On Fеbruary 27, 1981, Defendant-Appellant Odell Marbley was found guilty by a jury in the Marion Superior Court of second degree murder. He subsequently was sentenced by the trial judge to a term of not less than fifteen nor more than twenty-five years imprisonment. Appellant now directly appeals and raises the following ten consolidated issues:
1. conduct of voir dire;
2. trial judge’s remarks to Appellаnt and his trial counsel;
3. limitation on certain of Appellant’s cross-examination;
4. juror not allowed to ask a question;
5. results of a polygraph examination not admitted;
6. jurors not allowed to take notes during trial;
7. jury not excluded from the courtroom when Appellant taken in or out;
8. the State’s alleged bad faith;
9. Appellant’s tendered instructions 2 and 5 not given; and
10. sufficiency of the evidence.
The facts show that Appellant was living with his girlfriend, Willie Gayles, and her four children on March 10, 1977. At approximately 4:30 p.m. on said date, Gayles went to work leaving Appellant to babysit her children. The children played outside with the neighborhood children until Appellant cаlled the youngest one, four-year-old William Gayles, to come inside. Marbley thereupon bit William with his teeth, beat him and kicked him down the apartment stairs. William’s brother, two sisters and Linda Bates, a neighbor, heard William scream and saw Appellant chase him. Appellant delivered one blow to William’s abdomen which severed William’s lower intestine causing the fluid therein to escape into his abdominal cavity. This resulted in acute peritonitis from which the boy later died. William Gayles died in his bed during the night and was found the next morning by his mother with his abdomen distended and his body marred by bruises and human bite marks.
*1106 I
The trial court conducted a general voir dire of the entire jury panel after which each party was given forty-five minutes to question the prospective jurors. The trial court also рermitted each party to submit written questions to supplement the oral voir dire. Appellant accordingly submitted typed supplemental questions that obviously were prepared before trial. The trial court refused Appellant’s supplemental questions but extended voir dire beyond the noon recess to allow Appellant to write out additional questiоns to supplement the questions already asked. Appellant now contends that some of the handwritten supplemental questions were improperly refused by the trial court which found them repetitious or irrelevant.
The trial court has broad discretionary powers to regulate the form and substance of
voir dire. Lynn v. State,
(1979)
Appellant also contends that the trial court’s remarks to Appellant’s trial counsel during voir dire prejudiced him before the jury. A trial court is vested with the authority to control the proceedings before it and may take reasonable steps to insure that proper discipline and order exist in the courtroom. Here the trial court remarked to Appellant’s trial counsel that he wasted time during voir dire on irrelevant questions and therefore would not be permitted any more time. Considering the facts and circumstances presented, we do not find that the trial judge went beyond his duty and authority to control the instant proceedings or that his remarks unduly рrejudiced the jury against Appellant.
Finally, the trial court asked Appellant in open court whether or not he accepted the jury as constituted. Appellant now claims that this prejudiced the jury against him because the jury may have presumed that he did not accept them. Appellant asked for a bench conference to keep the jury from hearing him speak but now claims that the jury nonetheless may have been of the opinion that Appellant was not accepting them as jurors. The State’s position is well-taken that Appellant’s instant contention is speculative and not supported by the record. The trial court’s actions were pursuant to the court’s brоad discretion to control voir dire and maintain order in the courtroom. We do not find any prejudicial harm.
II
Appellant next generally claims that the trial court prejudiced him before the jury by making remarks regarding the time Appellant’s trial counsel took to cross-examine Dr. Eisele. Dr. Eisele was the pathologist who performed the victim’s autopsy in 1977. At thе time of trial, Dr. Eisele was residing in Seattle, Washington. The record indicates an exchange between Appellant’s trial counsel and the trial judge regarding the length of time counsel had to cross-examine Dr. Eisele. In said exchange, the court reminded counsel that he was running beyond the time allotted and specifically exhorted counsel to lоok at his watch “once in a while.” The reason for attempting to finish with Dr. Eisele that day was to expedite his return to Seattle. The State now contends that the trial court’s remarks were not limited to undue criticism of Appellant’s trial counsel. The
*1107
State points out that this was an emotional case spanning five days during which the trial court made remarks and admonishments to the prosecution as well as to the defense to maintain control and to keep the trial moving. A trial court should refrain from making unnecessary comments and should remain impartial. Moreover, a trial judge’s conduct should be such that his remarks or apparent attitude do not impart to the jury an appearance оf partiality. It is important, however, that the trial court control the proceedings by taking responsible steps to insure that proper discipline and order exist in the courtroom.
Lawson v. State,
(1980) Ind.,
Ill
Dr. Eisele’s testimony pеrtained to the victim’s cause of death and included his conclusion that the victim was beaten and bitten and died from a blow to his abdomen. Cross-examination of Dr. Eisele began at 4:05 p.m. when the court told Appellant that he would have until 4:45 p.m. to complete his cross-examination. Appellant’s cross-examination actually continued until approximately 5:00 p.m. when the trial court indicated that Appellant had had ample time for cross-examination and could not continue. A discussion ensued between defense counsel and the trial court regarding Appellant’s alleged need for further cross-examination. The trial court concluded by admonishing counsel that he had wasted his time оn irrelevant matters. Appellant now claims that he was deprived of an opportunity to ask Dr. Eisele if the victim’s wounds could have been caused by a woman and whether he had been paid to testify for the State.
Since a trial judge is in the best position to observe the trial proceeding, the trial judge should control the extent of cross-exаmination and accordingly will be reversed only upon an abuse of discretion.
McNew v. State,
(1979)
IV
After the testimony of State’s witness Major Harold Young of the Marion County Sheriff’s Department and after the admission of certain statements Young took from Appellant and Willie Gayles, Jur- or No. 9 requested permission to ask a question. The trial judge thereupon stated that since much evidence was being presented to the jury and he did not think that he had the time to field questions from the jury, he refused to accept the question from that juror. Appellant now claims reversible error citing
Carter v. State,
(1968)
*1108 V
Appellant filed a motion with the trial court asking that evidence of Appellant’s рolygraph examination be admitted into evidence. Although there had been some pretrial discussion between Appellant and the prosecution regarding the possibility of admitting Appellant’s polygraph results if such an examination was taken, there was no stipulation to admit said results or written waiver by the parties. The trial court accоrdingly denied the motion to admit the results. We previously have held that a signed, enforceable stipulation is necessary before the court may admit polygraph examination evidence.
Dean v. State,
(1982) Ind.,
VI
Prior to trial, Appellant moved to permit jurors to take notes during the course of the trial and offered to provide them with paper and pencils. The trial court denied the motion. This Court has held that it is within the trial court’s discretion to determine whether or not it is reasonable for jurors to take notes to support their memory with respect to the complexities of a particular case. We further held that an abuse of such discretion must be shown to constitute error. It does not appear from the record that this cause was so complex and the evidence so filled with detailed times, dates and facts that the trial judge abused his discretion by determining that the jurors would not be pеrmitted to take notes. We do not find that Appellant has shown any reversible error on this issue.
VII
Prior to the commencement of jury selection, Appellant filed a motion alleging that since he was incarcerated in lieu of bail and because the lock-up area where he would be held immediately prior to trial was distinguishable from the public entrance to the courtroom, the jury should be removed from the courtroom when Appellant was brought into court from the lock-up area or returned to the lock-up area. The trial judge denied the motion. Appellant now claims that his motion sought what is the logical extension of
Estelle v. Williams,
(1976)
VIII
On the fourth day of trial and during the presentation of Appellant’s case, Appellant moved for dismissal. Appellant’s motion was based on certain alleged conversations *1109 between Appellant’s trial counsel and a deputy prosecutor wherein the deputy prosecutor allegedly indicated that she doubted Appellant’s guilt and wanted to get off the case. Appellant now contends that the court erred by failing to hold a hearing on this motion.
A prosecuting attorney is vested with broad discretion in the performance of his or her duties including his or her duty to determine whether or not to pursue an action. The duties of the trial court pertain to determining whether or not there is sufficient probative evidence presented to permit a cause to be submitted to the jury. If the trial court finds that there is not sufficient evidence presented to the jury to sustain the charge, it is within the trial court’s authority to direct the jury to enter judgment for the defendant. That is not the situation here. The instant trial court had heard several days of testimony implicating Appellant in the victim’s death. Ind.Code § 35-3.1-1-8(e)(1) (Burns 1979) (repealed effective September 1,1982) provides that the trial court may deny a motion to dismiss without conducting a hearing if the moving papers do not allege a ground constituting a legal basis for dismissal. These grounds are enumerated in Ind.Code § 35-3.1-1-4 (Burns 1979) (reрealed effective September 1,1982). Appellant did not raise any of the grounds enumerated in § 35-3.1-1-4. Moreover, Appellant’s motion did not ask the trial court to weigh the evidence before it and to direct a verdict but rather asked the trial court to investigate into the attitude of the prosecuting attorney regarding an alleged hesitation tо pursue the case. The motion therefore presented no lawful issue for the trial court to decide. There is no merit to Appellant’s position here.
IX
Appellant also claims that the trial court erred by refusing his tendered instructions 2 and 5. Appellant submitted instruction 2 which proposed to tell the jury about lesser included offenses and the jury’s obligation to convict of a lesser degree when there is a reasonable doubt between two degrees of an offense. It is proper to instruct a jury that when a jury has no reasonable doubt about the lesser degree offense but has a reasonable doubt as to the greater degree offense, the jury should convict of the lesser degrеe offense. Appellant’s proposed instruction did not clearly explain .this, however, and tended to be confusing. Moreover, the trial court instructed the jury on lesser included offenses. Considering the extensive direct evidence of Appellant’s criminal acts presented to the instant jury and the totality of the instructions actually given, we do not find that the trial court committed reversible error by refusing Appellant’s instruction 2.
Appellant’s tendered instruction 5 proposed to tell the jury that Appellant’s testimony in his own behalf should be considered and weighed the same as the testimony of any other witness in the case. The instruction also editorialized on the manner in which the jury should weigh Appellant’s testimony. It specifically indicated that the jury should test Appellant’s credibility and resolve in his favor any doubt arising from the evidence, the absence of evidence, conflicts in the evidence or conflicts in Appellant’s testimony. The instruction further instructed the jury that if Appellant’s testimony alone raised a reasonable doubt as to the truth of any material allegation in the indictment, the jury would not be warranted in convicting Appellant. This Court has held that an instruction telling the jury that the defendant’s testimony should be considered and weighed the same as that of any other witness does not have to be given although there is no error in giving it.
Taylor v. State,
(1976)
X
Finally, Appellant claims that there was insufficient evidence for the jury to convict him of second degree murder. We consistently have held that we do not reweigh the evidence nor judge the credibility of witnesses and will consider only that evidence most favorable to the State with all reasonable inferences drawn therefrom. When there is substantial evidence of the offense, the verdict of the jury will not be disturbed.
Begley v. State,
(1981) Ind.,
In the instant сase, there was direct evidence by many witnesses that Appellant called the victim into the house and was seen chasing and beating him. The victim’s brother and sister testified that Appellant beat the victim and that Appellant threatened to do the same to them if they told anyone about what he had done. Bite marks on the victim were examined by а forensic dentist who rendered his opinion that they were consistent with marks made by Appellant’s teeth. The cause of death was a blow which severed the victim’s small intestine causing him to die painfully some hours later from peritonitis. We now find that there was more than sufficient evidence to justify the jury in finding Appellant guilty of second-degree murder.
Finding no error, we affirm the trial court in all things.