Stovall v. State, 484S150

• Decision Date: 30 April 1985
• Docket Number: No. 484S150,484S150
• Citation: 477 N.E.2d 252
• Parties: Michael Edward STOVALL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 252

477 N.E.2d 252

Michael Edward STOVALL, Appellant, v. STATE of Indiana, Appellee.

No. 484S150.

Supreme Court of Indiana.

April 30, 1985.

David O. Kelley, Boonville, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Following trial by jury, appellant was sentenced on Count I, Criminal Deviate Conduct While Armed With A Deadly Weapon, to thirty (30) years plus ten (10) years for aggravating circumstances; Count II, Confinement While Armed With A Deadly Weapon, to a ten (10) year concurrent sentence; Count III, Robbery While Armed With A Deadly Weapon, to a ten (10) year consecutive sentence.

The facts are: In an attempt to sell her home, the victim, B.B., placed a for sale by owner sign in her front yard. Appellant gained entrance to the home under the pretense of being a potential buyer. While appellant and the victim were viewing a bedroom, appellant grabbed the victim and placed a straight razor to her throat. Appellant forced her to the bed where he tied her hands to the headboard of the bed.

Appellant removed most of the victim's clothing and his own pants. Appellant then sat on the chest of the victim and demanded the victim perform an act of oral sex. During this time the razor was either resting on the victim's cheek or beside her head on the bed. Appellant dressed himself and placed the razor in a back pocket. He then began to examine the victim's jewelry. Appellant placed various rings and necklaces in his pockets. Appellant removed the razor and cut the rope securing the victim's hands to the bed. Appellant warned the victim to remain in the house and he fled.

At trial appellant admitted being in the home. He testified, while viewing the home, B.B. made a pass at him. He admitted having oral sex with the victim but alleged the act was done at her insistence. He also admitted taking the jewelry; however, he denied any force was used to obtain the items. Appellant also denied the victim was confined by his actions.

This cause was set for trial on August 31, 1983. On the 29th of August, appellant took the deposition of the victim. From the deposition he became aware that the mother-in-law of the victim worked in the same sixty person office as the wife of the judge. On the afternoon of the 29th, appellant communicated this information to the judge. The judge acknowledged he had prior knowledge of this situation but believed it to be insignificant.

On the 31st appellant filed a motion for a change of venue from the judge pursuant to Ind.R.Cr.P. 12. The motion was in compliance with the rule. The court considered the motion on the 31st. He permitted each side to offer argument. In addition the court made a statement on the record concerning his lack of relationship with the family of the victim. He then permitted both parties to ask questions concerning the existence of a relationship. After both sides had completed their questioning, the court denied the motion. Appellant did not object to the commencement of trial without further hearing.

Appellant now alleges as error the failure of the trial court to permit other evidence of a possible conflicting relationship to be introduced. He cites Hanrahan v. State (1968), 251 Ind. 325, 241 N.E.2d 143 holding that a hearing should be allowed in this type of situation. Appellant contends the court committed reversible error when it failed to hold an expanded hearing which would have included the testimony of additional witnesses.

Recently, in Wilson v. State (1984), Ind.App., 472 N.E.2d 932, the court found an Ind.R.Cr.P. 12 motion requires the trial court to hold a hearing prior to ruling on the motion. The court stated:

"We believe that a C.R. 12 motion, like T.R. 56 in Otte v. Tessman [ (1981), Ind., 426 N.E.2d 660], is the request triggering the fixing of a hearing; the trial court may not wait for a party to lodge an additional request. A C.R. 12 hearing is mandatory and may not be rendered naught for the court's convenience in a summary disposition. The court's actions here were reversible error." Id. at 937.

This interpretation by the Court of Appeals is correct. Two questions thus presented in the case at bar are: What effect is to be given to the failure of the appellant to object to the commencement of the trial without a more expansive investigation of potential conflicts of interests and whether the consideration by the trial court of the issue satisfied the requirements of a hearing?

The failure to object at trial to an alleged error results in the waiver of that error on appeal. An error may not be raised for the first time on appeal. Woods v. Brown County Plan Commissioners (1983), Ind.App., 446 N.E.2d 973. Thus, appellant is precluded from alleging the error of the failure of the court to hold an expanded hearing.

We hold the activities of the court did constitute a hearing as that term is defined in Hunt v. Shettle (1983), Ind.App., 452 N.E.2d 1045.

"A hearing is a proceeding of relative formality held in order to determine issues of fact or law in which evidence is presented and witnesses are heard. The party responding to the charges made by the agency must be given an opportunity to rebut evidence and cross-examine witnesses." Id. at 1050.

The court heard the testimony of the one witness who was in the best position to offer evidence on the question. The witness was examined by the parties and the court reached a conclusion of law based on the evidence.

Appellant argues the trial court erred when it denied his motion for separate trial as to Count I. On the day trial was to commence, the State filed a motion in limine to enjoin the defendant from violating the provisions of Indiana's rape shield statute. Ind.Code Sec. 35-37-4-4.

The court delayed ruling on the motion until the second day of trial. The first day was taken up in selecting the jury and the giving of opening statements. Before the jury was brought in for the second day, the court heard argument on the motion. Appellant contended the rape shield statute was applicable only to Count I, the criminal deviate conduct allegation. He maintained he should be permitted to offer evidence of past sexual conduct which was relevant to the other two counts. The court granted the motion to Count I only but it noted the effect of the order was to preclude the admission of conduct protected by the statute to all three counts. Appellant then filed a motion to sever Count I. This motion was denied.

Appellant now argues he timely filed a motion for severance and that the denial of that motion prevented the admission of certain evidence which would have been relevant to Counts II and III.

The State offers two correct arguments as to why appellant's contentions must fail. First, appellant did not timely file his motion for severance. Ind.Code Sec. 35-34-1-12(a). Appellant filed his motion after trial commenced. Thus, his motion must be based on a ground not previously known. Appellant alleges his ground not previously known was the State's motion in limine. We do not agree. The State's action did not trigger the enforcement of the provisions of the statute. The trial court was under an obligation to enforce these provisions without regard to the State's action. Appellant is charged with the knowledge of the provisions of the rape shield statute. Thus appellant knew, or should have known, prior to trial, of any situation requiring the severance of the counts. The motion for severance on this ground must have been filed prior to the commencement of the trial.

Secondly, appellant has failed to demonstrate that any harm flowed from the denial of the severance motion. During the course of the trial, appellant properly challenged the motion in limine by proffering three questions he wished to ask the victim. The questions dealt with her past sexual conduct and the allegations contained in Counts II and III. The State indicated it would not object to these questions. The trial court indicated these questions were not violative of the rape shield statute. Thus the refusal to grant the severance did not, in fact, create a situation in which appellant was denied an opportunity to present the evidence in question. We also note appellant chose not to ask the questions he had earlier proffered. We find no error in the denial of the motion to sever.

Appellant next alleges the trial court erred when it admitted, over objection, State's exhibits 20 and 21. These exhibits consisted of blood and saliva samples taken from appellant during his incarceration. These samples were introduced during the testimony of the serologist who compared the samples with those taken from the victim and samples taken from the clothing the victim wore on the day of the incident.

Appellant contends the samples were taken pursuant to an improper search warrant. At trial appellant raised three separate objections to the warrant: 1) there was no supporting affidavit attached to the warrant; 2) the docket sheet of the issuing court did not contain an entry noting the issuance of the warrant; and 3) the warrant was invalid on its face as the return date on the warrant was prior to the date the warrant was served.

It is unclear...