Tyson v. State

• Decision Date: 24 April 1992
• Docket Number: No. 49S02-9204-CR-311,49S02-9204-CR-311
• Citation: Tyson v. State, 593 N.E.2d 175 (Ind. 1992)
• Parties: Michael G. TYSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 175

593 N.E.2d 175

Michael G. TYSON, Appellant (Defendant Below), v.STATE of Indiana, Appellee (Plaintiff Below).

No. 49S02-9204-CR-311.

Supreme Court of Indiana.

April 24, 1992.

Alan M. Dershowitz, Cambridge, Mass., Lee B. McTurnan, Judy L. Woods, McTurnan & Turner, Indianapolis, James H. Voyles, Ober Symmes Cardwell, Voyles & Zahn, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., William E. Daily, Chief Counsel, Gary Damon Secrest, Deputy Atty. Gen., Jeffrey Modisett, Marion County Prosecutor, David J. Dreyer, Chief Counsel, Indianapolis, for appellee.

SHEPARD, Chief Justice.

We accept this case for the limited purpose of outlining the standards and procedures applicable to requests for bond pending completion of a criminal appeal.

I.Case History

A jury found appellantMichael Tyson guilty of rape and two counts of criminal deviate conduct on February 10, 1992.On March 26, 1992, he received an executed sentence of six years.He sought bail from the trial court pending appeal, pursuant to Ind.Code Sec. 35-33-9-1(West 1986).His request was denied.Tyson immediately filed a petition for bail pending appeal in the Indiana Court of Appeals, pursuant to Ind. AppellateRule 6(B).On March 27, the Court of Appeals held oral argument on the petition.It denied the petition without opinion on March 31.

Tyson has filed a petition in this Court which is styled in the alternative as a request for a writ in aid of jurisdiction or for transfer.He asks this Court to provide the Indiana Court of Appeals and trial courts with guidance on the legal criteria governing petitions for bond pending appeal.He asks us to declare that the Court of Appeals is not the sole or final appellate tribunal with jurisdiction to establish and apply the relevant legal principles on bond pending appeal.Appellant is correct that there is need for a definitive statement from this Court on these issues.We accept jurisdiction of the case for this purpose and then return it to the Court of Appeals.

II.History of Bail

Neither the United States Constitution nor the Indiana Constitution confers a constitutional right to bond pending appeal.Finetti v. Harris, 609 F.2d 594(2d Cir.1979);Vacendak v. State (1982), Ind., 431 N.E.2d 100;Keys v. State(1979), 271 Ind. 52, 390 N.E.2d 148.For most of this century, however, Indiana has afforded the opportunity for bond by statute.¹A 1911 law mandated that "[w]henever any person is convicted ... and such person has appealed ... such person shall be admitted to bail pending such appeal upon compliance with the provisions of this act...."²In 1929, the statute was amended to require that defendants show a probability of reversal before being admitted to bail pending appeal.³This prerequisite was repealed in 1935.⁴In 1979, the General Assembly repealed the 1935 act, and enacted new provisions expressly stating that bail pending appeal might be granted "at the discretion of the court in which the case was tried."⁵

The current statute, Ind.Code Sec. 35-33-9-1, precludes granting appeal bonds to those convicted of class A felonies or the nonsuspendible offenses listed in Ind.Code Sec. 35-50-2-2(West Supp.1991).We have upheld such classifications against constitutional challenges based on equal protection.SeeGrassmyer v. State (1981), Ind., 429 N.E.2d 248.

III.Appellate Courts May Reconsider Bail

Although Ind.Code Sec. 35-33-9-1 assigns the question of bail pending appeal to the discretion of the trial court, our appellate rules contemplate a role for the appellate courts as well."If the stay is denied by the trial court or judge thereof, the appellate tribunal may reconsider the application at any time after denial upon a proper showing by certified copies of the trial court's action and grant or deny the same and fix the bond."Ind.Appellate Rule 6(B)(emphasis added).⁶"The appellate tribunal" means the appellate court hearing the direct appeal.This Court would hear such applications in those civil and criminal cases for which we hear direct appeals under Ind.Appellate Rule 4.In the majority of criminal cases, the Court of Appeals would consider such requests.⁷As our Court of Appeals has observed, it would be unconstitutional to repose in the trial court the exclusive power to determine whether a petitioner should be let to bail pending appeal.Willis v. State (1986), Ind.App., 492 N.E.2d 45.

IV.Standards for Considering Bail on Appeal

We now turn to the standard which appellate courts should apply when considering a request for bail which the trial court has denied.AppellateRule 6(B) says that the court on appeal "may reconsider the application."Appellant argues that this suggests a "de novo" standard of review, that is, an entirely new determination of the bail question without regard for the judgment of the trial court.

Although Appellate Rule 6 authorizes the appellate court to fix bond, it does not provide for hearing such requests de novo.The requirement of a certified record of the trial court's action signals that notice is to be paid to the trial court's decision.In addition, reconsideration of bail pending appeal is unlike other situations where de novo review is authorized, such as appeals from judgments of city courts.Ind.Code Sec. 33-10.1-5-9(a)(West 1983)("An appeal from a judgment of a city court may be taken to the circuit or superior court of the county and tried de novo.");see alsoState ex rel. Rodriguez v. Grant Circuit Court(1974), 261 Ind. 642, 309 N.E.2d 145(criminal defendant convicted in city court had right to appeal and trial de novo in circuit court).⁸

Although appellate courts do not consider requests for bond de novo, neither are they limited to reviewing trial court decisions for abuse of discretion.Willis, 492 N.E.2d at 48.Because the appellate court is authorized to grant and fix bond, it must be able to examine those factors which are pertinent to the decision whether to grant bond pending appeal.The appellate court must give the trial court appropriate deference, however, on those issues which the trial court is in the best position to judge.

The consideration of a petition for bond pending appeal starts with the presumption that the convicted defendant is guilty, the opposite of the starting point when considering bail pending trial.SeeEx parte Pettiford(1929), 97 Ind.App. 703, 167 N.E. 154.The petitioner bears the burden of demonstrating that there are compelling reasons to allow a guilty defendant to remain free pending appeal of his conviction.In hearing such petitions, the appellate court should examine three factors: (1) the probability of reversible error at trial, (2) the risk of flight, and (3) the potential dangerousness of the defendant.⁹

Probability of Error.The appellate court need not defer to a trial court's findings concerning the likelihood of reversible error.Appellate courts are by their nature in a better position to judge the possibility of reversible error at trial.We note, however, that the sort of ancillary review attendant to a bail request necessarily provides a more limited view of the issues than the ordinary appellate review with full briefing and a complete record.Therefore, an applicant must show that there is a likelihood that his conviction will be reversed on appeal.This is a higher burden than merely showing that there are "substantial issues" or "numerous meritorious bases" for appeal.He must convince the reviewing court that his case will probably be among the ten or fifteen percent which are reversed on appeal.

Risk of Flight and Dangerousness.The second and third factors are ones on which deference to the trial court is appropriate.The trial court is in the best position to judge the credibility of the witnesses and it has the best view of the defendant.Risk of flight is central to pre-trial bail determinations because of the need to assure the presence of the accused at trial.Phillips v. State (1990), Ind., 550 N.E.2d 1290, 1294.After conviction and sentencing this factor would generally weigh more heavily against granting bail.First, once a defendant knows his fate the risk of flight is usually greater.Second, the public interest in assuring that a convict will serve his term of imprisonment if the conviction is affirmed becomes an additional consideration.

When assessing risk of flight and dangerousness, the court should also take cognizance of the seriousness of the crime for which defendant has been convicted.For more serious crimes, the sentence will tend to be greater and the risk of flight stronger.Similarly, more serious offenses suggest greater danger in leaving the defendant at large.SeeState v. Kerrigan, 98 Idaho 701, 571 P.2d 762(1977).We note also that the state need not show that the defendant is dangerous; rather it is the defendant's burden to show that he is not dangerous.SeeUnited States v. Vance, 851 F.2d 166(6th Cir.1988), cert. denied, 488 U.S. 893, 109 S.Ct. 231, 102 L.Ed.2d 220.The reviewing court may make its own assessment of these factors, but it should be cautious about second-guessing the findings of the trial court on these issues.

V.Appellate Procedure

Appellant Tyson's petition attempts to invoke our jurisdiction under alternative means: through a writ in aid of appellate jurisdiction or through transfer.

This case does not present matter addressed by a writ in aid of appellate jurisdiction.Such writs are authorized under article VII, section 4 of the Indiana Constitution and referred to in Ind.Appellate Rule 4(A)(6), which states: "The Supreme Court shall have exclusive jurisdiction of ... issuance of writs necessary or appropriate in aid of its jurisdiction."These writs contemplate ordering that which is necessary for the court to exercise its appellate authority.For example, an appellate court might issue a writ directing a trial court to supply a portion of the record which the appellate...