Moore v. State
Decision Date | 14 December 1972 |
Docket Number | No. 372A134,372A134 |
Citation | 290 N.E.2d 472,154 Ind.App. 482 |
Parties | Janie MOORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Court | Indiana Appellate Court |
Patrick Brennan, Larry L. Ambler, South Bend, for appellant.
Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.
STATEMENT ON APPEAL: The Indiana State Police conducted a raid on April 10, 1971 at the Oak Leaf Motel & Restaurant which resulted in the arrest of Janie Moore and others. She was charged with prostitution, tried before a jury and convicted. The trial court sentenced her to 180 days at the Indiana Women's Prison and fined her $500.00. The fine was suspended and the sentence reduced to 30 days at the Indiana Women's Prison. She filed her motion to correct errors on December 6, 1971 which presents these issues:
(1) Was the trial judge's reference to probation during voir dire reversible error?
(2) Did the trial court commit reversible error when it did not sentence Janie Moore within 30 days after the jury found her guilty?
(3) Did the trial court commit reversible error when it denied Janie Moore's motion for change of venue from the county?
The trial judge's probation remark was made in an attempt to explain a question by the prosecutor to a venireman during voir dire. No objection was made before or during the trial by Janie Moore. When the defendant invites a delay in her sentencing, she cannot complain of error. We find no abuse of discretion by the trial court in denying Janie Moore's motion for change of venue from the county. In our opinion which follows, we affirm the trial court's judgment.
'1. That the Trial Court committed reversible error in discussing the subject of 'probation' in the presence of the jurors during the voir dire proceedings, the said remarks harming the defendant and denying her a fair trial.
'2. That the Trial Court failed to comply with CR. 11 of the Indiana Rules of Procedure when it did not sentence the Defendant within thirty days of verdict of guilty and the Trial Court thereby lost its jurisdiction over the Defendant.
We will discuss these issues in our Statement on the Law below separately as Issue One, Issue Two and Issue Three.
The alleged prejudicial remarks complained of by Janie Moore took place during the voir dire when the prosecutor, Mr. Wallsmith, questioned one of the veniremen regarding his ability to send someone to jail for prostitution. The record discloses the following exchange of remarks:
'MR. WALLSMITH: Could you send somebody to prison for prostitution?
'A If I found them guilty; if they were guilty.
'MR. WALLSMITH: Could you impose a prison sentence with respect to that crime?
'A I wouldn't send them unless I find them guilty.
'A I don't know. I guess I could.
The record further discloses that this venireman, Mr. Moran, was challenged peremptorily by Mr. Wallsmith and excused. No objection was made by Janie Moore to the probation remark of the trial judge during the voir dire interrogation, at the conclusion of voir dire or at any other time during the proceedings.
Janie Moore relies upon Gaynor v. State (1966), 247 Ind. 470, 217 N.E.2d 156; Rhodes v. State (1930), 202 Ind. 159, 171 N.E. 301, 172 N.E. 176; Lovely v. United States (4th Cir. 1948), 169 F.2d 386.
In Gaynor v. State, supra, the defendants were charged with the crime of conspiracy to commit second degree burglary. They waived trial by jury and entered a plea of not guilty. The trial judge frequently interrupted trial counsel and interrogated witnesses. No objections were made by the defendants' trial counsel. Our Supreme Court stated in Gaynor v. State, supra, 247 Ind. at 477, 217 N.E.2d at 160, in an opinion written by Judge Myers that:
No objection was made by Janie Moore at any time during the proceedings. There being no objection in the record, Gaynor v. State, supra, does not support her position. Even in Rhodes v. State, supra, an objection was made by the trial counsel. 1
Lovely v. United States, supra, is easily distinguished from the present case since it is based upon an instruction given to the jury and there was an objection. The jury was instructed that a person sentenced to life imprisonment was eligible for parole after fifteen years. The court held that to charge a jury as to eligibility for parole after fifteen years was to becloud the issue before them and open the way to a compromise verdict. Lovely v. United States, supra, does not support Janie Moore's contention.
Where a trial judge makes voluntary remarks before the jury panel during voir dire, no error is preserved on appeal unless an objection is made at some time during the proceedings and before the jury retires for deliberation. In Micks v. State (1967), 249 Ind. 248, 282, 230 N.E.2d 298, 301, our Supreme Court in an opinion written by Judge Lewis cautioned:
In Rexroat v. State (1964), 245 Ind. 688, 690, 201 N.E.2d 558, 559 our Supreme Court held that:
Also see Coakley v. State (1972), Ind.App., 283 N.E.2d 392; Harrison v. State (1972), Ind. 281 N.E.2d 98 and Langley v. State (1971), Ind., 267 N.E.2d 538.
Any question of error was waived by Janie Moore when she failed to make an objection before the jury's deliberations. We find no error as to Issue One.
ISSUE TWO: The second issue revolves around the permissible amount of time which should be permitted to expire before sentencing the Defendant, Janie Moore. The Rule CR. 11 of the Indiana Rules of Procedure provides in part:
'In all courts of superior jurisdiction having general jurisdiction to try felony charges, the trial court shall sentence a defendant convicted in a criminal case on a plea of not guilty within thirty (30) days of the finding or verdict of guilty.'
Janie Moore was found guilty on August 6, 1971. She was sentenced by the trial court on October 8, 1971. This is a total of sixty-three (63) days or...
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