Ward v. State

• Decision Date: 27 August 1982
• Docket Number: No. 1081S283,1081S283
• Citation: 439 N.E.2d 156
• Parties: Orville WARD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 156

439 N.E.2d 156

Orville WARD, Appellant, v. STATE of Indiana, Appellee.

No. 1081S283.

Supreme Court of Indiana.

Aug. 27, 1982.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant, Orville Ward, was convicted of Burglary, Ind.Code Sec. 35-43-2-1 (Burns Repl.1979), and Theft, Ind.Code Sec. 35-43-4-2 (Burns Supp.1982), at the conclusion of a jury trial in Putnam Circuit Court on April 14, 1981. Ward was sentenced to ten (10) years imprisonment on the burglary conviction, and two (2) years for the theft conviction; a finding of habitual offender enhanced his sentence by thirty (30) additional years. He now appeals.

Defendant Ward raises four issues on appeal, concerning: 1) the trial court's denial of defendant's Motion for Change of Venue; 2) denial of defendant's request to individually voir dire the jury; 3) error in submitting the habitual offender charge to the same jury that heard the burglary and theft charges; and, 4) sufficiency of the evidence.

On March 2, 1980, the home of Mrs. Rosemary Brozenske was burglarized. Following a trail of footprints, the police apprehended defendant Ward and two other individuals with the stolen property in their possession.

I

On March 11, 1980, and again on April 10, 1981, Ward filed Motions for Change of Venue from the county because there were certain newspaper articles in the local newspaper relating his criminal activity and the charges he was facing. The motion in March, 1980, was denied, and on April 13, 1981, the court held a hearing on defendant's second motion. This motion was also overruled. Defendant now claims it was reversible error for the court to require him to go to trial in Putnam County where the newspaper publicity had subjected him to prejudice.

Defendant does not deny that the granting of a Motion for Change of Venue in non-capital cases is within the sound discretion of the trial court and a ruling on this subject will be overturned only by a showing of abuse of that discretion. Hall v. State, (1980) Ind., 405 N.E.2d 530, 533. Defendant also admits, on page 24 of his brief, that the "[r]ecord provided to appellate counsel does not contain a transcription of the voir dire proceedings nor does it contain any indication of whether Ward used all of his peremptory challenges prior to the selection of the jury."

This Court cannot effectively review this issue because the transcript of the voir dire is not in the record. See Pine v. State, (1980) Ind., 408 N.E.2d 1271. In such a situation, this Court has no way of determining whether defendant has met his burden in showing jury prejudice because we cannot determine whether or not the jurors had preconceived notions of defendant's guilt or innocence and whether or not they were able to set aside those notions and render a verdict based upon the evidence adduced at trial. The lack of record also prevents this Court from knowing whether defendant had exhausted his peremptory challenges in an effort to secure jury impartiality.

This Court is aware of the change in the Rules of Appellate Procedure where "[i]ncompleteness or inadequacy of the record shall not constitute a ground for dismissal of the appeal or preclude review on the merits." Ind.R.App.P. 7.2(C). See McNeal v. State, (1982) Ind.App., 434 N.E.2d 127, for an application of this rule. We note that in the praecipe of the case at bar, the counsel for defendant requested the voir dire examination of the jurors, and the clerk's certification states the transcript "contains full, true and correct copies, or the originals, of all papers and entries in said cause required by the above and foregoing praecipe." Therefore, by the absence of the voir dire transcript, we may assume that there was no court reporter present during the jury examination, a common practice during trials. Defendant's failure to establish a record requires us to consider this issue waived on appeal.

We would also note that from the argument in the brief, it appears that appellate counsel here, unlike the counsel in McNeal, supra, could not specifically point to any error in the missing material. We would hold that this failure to demonstrate how the alleged error in the voir dire harmed the defendant constitutes a waiver, Guardiola v. State, (1978) 268 Ind. 404, 406, 375 N.E.2d 1105, 1107, that would not require this Court to issue a writ of certiorari and bring the voir dire transcript, if there was one, before the Court. There has been no error shown here.

II

At the hearing on defendant's Motion for Change of Venue from the County, the defendant orally requested permission to voir dire each of the prospective jurors concerning their awareness of any pretrial publicity, since questioning them together would cause the statement of one prospective juror to contaminate the other jurors. The trial court took this motion under advisement at that time, indicating he would grant the motion if it became necessary. On the next day the trial court overruled this motion. We find we are unable to effectively review this issue, again for the reason that we do not have the transcript of the voir dire in the record of proceedings; thus, we cannot determine whether or not the court abused its discretion under all the facts and circumstances surrounding the voir dire. See Issue I, supra. It is clear that the trial court has broad discretionary powers in regulating the voir dire examination of the jury. Wickliffe v. State, (1981) Ind., 424 N.E.2d 1007, 1008; Lynn v. State, (1979) Ind., 392 N.E.2d 449, 451. It is not an abuse of discretion for the trial court to limit voir dire to twenty minutes for each side, Lynn v. State, supra, and we also do not see the trial court's denial of defendant's request for individual juror examination during voir dire to be an abuse of discretion. There is no error shown here.

III

Defendant claims that he was prejudiced because the same jury that had heard the evidence and found him guilty of burglary and theft, also heard the habitual offender portion of the trial. Defendant admits we have previously decided this issue contrary to his position here in Shepler v. State, (1980) Ind., 412 N.E.2d 62, and Jameison v. State, (1978) 268 Ind. 599, 377 N.E.2d 404, but urges us to reconsider our rulings on those cases. In Jameison, we stated:

"As to his contention that a separate jury should have been ordered to hear the habitual criminal charge, it is without merit. The trial court complied in all respects with the bifurcated trial requirements of Lawrence v. State, (1972) 259 Ind. 306, 286 N.E.2d 830. The jury heard direct evidence of the appellant's prior crimes in the habitual criminal proceeding and was bound to adjudicate him solely on the basis of that evidence. We fail to see how any undue prejudice could have arisen in the habitual criminal trial from the use of evidence of prior crimes to impeach appellant at the principal trial."

Id. at 603, 377 N.E.2d at 406-07.

We still consider our position in Shepler, supra, and Jameison, supra, to be sound and reaffirm it here.

IV

Finally, defendan...