Zavesky v. State
| Decision Date | 04 September 1990 |
| Docket Number | No. 45A03-9004-CR-134,45A03-9004-CR-134 |
| Citation | 558 N.E.2d 1124 |
| Parties | David ZAVESKY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Marce Gonzalez, Jr., Crown Point, for appellant.
Linley E. Pearson, Atty. Gen., Danielle Sheff, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant David Zavesky appeals a bench trial conviction for burglary, a Class B felony, and an habitual offender determination. Appellant raises four issues for review which this Court restates as three:
(1) whether the trial court erred in denying appellant's motion for change of judge;
(2) whether the habitual offender determination must be vacated due to deficiencies in the charging information; and
(3) whether the search of appellant's vehicle was "reasonable" within the meaning of the Fourth Amendment.
The facts relevant to the appeal show that at approximately 5:00 A.M. on May 2, 1988, Marilyn Strong was awakened by the sound of an engine running outside her home in Munster, Indiana. Mrs. Strong observed a dark red van in the driveway of her home then awakened her husband, Kenneth, who also observed the van. When the van drove away, Mr. Strong went outside and discovered that the overhead garage door was open. He then went inside the house and discovered that a Sylvania television set and an antique slot machine were missing from the family room. Mrs. Strong phoned the police at that point and gave a description of the van and missing items.
Sergeant Nick Panich of the Munster Police Department was filling his squad car with gasoline at approximately 5:05 A.M. when he received a radio broadcast of the burglary with a description of the van. Shortly before the broadcast, Sergeant Panich had observed a van matching the description traveling at an excessive rate of speed toward Lansing, Illinois. Panich advised the police dispatcher of his observation, and the dispatcher notified the Lansing Police Department.
At 5:07 A.M., Officer Russell Oberman of the Lansing Police Department observed a van matching the description and followed it to the driveway of 18277 Roy Street in Lansing. Appellant exited the van at that point and walked quickly toward Officer Oberman with a pair of brown cotton work gloves in his hands. When Oberman requested identification, appellant produced an Indiana driver's license with a Hammond address. Douglas Simpson, a Munster police officer, and two Lansing police officers then arrived at the scene, and Simpson informed Oberman of the missing items. Oberman then walked up to the van and observed a Sylvania television set and an antique-looking slot machine through a side window.
After placing appellant under arrest, Oberman and another Lansing police officer obtained a search warrant for the van. The police then towed the van to the station where an evidence technician processed it. Along with the television set and slot machine, the police found several other items from the Strong home inside the van.
Appellant first argues that the trial court erred in denying his motion for change of judge. The ruling on a change of judge motion lies within the sound discretion of the trial court. Ind.Crim. Rule 12; Stanger v. State (1989), Ind.App., 545 N.E.2d 1105, 1118. The law presumes that a judge is unbiased and unprejudiced. In order to overcome this presumption, the moving party must establish that a judge has personal prejudice for or against a party. Such bias or prejudice exists only where there is an undisputed claim or the judge has expressed an opinion on the merits of the controversy before him. Id.
In support of his change of judge motion, appellant attached the affidavit of his attorney who swore that the trial judge stated to him that "he did not feel he could sit in judgment on this Defendant because of the numerous letters he received attacking his previous rulings and advising the Court that the Court lacked knowledge of the law." However, as the Stanger court noted, "the mere fact that a defendant has appeared before a certain judge in a prior action or the judge has gained knowledge of the defendant by participating in other actions does not establish the existence of bias or prejudice...." Id. at 1118. Moreover, at the hearing on the motion, the judge stated that he no longer opened appellant's letters and that he had made as many rulings in favor of appellant as he had against him. Furthermore, after the denial...
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