Tharpe v. State

• Decision Date: 14 October 2011
• Docket Number: No. 49A04–1101–CR–24.,49A04–1101–CR–24.
• Citation: 955 N.E.2d 836
• Parties: Cedric THARPE, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

955 N.E.2d 836

Cedric THARPE, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A04–1101–CR–24.

Court of Appeals of Indiana.

Oct. 14, 2011.

Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Cedric Tharpe appeals his conviction of Class A felony attempted murder. ¹ He raises the following issues for our review:

1. Whether Tharpe was denied his right to a fair and unbiased judge;

2. Whether the trial court abused its discretion when it denied Tharpe's motion for a continuance; and

3. Whether the State presented sufficient evidence to convict Tharpe.

We affirm.

FACTS AND PROCEDURAL HISTORY

Around 11:00 p.m. on October 19, 2009, Officer Matthew Churchman was patrolling in his marked police car when he heard shots fired. He turned down a nearby alley and saw Tharpe run behind an SUV parked in the alley. Officer Churchman pulled up to the SUV, loudly identified himself as a police officer, and ordered Tharpe to show his hands. Tharpe looked at Officer Churchman for three to four seconds, and then he fired multiple rounds from an AK–47 in Officer Churchman's direction: one bullet struck Officer Churchman's windshield, a second struck the handcuffs hanging on Officer Churchman's belt, and a bullet fragment injured Officer Churchman's thigh. Officer Churchman returned fire. Tharpe attempted to drive away, but struck a telephone pole and fled on foot.

The State charged Tharpe with Class A felony attempted murder. After a two-day trial the jury found Tharpe guilty as charged. Tharpe filed a motion for a new trial, contending his counsel did not have adequate time to prepare his defense. The trial court denied his motion and imposed a forty-year sentence.

DISCUSSION AND DECISION

1. Denial of Right to Fair and Unbiased Judge

Tharpe claims he was denied his due process right to a fair and unbiased judge based on comments and actions the judge made during his trial. Our standard of review regarding judicial impartiality is well-settled:

When the impartiality of the trial judge is challenged on appeal, we will presume that the judge is unbiased and unprejudiced. To rebut that presumption, the defendant “must establish from the judge's conduct actual bias or prejudice that places the defendant in jeopardy.” “To assess whether the judge has crossed the barrier into impartiality, we examine both the judge's actions and demeanor.”

Perry v. State, 904 N.E.2d 302, 307–08 (Ind.Ct.App.2009) (citations omitted), trans. denied. Merely asserting bias and prejudice does not make it so. Smith v. State, 770 N.E.2d 818, 823 (Ind.2002). Bias and prejudice places a defendant in jeopardy “only where there is an undisputed claim or where the judge expressed an opinion of the controversy over which the judge was presiding.” Id. Adverse rulings are not sufficient to show bias or prejudice on the part of the judge. Flowers v. State, 738 N.E.2d 1051, 1060 n. 4 (Ind.2000), reh'g denied.

Many of Tharpe's claims of bias are waived because he did not preserve them at trial. See Pigg v. State, 929 N.E.2d 799, 803 (Ind.Ct.App.2010) (claims may not be raised for the first time on appeal). To escape this waiver, Tharpe contends the cumulative effect of the comments and actions rose to the level of fundamental error. To be fundamental, an error must “constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process.” Deane v. State, 759 N.E.2d 201, 204 (Ind.2001). “[U]nder some circumstances the cumulative effect of trial errors may warrant reversal even if each might be deemed harmless in isolation[.]” Hubbell v. State, 754 N.E.2d 884, 895 (Ind.2001).

a. Judge's Comment during Voir Dire

During voir dire, Tharpe objected to the exclusion of a prospective juror who was African American. When asked by the State whether Tharpe's challenge was based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the judge responded, “I don't know what it was.” (Tr. at 18.) Tharpe's counsel ² then explained why she thought she had asserted a Batson challenge, and the judge responded, “Well, basically the criminal justice system does not have the ability to call only African Americans to hear a case where only an African American is charged.” ( Id. at 20.) Tharpe claims these two comments “served only to demean counsel in front of her client.” (Br. of Appellant at 7.) Tharpe has not, however, explained how this comment prejudiced the jury against him or impaired his defense; thus he has not demonstrated he was placed in jeopardy or that reversal would be appropriate.

b. Cross–Examination of Officer Churchman

Tharpe claims the trial court should not have sustained the State's objections to his questions on cross examination because that “denied [defense counsel] the ability to pursue a very legitimate defense strategy of impeachment.” (Br. of Appellant at 9.) We disagree.

Tharpe attempted to question the officer about a prior inconsistent statement. Before a party may use a prior inconsistent statement to impeach a witness, “a proper foundation must be laid to warn the witness and enable him to admit, explain, or deny the prior statement.” Coleman v. State, 588 N.E.2d 1335, 1340 (1992), trans. denied. To lay such a foundation, counsel “must first call the witness's attention to the attendant circumstances: ‘the time when, the place where, and the person to whom the contradictory statement is alleged to have been made.’ ” Id.

The following exchange occurred between Tharpe's counsel and Officer Churchman:

Counsel: [D]o you recall on July 15 you gave a statement.

Churchman: Okay.

Counsel: And if I were to hand you your statement, would that help refresh your memory as to what this person's doing with respect to whether or not that person was attempting to get into the vehicle, would that help your memory?

(Tr. at 73.) The State objected, on the grounds defense counsel did not lay a sufficient foundation for the testimony regarding Officer Churchman's statement on July 15. The trial court sustained the objection:

There's a proper method for impeaching a witness with a prior inconsistent statement and the rules required that you give him an opportunity to deny ... or (unintelligible) having made the statement and you haven't said, do you remember (unintelligible) on such and such a date, being at this place, giving a deposition and being asked this question.... That's what you have to do.

( Id. at 74.) Defense counsel continued cross-examining Officer Churchman, asking him if he recalled being asked on July 15 if he knew what Tharpe's intention might have been when Tharpe shot at Officer Churchman. Officer Churchman replied, “No, I don't recall that and it sounds like that would have been his intention prior to trying to kill me.” ( Id. at 76.) Tharpe's counsel tried to refresh the officer's memory of his prior statement, then asked the same question regarding Tharpe's intention. The State objected on the grounds the question had been asked and answered, and the court again sustained the State's objection.

The trial court properly sustained the State's first objection because defense counsel did not lay a proper foundation for the introduction of Officer Churchman's alleged prior inconsistent statement. The State's second objection was also properly sustained because the question defense counsel asked was virtually identical to her earlier question on the same topic, and Officer Churchman had already answered that question on the record. As the court properly sustained both of the State's objections, they cannot be used to demonstrate bias or prejudice on the part of the Judge. Further, Tharpe has not shown how these rulings precluded a fair trial, and he admits in his brief he is unable to do so because his counsel did not make an offer of proof at trial.

c. Judge's Comment during Preliminary Questioning of Witness

During the redirect testimony of James Roth, a crime scene investigator, the State asked, “The magazine of the AK–47 assault rifle, Mr. Roth, how many bullets were left in the magazine?” ( Id. at 137.) Defense counsel objected, and requested permission to ask a preliminary question. Defense counsel asked, “Did you examine the rifle?” ( Id. at 138.) Roth answered, and the State then indicated the question Tharpe's counsel asked was the same as a question the State had asked earlier, and the trial court replied, “Apparently the objection was just to ask the same question that the State asked?” ( Id. at 138.) Defense counsel was then given an opportunity to explain why she asked the preliminary question, and the witness was released.

Tharpe claims the judge's statements “could have resulted in an inference by [the jury] that the Court did not accord the same respect to defense counsel as it did the State.” (Br. of Appellant at 10.) Tharpe has not indicated how these statements by the judge prejudiced him, except to assert the comments were “sarcastic.” ( Id.) In order to succeed on a claim of fundamental error, Tharpe must demonstrate he was denied a fair trial based on the cumulative effect of the judge's behavior, and he has not done so here.

d. Judge's Facial Expressions

Tharpe asserts the judge rolled her eyes at various times during the trial, and those facial expressions prejudiced the jury. We disagree.

At the end of Roth's testimony, the court recessed. Before the jurors returned, defense counsel stated:

Your Honor, before we go back on the record I need to make a record and I'm not sure it's going to be a record the Court will like but I'm sorry but Your Honor, I believe the Court's rolling of its eyes and the facial gestures the Court is making when I make my objections, I believe that's...