Walker v. State

• Decision Date: 02 February 1983
• Docket Number: No. 581S141,581S141
• Citation: 444 N.E.2d 842
• Parties: Terrance WALKER and Johnny Hodge, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 842

444 N.E.2d 842

Terrance WALKER and Johnny Hodge, Appellants, v. STATE of Indiana, Appellee.

No. 581S141.

Supreme Court of Indiana.

Feb. 2, 1983.

James L. Sullivan, Valparaiso, John S. Diaz, James W. Myers, III, Diaz, Moore & Associates, P.C., Portage, for appellants.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendants-appellants, Terrance Walker and Johnny Hodge, were convicted of first-degree murder in Porter Superior Court in July, 1978. Their convictions were reversed by this Court because the trial court allowed the jurors to separate after deliberations had begun but before a verdict had been reached. Walker v. State (1980) Ind., 410 N.E.2d 1190. Defendants were retried and again found guilty of first-degree murder and sentenced to life imprisonment.

Six errors are raised on appeal, concerning: 1) whether the trial court erred in not conducting an arraignment prior to retrial; 2) whether the trial court erred in denying the motions for continuance; 3) whether the trial court erred in denying the motion for change of venue; 4) whether the trial court erred in denying the motion for mistrial; 5) whether the trial court erred in denying the motions for judgment on the evidence; and, 6) whether the trial court erred in denying defendant Walker's motion for severance and separate trial.

The evidence most favorable to the State revealed that in 1976 Johnny Hodge was the leader of a gang involved in heroin distribution in Gary, Indiana. The gang included co-defendant Walker, Jackie Hicks, Marshall Wilson, and James Bullock. Chief witnesses for the State were Jackie Hicks and Marshall Wilson. Prior to June, 1976, Hodge had ordered the other gang members to find James Bullock because Hodge thought Bullock had been talking to federal agents. Bullock was found on June 2 on a street corner in Gary. While Walker, Hicks, and Wilson went to get something to eat, Hodge first talked with Bullock and then the two men went to Hodge's residence. Walker, Hicks, and Wilson also went to Hodge's residence but remained out of Bullock's sight. While Bullock was still unaware of their presence, the three men were given guns by Hodge and instructed to wait at a nearby filing station until Hodge drove past. When Hodge drove by with Bullock in the car, the other three men followed until they stopped along the road at Hodge's prearranged signal. Bullock was taken out of the car and shot by Walker. He fell but recovered and tried to escape but was eventually overtaken by Hodge and Walker, shot by Hodge, and left to die. The gang returned to Hodge's residence where Hodge collected and disposed of the guns. Bullock was found near some railroad tracks and taken to a hospital where he died of the gunshot wounds.

I

Defendants claim that the trial court erred in not holding an arraignment prior to their retrial on first-degree murder charges following reversal of their convictions by this Court in their first trial. The State contends that another arraignment was not required after the case had been reversed and furthermore, that the defendants failed to demonstrate prejudice. The only claim of prejudice argued by Defendants is that failure to hold arraignment prevented them from timely filing a motion for change of venue from the judge. We agree with the State's contention that the failure to hold an arraignment did not produce this problem for the defendants.

The time limitations for applying for a change of judge are provided in Ind.R.Crim.P. 12 as follows:

"An application for a change of judge or change of venue from the county shall be filed within ten (10) days after a plea of not guilty, or if a date less than ten (10) days from the date of said plea, the case is set for trial, the application shall be filed within five (5) days after setting the case for trial. Provided, that where a cause is remanded for a new trial by the Supreme Court, such application must be filed not later than ten (10) days after the party has knowledge that the cause is ready to be set for trial."

Pursuant to the clear provisions of the rule, Defendants had an opportunity to apply for change of judge within ten (10) days after they had knowledge that the cause was ready to be set for trial. The failure to hold another arraignment therefore did not contribute to any prejudice as the time limitations under Criminal Rule 12, under which the defendants could apply for the change, did not relate in any way to the holding of an arraignment. The purpose of an arraignment is to give notice to the accused of the charges being brought against him and to permit him to enter a plea. See Ind.Code Sec. 35-4.1-1-1 (Burns Repl.1979) (now repealed); Rader v. State (1979) Ind.App., 393 N.E.2d 199. Defendants are correct that there must be an arraignment before trial and the cases they cite supporting their position do state such rule; however, those cases relate to an original trial following the formal filing of charges against the defendant. Here, the defendants had already been arraigned and had entered a plea of not guilty to the charges. The same charges were on file for the second trial and their pleas of not guilty were in the record. There was, therefore, no prejudice to these defendants in the failure of the court to re-arraign them and more particularly the lack of arraignment did not contribute to the failure of their efforts to obtain a change of judge. There is no error on this issue.

II

On October 31, 1980, an omnibus hearing was held at which time the trial court set this cause for trial on the 10th day of December, 1980. This date was later changed to December 17th, 1980. Defendants filed several verified motions for continuance on November 6, November 26, December 8, December 10, and December 11. The basis of each of the motions was that counsel did not have sufficient time to prepare for trial and claimed the Sixth Amendment right to competent counsel under the United States Constitution would be violated by forcing them to proceed to trial on December 17. In support of the motion filed on November 26, Defendants called several local criminal attorneys who testified that seven weeks was not adequate time to prepare for this type of trial. The trial court denied all of the motions for continuance and the cause went to trial on December 17, 1980. Computation of time shows that Defendants' counsel had a period of seven weeks to prepare for trial.

We recently addressed the subject of continuances in Downer v. State (1982) Ind., 429 N.E.2d 953, 954, as follows:

"Continuances are granted under the authority of Indiana Trial Rule 53.4. Where the request is based on a nonstatutory ground, as here, the granting of the motion is within the discretion of the trial court. Denial of the motion is reversible error only where there has been a clear abuse of that discretion. Aron v. State, (1979) Ind., 393 N.E.2d 157; Johnson v. State, (1979) Ind., 390 N.E.2d 1005, U.S. cert. denied 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 312; Miller v. State, (1978) 267 Ind. 635, 372 N.E.2d 1168. In order to demonstrate an abuse of that discretion, the appellant must show he suffered prejudice as a result of the denial of the continuance. Schalkle v. State, (1979) Ind., 396 N.E.2d 384; Vaughn v. State, (1978) 269 Ind. 142, 378 N.E.2d 859. The trial court is not required to grant a motion for continuance merely because it complies with the rules of procedure but may look to the circumstances of the case as well as the allegations made in the motion. Drollinger v. State, (1980) Ind., 408 N.E.2d 1228; Keys v. State, (1979) Ind., 390 N.E.2d 148; Miller, supra. Continuances to allow more time for preparation are not favored and should be granted only with a showing of good cause and in furtherance of justice. Keys, supra; Miller, supra."

The record shows that the State's case on retrial was composed of the same witnesses as in the first trial with the addition of Jackie Hicks. The record and transcript of the first trial together with depositions of several witnesses were made available to the defendants. Defendants do not claim they were unable to interview their witnesses and they, of course, had a transcript of the testimony of all the State's witnesses in the first trial. The first trial had taken three days to try and it did not appear that a retrial would take any longer. There is no allegation that evidence was not presented due to the need for additional time to prepare nor that any real prejudice attached to these defendants because they were forced to trial on December 17, 1980. The record shows that the witnesses were thoroughly cross-examined, defense witnesses were presented, counsel were well aware of the facts of the case, and more than adequately presented their defenses. There is no showing that the trial court abused its discretion by denying the motions for continuance.

III

Defendants claim the trial court erred in not granting motions for change of venue from the county or continuances due to pretrial publicity concerning defendant Hodge. At the hearing on the motion for change of venue from the county, Defendants presented evidence concerning a series of newspaper articles in which defendant Hodge was discussed. There were articles in a local newspaper on November 23, 24, and 25, 1980, concerning Gilda Davis Smith, an inmate in the Indiana Women's Prison, which discussed her conviction for two murders and referred to Johnny Hodge as "a Gary hoodlum" and an underworld leader calling him a successor to the infamous "Family Gang." The State's position was that the evidence presented on a motion for change of venue was insufficient to establish community bias which would demonstrate that the defendants could not receive a fair trial in Porter County. In addition to demonstrating the existence of adverse publicity, it was incumbent upon the defendants to establish that the...