Barber v. State
388 N.E.2d 511
Ind.
1979
Check Treatment

*1 511 waived been has issue This incident. in his out set specifically not it was because required as Errors to Correct Motion State, (1978) v. Brandon 59(G). Rule Trial State, (1971) 504; v. Spivey Ind., N.E.24 374 Furthermore, 227. N.E.2d any evidence disclose does record was defendant would as crime night of on intoxicated so required entertaining the incapable to be State, v. Greider intent. specific Ind., 385 N.E.2d reasons, there foregoing all the For judgment error court trial

no affirmed. should court trial affirmed.

Judgment DeBRULER, PREN-

GIVAN, C. JJ., PIVARNIK,

TICE & Jr., Brault, Stankiewies H. Cletus appellant. Merrillville, BARBER, Appellant, for Brault, Rozelle T. Wesley Gen., Sendak, Atty. v. L. Theo. Indianapolis, Gen., Atty. Wilson, Deputy Indiana, Appellee. appellee. 377S164. No. ARNIK, Justice. PIV Court guilty Barber 30, 1979. April in murder murder first-degree conclusion robbery aof perpetration Superior Lake trial aof sentenced He 16, 1976. October on involves imprisonment. life Indiana, Gary, Lounge Mona's robbery of group aby February three tried jointly men. convictions whose co-defendants State, v. Williams recently affirmed v. 449, Stone 1872, and Ind., Ind., State, (1978) James, pleaded Elliott accomplice, remaining second-degree charge reduced guilty murder. *2 present The appeal contains four issues because the only evidence connecting him for review. The first two issues concern with the offense was the statement made to the admission prior statements and police by the Elliott James and James' testimo- guilty plea proceedings of State's witness, ny at his guilty plea proceeding. Both of Elliott James, and the denial of Barber's these statements were admitted as evidence motion for severance in view of the admis- in appellant's trial and both gave a detailed sion of redacted by statements co-defend- account of Barber's participation in the ants Stone and Williams. These same is- crime. According to James, Barber was to sues, upon the same operative based facts remain outside as a lookout James, while

arising from joint the trial, were fully con- Stone, Rogers and Williams entered Mona's sidered in our prior decisions See Wil- Lounge guns. plan called for supra, liams, at 379 and Rogers, to enter the lounge and take the supra, at 875 N.E.2d 1090-92. opinions Our money after James and the other three had in those cases, that no reversible error oc- forced patrons the to lie on the floor. How- curred as to issues, these controls here as ever, one of patrons the apparently reached well. Appellant Barber also argues that for a gun and was shot to death by co-de- the trial court erred by denying his motion fendant Stone. for change of venue from the county and that At trial, the verdict of James called as a was not State's sus- tained by witness but sufficient denied being present evidence. at Mona's Lounge at the time of the incident I. further denied having any knowledge of the whereabouts of Barber and the filed other an de- unverified mo fendants tion the night change question. of venue In light from the county alleging fact that that two of publicity patrons in the in the news media lounge was such positively as to impair identified his right James as one of fair and impartial the robbers trial. the fact motion that James supported by implicated several copies confessions of newspaper both Stone articles which published Williams, the jury shortly obviously after rejected the mur der; some James' repudiation to six prior months his to earlier trial. state- This alone ments. was not On appeal, sufficient this can neither necessary degree weigh the pervasive evidence nor judge inflam credibility matory sentiments from witnesses. Rather, which it we may look at be only the presumed that evidence most defendant could favorable to State; re ceive a fair trial. this case, Mendez v. State, earlier statements James. Ind., 367 N.E.2d 1081, We find that fact, In these statements constituted record does not sufficient demonstrate that evidence to impres support the jury's sions or opinions had been verdict. formed by jurors on the basis of this publicity or that The judgment of the trial court is af- jurors had even seen the articles. Thus, firmed. appellant has not shown that he preju diced by the publicity. Grooms v. State, GIVAN, C. J. and HUNTER, J., 461. Finally, there was no error in the denial of appel PRENTICE, J., dissents with opinion in lant's change of venue motion because it which DeBRULER, J., concurs. was not properly verified as required by Franks v. State, PRENTICE, Justice, dissenting.

N.E.2d 767 and Ind.R.Crim.P. 12. I dissent from the opinion of the majori- ty, as it applies to the admission of redacted IL. out-of-court statements made by the appel- Appellant claims the evidence lant's co-defendants, for the same reasons supporting his conviction was insufficient expressed in my dissenting opinion in the may (1978), in 375 DeBRULER, concurs. *3 GARDNER, Appellant Thomas

John below), (Defendant Indiana, Appellee below). (Plaintiff

No. 778S129.

April30,1979.