Underhill v. State

• Decision Date: 03 December 1981
• Docket Number: No. 181S17,181S17
• Citation: 428 N.E.2d 759
• Parties: Edward Lee UNDERHILL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 759

428 N.E.2d 759

Edward Lee UNDERHILL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 181S17.

Supreme Court of Indiana.

Dec. 3, 1981.

Robert L. Bartelt, Jr., Charles L. Berger, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Edward Lee Underhill, was convicted by a jury of escape while armed with a deadly weapon, a class C felony, Ind.Code § 35-44-3-5 (Burns 1979 Repl.), and of being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.). He was sentenced to the Indiana Department of Correction for consecutive terms of eight and thirty years. In his direct appeal, he raises the following issues for our review:

1. Whether the trial court erred when it overruled defendant's motion for a change of venue based on pretrial publicity;

2. Whether the trial court erred when it failed to conduct a hearing on defendant's motion for a change of judge;

3. Whether the trial court erred when it refused to appoint local counsel to aid in jury selection following the publicity defendant's case had received.

4. Whether the trial court erred when it permitted the state to introduce evidence of other crimes with which defendant had been charged;

5. Whether the trial court erred when it permitted the state to introduce a written report of the jail escape as substantive evidence;

6. Whether the trial court erred in giving and refusing various instructions;

7. Whether the trial court erred when it permitted expert testimony without proper foundation;

8. Whether the trial court erred when it refused to appoint a psychologist to examine defendant;

9. Whether defendant was denied a fair trial by virtue of the state's reference to the lack of psychological evidence;

10. Whether the trial court erred when it admitted state's exhibits without proper certification or authentication;

11. Whether defendant was entitled to withdrawal of the habitual criminal charge by virtue of the state's misstatement of law during final argument;

12. Whether the evidence was insufficient to establish defendant's identity as the perpetrator of the two prior felonies;

13. Whether a conviction for theft entered pursuant to a plea of guilt eleven and one-half years previous may be considered as a basis for an habitual criminal finding;

14. Whether a conviction for theft of property with a value less than $100 can be considered as a basis for an habitual criminal finding;

15. Whether the trial court erred in refusing to inform the jury of the penalty which would attach upon a finding defendant was an habitual offender; and

16. Whether the thirty-eight year sentence was manifestly unreasonable in light of the "peculiar facts of this case."

The record reveals that on December 30, 1978, defendant and Michael Wayne Evans fled the confines of the Posey County Jail, where the two men had been incarcerated. According to the jailer, William Cross, the breakout occurred when Evans forced the cell block door from Cross's hands and swung a steel bar at him. As Cross retreated, the two made their escape. Both men were subsequently apprehended.

I.

Prior to trial, defendant filed a verified motion for change of venue from Posey County based on the publicity which had been accorded the jailbreak by local news media. The trial court deferred ruling on the motion until the jury had been selected. After voir dire and selection of the jury, the court held a hearing on the motion, wherein defendant presented various clippings from the local newspaper in which defendant's escape and subsequent apprehension had been reported. The court then denied the motion.

Defendant contends the court erred in denying his motion for a change of venue. In support of his contention, he points to the newspaper coverage, as well as the fact voir dire revealed eighteen of the prospective jurors had read about defendant, his escape, or other unrelated charges pending against him.

The grant or denial of a motion for a change of venue is governed by Ind.Code § 35-1-25-1 et seq. (Burns 1979 Repl.), Ind.R.Crim.P. 12, and the constitutional right to trial before an impartial jury. Ind.Const.Art. 1, § 13; U.S.Const.Amend. 14. The question whether a change of venue is warranted lies within the sound discretion of the trial court; the burden rests with the movant to establish either the high probability or existence of such widespread bias in the community that an impartial jury cannot be obtained. Irvin v. Dowd, (1961) 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Haybron v. State, (1979) Ind., 396 N.E.2d 891.

Here, the record reveals each juror selected swore that he or she could be fair and impartial. Only one of the selected jurors indicated she could remember reading anything about defendant or his escape; she stated she could not remember any details and had not formed an opinion about defendant or the charges pending against him. In the face of these circumstances, it cannot be said the trial court abused its discretion in denying the requested change of venue; the guarantee of an impartial jury was apparently fulfilled. Haybron v. State, supra; Mendez v. State, (1977) 267 Ind. 67, 367 N.E.2d 1081.

II.

Defendant contends the trial court erred when it failed to conduct a hearing on his motion for a change of judge. The record reveals that in the course of the proceedings below, two motions-one oral and one written-were placed before the court.

The first request for a change of judge occurred approximately three months prior to trial, at a hearing wherein defendant also requested that his attorney be removed from his case. The defendant, under oath, addressed the court and offered the following reason for his motion for a change of judge:

"And Your Honor, at this time I would request that you also remove yourself as Judge on this case on the grounds that Your Honor has been over this case since September of 1978, and at this time I believe that Your Honor has too much knowledge of this case and has heard too much about my past record, and I believe that since Your Honor has knowledge of this case and my record, that Your Honor cannot at this time be fair and a non partial Judge on my behalf."

In response to the court's question whether he wished to introduce any evidence in support of his motion, defendant replied, "I don't have any." The court then overruled the motion.

Approximately three months later, defendant renewed his request, tendering an unverified but written motion for change of judge. The motion was based on the alleged prejudice to defendant by virtue of the fact the trial judge had read a presentence report prepared in anticipation of a guilty plea by defendant. The trial court denied the motion without conducting a hearing.

Defendant's claim of error rests on the fact the trial court did not hold a hearing on his second motion for a change of judge. That motion, however, was not verified; consequently, there was no error in the court's failure to hold a hearing. Hanrahan v. State, (1968) 251 Ind. 325, 241 N.E.2d 143; Bradberry v. State, (1974) 160 Ind.App. 202, 311 N.E.2d 437. Following the first motion, which defendant tendered in court while under oath, he was accorded the opportunity to present evidence but tendered none.

Defendant argues the fact the original motion was made under oath supplied the verification missing from his second motion. We note our rules contemplate the motion should properly be filed in written form. Whether the first motion was tendered in proper form matters not, however. Each motion stood on independent bases and so, as our courts have recognized, rose or fell on their individual form and merits. Bradberry v. State, supra. The trial court did not take the first motion under advisement, but rather denied it. There was no error here.

III.

Prior to trial, defendant filed a "Petition for Appointment of Local Counsel." Defendant's court-appointed attorney resided in an adjacent county; due to the publicity defendant's escape had received in Posey County, the assistance of an attorney from that jurisdiction was sought for the jury selection process. The trial court denied the motion, noting the fact court-appointed counsel "does a lot of business in this (Posey) county" and observing that "the resumes from each of the jurors ... are available."

Defendant asserts the refusal to grant him local counsel denied him equal protection and due process of law. He cites no legal authority for that proposition; he argues that voir dire, in light of the publicity his case had received, was of "extreme importance," and that local counsel would have had "superior knowledge about the biases, prejudices and pre-dispositions of the jurors."

Conceding the validity of the latter point in its general sense, it is very questionable whether local counsel would have had more insight into the particular predilections of prospective jurors towards defendant's case. That was a matter which rested on each prospective juror's exposure to the publicity and the influence it had worked on the individual's ability to approach the case impartially. Defendant's pauper counsel was no more incapable of delving into the specifics of that question than local counsel; the questions formulated on voir dire tested the particularities of each juror's potential bias and yielded a panel whose impartiality was sworn.

Without question voir dire is an art. But, in the circumstances before us, only speculation and conjecture could lead us to the conclusion that defendant was denied effective voir dire and, in turn, deprived of a fair trial. For that reason, we find no error in the court's refusal to appoint local counsel to aid in the jury selection.

IV.

Prior to trial, defendant tendered a motion in limine seeking to prohibit the state from introducing evidence of other charges pending against defendant. The...