

A police officer testified that after the shooting the appellant stated, "I didn't mean to shoot anyone. I was trying to kill myself." Defense counsel objected on the ground of hearsay. The trial judge overruled the objection. Statements made between witnesses and the defendant with reference to the commission of the crime charged are relevant and admissible. McFarland v. State, supra. The appellant contends the State failed to produce independent evidence of the corpus delicti before introducing the admission and thus the evidence was improperly introduced. The State is not required to prove the corpus delicti by independent evidence prior to introducing a confession or admission of the defendant so long as the State, at some point, adduces the necessary proof to establish the corpus delicti. Ballard v. State, (1974) 262 Ind. 482, 318 N.E.2d 798. The order of proof is within the sound discretion of the trial court. Parker v. State, (1950)228 Ind. 1, 89 N.E.2d 442. In such a situation, the case will be reversed only where there is a clear showing of an abuse of judicial discretion. Brown v. State, (1958) 239 Ind. 184, 154 N.E.2d 720. In the case at bar, the State discharged its duty of proving that a human being died as a result of a criminal act, as required in Cambron v. State, (1975) 262 Ind. 660, 322 N.E.2d 712. Accordingly, the trial court did not err in permitting the State to introduce the evidence of appellant's statement concerning the shooting.

Appellant next claims the trial court erred in overruling his motion for mistrial. During the trial one of the jurors received a threatening telephone call regarding the case. The trial judge questioned the juror in his chambers, discharged the juror and impanelled the alternate juror. He then admonished the jury not to talk to anyone about the case and to immediately report any incidents of other attempts to discuss the case with them. Appellant argues that the admonishment to the jury was insufficient and that each juror should have been interrogated individually. Therefore, he claims his motion for mistrial should have been granted. In Daniels v. State, (1976) 264 Ind. 490, 346 N.E.2d 566, this Court held that where improper influences are made upon a juror the trial court should apply the procedures set forth in Lindsey v. State, (1973) 260 Ind. 351, 358, 295 N.E.2d 819, 823. The Court stated:

"If the risk of prejudice appears substantial . . . the court should interrogate the jury collectively . . . . If any of the jurors have been exposed, he must be...