Remsen v. State, No. 584S185PS

Docket NºNo. 584S185PS
Citation495 N.E.2d 184
Case DateJuly 18, 1986
CourtSupreme Court of Indiana

Page 184

495 N.E.2d 184
Randal J. REMSEN, Appellant,
v.
STATE of Indiana, Appellee.
No. 584S185PS.
Supreme Court of Indiana.
July 18, 1986.

Page 186

Randal J. Remsen, pro se.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from a denial of a petition for post-conviction relief. Appellant was convicted of rape, a class A felony, I.C. Sec. 35-42-4-1 (Burns 1979 Repl.). A jury tried the case. He received a thirty five year sentence. On direct appeal, this Court affirmed the trial court's judgment in Remsen v. State (1981), Ind., 428 N.E.2d 241. Appellant represented himself in the post-conviction hearing and in this appeal.

Appellant presents argument on appeal regarding the following rulings and actions of the post-conviction court:

1. Adopting findings and conclusions drafted by the prosecutor.

2. Raising the sufficiency of evidence question sua sponte.

3. Denying a change of judge.

4. Approving an alibi instruction given at trial.

5. Approving conduct of the prosecutor in speaking to witnesses as they entered the courtroom to testify at the post-conviction hearing.

6. Approving the former arraignment without counsel.

7. Approving the assistance provided by counsel at trial and on appeal.

8. Failing to find newly discovered evidence regarding the victim's identification.

9. Finding the claim of prejudicial pre-trial publicity waived on direct appeal.

10. Concluding that a preliminary hearing had not been wrongfully denied.

11. Failing to reach a claim of prosecutorial misconduct.

In post conviction proceedings Defendant bears the burden of proving his contentions by a preponderance of the evidence. Lamb v. State (1975), 263 Ind. 137, 143, 325 N.E.2d 180, 183. The trial judge, as trier of the facts, is the sole judge of the weight of the evidence and the credibility of the witnesses. Rufer v. State (1980), [274 Ind. 643], 413 N.E.2d 880, 882. Defendant stands in the position of one appealing from a negative judgment. In such cases, it is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached an opposite conclusion, that the decision will be disturbed as being contrary to law. Walker v. State (1978), 267 Ind. 649, 651, 372 N.E.2d 739, 740.

Popplewell v. State (1981), Ind., 428 N.E.2d 15.

I

Appellant contends that the prosecution drafted the post-conviction court's ruling denying post-conviction relief. Appellant draws his basic premise from the statement in the findings of fact and conclusions of law wherein the court concludes that the petition "ought" to be denied. The use of this language does not signify a suggestion by the prosecutor, but is instead commonly used by judges to express the result of their final evaluative steps.

Page 187

Moreover, a court can, within its discretion, require the parties to draft proposed findings of fact and conclusions of law, and a court can adopt one or the other as the basis for its judgment if it so finds. Ind. Rules of Procedure, Trial Rule 52(C).
II

Appellant complains about the conduct of the prosecutor in bringing up the issue of the sufficiency of evidence, claiming that the purpose of doing so was to create a state of chaos. Such issue is present at every post-conviction hearing, and is thus appropriate for comment and argument by either party.

III

Appellant argues that the post-conviction court erred in denying his motion for change of judge. Ind.R.P.C.R. 1 Sec. 4(b) states:

Change of Venue from the judge shall be granted when the petitioner files, within ten days of the filing of his petition, an affidavit that the judge has a personal bias or prejudice against petitioner. The affidavit shall state the facts and the reasons for the belief that such bias exists,...

The allegations of the motion are not made under oath or with affirmation as required. In addition, they are abstract and not factual. Consequently, the denial of the motion for change of venue was not error.

IV

Appellant argues that the trial court misinformed the jury as to the legal effect of alibi evidence. Specifically, he claims that final instruction No. # 5 destroyed the presumption of innocence and shifted the burden of proof to him on an essential element of the offense.

Final instruction No. # 5 is set forth here:

The defendant has asserted the defense of alibi. Evidence has been presented that at the time of the commission of the crime charged in the information, the defendant was at a different place so remote or distant that such circumstances existed, that he could not have committed the crime. If you have a reasonable doubt as to whether the defendant was present at the time and place the crime was committed, you should find the defendant not guilty.

This instruction does not relieve the prosecution of the burden of proving that the defendant was present at the time and place of the crime, and in this regard is unlike the one pointed out in appellant's brief from Waters v. People (1898), 172 Ill. 367, 50 N.E. 148. The last sentence of the present instruction operates so as to keep that burden on the prosecution. The post-conviction court was not in error in rejecting this claim.

V

Appellant argued that the prosecutor's actions in calling witnesses into the courtroom constituted prosecutorial misconduct. He alleges that the prosecutor told the witnesses what was occurring in the courtroom. There is no support for the factual predicate. Consequently, the post-conviction court's...

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11 practice notes
  • Fleenor v. State, No. 41S00-9106-PD-433
    • United States
    • Indiana Supreme Court of Indiana
    • September 3, 1993
    ...on appeal, and the party seeking review, here the petitioner, bears the burden of showing invalidity. Remsen v. State (1986), Ind., 495 N.E.2d 184. The trial judge, as trier of fact, is the sole judge of the weight of the evidence and the credibility of the witnesses. On appeal, petitioner ......
  • Stamps v. State, No. 82S00-8601-CR-18
    • United States
    • Indiana Supreme Court of Indiana
    • November 24, 1987
    ...N.E.2d 561; Short v. State (1982), Ind., 443 N.E.2d 298; Remsen v. State (1981), Ind., 428 N.E.2d 241, later proceeding, (1986), Ind., 495 N.E.2d 184; Bundy v. State (1981), Ind., 427 N.E.2d 1077; Brown v. State (1979), 271 Ind. 129, 390 N.E.2d 1000. In the instant case, the declarant did t......
  • Beird v. Figg & Muller Engineers, Inc., No. 37A03-8604-CV-117
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 1987
    ...in the denial of the motion to be preserved. Lagenour v. State (1978), 268 Ind. 441, 376 N.E.2d 475, 481; Remsen v. State (1986), Ind., 495 N.E.2d 184, 189; Collins v. State (1984), Ind., 464 N.E.2d 1286, 1290; and Norton v. State (1980), 273 Ind. 635, 408 N.E.2d 514, 525. The Plaintiff con......
  • Perry v. State, No. 02A04-9210-PC-371
    • United States
    • Indiana Court of Appeals of Indiana
    • October 26, 1993
    ...that it can be produced upon retrial of the case; and (9) that it will probably produce a different result Remsen v. State (1986), Ind., 495 N.E.2d 184. The post-conviction court found that Perry was not entitled to a new trial based on the 1979 and 1980 Police Reports, as the victim's alle......
  • Request a trial to view additional results
11 cases
  • Fleenor v. State, No. 41S00-9106-PD-433
    • United States
    • Indiana Supreme Court of Indiana
    • September 3, 1993
    ...on appeal, and the party seeking review, here the petitioner, bears the burden of showing invalidity. Remsen v. State (1986), Ind., 495 N.E.2d 184. The trial judge, as trier of fact, is the sole judge of the weight of the evidence and the credibility of the witnesses. On appeal, petitioner ......
  • Stamps v. State, No. 82S00-8601-CR-18
    • United States
    • Indiana Supreme Court of Indiana
    • November 24, 1987
    ...N.E.2d 561; Short v. State (1982), Ind., 443 N.E.2d 298; Remsen v. State (1981), Ind., 428 N.E.2d 241, later proceeding, (1986), Ind., 495 N.E.2d 184; Bundy v. State (1981), Ind., 427 N.E.2d 1077; Brown v. State (1979), 271 Ind. 129, 390 N.E.2d 1000. In the instant case, the declarant did t......
  • Beird v. Figg & Muller Engineers, Inc., No. 37A03-8604-CV-117
    • United States
    • Indiana Court of Appeals of Indiana
    • December 30, 1987
    ...in the denial of the motion to be preserved. Lagenour v. State (1978), 268 Ind. 441, 376 N.E.2d 475, 481; Remsen v. State (1986), Ind., 495 N.E.2d 184, 189; Collins v. State (1984), Ind., 464 N.E.2d 1286, 1290; and Norton v. State (1980), 273 Ind. 635, 408 N.E.2d 514, 525. The Plaintiff con......
  • Perry v. State, No. 02A04-9210-PC-371
    • United States
    • Indiana Court of Appeals of Indiana
    • October 26, 1993
    ...that it can be produced upon retrial of the case; and (9) that it will probably produce a different result Remsen v. State (1986), Ind., 495 N.E.2d 184. The post-conviction court found that Perry was not entitled to a new trial based on the 1979 and 1980 Police Reports, as the victim's alle......
  • Request a trial to view additional results

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