Pollard v. State

Decision Date24 September 1969
Docket NumberNo. 868S134,868S134
PartiesWilliam POLLARD, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William C. Erbecker, James Manahan, Erbecker & Manahan, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Richard V. Bennett, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

Appellant was charged with conspiracy to commit second degree burglary to which he entered a plea of not guilty. The cause was tried before the court over the objection of appellant and he was found guilty as charged.

On appeal appellant assigns as error the trial court's overruling of his motion for new trial. In such motion for new trial appellant alleges error on the part of the trial court in pertinent part as follows:

'1. Irregularity in the proceedings of the Court and orders of the Court and abuse of discretions by which said defendant was prevented from having a fair and impartial trial in this, to wit:

(a) The Court erred in overruling and denying the defendant's Verified Motion For Change of Venue From Judge.

(b) The Court erred in overruling the defendant's Motion to Reconsider its ruling denying the Motion for Change of Venue from Judge.

(c) The Court erred in overruling and denying the defendant's Objections to Trial.

2. The finding of the Court is not sustained by sufficient evidence.

3. The finding of the Court is contrary to law.'

The first error alleged by appellant in his motion for new trial is the sole point argued in this appeal and resulted from the court's refusal to grant appellant's verified motion for change of venue from judge. Appellant attacks the propriety of the court's refusal to grant a change of venue as well as its jurisdiction once such a motion has been filed.

Appellant fails to argue points two and three raised in his motion for new trial and they are therefore deemed waived. Supreme Court Rule 2--17. Brown v. State (1969), Ind., 247 N.E.2d 76. Short v. State (1968), Ind., 237 N.E.2d 258. Waggoner v. State (1949), 227 Ind. 269, 85 N.E.2d 642.

A brief review of the proceedings in this case follows: On September 5, 1966 appellant and one Joseph Smith were arrested on the roof of a drug store where a hole had been cut through the roof and ceiling to the store below. An indictment, filed December 29, 1966 charged appellant with conspiracy to commit a felony, to-wit: second degree burglary. Appellant entered a plea of not guilty to the charge and on January 12, 1967 he filed a petition for a change of judge which was granted. The parties were given five (5) days to agree on a special judge, but failing to do so the court then presented a panel of three from which the Honorable Jacob S. Miller was selected by striking. Judge Miller qualified as special judge on February 3, 1967.

On April 5, 1967, the day set for trial, appellant filed for a continuance on the grounds that appellant's defense attorney, William Erbecker, due to a heavy work schedule was unable to make the necessary defense preparations. The continuance was granted and the cause set for May 25, 1967. On May 19, 1967, appellant moved for trial by jury which motion was granted. The court, on August 29, 1967 by its own motion continued the cause to September 20, 1967.

Appellant filed another motion for continuance on September 19, 1967, which motion was based on defense attorney William Erbecker's statement that he had been unable to completely and effectively consult with the appellant and his co-defendant to ascertain their complete defense and that the trial date of September 20 conflicted with a scheduled appearance in the United States District Court, Southern District of Indiana, Indianapolis, Indiana. The continuance was granted and the cause set for trial on November 13, 1967. Also on September 20, 1967, appellant again moved for trial by jury, which motion was granted.

On November 10, 1967 appellant filed for another continuance, the reason for such motion being that appellant's attorney, Erbecker, could not appear because of pending litigation in the Henry Circuit Court. Appellant's move for continuance was granted on November 13, 1967. It was also on this date that the court found appellant's bond insufficient and raised it in the sum of Five Thousand ($5,000) Dollars.

A verified motion for change of venue from judge was filed on January 17, 1968 by the appellant. The substance of the motion was that the appellant believed he could not have a fair and impartial trial because of the bias, prejudice and hostility of the special judge, Judge Miller, toward appellant's attorney, William Erbecker. The motion further alleged that such bias, prejudice and hostility resulted from appellant's motion for continuance of November 10, 1967. The motion proceeds to read as follows:

'5. That defendant-affiant was present in Court on Monday, November 13, 1967 at approximately 9:20 o'clock A.M. thereof, together with R. Martin Worrell, Attorney-at-Law, an office associate of Defense Counsel, William C. Erbecker, whereupon the Honorable Jacob Miller, as Special Judge in said cause, arbitrarily, without cause or justification, increased said bond from Twenty Five Hundred Dollars ($2500.00) to Seventy Five Hundred Dollars ($7500.00) and remanded defendant to the custody of the Sheriff of Marion County until such increased bond of Seventy Five Hundred Dollars ($7500.00) was duly made and provided; that the said Honorable Jacob S. Miller, by his conduct and by his conversation, displayed and evidenced great displeasure and annoyance at defendant's Counsel, William C. Erbecker, who was necessarily absent because of the aforesaid Jury trial in the Henry Circuit Court, and despite repeated urgent pleas by defendant-affiant and by said R. Martin Worrell, Attorney, and despite no objection by the Deputy Prosecutor handling said cause, David Millen, the said Honorable Jacob S. Miller, did berate and denounce the said William C. Erbecker because of his (Erbecker's) alleged failure to notify the said Jacob S. Miller of the requested continuance despite the fact that attaches of the Marion Criminal Court, Division 2, and the said David Millen, Deputy Prosecutor, were notified of said Erbecker's participation in a First Degree Murder Jury trial in the Henry Circuit Court and of Erbecker's Verified Motion For Continuance which had also been signed by this defendant-petitioner herein.

6. That by reason of the aforesaid displayed, pronounced and evidenced hostility, bias and prejudice toward defendant's Attorney William C. Erbecker, and toward the defendant also, by the said Honorable Jacob S. Miller, Special Judge of the Marion Criminal Court, Division 2 in this cause, and despite the urgent appeals of defendant and the said R. Martin Worrell, the Court continued the denunciation and castigation of said William C. Erbecker and arbitrarily increased said bond to the financial detriment of this defendant-affiant; that by reason of the aforesaid, defendant-affiant verily believes that he cannot have a fair and impartial trial before the Honorable Jacob S. Miller, Special Judge trying this cause, and your defendant-affiant makes this Motion For Change of Judge at the earliest possible time after consultation with his Attorney, William C. Erbecker, who had been previously engaged in other litigation as aforesaid.'

The court on January 19, 1968 overruled defendant's motion for change of venue. Subsequently appellant filed a motion to reconsider. In support of the motion to reconsider was an affidavit which reads as follows:

'I, R. Martin Worrell, an associate of William C. Erbecker, have just finished reading the above Verefied (sic) Motion and concur and agree with each and every sentence and paragraph contained therein. To me it appears that the Honorable Jacob Miller was somewhat chagrined (sic) and displeased with Mr. William C. Erbecker because he, Erbecker did not inform him, the Hon. Jacob Miller of his desire for a continuance sooner, so that the Honorable Jacob Miller could arrange his Calender (sic) of pending cases and for this, and perhaps other reasons would not be able to render a just decision and or finding in behalf of William C. Erbeckers client, namely Billie Pollard.'

The motion to reconsider was overruled on January 29, 1968 the date set for trial and on the same day appellant moved for another continuance, appellant's counsel being engaged in other litigation. Such motion was granted and trial was set for March 30, 1968. On March 19, 1968 appellant filed an objection to trial. Appellant was subsequently tried and convicted as charged.

In determining the propriety of the special judge's refusal to grant a second change of venue, we turn first to the applicable statute, Ind.Ann.Stat. § 9--1305 (1956 Repl.) which reads in pertinent part as follows:

'* * * Provided, however, That only one (1) change of venue from the judge and only one (1) change from the county shall be granted.'

The same language is incorporated in Supreme Court Rule 1--12C.

As has been noted, appellant had already been granted one change of venue from the judge, and in this appeal is challenging the trial court's denial of a second request.

This court early upheld the policy of allowing one change of venue for the same cause. In Line v. State (1875), 51 Ind. 172, 173, it was said:

'The affidavit, (for a change of venue) we think, fulfills the requisites of the statute; but the question arises, is the appellant entitled to two changes of venue in the same case for the same cause? We think not. The statute nowhere authorizes a second change of venue to the same party for the same cause. The court had no more power to grant a second change than it would have to grant a third, fourth or fifth, or any number of changes. The ends of justice demand this construction of the statute; otherwise it would be in the power of the defendant, charged with a criminal...

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    ...an opinion on the merits of the controversy before him. Holguin v. State (1971), 256 Ind. 371, 269 N.E.2d 159; Pollard v. State (1969), 252 Ind. 513, 250 N.E.2d 748, reh. denied. In the letter to the Department of Mental Health the trial judge expressed concern over allegations, relayed to ......
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