Smith v. State

Citation497 N.E.2d 601
Decision Date23 September 1986
Docket NumberNo. 3-1085A265,3-1085A265
PartiesRaymond Robert SMITH, Defendant-Appellant v. STATE of Indiana, Plaintiff-Appellee.
CourtCourt of Appeals of Indiana

Doug Kvachkoff, Goodland, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Raymond R. Smith was convicted below of criminal deviate conduct, a Class B felony, IC 35-42-4-2(3); child molestation, a Class B felony, IC 35-42-4-3(a); and child molestation, a Class C felony, IC 35-42-4-3(b), for engaging in fondling, touching and deviate sexual conduct with three children under twelve years of age.

During the summer of 1984, C.A., age 8, C.B., age 6 and C.C., age 6 on several occasions visited their grandfather, the defendant. During these visits Smith showed the children pornographic movies, fondled and touched the children and caused two of the children to submit to oral sex. After learning of these events, the mother of the three children reported the incidents to the LaPorte County Welfare Department.

On November 10, 1984, Indiana State Troopers Gary Dudley and Louis Warner, accompanied Mark Bajema, a Newton County Welfare Department caseworker, on a visit to Smith's home to investigate the child molestation allegations. After advising Smith of the purpose of the investigation, Trooper Dudley gave him a card containing Miranda warnings and a waiver of rights section. Dudley then read aloud the contents of an identical Miranda card. When asked by the officers whether he understood his rights Smith indicated that he did and proceeded to sign the waiver. Subsequently during the interview Smith stated "I don't know if I should talk to you." At that time the officers readvised him of his right to remain silent. Nevertheless Smith confessed to touching, fondling and engaging in oral sex with the three children on several occasions during the summer of 1984.

Smith now seeks reversal of his three convictions and a new trial based on the following alleged errors:

1. The trial judge erred in denying a motion for change of judge.

2. The trial court erred in denying the defendant's motion to suppress his confession.

3. The state failed to prove criminal deviate conduct because youth alone does not meet the "mentally disabled or deficient" element of the offense.

4. The trial court abused its discretion in deeming the three child witnesses competent to testify.

5. The trial court abused its discretion in allowing the state to use leading questions to the three child witnesses.

6. The trial court erred in denying the defendant's motion for mistrial because during the state's final argument the prosecutor commented indirectly on the defendant's failure to testify.

Additional facts necessary for the resolution of these issues will be discussed below.

We reverse in part and affirm in part.

I. Change of Judge

Smith asserts that he was denied a fair trial because the trial judge, The Honorable Mark Bauer, was unduly influenced by his wife, Cynthia Bauer, a member of the Newton County Welfare Department Child Protection Team investigating the present case. He argues that the trial judge's withdrawal in a previous unrelated child molestation case in which the child protection team was involved, coupled with the opinion testimony of R. Steven Ryan, the prosecutor in the previous and present child molestation cases, that the judge's wife could influence the judge's decision making in child molestation cases demonstrates that the trial judge was in fact unduly influenced by his wife. Furthermore, Smith urges, the trial judge violated Canon 2 of the Code of Judicial Conduct 1 by presiding over the present case despite his wife's involvement in this case. Hence he urges that the trial judge erred in denying the motion for change of judge under Indiana Rules of Procedure, Criminal Rule 12.

A ruling on a motion for change of judge is discretionary. Gary v. State (1984), Ind., 471 N.E.2d 695, 698. On appeal, the burden is on the appellant to show a clear abuse of discretion by the trial court in denying the motion. White v. State (1982), Ind., 431 N.E.2d 488, 490. The record must show actual bias and prejudice before a conviction will be reversed on the basis that the judge should have disqualified himself. Jones v. State (1981), Ind.App., 416 N.E.2d 880, 881. Moreover, prejudice must be shown by the conduct of the judge rather than merely inferred from his subjective views. Wallace v. State (1985), Ind., 486 N.E.2d 445, 456. 2 We are fully aware that a trial judge must recuse himself if his personal knowledge of the case over which he is presiding is acquired through extrajudicial sources. Jones v State, supra, 416 N.E.2d at 881. We also recognize that the Canons of Judicial Conduct prohibit conduct which compromises the availability of a fair and impartial judiciary. Stivers v. Knox County Dept. of Welfare (1985), Ind.App., 482 N.E.2d 748, 749. However, Smith has not shown any act or conduct in the record which demonstrates bias, prejudice or manifest partiality on the part of the trial judge. His bald assertions of undue influence are likewise unsupported by any evidence in the record. In light of Smith's failure to satisfy his burden of proof, we find that the trial court did not abuse its discretion in denying the appellant's motion for change of judge.

Even if we were to assume that some merit underlies the assertion of undue influence, Smith's motion was correctly denied because it was filed beyond the time specified in CR 12 and failed to allege the necessary information for such motions. CR 12 provides in pertinent part:

"An application for a change of judge or change of venue from the county shall be filed within ten days after a plea of not guilty, or if a date less than ten days from the date of said plea, the case is set for trial, the application shall be filed within five days after setting the case for trial, Provided, that where a cause is remanded for a new trial by the Supreme Court, such application must be filed not later than ten days after the party has knowledge that the cause is ready to be set for trial.

Provided, however, that if the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, he may file the application, which shall be verified by the party himself specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion."

The record indicates that a plea of not guilty was entered by Smith on November 20, 1984. His verified motion for change of judge was filed on December 19, 1984, clearly beyond the ten day period. The motion failed to state reasons why it was untimely. Criminal Rule 12 requires a showing of cause as a prerequisite for the discretionary granting of a motion for change of judge, and in order to qualify for a change of judge after the ten day period has elapsed, the rule's specific instructions must be followed. Rose v. State (1986), Ind.App., 488 N.E.2d 1141, 1145; Abdul-Musawwir v. State (1985), Ind.App., 483 N.E.2d 464, 467. Since the appellant failed to satisfy the requirements of CR 12, the trial court did not abuse its discretion in denying the motion for change of judge.

II. Waiver of Miranda Rights

Next Smith challenges the voluntariness of his waiver of Miranda rights. The appellant asserts that the mandates of Miranda v. Arizona (1966), 384 U.S. 436, 467-479, 86 S.Ct. 1602, 1624-30, 16 L.Ed.2d 1149, were not satisfied because the arresting officers failed to inform the appellant of the nature of and penalties for the crime charged, and that the appellant's silence would not be used against him. Shortly before confessing to molesting the children, Smith stated "I don't know if I should talk to you," to which the officers responded by readvising Smith of his right to remain silent. This statement, Smith urges, indicates his confusion as to his rights; therefore, his waiver was not "knowingly and intelligently" executed. Consequently, according to Smith, the confession was inadmissible.

Under Miranda v. Arizona the arresting officers are required, prior to the initiation of questioning, to fully apprise the suspect of the state's intention to use his statements to secure a conviction, and must inform the suspect of his rights to remain silent as well as his right to "have counsel present ... if [he] so desires." 384 U.S. at 468-70, 86 S.Ct. at 1624-26; Moran v. Burbine (1986), --- U.S. ---, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410. Beyond this duty to inform, Miranda requires that the police respect the accused's decision to exercise the rights outlined in the warnings. 106 S.Ct. at 1141. Although additional information beyond Miranda warnings might be useful to the suspect, and perhaps would affect his decision to confess, the United States Supreme Court has never read Miranda or the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self interest in deciding whether to speak or stand by his rights. Moran, supra, 106 S.Ct. at 1142. The defendant may waive his Miranda rights provided such waiver is made "voluntarily, knowingly and intelligently." 384 U.S. at 444, 475, 86 S.Ct. at 1612, 1628. This inquiry is two pronged. Edwards v. Arizona (1981), 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378.

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Moran v. Burbine, sup...

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