Robinson v. State

• Decision Date: 07 April 1983
• Docket Number: No. 1281S368,1281S368
• Parties: David J. ROBINSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1287

446 N.E.2d 1287

David J. ROBINSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1281S368.

Supreme Court of Indiana.

April 7, 1983.

Susan K. Carpenter, Public Defender of Ind., James G. Holland, Sp. Asst. Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, David J. Robinson, was convicted by a jury of child molesting, a Class B felony, Ind.Code Sec. 35-42-4-3 (Burns 1979 Repl.) and was sentenced to the Indiana Department of Correction for a period of twenty years. His direct appeal raises the following five issues:

1. Whether the trial court erred in not granting a change of venue from the county;

2. Whether the trial court erred in overruling defendant's motion to call the jury panel in reverse order in which the individual names were drawn for jury service;

3. Whether the evidence is sufficient to support the verdict;

4. Whether the trial court erred in ruling that the defendant's thirty-year prior conviction for rape could be used for impeachment purposes if the defendant elected to testify; and

5. Whether the trial court erred in increasing the basic ten-year sentence to twenty years because of aggravating circumstances.

A brief summary of the facts most favorable to the state shows that on the evening of May 8, 1980, the defendant, while visiting the victim's mother at the victim's home, performed sexual intercourse on the victim until she bled. The victim was ten years old at the time. After helping the victim dress, the defendant and the victim's mother drove her to the hospital where the victim underwent surgery to repair a tear in her vagina. When admitted to the hospital the victim was described as being in pain, frightened, sleepy, and "very shocky." Prior to surgery and after surgery the victim told hospital personnel that her assailant was white. Four days later, while still in the hospital, she also told the sheriff that her attacker was white, but then said that wasn't right and identified the defendant, who is black, as her assailant. At trial, the victim identified the defendant and testified that he had strapped her to an ironing board, tied her feet, and raped her while her mother held her down. The victim also testified that the defendant had molested her before but that he had not "put it in as far" and that it had not hurt so much.

I.

Defendant first alleges that racial prejudice, prejudgment of the defendant's guilt based on prior publicity, and emotional reaction to the nature of the crime made it impossible for the defendant to receive a fair trial in Jay County. Therefore, the defendant contends that the trial court abused its discretion when it refused to grant a change of venue from Jay County. The record shows that the trial court conducted a pretrial hearing on the motion. During the hearing, fifteen people, selected at random, were questioned about their knowledge of the crime and whether the race of the victim and defendant was an issue. Six of the witnesses had not heard about the case. Of the witnesses who had heard or read about the case, no one could remember the specifics of the crime. Only two of the fifteen witnesses seemed to view the case any differently because the victim was white and the defendant was black. Of these two witnesses, one testified that she would not use the defendant's race to convict him and the other testified that her prejudice stemmed from her upbringing in Texas. The other thirteen witnesses indicated that race would not be an issue in determining the defendant's guilt or innocence. Each witness who was asked believed the defendant could receive a fair trial in Jay County.

The grant or denial of a motion for change of venue is within the discretion of the trial court. The ruling will not be disturbed unless it is clear the court exceeded its discretion. Underhill v. State, (1981) Ind., 428 N.E.2d 759; Dorton v. State, (1981) Ind., 419 N.E.2d 1289; Haybron v. State, (1979) Ind., 396 N.E.2d 891. It was for the defendant to show that an impartial jury would be impossible because of the high probability or existence of widespread community bias. Underhill, supra; Haybron, supra. The trial court heard and assessed the credibility of the fifteen witnesses and concluded that the defendant could receive a fair trial. This conclusion was within the trial court's discretion. Mendez v. State, (1977) 267 Ind. 67, 367 N.E.2d 1081.

The defendant renewed his motion for a change of venue from the county prior to voir dire and was again overruled. The defendant contends that this was error and that the record of the voir dire is evidence of a biased jury. He bases this contention on the fact that five jurors were excused for cause and that some of the jurors had read or heard about the crime when it occurred. The only evidence of potential community bias was the jurors' prior knowledge of the crime. The record indicates, however, that the media coverage occurred immediately after the crime and a year before the trial. There was no evidence of sensationalism at the time of trial. Cf. Baniszewski v. State, (1970) 256 Ind. 1, 261 N.E.2d 359. Those jurors who had heard or read about the crime were unaware of any details on which they could prejudge the defendant. Furthermore, the record indicates that those jurors evidencing racial prejudice were excused. The jurors who actually served indicated no bias toward the defendant. It was the trial court's role to weigh the evidence of potential community bias and to assess the credibility of the jurors during voir dire in determining whether the defendant could receive a fair trial. Mendez, supra.

To be entitled to a change in venue from the county the defendant must show that the jurors were "unable to set aside their preconceived notions of guilt and to render a verdict based upon the evidence." Sage v. State, (1981) Ind., 419 N.E.2d 1286, 1287. The defendant has not proven that the jurors who actually served were biased or had prejudged his guilt. To the contrary, the record shows that each juror swore he or she could be impartial and fair. Based on the record of the pretrial hearing and the voir dire, it cannot be said that the trial court exceeded its discretion in denying the motion for a change of venue from Jay County. There was no trial court error.

II.

Defendant next contends that the trial court erred in refusing to call the jurors in the reverse order in which the individuals' names were drawn for jury service. The defendant argues that in the interest of justice the jurors should have been called in reverse order because some of the jurors had already served on previous jury trials, thus having become jaded. However, Ind.Code Sec. 33-15-22-1 (Burns 1975) mandates that jurors be called in the same order as their names were drawn for jury service. The defendant argues that this statute is flexible because the Vanderburgh Circuit Court is exempted from the above requirement, Ind.Code Sec. 33-5-43-21 (Burns 1975). In addition, the defendant urges the Court to find an exception to this statute because the state did not allege or prove that it would be harmed by reversing the procedure.

We reject both arguments. The fact that the legislature has decided to exempt Vanderburgh Circuit Court from the language of Ind.Code Sec. 33-15-22-1 (Burns 1975) does not mean that the statute is flexible. Such a conclusion would go against the express language of the statute. Ind.Code Sec. 33-15-22-1 provides in pertinent part:

"Provided, That the order of names as listed in the panel and as called for service shall be the same order as that in which the names are drawn from the box, as herein provided. The clerk shall at the time of drawing such prospective jurors, enter a list of names so drawn, upon the order-book of the court, in the same order in which the names are drawn from the box, and he shall attach his certificate of the fact. The clerk shall issue venires for such jurors as such courts may direct. The sheriff or bailiff shall then call the jurors to the jury box in the same order as that in which their names are drawn, from the box and certified thereto."

The use of the word shall has been held to be a clear expression of a mandatory duty. Schwartzkopf v. State ex rel. Fettig, (1965) 246 Ind. 201, 204 N.E.2d 342; State ex rel. Simpson v. Meeker, (1914) 182 Ind. 240, 105 N.E. 906. Because the language of the statute is mandatory the state did not need to allege or prove that reversing the order of jury selection would be prejudicial to the state. The selection process under Ind.Code Sec. 33-15-22-1 is to insure jury selection on a random basis in order to prevent the possibility of bias. Phillips v. State, (1978) 268 Ind. 556, 376 N.E.2d 1143. Although failure to comply with the statute has been held to be harmless error when the noncompliance did not prejudice the defendant, Phillips, supra, we cannot find error when the trial court has followed the statutory language.

The defendant argues that the jury was conviction prone because several of the jurors had sat on previous juries. However, the defendant has offered no evidence, other than his own speculation, to prove this allegation. Prior jury service alone does not disqualify jurors from service. Begley v. State, (1981) Ind., 416 N.E.2d 824; Brown v. State, (1977) 266 Ind. 82, 360 N.E.2d 830. The trial court did not err in denying defendant's motion to call the jurors in reverse order.

III.

The defendant also alleges that the evidence was insufficient to support the verdict because the state failed to prove beyond a reasonable doubt that he had sexual intercourse with the victim. The defendant argues that the victim's testimony was vacillating contradictory, uncertain, and inherently incredible. He bases this argument on the fact that the victim first said that...