Noble v. State
725 N.E.2d 842
Ind.
2000
Check Treatment

*1 842 State, State, 87, (Ind.); v. N.E.2d 89 Williams objection. Scisney v. trial

precise (Ind.2000); (Ind.1998). 1093, Dob 847, re N.E.2d 1094-95 849 We 724 N.E.2d 701 (Ind. State, 867, objection at trial v. 721 N.E.2d 874-75 bins that an instruction quire State, 1104, 1999); Ford v. 718 N.E.2d clear, to inform the timely, specific and be State, (Ind.1999); v. error, Barber 715 to afford 1105 of the claimed trial court 848, (Ind.1999); N.E.2d 851-52 Williams timely correction and an opportunity State, 644, (Ind.1999), error, v. 714 N.E.2d 650 inadvertent prevention thus — 1195, U.S. -, 120 S.Ct. review. v. cert. denied appellate Mitchem to facilitate State, (2000); 671, (Ind.1997); Young v. State, 145 L.Ed.2d 1099 N.E.2d 675 685 (Ind.1998); 386, State, 1059, Tobias v. 696 N.E.2d 390 v. 565 N.E.2d Smith 1061 (Ind.1996). State, 68, 69 We (Ind.1991), grounds Albaugh 666 N.E.2d overruled on other State, 1233, Winegeart. & n. 5 decline to reconsider 721 N.E.2d 1235 v. State, (Ind.1999); Harvey v. 546 N.E.2d contends that The defendant also (Ind.1989). 844, purpose is not to 846 by its discretion not the trial court abused trap. Scisney, 701 procedural create a instructing jury beginning at the N.E.2d at 848. stage jury offender that the was habitual case, time- present In the the defendant facts, al of the law and the ly objected preliminary to the trial court’s jury previously twice so though regarding No. 6 reasonable instruction acknowledges instructed. defendant proposed and tendered its instruc- doubt the trial request that he failed to replacement. The trial court tion as again court read this instruction to the give request denied the defendant’s object jury and that he failed to to habitual gave tendered instruction and instead its 29, phase final instruction No. but offender proposed. The trial own instruction a claim of fundamental error to asserts day. concluded the next At the close of procedural default. application avoid the evidence, object the defense did not to the Seay not fundamental error. v. This is instruction, court’s reasonable doubt even (Ind.1998). State, 732, though the court indicated that it would claim find that this was forfeited. again give preliminary instructions as judgment of the trial court is af- final part of the instructions. firmed. trial, two-day where the defen- this SHEPARD, C.J., SULLIVAN, objected timely dant to the trial court’s BOEHM, RUCKER, JJ., concur. proposed instruction on rea- preliminary doubt, to the clearly presented sonable objection

trial court the he now rais- same appeal, again

es on but did not recite the

objection re-read when court its preliminary part instructions as of the final Dwayne NOBLE, Appellant instructions, we decline to find waiver. (Defendant Below), Lee v. See N.E.2d v. (Ind.1981); Phillips cf. Indiana, Appellee N.E.2d STATE of (Plaintiff Below).

However, we find that the trial court No. giving did not err its reasonable doubt 82S00-9811-CR-748. expressly approved instruction. We this Indiana. Supreme Court of in Winegeart instruction and have since March frequently repeatedly ap- considered and instruction, proved rejecting chal-

lenges such as made the defen- those See, e.g., Tumley

dant here. *3 Clouse, Brinson, P.

John D. John Evans- ville, Indiana, Attorneys Appellant. for Modisett, Attorney Jeffrey A. General of Indiana, Garrard, Deputy A. Attor- James General, Indiana, ney Indianapolis, Attor- neys Appellee. for SHEPARD, Justice. Chief Dwayne appeals Appellant his attempted convictions for murder and at- tempted molesting. child Noble raises questions: four I. Whether the evidence was suffi- convictions; support cient to II. lim- improperly Whether the court ited his cross-examination of one witnesses; III. the court wrongly Whether denied tendered instruction on Noble’s battery as a lesser included of- murder; attempted fense of in deny- IV. Whether the court erred Noble’s motion judge. History

Facts and Procedural January Dwayne Noble went to the home of Bessie Clark and No- Clark. dated, they murder, previously attempted re- To establish ble had two friendly mained on terms. The visited prove beyond State must reasonable minutes, departed. then both for several specific doubt Noble acted with intent left, she told S.J. to lock the When Clark kill step and took a substantial toward her; staying with door behind S.J. was the commission of the crime. Ind.Code at the Clark time. (West 1998); § Ann. 35-41-5-1 Mitchem (Ind.1997). home, v. Noble later returned to Clark’s “In door, and asked S.J. if he knocked on may tent from be inferred the use of a cigarettes could come in and retrieve some deadly weapon likely a manner to cause that he had left there. S.J. allowed Noble great bodily death or harm.” Johnson v. then went the bath- enter. S.J. into State, 455 N.E.2d 932 *4 out, room. When she came Noble was standing outside the bathroom door. No- Likewise, to establish attempted picked up, carried her into the ble S.J. molesting, the prove child State must restroom, and sat her on the sink counter- knowingly Noble or intentionally attempt pants, next his top. unzipped Noble ex- molesting, ed to commit child and engaged S.J., posed penis to and told her to in act constituting an overt a substantial (R. 101.) at “open [her] mouth.” S.J. step toward the commission the crime. began choking refused. Noble then S.J. (Ind. Richeson v. 704 N.E.2d 1008 anyone if told her she told about the 1998) (specific required intent not at incident, he would kill her. soon lost S.J. murder); tempt crimes other than Ward v. consciousness. (Ind.1988) (ele awoke, When S.J. she was covered ments of attempted molesting). child and found a knife stuck in her neck. blood aunt, Here, She called her mother and her Noble, the victim declared then 911. dialed knew, already someone she was her at- tacker; she hospital said so the follow- charged attempt-

The State Noble with incident, at ing again the trial. attempted ed murder1 and child molest- neighbor also that she saw testified ing jury as class A felonies and the found lurking evening around the on guilty. him The trial court house sentenced No- forty years ble attempted to murder attack family after the victim’s had thirty years and added for Noble’s status departed. agree with counsel that the as an habitual offender. It ordered a con- serologist fact that the forensic did not forty years secutive sentence of for at- any find of Noble’s DNA on the victim or tempted molesting. child any of the victim’s blood on Noble’s cloth- Sufficiency I. of the Evidence counsel, worth ing is consideration.3 Like juries we trust to sort out such evidence in sufficiency claim rests on Noble’s searching for the truth. The evidence was specialists the fact that the forensic State’s to verdict sufficient sustain their it found no blood or semen Noble’s cloth ing following the crimes. Br. was Noble who committed the crimes. (Appellant’s 25.) attorney at As says, Noble’s “We II. Exclusion of Evidence weigh against the scientific evidence Noble next that the trial contends non-scientifie. huge The first has a advan testimony court erred in tage forget limiting because it does not nor does it Clark, lie.” Id.'at 21. grandmother. Bessie S.J.’s clear, (West 1998); however, § Ind.Code Ann. 35-A1-5-1 3.The scientist also made it (West 1998). § Ind.Code Ann. 35-42-1-1 perpe- this did not exclude Noble as the (R. 445.) trator. at (West 1998); § Ind.Code Ann. 35-41-5-1 (West 1998). § Ind.Code Ann. 35-42-4-3 included battery as a lesser offense for the State. On cross- testified Clark examination, attempted asked Clark murder. the defense mother, daughter, her S.J.’s whether to instruct To determine whether Cory. Clark a man named married to jury on a lesser included offense of affirmatively. The defense responded crime, charged employ the court must any there was “ever asked whether then Wright outlined in three-step test Cory had mo- accusation made that been (Ind.1995). First, around with lesting messing [S.J.’s] compare defining the statute court must (R. 87.) objected State sister.” charged crime with the statute defin could answer. The defense Clark before to alleged lesser included offense right has a argued that the “defendant of determine whether the lesser included inquiry that someone' pursue the line of in the crime “inherently fense is included” may have committed the crime and else charged. Id. at 566. why going we’re this direction.” that’s inherently If the offense is not lesser (Id.) confer- After an unrecorded bench included, proceed the court must then ence, objection the court sustained the step two and decide whether the offense explanation. without “factually charged. included” the crime *5 that trial court asserts the erred Noble Id. at This determination involves excluding testimony Cory, in Clark’s about defining alleged the statute the comparing saying the tended to show that a evidence charging with lesser included offense the might party third have committed the case. instrument the 11.) Br. charged. (Appellant’s crimes at Finally, if the court determines are unable to review this issue be- alleged that the lesser included offense is cause did not make an offer to Noble inherently factually or included either is, “an from counsel re- prove, ‘offer’ charged, the crime then it within must say what a witness if he was garding would presented evaluate the evidence both State, testify.” allowed to v. 675 Bradford evidentiary If is a parties. there serious (Ind.1996). 296, 301 The of N.E.2d Rules dispute distinguishing the elements about require that the of the Evidence substance greater the offense from the lesser offense evidence be made known to the trial court “if, dispute, jury in the view of this prove identify and that the offer to could conclude that the lesser offense was grounds for admission and the relevance of greater, committed not the then it is 103(a); testimony. Ind. Rule Evidence give error for a trial court not to reversible (Ind.1995). State, v. Hilton instruction, requested, an when on the in Here, gave the defense no indication to herently factually of included lesser court, implication other than the meaningful If there is fense.” Id. no question, counsel’s that Clark would tes- jury proper evidence from which the could tify person that another committed the committed, ly find the lesser offense was charged against crimes Noble. For all however, give the court should 'not have appears, Clark would answered Id. lesser included offense instruction. question negative. counsel’s As parties agree The the instant case such, the issue is waived. See Roach battery an inher- the crime of is not State, 934, (Ind.1998), 695 N.E.2d 940 ently offense of mur- attempted included grounds by on other 711 N.E.2d modified (See 22; Appellant’s Appellee’s der. Br. at (1999). 1237 10); State, Br. at see also Leon v. III. Instruction on Lesser (Ind.1988). 331, parties N.E.2d Included Offense that, agree presented also under the facts here, battery factually im- included offense Noble next contends the trial court is properly jury charging murder attempted declined instruct of because deadly weapon her. Use of a in a manner alleged “stabb[ed] that Noble information 22; (Appellant’s Br. at likely great bodily cut[]” S.J. to cause death or harm and/or 8.) 10-11; Br. at R. at Appellee’s requisite is sufficient to show intent to question is whether there is a remaining Wilson, kill. 697 N.E.2d at 476. More- evidentiary dispute about the ele- serious over, Noble does not assert that he did not at- distinguishing battery ments from Rather, requisite have the intent to kill. tempted murder. by asserting he has defended himself Thus, perpetrator. he was not the finding The trial court made no trial court did not abuse its discretion evidentiary dispute to whether a serious it battery when refused Noble’s instruc- existed, specific nor did Noble make a tion. dispute to the nature of this claim as Therefore, our of trial. standard review Change Judge IV. Motion for abuse of discretion. See Brown v. 1010, 1020 N.E.2d Finally, Noble contends that the trial court in denying erred his motion for distinguishing element be change judge. battery attempted murder is tween intent. 697 N.E.2d Wilson day of sentencing, On the Noble filed a (Ind.1998). Thus, we examine the evi verified motion judge. an dence to see whether there is a serious motion, support affidavit in of his evidentiary in dispute about what Noble following cited the historical facts: - tended to do kill or batter. id. See In the Evansville Courier 18th (citing Lynch v. day August, ap- an article (Ind.1991)). foreman, peared jury’s which *6 Leon,

In addressing point, this we find quoted say- one Brian Schmitt was as Leon, N.E.2d In the instructive. Judge O’Connor said the fol- was tried and convicted of at- defendant lowing: tempted appeal, argued murder. he On going “He told us to wish Noble in refusing the trial court erred he’d never done this.” tendered instruction on the lesser included A copy story of this news is attached battery. offense of Id. at 332. This Court A. hereto as Exhibit determined that the evidence did not war- In a of kind the of 4. case this State stating: rant the battery instruction mandatory sentencing Indiana has a distinguishing element between procedure whereby pre-sentence a in- two to kill. The these offenses is intent vestigation report is made and filed supporting evidence that element is not provide guidelines which is to and to dispute. in Leon argued Had Judge imposing assist sen- shooting was an accident or that he fired in a criminal case. tence[s] shots, warning might mere the evidence For the to comment on the Judge 5. an justify battery. instruction on Leon’s will im- severity of the sentence he defense, however, was not that he lacked a pose, having pre- without read intent, requisite that he did not investigation report, dem- sentence act commit the at all. evidence prejudice and re- onstrates bias did thus not warrant instruction 12 of ferred to Rule the Indiana battery as a lesser included offense Rules of Procedure. Criminal appellant requested.

which (Id.) a copy Noble also attached Id. 53.) (R. article. at newspaper Our review the record reveals 12(B), a de- only no evidence that intended to Ind. Criminal Rule Under change judge for may request batter when he choked and fendant a S.J. stabbed cases, ordinarily support do not a by filing an affidavit that their prejudice bias or They may against partiality challenge. a or personal has a bias bias judge they opinion if reveal an stating the facts and reasons do so party and source; prejudice extrajudicial an that such bias or derives from for the belief 12(B); Sturgeon v. if reveal such a they they Rule will do so exists. Ind.Crim. high degree antagonism of favoritism or impossible. if the histor- granted judgment shall be as to make fair request “The support a ical facts recited in the affidavit (quoting Liteky at United Id. prejudice.” or rational inference of bias States, 540, 555, 114 S.Ct. U.S. 12(B). R. Crim. (1994)). 127 L.Ed.2d “judicial about remarks” have Claims judge is neither change variety in a of situations which arisen “discretionary.” “automatic” nor Stur 1) judges publicly pending commented on a considering In geon, 719 N.E.2d 1181. 2) case,4 engaged private in a conversation judge, a the trial motion regarding a affidavit, parte or an ex communication judge must examine the treat 3) case,5 true, about a pending commented affidavit facts recited as open during court the course of a case support facts determine whether these presents slightly trial.6 This case differ- prejudice. inference of bias or Id. rational - decision, judge ent one in situation which trial court’s we reviewing the jurors had a conversation with the follow- clearly consider whether the decision was ing a trial. only upon a erroneous and will reverse - showing of clear error one that which Subsequent jury’s discharge, to a it is leaves us with a definite and firm convic appropriate judge for a to converse with tion that a mistake has been made. Id. at jurors express appreciation or to to the community, jurors for their service to the long as the does not commend or Generally, a trial judge’s exposure Indeed, jurors criticize for their verdict.7 is, judicial through to evidence sources judges this communication between alone, bias. Id. at insufficient establish jurors appreciate grati- citizens helps regard to comments made With their society tude that our has for effort. during the of a trial in response course *7 judicial proceed learned in information Still, duty promote have a to judges ings, Supreme Court has said: U.S. public impartiality confidence in the of the from during judiciary remarks the course of a and must thus refrain en-

[J]udieial of, a disapproving gaging per- trial that are critical or in conduct that would create to, ception judge’s ability carry “that the to parties, or even hostile ... or State, Lewis, See, sel); (Ind.1989) e.g., Matheney 4. re v. 688 N.E.2d 883 In 535 N.E.2d 127 (Ind. 1997) (judge (judge feelings met with client in chambers and dis discussed about conference), against pending pending judges cussed merits case client’s case with other at a State, son); (Ind. denied, Flynn v. 494 N.E.2d 312 rt. 525 U.S. 119 S.Ct. ce 1986) State, (1999); (judge by a referred to defendant use of 143 L.Ed.2d 53 Willis v. vulgar expletive while in chambers convers (Ind.Ct.App.1987) (judge 512 N.E.2d was 871 commissioner). quoted with his court newspaper regarding allega in local judge engaged private tions that in a conver State, (Ind.Ct. sation with defendant before defendant’s tri Spaulding 6. v. N.E.2d 597 533 al). App.1989) (judge made extraneous remarks during during and voir dire witness’s testimo ny). Matheney, (judge remarked pending deputy public a motion to defend chambers); 3(B)(11); county prosecutor er and while in Ind. Judicial Conduct Canon Jud. Sanders, (Ind. 1996) 3(B)(11) ("Commending In re 674 N.E.2d Canon cmt. criti- (judge county jail cizing jurors may imply met with State’s witness in for their verdict a cases.”). presence judicial expectation outside of the State or defense coun- in future integrity, right with of the to tried judicial responsibilities impar- be before an out competence impaired.” judge. tial impartiality and 2(A) cmt.; Tyson see also Jud. Canon Id. Conversely, Thakkar v. already case com- jurors The this had N.E.2d 609 (Ind.Ct.App.1994), our Court of pleted judge spoke their function when the Appeals determined that a trial judge them, so the remark could not have with should have recused himself based on com jury’s with or affected the ver- interfered press during ments made to the the defen 3(B)(10); Willis, dict. See Jud. Canon appeal, prior sentencing. dant’s to At the the remark N.E.2d at 877-78. time judge appellate The trial attended the oral made, however, yet the court had not was argument publicly and commented that the functions, a fully performed its own as trial, defendant received “had a fair that yet imposed.8 sentence had not been devastating,” evidence that “it Thus, judge’s we address whether lawyers was common to blame the comment, article, sup- as reflected in the of their upon misfortunes clients the trial preju- rational inference of bias or ports a judge.” Id. at 611. The defendant dice. claimed these comments demonstrat prejudice ed bias and a that would have some resem present case bears negative upon him impact sentencing. Vanderburgh County to another blance that, agreed, Id. The court concluding (Ind. case, Yager N.E.2d 454 although specif remarks did not relate 1982). Yager, claimed defendant ically sentencing, stray to “the remarks far judge should have recused objectivity impartiality afield from the “prejudiced on a himself based biased obligated display.” which trial are courts Id. at attitude” toward defendant. Id. 462. This claim was based on comments judge repeated that were in a made suggestion counsel’s accept story. remarks newspaper were might Judge O’Connor’sstatement be seen made after the defendant’s trial and before a judge declaring as that of himself for sentencing. Specifically, reporter Id. seen, It lengthy might sentence. also be judge asked the to comment on the defen however, declaring straightforward dant’s threats to make a “citizen’s arrest” truth that defendants who are convicted judge county and other officials. they not typically wish had committed responded that he was “mad” their crimes. and “concerned” about the defendant’s Relying on the standard of review for threats. Id. matters, find ourselves such we unable In affirming the trial court’s decision to say denying Noble’s motion for *8 deny change the defendant’s motion for of change judge clearly was erroneous. judge, this Court said: Conclusion judge’s

We do not see the comments as Accordingly, we affirm. showing preju- reflected the article as appellant. judge dice to stated he BOEHM, RUCKER, DICKSON, “mad” and “concerned” about JJ., concur. However, appellant’s threats. we do not SULLIVAN, J., and dis- showing prej- part see these remarks as such concurs separate against appellant deprive part opinion. udice as to him sents with Belmontes, 744, particularly People improper, the case was 8. See 45 Cal.3d tion of (1988) defendant, Cal.Rptr. 755 P.2d judge yet had not sentenced where (judge’s personal reversible). decision to write letter although error not praising jurors disposi- for their service Justice, SULLIVAN, concurring partm part. dissenting majority’s opinion in

I concur with I Part which as to IV from except

this case It to me

respectfully seems clear dissent. “declaring here was himself judge

that the in advance of re- lengthy a sentence”

for investigation re-

ceiving pre-sentence § by Ind.Code 35-38-1-8

port required pre-requisites and other

(Supp.1997) such, sentencing As

making the decision. requirements

I of Ind.Crim. believe the 12(B) a have for

Rule

been met.

Timothy Defendant-Appellant, EVANS Firm, Kinsey, Kinsey A. Law Ko- Scott komo, Indiana, Attorney Appellant. for Indiana, Plaintiff-Appellee.

STATE Modisett, Jeffrey Attorney A. General No. 91S04-0003-CR-216. Indiana, Deputy Lupton, Suzann Weber General, Indiana, Attorney Indianapolis, Court of Indiana. Supreme Attorneys Appellee. for March

ON PETITION TO TRANSFER DICKSON, Justice Timothy defendant-appellant, Ev- ans, cocaine, dealing in was convicted of felony, knowingly or intention- class ally delivering weigh- cocaine an amount ing greater grams. than three He re- fifty years. ceived a sentence of Appeals affirmed in a memoran- Court of dum decision. The defendant seeks trans- fer.

Among presented the issues manifestly claim that the sentence is un *9 reasonable. The trial court determined thirty presumptive sentence years by twenty years, enhanced should be thereby imposing the maximum class felony fifty years. This Court sentence may revise a criminal sentence that