State ex rel. Benjamin v. Criminal Court of Marion County, Division No. III

• Decision Date: 11 February 1976
• Docket Number: 276S41,Nos. 276S40,s. 276S40
• Citation: 264 Ind. 191,341 N.E.2d 495
• Parties: STATE of Indiana on the relation of Phillip K. BENJAMIN, v. CRIMINAL COURT OF MARION COUNTY, DIVISION NO. III, the Honorable Andrew Jacobs, Sr., Judge. STATE of Indiana on the relation of Donzella Jill GREEN, v. CRIMINAL COURT OF MARION COUNTY, DIVISION NO. III, the Honorable Andrew Jacobs, Sr., Judge.
• Court: Indiana Supreme Court

Page 495

341 N.E.2d 495

264 Ind. 191

STATE of Indiana on the relation of Phillip K. BENJAMIN, v. CRIMINAL COURT OF MARION COUNTY, DIVISION NO. III, the

Honorable Andrew Jacobs, Sr., Judge.

STATE of Indiana on the relation of Donzella Jill GREEN, v. CRIMINAL COURT OF MARION COUNTY, DIVISION NO. III, the

Honorable Andrew Jacobs, Sr., Judge.

Nos. 276S40, 276S41.

Supreme Court of Indiana.

Feb. 11, 1976.

Mark W. Shaw, Robert W. Hammerle, Indianapolis, for relators.

James F. Kelley, Pros. Atty., Virginia Dill McCarty, Deputy Prosecutor Atty., Indianapolis, for respondent.

ORIGINAL ACTIONS

GIVAN, Chief Justice.

Each of the petitioners in these causes has asked this Court to issue a writ of mandate against the respondent court and judge directing the issuance of an order reversing the denial of relators' motions for change of judge and asking that said judge be directed and compelled to name a panel of competent judges as provided by law. The cases are consolidated by the Court for the purpose of this opinion.

We grant the petition for the writ in each case.

The petitioner Phillip K. Benjamin is charged with a felony in the respondent court under cause number CR75--472C. He filed his timely motion for change of judge under Criminal Rule 12 of the Indiana Rules of Criminal Procedure, which motion was denied by the respondent court.

The petitioner Donzella Jill Green is charged with a felony in the respondent court under cause number CR75--421C. She also filed a timely motion for change of judge under Criminal Rule 12, which motion was denied by the respondent court.

The pertinent parts of Criminal Rule 12 read as follows:

'In all cases where the venue of a criminal action may now be changed from the judge, such change shall be granted upon the execution and filing of an unverified application therefor by the state of Indiana or by the defendant.

'An application for a change of judge or change of venue from the county shall be filed within ten (10) days after a plea of not guilty, or if a date less than ten (10) days from the date of said plea, the case is set for trial, the application shall be filed within five (5) days after setting the case for trial. . . .'

The two cases before us differ in one respect. In the Benjamin case, he filed his motion for change of judge under the rule as a matter of law without reciting any bias or prejudice on the part of the trial judge; whereas in the Green case, she filed her motion for change of judge alleging bias and prejudice and, in fact, a hearing was had in that regard resulting in a determination against the relator Green.

We will answer the questions presented by the Benjamin petition first.

Prior to the adoption of Rule 1--12C in 1963 (now Criminal Rule 12), a motion for change of judge was governed by statute, which may be found in IC 35--1--25--1 (Burns 1975). That statute reads as follows:

'The defendant may show to the court, by affidavit, that he believes he cannot receive a fair trial, owing to the bias and prejudice of the judge against him, or the excitement or prejudice against the defendant in the county or in some part thereof, and demand to be tried by disinterested triers. Any affidavit for change of judge shall be filed at least ten (10) days before the day set for trial or if a date less than ten (10) days ahead is set for trial then such affidavit shall be filed within two (2) days after the setting of the case for trial.'

This statute was interpreted to give the defendant a right to change of judge upon his sworn statement that the judge upon biased and prejudiced against him.

In the case of Barber v. State (1925), 197 Ind. 88, 149 N.E. 896, this Court reviewed the statute and stated that it was the legislative intent that a person making a sworn statement that he could not have a fair trial due to bias and prejudice of the judge was entitled to such change as a matter of right and that this was not a matter to be questioned by the trial judge against whom the bias and prejudice was alleged. The Court then stated:

'If the legislature had intended to leave to the trial judge, accused by the defendant of having such bias and prejudice against him that defendant could not have a fair trial, the authority to determine whether or not that was really the reason for which a change of venue was asked, the statute probably would not provide, as it does, that in case a defendant shall show by affidavit that he 'believes' he cannot have a fair trial, owing to the bias and prejudice of the judge against him, such change shall be granted. . . .'

197 Ind. at 93, 149 N.E. at 898.

The only change effected by the adoption of Criminal Rule 12 was that it was no longer necessary for the defendant to state under oath that there was bias and prejudice against him. Neither the legislature nor the courts have ever required or permitted an evidentiary hearing to be conducted by the judge to determine whether or not the allegations of prejudice were in fact true.

This same rule was thoroughly discussed by the Court in State ex rel. Knox v. Shelby Sup. Ct. (1972), 259 Ind. 554, 290 N.E.2d 57, 34 Ind.Dec. 246. In that opinion this Court held the rule was promulgated for the purpose of guaranteeing a fair trial both to the defendant and to the State in criminal matters.

In oral presentation to this Court, the respondent conceded the existence of the rule since 1963 and the fact that even under the prior statute no evidentiary hearing concerning bias and prejudice was anticipated before the trial judge. The respondent then proceeded to argue, quite persuasively, that the rule should be changed. In making his presentation he pointed out numerous incidents in his court of what he deemed to be abuses of the rule, stating that in nearly 50% of the cases disposed of in his court within the past year he had granted a change of judge pursuant to the rule.

The Supreme Court, in discharging its duties in adjudicating any particular case, must determine the rights of the parties as they appear under the existing statutes, rules and case law of this State. Even if we were to concede that a particular law or rule were unwise or being subject to abusive use, it is our duty to follow that law or rule (unless, of course, it be unconstitutional). If a change be needed, such should be accomplished either by legislation or rule change by this Court, as the case might be. Such a change, however, must operate prospectively and not retroactively.

We, therefore, hold the present rule to permit the relator Benjamin to file the motion which he has filed in the respondent court. Under the rule, the respondent was required to grant the change of judge under the circumstances.

In the Green case, the relator did in fact recite that bias and prejudice existed against her. However, as set out above, she should not have been required to enter into an evidentiary hearing before the judge in question for a determination as to the truth of that bias and prejudice. This would be true whether we were operating under Criminal Rule 12 or whether we were operating under the statute, IC 35--1--25--1. The...