Snyder v. State, 3-477A97

CourtCourt of Appeals of Indiana
Citation182 Ind.App. 24,393 N.E.2d 802
Docket NumberNo. 3-477A97,3-477A97
PartiesWilden L. SNYDER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
Decision Date30 August 1979

William L. Soards, Soards & Carroll, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

GARRARD, Presiding Judge.

Wilden L. Snyder appeals from his conviction for theft of labor or services. IC 35-17-5-6. Snyder has been the duly elected county surveyor of Elkhart County since 1955. His duties, among others, included maintenance and construction of all legal drains in the county. In 1974, Snyder's long-time friend, Robert Juday, who did business as C & M Construction Co., bid for and received a contract to reconstruct a county drain known as the Coe-Myer-Fisher Ditch (Fisher Ditch). The contract provided for cutting and clearing brush and trees growing in the ditch and on the bank twenty feet from the water's edge on each side of the ditch. For this work, Juday was to receive $18,000. In May of 1975, before work on the Fisher Ditch was completed, Snyder obtained employment for Juday as a consultant for the Elkhart County Manpower Administration. Snyder was in charge of the Manpower project for cleaning ditches in the county. Although the Fisher Ditch was to be cleaned under the Juday contract, Snyder ordered Manpower employees to work at the Fisher Ditch under Juday's supervision. Snyder maintains that the Manpower employees did not engage in work covered by the Juday contract but rather that the conditions encountered at the ditch, including caving in of the banks, required additional work not covered by the contract. Juday, on the other hand, testified that he knew that the Manpower employees were doing work called for by his contract but that Snyder told him to use the Manpower workers. The Manpower employees testified that they worked within 20 feet of the water's edge and in the water, clearing brush and trees. When the use of the Manpower employees received publicity, Snyder ordered the employees from the ditch and Juday completed the work alone.

Snyder's first assignment of error is that the court erred in denying his motion to dismiss the indictment returned by the grand jury. He asserts that the indictment resulted from a violation of his constitutional rights guaranteed by the 5th and 6th Amendments to the U.S. Constitution. He contends the subpoena issued by the grand jury was defective because it did not inform him of the nature of the investigation and did not inform him that he was the target of the investigation. 1

In State ex rel. Pollard v. Marion Criminal Court (1975), 263 Ind. 236, 329 N.E.2d 573, our Supreme Court held that in order to protect a grand jury witness' right against self-incrimination, every witness must be advised of the general nature of the grand jury inquiry and if the witness is the subject of the investigation (the target), he must also be advised of this fact. Such information is required to be contained in the subpoena.

The subpoena issued to Snyder did not contain the necessary information. Therefore, under the rules set forth in Pollard the indictment was subject to a motion to dismiss. However, after carefully reviewing the circumstances surrounding the investigation and Snyder's testimony, we have reached the conclusion that the defects in the subpoena and the trial court's denial of the motion to dismiss constitute harmless error.

The rationale behind the subpoena requirements in Pollard is that in order to adequately protect the right against self-incrimination and to provide an opportunity for a meaningful decision to exercise such right, the prospective witness must not only have knowledge of the right itself but of the nature of the investigation. Such knowledge is necessary so that the witness may determine in advance whether the "facts secreted within his own bosom, if elicited, may tend to incriminate him."

"When the witness responds to the subpoena and is advised of his privilege against self-incrimination, he will be prepared to claim the privilege in a more timely fashion, since he will already have in mind the facts upon which the claim of privilege could rest." 263 Ind. at 260, 329 N.E.2d at 590.

When the witness is the target, he needs such information to consult with counsel and decide whether he will appear and testify.

Although the subpoena issued to Snyder did not contain this information, it conclusively appears in the record that Snyder was well aware of the general nature of the investigation and was also aware that he was the subject under investigation. Snyder had personally and publicly requested that the alleged misuse of Manpower employees on work at Fisher Ditch be submitted to the grand jury for investigation so that he could be exonerated from any charge. At the hearing Snyder was fully advised that he could not be forced to testify; that he had the right to invoke the privilege against self-incrimination at any time during his testimony; that the evidence presented to the grand jury could lead to an indictment against him; that anything he said could be used against him at any trial of any charge for which he might be indicted; that he had the right to have counsel appointed if indigent; and further that he had the right to consult with counsel before testifying. Snyder stated that he wanted to tell the "whole truth" and that his testimony was voluntary and without force or duress from anyone. In light of the foregoing, we hold that the omission from the subpoena of the general nature of the investigation and the fact that Snyder was a target did not curtail the free exercise of Snyder's 5th or 6th Amendment guarantees. 2

Snyder's next assignment of error is that the trial court erred in denying his motion for a change of venue. He contends that the vast amount of newspaper coverage surrounding the grand jury investigation and his ultimate arrest made it impossible for him to have a fair trial in either Elkhart or St. Joseph Counties. Indiana Rules of Procedure, Criminal Rule 12 states that a change of venue from the county may be granted in cases other than those punishable by death, when in the court's discretion cause for such change is shown. Thus, it is within the sound discretion of the trial court to determine if cause exists for a change of venue from the county and its determination will not be disturbed absent an abuse of discretion. Mendez v. State (1977), Ind., 370 N.E.2d 323; Jarver v. State (1977), 265 Ind. 525, 356 N.E.2d 215; Brown v. State (1969), 252 Ind. 161, 247 N.E.2d 76.

The newspaper articles and the transcripts from television newscasts presented in support of Snyder's motion for a change of venue were straight factual reports and in no manner inflammatory. Although the case attracted considerable media attention in Elkhart County and St. Joseph County, and prospective jurors were likely to have some knowledge of the facts and issues involved, we cannot say that the trial court abused its discretion in denying the motion. It is not necessary that the jurors be totally ignorant of the facts or issues. Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Brown v. State (1969), 252 Ind. 161, 247 N.E.2d 76. It is sufficient if the juror can lay aside his impressions or opinions and render a verdict based on the evidence presented in court. Murphy v. Fla. (1975), 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589; McFarland v. State (1975), 263 Ind. 657, 336 N.E.2d 824. The publicity here certainly could not be characterized as building a "huge wave of passion" or as having caused a "build-up of prejudice" that would result in a jury so infected with preconceived opinions as to have been unable to judge Snyder on the law and the evidence. Swininger v. State (1976), 265 Ind. 136, 352 N.E.2d 473.

Snyder also alleges that the trial court abused its discretion in denying two motions for a continuance. The denial of the first motion is harmless error for the reason that the trial court granted a continuance on its own motion shortly thereafter. The second request was made 10 days before the trial was scheduled to begin. Snyder asserted that his two attorneys were too busy to adequately prepare for his trial.

As has often been stated, when a motion for a continuance is made on other than statutory grounds, the ruling rests within the sound discretion of the trial court. Absent a showing of abuse of this discretion, a denial will not be reversed on appeal. Johnson v. State (1970), 254 Ind. 465, 260 N.E.2d 782; Sacks v. State (1977), Ind.App., 360 N.E.2d 21; Smith v. State (1975), Ind.App., 330 N.E.2d 384. In order to show an abuse of discretion the record must reveal that the appellant was prejudiced by the failure to grant the continuance. King v. State (1973), 260 Ind. 422, 296 N.E.2d 113; Souerdike v. State (1951), 230 Ind. 192, 102 N.E.2d 367. Snyder has not set forth in his brief any assertion of how his defense was harmed by the lack of additional time other than a statement that the denial "created severe problems for defense counsel." Without a showing of how his defense was harmed by the denial, we can only conclude that the defense was as effective without a continuance as it would have been had a continuance been granted and that no real prejudice resulted.

Snyder next asserts error in the trial court's refusal to permit a jury view of Fisher Ditch. Snyder asserts the view was necessary to show the jury the problems encountered on the site requiring additional work not called for under the Juday contract.

Snyder had no substantive right to have the jury view the premises. Richard v. State (1974), 262 Ind. 534, 319 N.E.2d 118. Moreover, in reviewing the court's exercise of discretion it should be recalled that a view is not intended as evidence. It is intended simply to aid the trier of fact in understanding the...

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