*1 $15 ramp "known" that the was too not have steep, she measured it and because never ramp comply
was unaware that the did not building
with the codes. These semantic
arguments do not unequivo- overcome the knowledge ap-
cal evidence of actual
preciation.
It is immaterial that Mrs. Mantich ramp.
had never measured the The fact ramp designed, improperly nothing ap to do with Mrs.
has Mantich's
preciation Logically, of the risk. non-com
pliance building possibly with state codes is
competent establishing negli evidence
gence, non-compli but awareness of the necessary subjective ap
ance is not for a
preciation ramp steep. that a is too clearly
The evidence establishes ramp
that Mrs. Mantich knew the was dan
gerously steep; appreciated she the risk of
falling; voluntarily and she continued to Mantich, therefore, ramp.
use the Mrs. injuries
incurred the risk of her as a matter grant
of law and it was error to fail to Mary's judgment
St. motion for on the evi
dence. This cause is reversed and remand judgment
ed with instructions to enter defendant, Mary's Byzantine St.
Church.
Reversed and remanded.
GARRARD, P.J., NEAL, J.,
concur. ANDREWS,
Michael
Petitioner-Appellant, Indiana,
STATE of
Respondent-Appellee.
No. 1-1185A295. Indiana, Appeals
Court of
First District.
March
$17 *3 "818 *4 Carpenter,
Susan K. State Public De- fender, Gardner, Deputy De- C.H. Public fender, Indianapolis, petitioner-appel- for lant. Pearson, Gen.,
Linley Atty. Gary E. Da- Secrest, Rodia, Jay Deputy Attys. mon Gen., General, Attorney Indianap- Office of olis, respondent-appellee. for RATLIFF, Judge. Chief THE STATEMENT OF CASE appeals Michael Andrews his conviction recklessly remaining voting in for a booth minute, longer class A than one a misde- meanor. We affirm.
FACTS election, Michael An- general At the 1984 staged a drews and three co-defendants protest against the absence of form min- write-in ballots Indiana. Several entering voting utes after booth of Bloomington, Andrews was Precinct 7 asked if he needed assistance and he de- write-in ballot. Andrews was manded a ballots were not informed that write-in either have to and that he would available An- voting or be arrested. leave the booth voting pendent, party, to remain booth third and low drews chose income vot- Ap- his arrest. ers. forty-five for minutes until fifty
proximately one hundred and voters 6. Whether the trial court erred in de- kept waiting during epi- in line this were nying Andrews' motions for a mistrial and An hour later the booth was reset sode. disqualification judge where the trial con- waiting voters. and made available with during sulted outside sources the trial. On November Andrews was 7. Whether the trial court in find- erred charged recklessly remaining in a vot- with ing in contempt of court or ing longer than one minute in booth for failing whether the trial court erred in of Indiana Code section 3-1-23- violation specifically complained state the acts of in trial, Following jury Andrews was contempt. its memorandaof guilty. found Andrews was sentenced to 8. Whether the trial court committed re- misdemeanor, year one for the with all but failing versible error to rule on Andrews' days suspended, ninety and sentenced to contempt motions reconsider its cita- days being in con- one hundred over tions. time, Applying tempt of court. credit 9. Whether the trial court erred in de- An- Department of Corrections released nying his motion to dismiss the November expiration of his sentence. drews at the 19, 1985, hearing wherein the trial court Following hearing, the trial court recom- good-time inappli- determined credits finding mitted after that credit contempt sentences. cable apply contempt time did not sentences. *5 Thereafter, perfected appeal. Andrews this DISCUSSION AND DECISION ISSUES Issue One presents Andrews twelve issues for re- reviewing It should be noted that when
view which we have reworded and sub- evidence, sufficiency this the of the court following: sumed into the credibility judge does not the of witnesses 1. Whether the evidence is sufficient to Rather, weigh nor the evidence. we con remaining sustain Andrews' conviction for evidence most favorable to the sider the voting in a booth for over one minute. together verdict with all inferences which 2. the one minute rule was Whether If there is sub may be drawn therefrom. discriminatory used in a manner so as to sup probative value to stantial evidence deny process equal pro- due Andrsws offense, judg port each element law, provi- tection of the and whether the affirmed. v. ment will be Johnson State vague unconstitutionally sion is and over- 1015, 1016; 441 Ind.App., N.E.2d broad. (1980), Ind.App., 406 v. State Anderson denied; N.E.2d trans. Stocklin the trial court erred in re- Whether Ind.App. against fusing charge to dismiss the An- 863, 864, trans. denied. subject jurisdic- drews for lack of matter tion. of reckless Andrews was convicted
4. Whether the court erred in re- trial voting longer than remaining in a booth ly fusing evidence and in to admit certain Indiana Code section 3-1-23-28 one minute. taking resulting alleg- actions all other provides: 1 edly denying Andrews a fair trial. voting any primary election where "At or by printed machine or ballot is either
5. Whether the trial court erred
de-
impartial jury
nying Andrews' motion
within the
no voter
shall
remain
both
longer
compartment
than
voting booth or
allegedly
sys-
resulted in
selection which
where,
tematically excluding
jury
(8) minutes;
general
from the
inde-
any
three
5-1986,
Repealed by
11-8-33.
P.L.
61 effective March
§
by
replaced
3-11-8-32 and 3-
§§
election,
machine,
voting
by
is
special
acceptable
or
tion from
standards of conduct."
gist
voting
argument
no voter shall remain within the
of Andrews'
is that he
right
compartment longer than
has a constitutional
to cast a write-in
booth or
one
and, therefore,
(1) minute;
voting
by print-
upon
ballot
his insistence
and where
right during
this
the 1984 election cannot
ballot,
shall
ed
no voter
remain within
acceptable
abe
substantial deviation from
voting
compartment longer
or
booth
standards of conduct. Andrews misunder-
(8)
than three
minutes.
If
voter
appeal.
stands the issue involved in this
such
or com-
shall refuse to leave
booth
time,
partment
elapse
after
of such
conduct,
It
is Andrews'
not his motiva
by
he shall at once be removed therefrom
tion, that is at issue in this case. Andrews'
board,
by
or
election
election argument
that he has a constitutional
upon
sheriff or sheriffs
order of the
may may
to a write-in ballot
not have
board."
However,
merit.3
issue is not before
present
us at
and therein lie Andrews'
provision
A violation of this
is made a class
charged
confusion. Andrews was
and con
by
A misdemeanor
Indiana Code section
remaining
voting
victed of
in a
booth for
"A person
3-1-82-63 which states
who
longer
permits;
than the law
he was not
recklessly
provision
violates a
of this arti
charged
attempting
with
to cast a write-in
specific penalty
cle for which a
is not other
ballot. The issue before this court and the
provided
wise
commits a class A misde
constitutionality
trial court is not the
freely
meanor." Andrews
admits that he
ballots,
legality
write-in
but rather the
provision.
the one minute
violated
His con
remaining in
voting
booth
tention, however, is that he did not violate
period.
over the allotted time
recklessly
Ind. Code
3-1-238-28
as de
§
fined
statute.
Indiana
section
Code
385-
recklessly
remained in the vot
41-2-2(c) states,
person engages
"A
in con
ing
longer
statutorily permitted.
booth
than
'recklessly'
engages
duct
he
the con
and his
co-defendants entered the
conscious,
plain,
unjustifiable
duct
Bloomington poll
well aware of the fact
disregard
might
of harm
many
people
waiting
result and
other
were
disregard
involves a substantial devia-
exercise their
to vote.
en-
*6
5-1986,
61,
Repealed by
2.
P.L.
§
effective March
exercise his individual constitutional-
effectively
4, 1986,
replaced by
ly protected
and
Indiana Code §§ 3-
franchise. The use of write-in bal-
through
seq.
dependent
14-1 et
3-14-5.
lots does not and should not be
on
the candidate's chance of success. The denial of
Apparently,
permit
this unfettered freedom of choice is a denial of
3.
Indiana law does not
the
casting
equal protection
guaranteed
According
the
of the laws as
of "write-in"
votes.
an
General,
Attorney
by
opinion
official
the Fourteenth Amendment."
of the
the
Thus,
specifies
Party,
Indiana Election
Socialist Labor
at 987.
the court
Code
several fair and
by
granted
may
Party
liberal means
which a candidate's name
the Socialist Labor
relief to the
appear
public
permitting
despite
on a ballot to stand for election to
extent of
write-in ballots
party
independent
appeal,
office either as a
or
candi-
Ohio law. On
the United States Su-
Williams,
Op.Att'y
Repealing pri-
date.
preme
remedy.
1975
Gen. No. 1.
Court affirmed this
34-35,
12-13,
$21
256, 258,
638, 640,
261 Ind.
301 N.E.2d
voting
and
there
tered a
booth
remained
an election official
Campbell
(1971),
several minutes until
quoting
v. State
256 Ind.
him if he needed assistance. An 630, 633,
463,
asked
271 N.E.2d
465.
a write-in vote and
drews then demanded
States,
"'The
within the
im-
limitations
and that
was informed none were available
posed by
process
equal pro-
due
and
or
he would have
vacate
booth
be
requirements
tection
of the Fourteenth
in the
arrested. Andrews chose to remain
Amendment to the Constitution of the
voting
approximately forty-five
booth
min
States, may regulate
United
and restrain
police
until the
arrived to arrest him.
utes
the exercise of the
expres-
freedom of
apparently
qualms
had no
about
sion, thereby insuring to all the freedom
deterring
voting rights of one hundred
from the
rights
abusive exercise of the
people, possibly disenfran
fifty
and
other
of others."
chising them.
It was an hour before the
633,
Campbell, at
fer
stances and the evidence was sufficient to
Thus,
pre
support
recklessly
his conviction for
re
disrupt
sumed to have intended to
Precinet
maining
voting
longer
in a
booth
than the
voting
temporarily
leave the
machine
allows.
law
and,
inoperative
process,
in the
interfere
voting rights of
with the
others. Andrews'
Issue Two
typi
actions were not
conformance with
One,
argument
Based on his
Issue
at an
cally acceptable standards
conduct
Ardrews claims the one minute rule is un-
he, therefore,
po'l
clearly pos
election
equal
him
constitutional because it denied
necessary
the reckless intent
to sus
sessed
protection
vague.
and is
overbroad
his
tain
conviction.
argument
on his as-
is based
Moreover,
objective will
a lawful
*7
minute rule
sumption that
the one
employment means
justify
not
of
which
deny
right
him the
to cast a write-
used to
are themselves unlawful. Roth v. Local
words,
claims
in ballot.
In other
(1939),
Retail Clerks Union
Union 1460 of
minute rule was used as a tool
that the one
(lawful
363,
objec
Ind.
drawn
legitimate
strictly
state
relationship
applied unequally
to a
or
to Andrews.
rational
(1982),
Flashing
appeared
457
contrary,
v.
On the
voters who
to be
end. Clements
2836, 2843,
957, 963,
73
102 S.Ct.
having
casting
ap-
their vote were
U.S.
trouble
proached by
judges
508,
election
who asked if
are
Classifications
set
L .Ed.2d
solely on rea
they
are based
only
aside
they needed assistance. Unlike other vot-
pursuit of the
unrelated to the
totally
sons
ers, Andrews,
being repeatedly told
after
grounds
if no
can be
goals
only
State's
person
he was search-
that the name
Clements, at
justify
them.
conceived
candidate,
ing for on the ballot was not a
515;
2843,
963,
73 L.Ed.2d at
at
102 S.Ct.
available,
and that no write-in ballots were
see,
v. Board
Election
e.g., McDonald
remaining
insisted on
in the machine until
808-809,
802,
(1969),
394 U.S.
Comm'rs
dif-
his arrest. Andrews was not treated
739, 745;
1404, 1408-1409, 22 L.Ed.2d
S.Ct.
unequally.
simply
He was
ferently or
(1961), 366 U.S.
Maryland
v.
McGowan
only person to abuse the rule. There is no
1104-1105,
1101,
425-26,
420,
81 S.Ct.
only
the one minute rule was used
evidence
393,
Supreme Court has
399. The
L.Ed.2d
asking
people
to arrest
for write-in ballots.
equal protection
traditional
departed from
The one minute rule did not serve to create
challenged statute
only when the
principles
Equal
in violation of the
a classification
upon "suspect classes"
places burdens
merely
but
served as a
Protection Clause
right that is
on a constitutional
persons or
the state could ensure that
means which
Anto
"fundamental". San
deemed
opportunity to cast a
each voter had their
v. Rodri
Independent School Dist.
nio
vote.
1278,
(1973),
411 U.S.
S.Ct.
guez
respect
L.Ed.2d
33. With
argument
.C.
3-
Andrews'
§
classifications,
appropriate to en
it is
such
vague
1-23-28 is
and overbroad must also
protection by
equal
mandate of
force the
asserts that the one minute
fail. Andrews
its
to demonstrate that
requiring the State
only
not
rule allows election officials
"to
precisely tailored to
classification has been
having
which voters
trou
pick and choose
compelling governmental interest.4
serve
arrested,
ble would be
but also allowed
217, 102
at
Plyler, 457 U.S. at
S.Ct.
cull out for arrest those who like
them to
72 L.Ed.2d
sought
particular
to vote a
satisfy
process
due
way[.]'
In order
rule,
minute
Enforcement of the one
explicit
be so
requirements, a statute must
case, did
result
in a violation of
in this
not
ordinary intelli
as to inform individuals of
rights. The
Equal Protection
gence
consequences
of their conduct.
rule of Ind.Code
3-1-28-28
one minute
§
men of common intelli
It must not cause
in mov
compelling
state interest
serves
meaning
gence
guess at its
or differ as
polls in a
into the
ing the flow voters
application.
thereby enabling
to its
Graham
orderly fashion
quick and
Ind.App., 480 N.E.2d
trans. de
rights.
voting
their
all of them to exercise
nied;
Ind.App., 449
the issue involved
Miller v. State
again confuses
involves a
There is no evidence
1128. Overbreadth
his case.
upon
challenge
statute based not
to a
that the one minute
to demonstrate
record
conduct,
solely
deny
upon legit
as a means
but rather
was used
defendant's
rule
might foreseeably be
else,
conduct which
Andrews,
to a
imate
anyone
*8
which is not drawn
prohibited by a statute
any evi-
Neither is there
write-in ballot.
explained
suffrage
Supreme
has
the
right
the
Court
see if a
look to the Constitution to
4. Courts
source,
sig
implicitly,
scrutiny
arising
infringed
explicitly
as
from the
has its
or
strict
need for
therein,
determining
guardian
whether a class based
in
the
of all
of the franchise as
nificance
deserving
particular
right
of
of
is
strict
Virginia
denial
rights.
Harper
Bd.
Elec
See
v.
other
of
Equal
scrutiny
667,
1079,
Protection Clause.
663,
under
the
(1966),
86 S.Ct.
U.S.
tions
383
vote,
se,
constitutionally
right
per
to
is not a
The
169, 173;
1081,
Reynolds v. Sims
L.Ed.2d
16
right.
Independent
protected
Antonio
San
(1964),
12
84 S.Ct.
377 U.S.
1298,
Dist.,
35,
36
School
vote. The trial court denied Andrews' mo- argues numerous grounds tion for a directed verdict on these court, he decisions of the trial actions and following presenta- adequate opportunity the close State's denied a full and tion of evidence. his own behalf. present a defense on clear, Though particularly not First, noted that An it should be complaint appears to be that rele- overall any alleged regard has waived error drews excluded as result vant evidence was A ing his motion for a directed verdict. errors. these ruling on a motion for a direct trial court's relevancy on the Rulings of a trial court subject ap on verdict is not to review ed are accorded wide latitude. evidence movant has introduced evi of peal where the of evidence is rejection or admission was The dence on his behalf after the motion of the trial court. sound discretion Ind., (1985), Dziepak denied. v. State Ind., 449, 452; Ind., N.E.2d Buck v. State v. Fischer State (1985), Ind. 1365, 1368; v. 993, 995; Hossman State 453 N.E2d see Marsillett 1150, 1156, trans. denied. (1986),Ind., App., 482 N.E.2d 702 n. 2. it is shown that only when will reverse proceeded present evi We Since Andrews its discre manifestly abused trial court denied, he can dence after his motion was party was denied complaining tion and not now claim the trial court erred. provid- specific penalty not otherwise penal person which a *9 clause.-A who reck- 5. "General a class A misdemeanor." lessly provision ed commits of this article for violates a $24 trial court did not abuse its discretion in
a fair trial. Henderson v. State Ind., 1117, 1119; Hossman, refusing to admit certain evidence and tes- 455 N.E.2d at 1156. timony. argument As Andrews' in his argues Andrews also the trial demonstrates, brief the evidence he at court refusing grant erred in to request his tempted underlying to admit dealt with the for the advise and assistance of counsel in offense; motive of his the evidence con help prepare order to him pro his se de cerned his defense that he was denied his fense. Andrews and his co-defendants did right ballot, constitutional to a write-in and not want represented by to be counsel but
that, therefore, the State guilty was of violating merely the statute with which he appointed to have one advise charged. them: admitted he committed the act but insisted that his motivation "MR. requesting ANDREWS: We're not legal rendered his conduct since he intend standby counsel. only ed to assert what he viewed as a "THE Okay, say again COURT: what right. constitutional Motive is not an es you want? sential element of a crime. Griffin "MR. Standby ANDREWS: counsel is Ind.App., 293,
State 13 N.E.2d 295. 4 allow, where we highbred that is a [sic] Although evidence of motive has been representation, form of where we can probative, found admissible and Bigger representation exist our own any at mo- (1982), Ind., v. State 432 N.E.2d staff counsel, ment of say, use and then coun- its admission is still committed to the sel sit back and discretion of the court. we will take the Drummond v. floor (1984), Ind., again, that, State 467 N.E.2d and we're not requesting we point Moreover, evidence, have no wish any admissible, in proceeding otherwise may excluded if probative be its value is represented, spoken is for." substantially outweighed by potential its to Record at°400. prejudice or jury. confuse the Mers v. "THE Okay, why COURT: you do (1986), Ind., represented? choose not to be Again, Andrews' alleged assertion of an "MR. ANDREWS: The reason I feel constitutional to a write-in ballot is requested have some of our written mo- only not at issue here. question tions, personally I very strongly feel presented was what Andrews' intention or impossible it would be very or unlikely mens rea was when he chose to remain in that a member of the bar could make the Here, the booth. intended to types political argu- or constitutional cause some form of disruption. Andrews' ments that I would make. culpability for conscious activity reckless simply not excused because he believes professional "THE COURT: Because such action further will what he believes to you limitations mean? right. trial, be a constitutional At An "MR. ANDREWS: Yes. merely attempted litigate drews his al "THE ability? COURT: Or because of leged constitutional to cast a write-in No, both, "MR. ANDREWS: because of point ballot. We would out that evidence by training all, ability first of be- Andrews', regarding others', knowledge experience cause there's no mem- negate the election code does not intent. familarity ber of the bar that I have Andrews' constant references to write-in with, I great know a number of purpose ballots as his tangential and their them, types with the conduct of these connection to the real issue at bar could call, I polit- what would civil liberties and easily jury. have confused agree We ical cases. I I have much believe more with the state that it was within the experience thought have about it judge's discretion, duty, pre not his vent easy such an much more I that I keep confusion and and believe would be proper trial directed to the issues. The disadvantaged try develop
825 part attorney, knowledge on the of an Issue Five through attorney." speak an argues the trial court erred in denying impartial jury his selec- motion for
Record at 400-401. systematically tion which resulted in ex- start, Okay, "THE let me start COURT: cluding particular a jury from the class of going right determine fresh then. I'm persons. Specifically, Andrews asserted your Defender's now use of Public 30,000 County that over adult Monroe resi- Office, been, and whatever has whatever registered dents were not voters and that is, right this record has been done before registration underrepresented voter lists in- now, minute, you So do want irrelevant. dependent, party, third and low income vot- represent you? Public Defender a Therefore, urged ers. the court represent "MR. ANDREWS: To us? address list to to use Post Office call No. venire, jury which motion the trial "MR. No. SZURGOT: court denied. Absent "MR. No. We want the advice showing a aof deliberate MOORE: Defender assistance of the Public attempt groups to exclude certain from proceed pro se. and we wish to jury participation, supreme our court has selecting jurors practice held that the of Record at 408. registered permissible. from voters La appoint I "THE ... will COURT: (1977), 689, 696, mar v. 266 Ind. State represent you, you if Public Defender to 652, 656; (1976), v. Baum State that, you your demand desire 421, 424, 831, 833; Ind. 345 N.E.2d see also se, proceed pro unless there's some other App., Moore v. Ind. 427 N.E.2d thing specific down the reason for a 1135, 1138, denied. In order to trans. se, road, you'll pro you have prima of the fair establish a facie violation that, grant that." you and I'll requirement, cross-section a defendant Record at 404-405. As the record demon- must show: strates, representa- Andrews was offered "(1) alleged group that the to be exelud- by counsel and turned it down. He
tion in group ed is 'distinetive' the communi- complain of lack of cannot now be heard to (2) ty; representation of this repeatedly when he was offered assistance juries from which are group venires Moreover, the counsel the trial court. fair and reasonable selected is not to assist Andrews public defender offered persons in number of such relation to the There is no error here. on his own time. (3) community; this under- systematic exclu- representation is due to couple attempts to raise a jury-selection group in the sion of the alleged errors under this issue of other process." giv concerning the time he was apparently 357, (1979), 439 v. U.S. Duren Missouri prepare instructions and statements en to L.Ed.2d 99 S.Ct. judge during the trial. by the trial made may be depends upon what problem passing assertions are made with These group. a "distinctive" said to constitute development any type argument of out definition, have we Adopting California's authority. Bald asser any citation to stated: cogent unsupported by either tions of error im- may be held exelusion "... [BJlefore authority argument or citation to result thread be a common proper, there must Indiana error on review. waiver group-a running through the excluded Procedure, Appellate Rule Rules attitudes, ex- ideas or similarity of basic 8.8(A)(7); Joseph's Hospi v. Whitaker St. that the among members so perience its 737, 746; (1981), Ind.App., 415 N.E.2d tal reflecting juries from prevents exclusion App., Gallmeyer v. Ind. Dominguez community." a cross-section trans. denied. Superi Moore, Therefore, quoting Adams attempts to any error Andrews (1974), 12 Cal.3d Diego Co. or Ct. San grounds assert on these is waived. *11 55, 60, 247, 375, Cal.Rptr. 524 P.2d Apparently 379. Andrews feels that (4) A judge should every accord to "group" unregistered of voters is com person who legally interested in a posed disproportionate number of of a third proceeding, lawyer, or his full party independent and members.6 law, and, according except be heard proof, Andrewsoffers no statistical or other law, as authorized neither initiate wise, this to substantiate assertion. An parte nor consider ex or other commu- any prove drews fails to the existence of concerning nications pending a or im- running through common this ex thread pending proceeding. A judge, how- group. importantly, More cluded Andrews ever, may obtain the advice of a disin- any attempt fails deliberate to demonstrate expert terested on the applicable law court part on the of the trial or state to proceeding to a before him if gives he any particular type group exclude of from parties notice person to the of the con-
jury participation. The trial court did not advice, sulted and the substance of the denying err motion Andrews' parties and affords op- reasonable selecting jury composed a venire from portunity respond." registered of voters. 38(C)(1)(a)provides: Canon Issue Siz "(1) judge A disqualify should himself argues the trial court erred in proceeding in a impartiality which his denying his for a mistrial motions and for might reasonably questioned, includ- judge disqualify trial himself based ing not but limited to instances where: judge on consultations the trial had with during outside sources the trial. After (a) personal He a prejudice has bias or lengthy arguments admissibility on the concerning party, personal a knowl- votes, concerning evidence write-in An- edge disputed evidentiary facts con- drews' belief that such a existed in cerning proceeding[.]" Indiana, the trial court ruled the evidence Accordingly, this court has held that a response In inadmissible. judge's personal knowledge acquired inquiry, judge the trial stated that he had through extrajudicial requires sources re- admissibility discussed the of the offered cusal. Stivers v. Knox County Dept. of judges agencies evidence with other (1985), Ind.App., Public Welfare solely but the decision was his own. 751; 748, (1981), Jones v. State Record at 1784. inquired Andrews then as 880, Ind.App., 416 N.E.2d 881. identity to the party judge of each the trial However, pre had consulted and the content of the the law also con- sultation. Andrews then moved for the judge unprej sumes that a is unbiased and judge to recuse himself and declare a mis- Jones, udiced in the matters before him. trial. 881; at Leistikow v. Hoosier State Bank (1979), 150, 152, Ind.App. Indiana argues judge's the trial only type 394 N.E.2d 227. The 8(A)(4) consultation violated of the Canon prejudice disqualify judge which will is a 3(A)(4) Code of Judicial Conduct. Canon personal prejudice against for or provides: party. 881; Jones, Leistikow, judicial 394 N.E.2d at judge "'The duties of a take precedence over all his other activities. 227. The record must show actual bias and judge against judicial prejudice His defend duties include all the duties prescribed by of his office law. In the ant before a conviction will be reversed on duties, performance of these the follow- ground judge that the trial should have ing apply: standards disqualified himself. Rose v. State
A. responsibilities. Ind.App., 488 N.E.2d 1144. group. registered 6. We note that Andrews is a voter belong and therefore does not to this theoretical 231 Ind. 108 N.E.2d
Andrews has failed to demon prejudice actual bias or on the strate Instead, finding the court's must recite in grounds judge. of the trial part detail the acts found to have been commit judge on the fact that the trial contempt his assertion ted and which constitute the regarding negatively his various at punished. ruled which the defendant is ex concerning tempts to introduce evidence rel. Allen v. Vermillion Circuit Court nega write-in votes. Mere assertions that 248 Ind. rulings prejudice
tive stem from the or bias *12 examples of judge do not constitute hearing, July At preliminary on requisite evident in the bias that must be following exchange place the took Furthermore, have stat the record. as we the between Andrews and trial court which constitutionality repeatedly, ed the contempt in resulted his first conviction. prohibition against votes Indiana's write-in (After moving "MR. ANDREWS: ... is not an issue in this case. was not and himself.) Judge disqualify the trial to Therefore, any comply Can failure to with I question, also have a is Your Honor a 3(A)(4), one, if in resulted on fact there was you candidacy member or did stand for judge did not in harmless error. The trial Republi- to the bench as a member of the denying in Andrews' motions for dis err party? can or Democrat a mistrial. qualification and Okay, your
"THE I'll COURT: show mo- denied, anything there else that tion Issue Seven needs to addressed? be Andrews raises four issues con you "MR. ANDREWS: I'd asked the contempt cerning convictions he incurred Republican question you whether are a during Essentially the course of the trial. or Democrat? argues none of these incidents enough proceedings disturbed the Okay, "THE I don't have to COURT: alternative, contempt. In amount the your questions. answer court, argues that the trial in its you "MR. Do refuse to do ANDREWS: contempt, to set out memorandum failed that? contemptuous specificity act the the with anything "THE Is there else COURT: required by argu statute. It is this latter today? addressed that needs be ment address in three of the instances we Let the record show ""MR.ANDREWS: re-grouped and so we have issues accordingly. you're "THE Mr. Andrews COURT: provides, Indiana Code section 34-4-7-7 I'm question again, going to ask that pertinent part: in contempt of Court. going you to hold act, the distinctly court shall state "[T]he not, just No I'm I'm "MR. ANDREWS: words, signs gestures, con- or other record, place letting the I would like to alleged duct of the defendant which is Judge note that the did on the record to contempt; such and such constitute Thank question. refuse to answer writing shall reduced to statement you. making it, by judge byor some either I Okay, Mr. Andrews "THE COURT: him it reporter authorized to take go- I'm contemptuous and consider that made; down when and the same shall be dollars. ing you to fine $50.00 substantially set forth the order of ANDREWS: Huh. "MR.
court on the same[.]" going I'm to let Okay, "THE COURT: held that the mere recital of the It has been county jail, at you it out at the sit court's conclusions is not sufficient trial satisfy requirement day, that means that the acts con rate of dollars $50.00 county sit in the got 24 hours to alleged contempt you've shall stituting the direct call the Sher- you please jail. Will distinctly in the court's order. be stated iff...." Murray ex rel. Stanton §28 per- at 548-49. Later Andrews was
Record "MR. ANDREWS: What's clear to me is kangaroo proceeding, explain why he this is a with mitted to should not be held However, presiding Republican Your Honor as a contempt. the court did not potentate of the bar in order to serew us change its decision and entered the follow- as to our ... ing: Okay,
"THE just you COURT: cost days, hearing "MEMORANDUM OF five more and this is now adjourned." CONTEMPT FINDING Record at 551-52. The court then entered date, Special Judge Raymond On this following Contempt: Memorandum of L, Defendant, An- Kern found the Mike "Mr. Andrews continued like state- drews, Contempt for continu- Court including labeling proceedings ments ing questions to issue and make state- 'Kangaroo as a Court'. The Court found having particular ments of a nature after contempt Mr. Andrews to be in a second cease; and, continuation been told days, time and him ordered held for five contemptu- of such would be considered *13 and not to leave the courtroom." given fifty ous. Mr. Andrews was a Record at 117. day jail." dollar fine or one trial, August day On the third Record at again Andrews was found in direct con- Following explanation, another tempt following exchange due to the which exchange occurred which resulted in a see- ruling by occurred after a the trial court contempt ond conviction: concerning County whether Monroe used Okay, anything "THE COURT: is there voting electronic machines: else that needs to be addressed? Before I've, now, "THE Okay, COURT: thor- adjourn today? right, All Mr. An- we oughly your argument. understand I've drews don't leave the Courtroom. been asked make a determination. I ask, IMay May "CO-DEFENDANT: I (inaudible) ... ask, prohibition against stating this me Well, "MR. I ANDREWS: didn't ask have, receiving that I that I am an unfair you. simply you I said that had not trial, prohibition against is that a me in finding. made such a I would think it general, public just stating you in or appropriate you explore would be for personally receiving that I I'm believe making the matter a little bit before ruling type top your of that off of the "THE prohibition COURT: That's head. against stating all you four of that here Okay. "THE I COURT: don't have to do in the Courtroom. enough sys- that. I'm familiar with that "CO-DEFENDANT: To this never state (inaudible) tem ...
in the Courtroom? you "MR. I ANDREWS: understand By authority? "MR. ANDREWS: what things in don't have to do a measured way. and considerate May by "CO-DEFENDANT: I ask what Andrews, "THE COURT: Mr. I authority? By authority ... whose or what my authority constitutional complex ques- "MR. ANDREWS: It's a expression being denied? tion. "THE ... consider that to be a "MR. been asked to COURT: ANDREWS: We've contemptuous relevance, law, remark. you cite cite case to cite law, you acting Your Honor are ministe- "MR. I didn't ANDREWS: ... fashion, arbitrary rial or is there some And, "THE ... I will deal with COURT: might guided by citation that we in hearing. that after this Please refrain our future conduct? contemptuous anymore from remarks (inaudible). that "THE COURT: How could it be less Well, if, saying? you clear I'm what How could it be "MR. ANDREWS: have clear, contempt? up? more how have I muddied that found me in
$29
you.
Thank
Haggerty.
"MR. ANDREWS:
ahead Mr.
"THE
Go
COURT:
time,
going
I
to deal with that
am
"THE
I consider that to be a
At this
COURT:
have,
hearing
contemptuous
you
remark
Sir.
because
after this
you
past, specifically
in the
said that
do
So,
yet
you have not
ANDREWS:
"MR.
recognize my authority.
I don't re-
not
contempt? I need to know
found me
you
ability;
member whether
have said
prepare.
I can
that so
but,
got
implication
I
from other
telling you
please
I'm
"THE COURT:
also,
said,
things
ability
that have been
contemptuous
any further
refrain from
conduct
Trial. That seemed to me
this
hearing is over. Mr.
until this
remarks
expression
sentiments
a further
of those
your question."
go ahead with
Haggerty,
audience,
play
that
and made to
to the
jury
After the
at 1688-90.
Record
you,
enjoy that
behind
that seemed to
exchange
following
took
dismissed
And,
disruptive
remark.
I considered it
place:
Therefore,
when I heard it.
I considered
asking you why I
I'm
"THE COURT:
contemptuous.
accept your explana-
I
it
that
your remarks
not consider
should
finding
I
of con-
tion and won't make
earlier,
that
the one sentence
made
were
But,
you
I
tempt at this time.
warn
You're
contemptuous.
quoted,
I
to be
type
of remark
the future will be
systems now.
punch card
arguing about
punished
contemptuous
held
and will be
And,
I
understand the relevance
don't
contempt.
as
you
clarify
argument.
If
want
your
like to ask
"MR. ANDREWS: I would
you
That's what
need
my
mind.
Honor,
away
my
I
from
Your
don't back
to do
now.
previously expressed opinions as to the
Well,
Okay.
let me
"MR. ANDREWS:
And,
that,
I don't mean to
ability.
*14
understanding
my
that that
say, that it is
your personal ability, I meant the
offend
propose to
you
when
legal procedure
the
ability. The Court to con-
institutional
why
contempt
is not to show
hold me
authority
Trial nor the
duct the
contempt
me in
but to
And,
hold
you
hope
shouldn't
I
conduct a Trial.
Court to
I
contempt.
held in
respect
I should not be
to
political opinions with
my
that
that
believe
pre-
to,
I
to be
that,
that
have
I
I'm entitled
which
believe
contempt
respect
and not to
with
prejudice
innocent of
Your Honor
sumed
won't
any
to
remarks
you adding
then have to
context
presumed guilty and
be
accept-
might be
might
I
make that
guilty
I'm not
that
Your Honor that
show
person
political
whose
ed from another
already presumed to be
you've
when
by.
you
antagonized
weren't
opinions
suspect
that
the
You
guilty of that.
you.
Thank
contemptuous
and want
remark was
Judge.
me.
I'm at-
"MR. HAGGERTY:
you
our
can examine
find
examination,
to tell
tempting,
you've
Having
without
said what
"THE COURT:
in con-
said,
you
held
why
longer
I should not be
that
you
just
I no
believe
disruptive
dignity
impune
not
tempt.
I
it was
mean to
believe
didn't
[sic]
only
you made.
that
took
that remark that
this Court
the Court with comment
you under-
you
Specifically,
that I in-
the remark that
I've told
a few seconds.
I
not have to deal with
that
do
on the Court's honor
stand
tended no reflection
considered
not,
things in a measured and
how,
integrity.
I
I'm
don't know
contemp-
And, I find that to be
why you would hold
I don't understand
manner.
days
five
you
I order
to serve
tuous and
you,
If
contempt
for that remark.
me
Co, er,
Mor,
Monroe Coun-
Morgan
con-
in the
you
why you
me
would
let
know
ty
for that ..."
Jail
I
holding
contempt, perhaps
sider
me
why I
you
tell
can address that and
issued
The trial court
at 1710-18.
Record
contempt.
contempt:
following
held in
should not be
memorandum
REMEMBERED,
Okay.
accept
I
"BE IT FURTHER
"THE COURT:
will
1985, August,
day of
And,
go
on the 2nd
explanation.
I will
ahead and
Defendant, Michael
address that issue.
now finds the
Court
"Andrews,
direct contempt arguing that when he left
'in
contempt
further
this
Court for statements made on record.
the courtroom the proceedings were over
The Court now sentences the Defendant
judge
and the
had left the room. Andrews
days
additional five
to be served in the
cites to several affidavits accompanying his
custody of the Sheriff of Monroe County motion to correct errors
support
his con
or another
tention that he left the courtroom subse
facility.
correctional
Ray-
Kern, Special
mond L.
Judge."
quent to
judge's
departure.
Record at 217.
contempt
Direct
usually refers to
While there is little doubt that Andrews'
directly
conduct
interfering
pro
with court
obstreperous conduct was contemptuous,
ceedings while court
inis
session.
Indiana
these convictions cannot
noted,
stand. As
34-4-7-1;
Code sections
34-4-7-2.
Such
Ind.Code
34-4-7-7 and case
require
law
§
conduct must generally
place
take
in or
the trial court to issue an order explicitly immediately
adjacent
courtroom,
to the
detailing the contemptuous conduct.
In while
session,
court
is in
so that
judge
instances,
the above three
the trial court's
personal
has
knowledge of such conduct in
orders did not meet the specificity required
his official capacity. La Grange v. State
and therefore these convictions must
238 Ind.
694, 153
reversed.
596; see State ex rel. Stanton
v. Murray
(1952),231
Ind.
Jail should that have been his misunder- *15 standing. The presence Court now in the court, finds the ac- of the such as failure of party tions a leaving obey of to the court process, courtroom order or to be in whereas direct contempt is contempt committed in direct of an order to do so the immediate presence view or of the otherwise and orders Mike Andrews to court. ninety Hegedus serve days Hegedus (1978), for said contempt. 178 Ind. App. 620, 621, Warrant ordered issued for his arrest." n. 1. Record at 118. This order sufficiently At August 8, 1986, an hearing meets the of specificity requirements set concerning Andrews' contempt convictions, out in Ind. Code 34-4-7-7. § the trial court indicated he was personally aware of departure Andrews' argues, however, from the Andrews that his con duct amounted to contempt indirect and courtroom moments after the occurrence. that the trial court ignored require the Summarizing previous Andrews' contemp ments of tuous Indiana Code acts the 34-4-7-8, court sections stated: 84-4-7-9, and 834-4-8-1 thereby denying right. "All you If want to address him process due of law.7 sup Andrews issue, we can address issue as to ports his contention that he was not in what time has been ordered served. If Ind.Code §§ provide 34-4-7-8 and decision, 34-4-7-9 proceedings, the appeal and the basic adjudication framework for of indirect contempt charge. indirect Ind.Code § 34-4-8-1 contempt charges. provides Section 34-4-7-8 provides procedure for and sets out the for person for notice being to the charged per- and selecting special judge preside to over indirect mits why him to show cause he should not be contempt proceedings. charged. Section procedure 9 sets out the for required." In addi- And, shall not be let such denial clarify that matter. to you want merely permits a tion, 35-4-7-7 Ind.Code right off of the bat how you just § me tell reconsider, motion to to file a day sentence for defendant I a one it. view I view overruled, proceed to to is and then finding plus day contempt a five the first no presents Andrews ninety day appeal the denial. plus a the second for sentence requires omission authority that the court's contempt of court hav- the for sentence specifically Had the trial court leaving the reversal. direct order ing disobeyed a motion, in he the having to re- Andrews' would been told denied after Courtroom prejudice he is in now. No position until the Sheriff same Courtroom main the then, omission be- And, I arrived back the trial court's when resulted from arrived. Courtroom, gone." this court now on he was the issue is before in the ecause clearly demonstrated appeal. This contempt may Direct 2518-19. Record at contempt con- of three of the our reversal within the an act committed result from court did not commit The trial victions. judge. the La knowledge of personal failing rule on An- error in reversible at 596. 238 Ind. Grange, ' motions to reconsider. drews' the that Andrews left record indicates The depart judge had after the trial courtroom Issue Nine However, above account judge's as the ed. court argues the trial Finally, Andrews courtroom reveals, returned to the he the denying his motion dismiss erred in in violation of had left find that which, hearing he as- November per had immediate judge The his order. serts, increased sentence resulted an disobedience knowledge of Andrews' sonal Jeopardy Clause. violation of the Double constituted a blatant his order which of An- released Department of Correction authority. There disrespect for the court's credit calculating good-time after drews pun properly was fore, conduct credit to his misdemeanor applying the contempt the court and as direct ishable An- Apprised of contempt sentences. failing not err trial court did the release, him judge trial ordered drews' adjudication for procedure follow propriety to determine into court contempt. indirect contempt sentences. applying credit time Eight was Issue credit time Determining that sentences, contempt wrongly applied to filed, 31, 1985, Andrews July On Andrews to judge returned the trial 34-4-7-7, a motion to Ind.Code pursuant § further incar- Department of Correction contempt citations his three to reconsider challenged the court's ceration. hearing. Follow July 19th received at the appellate in aid of by way of a writ action trial delays, ing procedures several No denied. this court which jurisdiction, this motion. On to rule on court failed challenge made. appeal further filed a motion September recon ruling on his motion to requesting a applicability as to the Any question on. sider, court did noi act the trial which contempt sentences good-time credit *16 neglect denied argues the court's An issue present case.8 in the is moot in reversible process and resulted him due longer "live" it is no moot when becomes error. cogniza legally lack a parties or when the its resolution. in the outcome ble 'nterest by the court's not harmed Andrews was Ryan v. Hospital County Indiana Bartholomew his motions. to rule on failure N.E.2d (1982), 53.4(B), Ind.App., pro- Procedure, Trial Rule Rules of this court unable When denied. delay in trans. a court's viding for the effect of issue, the upon an relief effective to render or a motion ruling upon repetitive motion not re motion, moot, will states and we ruling on a deemed issue is to reconsider where court's determination a lower upon verse is ruled such a motion that "[uJnless quo will result. change in the status no deemed (5) it shall be days within five 757; Bartholomew, v. State of notice of Krochta denied, entry of service contempt. In re to a sentence time credits least one instance We note that in at 8. Ind., Crumpacker good apply Supreme refused to Indiana Court Ind.App. 475, 478. fully Andrews has served his and, therefore, any regard sentences issue ing the applicability good-time credit is
now moot.
ROBERTSON, J., concurs.
NEAL, J., concurs separate with
opinion.
NEAL, Judge, concurring.
I concur completely in the well reasoned
majority opinion which supported by is well
authority. merely I wish to add that the
record does not reflect existence of particular party candidate or for whom Mi-
chael Andrews wanted to cast his write-in appears
ballot. It episode whole harass,
was a bizarre act calculated to an- noy, time, and absorb the energy, and ef- officials, forts of election prosecuting attor-
neys, court, the trial and now the court of
appeals. any good Absent is faith motive legitimate
to effect constitutional or statu-
tory rights. public While officials and
courts should be ever sensitive to the con- citizens,
stitutional and statutory rights of
they need not humor self-annointed messi-
ahs whose sole motive is to make a nui- sance out of disruption themselves public business. SANTINI,
Aida Appellant Ortiz (Plaintiff Below),
CONSOLIDATED RAIL CORPORA TION, Pennsylvania Corporation; County Board,
Elkhart 4-H Fair D.M. Shorling Elliott, Appellees and R.L.
(Defendants Below).
No. 4-485 A *17 Appeals Indiana,
Court of
Fourth District.
March