Wells v. State, 53A01-0405-CR-229.
| Decision Date | 15 June 2006 |
| Docket Number | No. 53A01-0405-CR-229.,53A01-0405-CR-229. |
| Citation | 848 N.E.2d 1133 |
| Parties | Scott D. WELLS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
David J. Colman, Elizabeth Ann Cure, Colman & Cure, Bloomington, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Scott Wells appeals his convictions for Class C misdemeanor operating a vehicle while intoxicated ("OWI") and Class B misdemeanor disorderly conduct. We affirm.
We restate and reorder the issues before us as:
I. whether the jury venire represented a fair cross-section of the community of Monroe County;
II. whether the trial court properly denied Wells's motion for a continuance;
III. whether the State committed prosecutorial misconduct during closing argument;
IV. whether the statutes defining the offense of OWI are void for vagueness; and
V. whether Wells's disorderly conduct conviction violates his right to free speech under Article 1, Section 9 of the Indiana Constitution.
The following facts reflect the evidence in a light most favorable to the convictions. In 2002, Wells was a Bloomington city councilman. Bud and Amy Bernitt, as well as their acquaintance, Indiana State Police Sergeant J.D. Maxwell, also were involved in local politics, but at the other end of the political spectrum from Wells. On September 27, 2002, Bud called Sergeant Maxwell at his home to inform him that he believed Wells was driving a vehicle while intoxicated. Bud reported that he had seen Wells leave the Crazy Horse bar in Bloomington, then drive erratically to the corner of Sixth and Dunn Streets, where Wells exited his car and urinated in the street.
Sergeant Maxwell called State Police dispatch to see if any troopers were available to investigate Bud's report. After learning that Trooper Stacy Brown was available, Sergeant Maxwell asked the post commander to have Trooper Brown call him at home, which deviated from regular State Police procedure. When Trooper Brown called, Sergeant Maxwell told him Bud's story and asked him to meet the Bernitts in a parking lot near Sixth and Dunn Streets. The Bernitts related what they had seen and gave Trooper Brown a description of Wells and his vehicle, but did not reveal that they knew Wells.
Trooper Brown then left and soon thereafter located Wells's vehicle parked illegally. He called to have the vehicle towed, but Wells got into the vehicle and drove away before a tow truck could arrive. At first, Wells was not wearing his seatbelt, but he put it on after driving by and seeing Trooper Brown's police car. Trooper Brown then pulled behind Wells and saw Wells make a sharp turn around a corner, head to the curb, then overcorrect so that Wells was straddling the center line of the street. Trooper Brown then initiated a stop of the vehicle.
When Trooper Brown approached Wells's vehicle, the window was rolled up and Wells had evident difficulty rolling the window down but finally was able to do so. Trooper Brown asked Wells for his license and registration, and Wells responded by asking repeatedly why he had been stopped, sometimes using profane language. Pursuant to Trooper Brown's training and usual practice, he asks for a license and registration before advising a driver why he or she has been pulled over. Finally, Wells attempted to give his license to Trooper Brown but had difficulty finding and removing it from a stack of cards held together by a rubber band, even though the license was on top of the stack.
Trooper Brown then told Wells that he had been pulled over for not wearing a seatbelt. Wells again responded by being argumentative and using profane language. When Trooper Brown also told Wells of his erratic driving and the report that he had urinated in the street, Wells called Trooper Brown a "f* * *ing liar." Tr. p. 149.
At this point, Trooper Brown noticed the smell of alcohol on Wells's breath. Trooper Brown also noticed that Wells's eyes were red and watery and that his speech was sometimes slurred and mumbled. Wells also began asking Trooper Brown if he knew who Wells was, and Trooper Brown responded that he did not know and did not care. Wells also asked if Trooper Brown knew Sergeant Maxwell, and when Trooper Brown said he did, Wells began stating that he had been "set up" by Maxwell. Id. at 152. Trooper Brown later admitted that he was unhappy with Sergeant Maxwell's actions, but nevertheless believed that the Bernitts' report that Wells was driving while intoxicated was proven to be correct.
Because Wells was being belligerent and highly emotional, and as part of normal protocol for investigating a possible OWI, Trooper Brown called Trooper Travis Coryea for assistance. Before Trooper Coryea arrived on the scene, a nearby resident, Joel Chanvisanuruk, called 911 because Wells was "freaking out." Id. at 278. Specifically, Wells was shouting and screaming extensively and appeared to be angry to the extent that Chanvisanuruk was concerned for Trooper Brown's safety and thought he needed backup to help deal with Wells.
When Trooper Coryea arrived, he and Trooper Brown repeatedly asked Wells to get out of his car before Wells finally did so. Wells had difficulty exiting the car; he started to fall backwards in the car when he turned in his seat to exit and had to pull himself up on the steering wheel before getting out, and after getting out he again started to fall backwards before reaching back and steadying himself on the car and closing the door. Wells refused to perform any field sobriety tests and again yelled that he was being embarrassed "because of that motherf* * *er J.D. Maxwell. . . ." Id. at 160. When Trooper Brown attempted to inform Wells of the implied consent law, Wells repeatedly interrupted him by yelling obscenities and asserting that he had been set up. Throughout Trooper Brown's interaction with Wells, he repeatedly asked Wells to quiet down, but Wells did not do so.
When Wells refused to take a breath test after being read the implied consent law, Trooper Brown decided to place Wells under arrest. After learning this, Wells refused to cooperate with Trooper Brown and Coryea's attempts to handcuff him and place him in a police car. Again, Wells repeatedly yelled obscenities at the troopers in connection with his claim that he had been set up.
On November 7, 2002, the State charged Wells with Class A misdemeanor OWI, Class D felony battery on a law enforcement officer, Class A misdemeanor resisting law enforcement, Class B misdemeanor public intoxication, Class B misdemeanor disorderly conduct, and Class D infraction failure to use a seat belt. The State later amended the information to remove the public intoxication and seat belt charges. Before trial, Wells moved to disqualify the jury panel because it contained no Indiana University-Bloomington students. The trial court denied the motion. On November 12, 2003, a jury found Wells guilty of Class C misdemeanor OWI, a lesser-included offense of Class A misdemeanor OWI, and of disorderly conduct; it acquitted Wells of resisting law enforcement and battery on a police officer. Wells now appeals.
Wells contends that the jury venire for his trial did not represent a fair cross-section of the Monroe County community, in violation of the Sixth Amendment to the United States Constitution. Specifically Wells notes that the jury venire included no students attending Indiana University-Bloomington ("IU"). He also claims that those students comprise almost one-third of Monroe County's census population, or approximately 38,000 out of 120,000 residents.
"[T]he selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 697, 42 L.Ed.2d 690 (1975). The jury selection process should operate to reflect a reasonable cross-section of the community from which the venire is drawn. Wilder v. State, 813 N.E.2d 788, 791 (Ind.Ct.App.2004), trans. denied (disapproved of on other grounds by Laux v. State, 821 N.E.2d 816, 820 n. 4 (Ind. 2005)). There is no requirement, however, that jury panels be a microcosm of a county or a court district. Id. "Jurors need not be mathematically proportioned to the character of the community, and there is no requirement that any particular class be represented on every jury." Id. The primary requirement is that the selection of a jury venire should not be arbitrary. Id.
In order to establish a prima facie violation of the fair cross-section requirement, the defendant bears the burden of showing: 1) that the group alleged to be excluded is a "distinctive" group in the community; 2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. Id. If a defendant makes a prima facie showing that he has been denied his right to have a jury drawn from a fair cross-section of the community, the burden shifts to the State to justify the selection process by showing that attainment of a fair cross-section is incompatible with a significant state interest. Id. at 791-92.
Indiana's jury pool selection method is governed by statute. Azania v. State, 778 N.E.2d 1253, 1256 (Ind.2002). Indiana Code Section 33-28-4-3(c) allows jury commissioners to use a computerized jury selection system, but requires that the system employed "must be fair and may not violate the rights of persons with respect to the impartial and random selection of prospective jurors." Our supreme court...
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