Moore v. State, No. 372A134

Docket NºNo. 372A134
Citation290 N.E.2d 472, 154 Ind.App. 482
Case DateDecember 14, 1972
CourtCourt of Appeals of Indiana

Page 472

290 N.E.2d 472
154 Ind.App. 482
Janie MOORE, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 372A134.
Court of Appeals of Indiana, Third District.
Dec. 14, 1972.

[154 Ind.App. 485]

Page 473

Patrick Brennan, Larry L. Ambler, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

STATON, Judge.

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 [154 Ind.App. 486] 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?

Page 474

(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.

STATEMENT OF THE FACTS: Janie Moore was one of several persons arrested and charged with prostitution when the Indiana State Police conducted a raid on April 10, 1971 at the Oak Leaf Motel & Restaurant located 1/4 mile east of the Town of Hamlet, Indiana. After being charged by affidavit with the crime of prostitution, she filed her motion for change of venue from the county which was denied. A motion for change of venue from the judge was granted on May 25, 1971 and the Honorable Russell Willis was named Special Judge. Before her trial by jury, Janie Moore made a request for a rehearing on her motion for change of venue from the county which was denied. On August 6, 1971 Janie Moore was found guilty of prostitution. She was sentenced on October 8, 1971. She filed her motion to correct errors on [154 Ind.App. 487] December 6, 1971 which was overruled on January 10, 1972. Oral argument before this Court was completed on October 26, 1972.

STATEMENT ON THE ISSUES: Janie Moore's motion to correct errors has stated the issues to be considered on this appeal as follows:

'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.

'3. That the Court below committed reversible error in refusing the Defendant a change of venue from the County of Starke because of the prejudicial pretrial publicity given to the cause herein by the news media which denied the Defendant her right to a fair trial.'

We will discuss these issues in our Statement on the Law below separately as Issue One, Issue Two and Issue Three.

STATEMENT ON THE LAW:

ISSUE ONE: Did the trial judge's remarks on probation during voir dire prevent Janie Moore from having a fair trial?

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.

[154 Ind.App. 488]

Page 475

'MR. WALLSMITH: Could you impose a prison sentence with respect to that crime?

'A I wouldn't send them unless I find them guilty.

'THE COURT: You see, Mr. Moran, there is, the statute provides in the alternative that as a (misdeamnor), a fine between 100 and $500.00 and imprisonment from one to 180 days or they can be punished as a felony from two to five years. Now, if this jury determines that this defendant is guilty, it's going to be up to this jury in its verdict to instruct the Court as to which of these penalties are to be imposed and Mr. Wallsmith's question is are you in a position, as you sit there, to impose the greater penalty if you find the defendant guilty; that's the question.

'A Your, Honor, I'm not an educated man and I always though the jury finds people guilty and the Court fixes--

'THE COURT: This is the ordinary situation, except in this particular case, we have a statute which provides alternatives and it's going to be up to the jury to select the alternative. It's entirely possible, that, based on many considerations, that probation would be in order in this type of case. I don't know that, assuming again, a finding of guilty. That isn't the question; the question is, would you be in a position to recommend to the Court the greater of the penalties provided in the statute, that's the question.

'MR. WALLSMITH: What is your answer?

'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. [154 Ind.App. 489] 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:

'Appellants admit the Judge was not motivated by ill will or malice, but was a former Deputy Prosecutor, a practicing lawyer, and without experience as a Judge; that as Deputy Prosecutor he might have become an interested and biased participant and 'inadvertently stepped from the bench.' However, no objection was raised to the Judge's activities. This is admitted by appellants' counsel. We cannot guess or speculate as to the motives of a Judge who interrupts witnesses except to presume that he was only trying to elicit the truth, especially when no abuse of discretion is shown.'

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

Page 476

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[154 Ind.App. 490] 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:

'We remind counsel that it is his duty, if he desires to save a question for appeal, to make proper objections and to request proper remedies from the Trial Court. This is just as true when the alleged errors are committed by the Court as when erroneous and improper questions are propounded by opposing counsel.'

In Rexroat v. State (1964), 245 Ind. 688, 690, 201 N.E.2d 558, 559 our Supreme Court held that:

'. . . (I)f . . . (the Defendant) thinks misconduct is of such a character that the damage cannot be repaired by any action of the court, (then Defendant should) move to discharge the jury or take such other steps as he may think will secure to him a fair trial. If he fails to do this, and permits the case to proceed to final determination, he must be deemed to have waived all questions arising out of such alleged misconduct.'

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[154 Ind.App. 491] 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...

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14 practice notes
  • Kindred v. State, No. 285S67
    • United States
    • Indiana Supreme Court of Indiana
    • June 8, 1988
    ...is silent as to the reason for delay and the defendant made no objection." Williams, 489 N.E.2d at 57-58 (citing Moore v. State (1972), 154 Ind.App. 482, 290 N.E.2d 472; Taylor, supra ). Defendant contends he was unable to make a timely objection in this case because he was not advised of t......
  • Bennett v. State, No. 2--473A101
    • United States
    • Indiana Court of Appeals of Indiana
    • December 26, 1973
    ...v. State (1967), 248 Ind. 447, 229 N.E.2d 722; Micks v. State (1967), 249 Ind. 278, 230 N.E.2d 298; Moore v. State (1972), Ind.Ct.App., 290 N.E.2d 472; Rexroat v. State (1964), 245 Ind. 688, 201 N.E.2d 558. See also, Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523; Harrison v. State (197......
  • Moritz v. State, No. 1-783A215
    • United States
    • Indiana Court of Appeals of Indiana
    • June 26, 1984
    ...to fully comprehend Page 753 and analyze the portent and direction of the administration of our court system. Moore v. State, (1972) 154 Ind.App. 482, 290 N.E.2d 472; Daniels v. State, (1983) Ind., 453 N.E.2d 160; Resnover v. State, (1984) Ind., 460 N.E.2d In light of previous court decisio......
  • Taylor v. State, No. 3--675A107
    • United States
    • Indiana Court of Appeals of Indiana
    • December 16, 1976
    ...cause may be presumed where the record is silent as to the reason for delay and the defendant made no objection. Moore v. State (1972), 154 Ind.App. 482, 290 N.E.2d 472. Furthermore, if the defendant sought the delay he may not complain. Moore, supra; Stiles v. State (1973), Ind.App., 298 N......
  • Request a trial to view additional results
14 cases
  • Kindred v. State, No. 285S67
    • United States
    • Indiana Supreme Court of Indiana
    • June 8, 1988
    ...is silent as to the reason for delay and the defendant made no objection." Williams, 489 N.E.2d at 57-58 (citing Moore v. State (1972), 154 Ind.App. 482, 290 N.E.2d 472; Taylor, supra ). Defendant contends he was unable to make a timely objection in this case because he was not advised of t......
  • Bennett v. State, No. 2--473A101
    • United States
    • Indiana Court of Appeals of Indiana
    • December 26, 1973
    ...v. State (1967), 248 Ind. 447, 229 N.E.2d 722; Micks v. State (1967), 249 Ind. 278, 230 N.E.2d 298; Moore v. State (1972), Ind.Ct.App., 290 N.E.2d 472; Rexroat v. State (1964), 245 Ind. 688, 201 N.E.2d 558. See also, Dull v. State (1962), 242 Ind. 633, 180 N.E.2d 523; Harrison v. State (197......
  • Moritz v. State, No. 1-783A215
    • United States
    • Indiana Court of Appeals of Indiana
    • June 26, 1984
    ...to fully comprehend Page 753 and analyze the portent and direction of the administration of our court system. Moore v. State, (1972) 154 Ind.App. 482, 290 N.E.2d 472; Daniels v. State, (1983) Ind., 453 N.E.2d 160; Resnover v. State, (1984) Ind., 460 N.E.2d In light of previous court decisio......
  • Taylor v. State, No. 3--675A107
    • United States
    • Indiana Court of Appeals of Indiana
    • December 16, 1976
    ...cause may be presumed where the record is silent as to the reason for delay and the defendant made no objection. Moore v. State (1972), 154 Ind.App. 482, 290 N.E.2d 472. Furthermore, if the defendant sought the delay he may not complain. Moore, supra; Stiles v. State (1973), Ind.App., 298 N......
  • Request a trial to view additional results

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