Terry v. State

• Decision Date: 05 November 1992
• Docket Number: No. 69A01-9106-CR-164,69A01-9106-CR-164
• Citation: 602 N.E.2d 535
• Parties: Lendall B. TERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 535

602 N.E.2d 535

Lendall B. TERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 69A01-9106-CR-164.

Court of Appeals of Indiana First District.

Nov. 5, 1992.

Robert J. Brown, North Vernon, for appellant-defendant.

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

BAKER, Judge.

Today we are presented with an appeal from someone not unfamiliar with our judicial system. Defendant-appellant Lendall B. Terry is a former Ripley County Circuit Court judge who, after being removed from the bench and disbarred, was later convicted on an unrelated charge of forgery, a Class C felony. ¹ He now appeals his conviction, raising six issues for our review, restated as:

I. Whether the indictment was defective.

II. Whether the special judge and special prosecutor were improperly selected, and the special judge biased and prejudiced.

III. Whether the trial court improperly denied Terry's motion for discharge.

IV. Whether the trial court committed reversible error when it selected the jury from the previous year's venire.

V. Whether the trial court erred when it ruled evidence seized from Terry's attache case admissible under the inventory search exception.

VI. Whether the evidence was sufficient to sustain his forgery conviction.

FACTS

Terry's tenure on the bench could be described as nothing less than tumultuous. In 1975, after receiving numerous complaints, the Indiana Commission on Judicial Qualifications initiated proceedings against Terry in his capacity as Ripley County Circuit Court judge. The Commission conducted a lengthy hearing and concluded Terry had violated the Code of Judicial Conduct and Ethics, the Code of Professional Responsibility, the Oath of Attorneys and the Judicial Oath for Ripley County Circuit Court. The Indiana supreme court affirmed the Commission's findings and conclusions on appeal, and, with reluctance, concluded Terry lacked the judicial temperament and fitness to occupy a judicial office. On February 20, 1975, the supreme court suspended Terry without pay from his position as Ripley County Circuit Court judge. In re Terry (1975), 262 Ind. 667, 323 N.E.2d 192, reh'g denied, 262 Ind. 667, 329 N.E.2d 38, cert. denied, 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 97.

Hardly a year had passed after Terry's suspension when Dennis Ryker, Town Marshal of Milan, Indiana, arrested Terry for traffic offenses. Ryker testified against Terry, and Terry was found guilty of the offenses. Terry's troubles continued for nearly a decade. ² Ryker continued in law enforcement, and, in the spring of 1986, he decided to run for Ripley County Sheriff. In April of that year, several weeks before the primary election, Ryker saw a "newspaper," the Versailles Journal (the journal), which contained a paid political advertisement entitled "A Message From Dennis Ryker." The message, signed "Denny," read, in part:

Some of you may have forgotten that in 1964 I was charged with child molesting and left the State of Indiana to avoid doing time in prison....

I know a lot about crime. After I left the State of Indiana to avoid a prison term for child molesting in 1964, I moved to Hamilton County, Ohio, where I joined with others in the harmless pastime of stripping automobiles of tires, wheel covers and parts which we fenced. Car theft followed. Then one day my luck ran out and I was caught red-handed by the authorities. Again I faced a prison term....

Record at 2263. Both the signature and statements were false.

On the evening of April 23, 1986, only a few days before the primary elections, Ryker and Tom Holt, a Deputy Marshal, found a copy of the journal on a table outside of a restaurant in Milan. While sitting at a table, they saw Terry driving a Ford Fairlane. Later, Ryker and Holt drove around and found journals in blue plastic bags stuffed into mailboxes. As Ryker and Holt traveled on Main Street, Ryker saw Terry's car parked on the side of the road. Ryker noticed journals had been placed in mailboxes up to where Terry's car was parked.

In the early morning hours of April 25, 1986, Lee Matthews, a Ripley County Deputy Sheriff, found a journal in front of the Holton Bank. He also noticed Terry's Ford Fairlane parked in front of the bank. He followed Terry as Terry drove slowly on Base Line Road in Holton and stopped near a driveway. On the same morning, Vilona Kilpatrick, a resident of Base Line Road, saw a Ford Fairlane approach her home and place something in her mailbox. When she went to retrieve the item, she found a journal in her mailbox and one lying near her neighbor's mailbox. The next day, Ryker saw Terry walking down Main Street in Osgood, Indiana. Terry was placing plastic bags on door handles.

On June 24, 1986, a grand jury was convened and, on September 17, 1986, it handed down the following indictment:

The Grand Jury for the County of Ripley, in the State of Indiana, upon their oath, do present that Lendall B. Terry, on or about the 24th and 25th days of April 1986 ... did, with intent to defraud certain Ripley County residents and voters, utter a written instrument, to-wit: A message from Dennis Ryker, in such a manner that it purported to have been made by or at the authority of one who did not give authority....

The State did not take Terry into custody, however, until over three years later.

On November 4, 1989, Officer Richard Collins of the Ohio Highway Patrol was routinely checking a rest area in Marion County, Ohio. Officer Collins relayed the license plate numbers of the parked vehicles to the National Crime Information Center to determine possible criminal activity. Among the vehicles checked was a 1969 Ford Fairlane with Ohio license plates. The license plates were registered to Terry, and Officer Collins discovered Indiana had an outstanding felony warrant for Terry's arrest. Officer Collins arrested Terry, impounded his car, and conducted an inventory search of the articles in the car. The inventory search included an examination of an attache case Officer Collins found in the car. The case contained Ripley County Circuit Court subpoenas, a steno notebook, an envelope, and various papers. It was later discovered the steno notebook contained a handwritten copy of "A Message From Dennis Ryker" and the envelope contained a mock-up of the journal's masthead. Officer Collins contacted the Indiana State Police, and met with Indiana Officers John Mann and Philip Mohr. Officers Mann and Mohr obtained a search warrant from an Ohio judge and seized several incriminating items from Terry's attache case. Terry returned to Indiana on January 2, 1989, and his trial on the forgery charge began over two years later. Terry was convicted of the offense and received the presumptive four-year sentence, with three years suspended for mitigating circumstances, which included Terry's age and health, and lack of prior felonies. The court also imposed a $1,500 fine. Terry now appeals his conviction.

DISCUSSION AND DECISION

I Indictment

Terry initially argues the trial court erred in refusing to dismiss the grand jury's indictment, which Terry characterizes as "defective." Under IND.CODE 35-34-1-6(c), defective indictments are subject to dismissal.

Terry first cites State ex rel. Meloy v. Barger (1949), 227 Ind. 678, 685, 88 N.E.2d 392, 395, for the proposition that "[g]rand juries must be called by the regular judge of the circuit or criminal court having jurisdiction in criminal matters[,]" and then argues that it was a judge pro tempore, not a "regular" judge, who called the grand jury. Accordingly, he concludes, the grand jury, being illegally convened, had no power to issue an indictment.

For resolution of this allegation of error we turn to Ind. Trial Rule 63(E), which provides, in part:

Judge Pro Tempore When Judge is Unable to Attend. A judge who is unable to attend and preside at his court for any cause may appoint in writing a judge pro tempore to conduct the business of this court during his absence. The written appointment shall be entered in the records of the court. When duly sworn, or without being sworn if he is a judge of a court of this state, the judge pro tempore shall have the same authority during the period of his appointment as the judge he replaces.

(Emphasis added.) Here, Terry does not claim the regular Ripley Circuit judge could not have convened the grand jury. Under the plain language of T.R. 63(E), a judge pro tempore may convene a grand jury. See Richardson v. State (1983), Ind., 447 N.E.2d 574 (replacement judge may hold sentencing hearing and impose sentence); State ex rel. Indiana-Kentucky Elec. Corp. v. Knox Circuit Court (1981), Ind., 422 N.E.2d 1247 (prepare findings and grant new trial); and Baker v. American Metal Climax, Inc. (1976), 168 Ind.App. 445, 344 N.E.2d 73 (rule on post-trial motions).

Terry's appellant's brief also raises the issue of whether the judge pro tempore acted outside the scope of his appointment inasmuch as the judge pro tempore impanelled, swore, and instructed the grand jury on June 24, 1986, two days before his appointment was authorized. Had Terry raised and preserved this particular allegation of error earlier, we might be inclined to agree with him. But when a judge's "authority is not questioned at the time the judge sits in a cause, all objections thereto are deemed waived." Swinehart v. State (1978), 268 Ind. 460, 464, 376 N.E.2d 486, 489. It is true Terry did, in fact, challenge the judge pro tempore's authority, but he never did so on the specific ground that the judge acted on a day other than that on which he was appointed to serve. That argument appeared first in Terry's appellate brief. We will not consider reversing a trial court's ruling unless the specific objection relied upon on appeal was presented to the trial court for consideration. Bryant v. State ex rel. Van Natta (1980), Ind.App., 405 N.E.2d 583.

Terry next insists the...