ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
John D. Clouse Jeffrey A. Modisett
Evansville, Indiana Attorney General of Indiana
John P. Brinson James A. Garrard
Evansville, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
DWAYNE NOBLE, )
)
Appellant (Defendant Below), )
)
v. ) No. 82S00-9811-CR-748
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Maurice C. O’Connor
Cause No. 82D02-9801-CF-85
March 24, 2000
SHEPARD, Chief Justice.
Appellant Dwayne Noble appeals his convictions for attempted murder
and attempted child molesting. Noble raises four questions:
I. Whether the evidence was sufficient to support his convictions;
II. Whether the court improperly limited his cross-examination of
one of the witnesses;
III. Whether the court wrongly denied Noble’s tendered instruction on
battery as a lesser included offense of attempted murder; and
IV. Whether the court erred in denying Noble’s motion for change of
judge.
Facts and Procedural History
In January 1998, Dwayne Noble went to the home of Bessie Clark.
Clark and Noble had previously dated, and they remained on friendly terms.
The two visited for several minutes, then both departed. When Clark left,
she told S.J. to lock the door behind her; S.J. was staying with Clark at
the time.
Noble later returned to Clark’s home, knocked on the door, and asked
S.J. if he could come in and retrieve some cigarettes that he had left
there. S.J. allowed Noble to enter. S.J. then went into the bathroom.
When she came out, Noble was standing outside the bathroom door. Noble
picked S.J. up, carried her into the restroom, and sat her on the sink
countertop. Noble next unzipped his pants, exposed his penis to S.J., and
told her to “open [her] mouth.” (R. at 101.) S.J. refused. Noble then
began choking S.J. and told her if she told anyone about the incident, he
would kill her. S.J. soon lost consciousness.
When S.J. awoke, she was covered in blood and found a knife stuck in
her neck. She called her mother and her aunt, and then dialed 911.
The State charged Noble with attempted murder[1] and attempted child
molesting[2] as class A felonies and the jury found him guilty. The trial
court sentenced Noble to forty years for attempted murder and added thirty
years for Noble’s status as an habitual offender. It ordered a consecutive
sentence of forty years for attempted child molesting.
I. Sufficiency of the Evidence
Noble’s sufficiency claim rests on the fact that the State’s forensic
specialists found no blood or semen on Noble’s clothing following the
crimes. (Appellant’s Br. at 25.) As Noble’s attorney says, “We weigh the
scientific evidence against the non-scientific. The first has a huge
advantage because it does not forget nor does it lie.” Id. at 27.
To establish attempted murder, the State must prove beyond a
reasonable doubt that Noble acted with specific intent to kill and took a
substantial step toward the commission of the crime. Ind. Code Ann. § 35-
41-5-1 (West 1998); Mitchem v. State, 685 N.E.2d 671 (Ind. 1997). “Intent
may be inferred from the use of a deadly weapon in a manner likely to cause
death or great bodily harm.” Johnson v. State, 455 N.E.2d 932 (Ind. 1983).
Likewise, to establish attempted child molesting, the State must prove
that Noble knowingly or intentionally attempted to commit child molesting,
and engaged in an overt act constituting a substantial step toward the
commission of the crime. Richeson v. State, 704 N.E.2d 1008 (Ind. 1998)
(specific intent not required in attempt crimes other than murder); Ward v.
State, 528 N.E.2d 52, 54 (Ind. 1988) (elements of attempted child
molesting).
Here, the victim declared that Noble, someone she already knew, was
her attacker; she said so in the hospital following the incident, and again
at trial. A neighbor also testified that she saw Noble lurking around the
house on the evening of the attack after the victim’s family had departed.
We agree with counsel that the fact that the forensic serologist did not
find any of Noble’s DNA on the victim or any of the victim’s blood on
Noble’s clothing is worth consideration.[3] Like counsel, we trust juries
to sort out such evidence in searching for the truth. The evidence was
sufficient to sustain their verdict that it was Noble who committed the
crimes.
II. Exclusion of Evidence
Noble next contends that the trial court erred in limiting the
testimony of Bessie Clark, S.J.’s grandmother.
Clark testified for the State. On cross-examination, the defense
asked Clark whether her daughter, S.J.’s mother, was married to a man named
Cory. Clark responded affirmatively. The defense then asked whether there
was “ever any accusation made that Cory had been molesting or messing
around with [S.J.’s] sister.” (R. at 87.) The State objected before Clark
could answer. The defense argued that the “defendant has a right to pursue
the line of inquiry that someone else may have committed the crime and
that’s why we’re going in this direction.” (Id.) After an unrecorded
bench conference, the court sustained the objection without explanation.
Noble asserts that the trial court erred in excluding Clark’s
testimony about Cory, saying the evidence tended to show that a third party
might have committed the crimes charged. (Appellant’s Br. at 11.)
We are unable to review this issue because Noble did not make an
offer to prove, that is, “an ‘offer’ from counsel regarding what a witness
would say if he was allowed to testify.” Bradford v. State, 675 N.E.2d
296, 301 (Ind. 1996). The Rules of Evidence require that the substance of
the evidence be made known to the trial court and that the offer to prove
identify the grounds for admission and the relevance of the testimony.
Ind. Evidence Rule 103(a); Hilton v. State, 648 N.E.2d 361 (Ind. 1995).
Here, the defense gave no indication to the trial court, other than
the implication in counsel’s question, that Clark would testify that
another person committed the crimes charged against Noble. For all that
appears, Clark would have answered counsel’s question in the negative. As
such, the issue is waived. See Roach v. State, 695 N.E.2d 934, 940 (Ind.
1998), modified on other grounds by 711 N.E.2d 1237 (1999).
III. Instruction on Lesser Included Offense
Noble next contends the trial court improperly declined to instruct
the jury on battery as a lesser included offense of attempted murder.
To determine whether to instruct the jury on a lesser included
offense of a charged crime, the court must employ the three-step test
outlined in Wright v. State, 658 N.E.2d 563 (Ind. 1995). First, the court
must compare the statute defining the crime charged with the statute
defining the alleged lesser included offense to determine whether the
lesser included offense is “inherently included” in the crime charged. Id.
at 566.
If the lesser offense is not inherently included, the court must then
proceed to step two and decide whether the offense is “factually included”
in the crime charged. Id. at 567. This determination involves comparing
the statute defining the alleged lesser included offense with the charging
instrument in the case.
Finally, if the court determines that the alleged lesser included
offense is either inherently or factually included within the crime
charged, then it must evaluate the evidence presented by both parties. If
there is a serious evidentiary dispute about the elements distinguishing
the greater offense from the lesser offense and “if, in the view of this
dispute, a jury could conclude that the lesser offense was committed but
not the greater, then it is reversible error for a trial court not to give
an instruction, when requested, on the inherently or factually included
lesser offense.” Id. If there is no meaningful evidence from which the
jury could properly find the lesser offense was committed, however, the
court should not give the lesser included offense instruction. Id.
The parties in the instant case agree that the crime of battery is
not an inherently included offense of attempted murder. (See Appellant’s
Br. at 22; Appellee’s Br. at 10); see also Leon v. State, 525 N.E.2d 331,
332 (Ind. 1988). The parties also agree that, under the facts presented
here, battery is a factually included offense of attempted murder because
the charging information alleged that Noble “stabb[ed] and/or cut[]” S.J.
(Appellant’s Br. at 22; Appellee’s Br. at 10-11; R. at 8.) The remaining
question is whether there is a serious evidentiary dispute about the
elements distinguishing battery from attempted murder.
The trial court made no finding as to whether a serious evidentiary
dispute existed, nor did Noble make a specific claim as to the nature of
this dispute at trial. Therefore, our standard of review is abuse of
discretion. See Brown v. State, 703 N.E.2d 1010, 1020 (Ind. 1998).
The distinguishing element between battery and attempted murder is
intent. Wilson v. State, 697 N.E.2d 466, 475 (Ind. 1998). Thus, we
examine the evidence to see whether there is a serious evidentiary dispute
about what Noble intended to do – kill or batter. See id. (citing Lynch v.
State, 571 N.E.2d 537, 539 (Ind. 1991)).
In addressing this point, we find Leon, 525 N.E.2d 331, instructive.
In Leon, the defendant was tried and convicted of attempted murder. On
appeal, he argued that the trial court erred in refusing his tendered
instruction on the lesser included offense of battery. Id. at 332. This
Court determined that the evidence did not warrant the battery instruction
stating:
The distinguishing element between these two offenses is intent to
kill. The evidence supporting that element is not in dispute. Had
Leon argued that the shooting was an accident or that he fired mere
warning shots, the evidence might justify an instruction on battery.
Leon’s defense, however, was not that he lacked the requisite intent,
but that he did not commit the act at all. The evidence thus did not
warrant the instruction on battery as a lesser included offense which
appellant requested.
Id.
Our review of the record reveals no evidence that Noble intended only
to batter S.J. when he choked and stabbed her. Use of a deadly weapon in a
manner likely to cause death or great bodily harm is sufficient to show the
requisite intent to kill. Wilson, 697 N.E.2d at 476. Moreover, Noble does
not assert that he did not have the requisite intent to kill. Rather, he
has defended himself by asserting that he was not the perpetrator. Thus,
the trial court did not abuse its discretion when it refused Noble’s
battery instruction.
IV. Motion for Change of Judge
Finally, Noble contends that the trial court erred in denying his
motion for change of judge.
On the day of sentencing, Noble filed a verified motion for change of
judge. In an affidavit in support of his motion, Noble cited the following
historical facts:
3. In the Evansville Courier of the 18th day of August, 1998, an
article appeared in which the jury’s foreman, one Brian Schmitt
was quoted as saying that Judge O’Connor said the following:
“He told us Noble is going to wish he’d never done this.”
A copy of this news story is attached hereto as Exhibit A.
4. In a case of this kind the State of Indiana has a mandatory
sentencing procedure whereby a pre-sentence investigation report
is made and filed which is to provide guidelines and to assist
the Judge in imposing sentence[s] in a criminal case.
5. For the Judge to comment on the severity of the sentence he will
impose, without having read a pre-sentence investigation report,
demonstrates the bias and prejudice referred to in Rule 12 of the
Indiana Rules of Criminal Procedure.
(Id.) Noble also attached a copy of the newspaper article. (R. at 53.)
Under Ind. Criminal Rule 12(B), a defendant may request a change of
judge for bias or prejudice by filing an affidavit that the judge has a
personal bias against a party and by stating the facts and reasons for the
belief that such bias or prejudice exists. Ind. Crim. Rule 12(B); Sturgeon
v. State, 719 N.E.2d 1173, 1181 (Ind. 1999). “The request shall be granted
if the historical facts recited in the affidavit support a rational
inference of bias or prejudice.” Crim. R. 12(B).
A change of judge is neither “automatic” nor “discretionary.”
Sturgeon, 719 N.E.2d at 1181. In considering a motion for change of judge,
the trial judge must examine the affidavit, treat the facts recited in the
affidavit as true, and determine whether these facts support a rational
inference of bias or prejudice. Id. In reviewing the trial court’s
decision, we consider whether the decision was clearly erroneous and will
reverse only upon a showing of clear error – one that which leaves us with
a definite and firm conviction that a mistake has been made. Id. at 1182.
Generally, a trial judge’s exposure to evidence through judicial
sources is, alone, insufficient to establish bias. Id. at 1181. With
regard to comments made during the course of a trial in response to
information learned in judicial proceedings, the U.S. Supreme Court has
said:
[J]udicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, . . . the parties, or their
cases, ordinarily do not support a bias or partiality challenge. They
may do so if they reveal an opinion that derives from an extrajudicial
source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.
Id. at 1182 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994).
Claims about “judicial remarks” have arisen in a variety of
situations in which judges 1) publicly commented on a pending case,[4] 2)
engaged in a private conversation or an ex parte communication regarding a
pending case,[5] or 3) commented about a case in open court during the
course of a trial.[6] This case presents a slightly different situation –
one in which the trial judge had a conversation with the jurors following a
trial.
Subsequent to a jury’s discharge, it is appropriate for a judge to
converse with jurors or to express appreciation to the jurors for their
service to the community, as long as the judge does not commend or
criticize jurors for their verdict.[7] Indeed, this communication
between judges and jurors helps citizens appreciate the gratitude that our
society has for their effort.
Still, judges have a duty to promote public confidence in the
impartiality of the judiciary and must thus refrain from engaging in
conduct that would create a perception “that the judge’s ability to carry
out judicial responsibilities with integrity, impartiality and competence
is impaired.” Jud. Canon 2(A) cmt.; see also Tyson v. State, 622 N.E.2d
457, 459 (Ind. 1993).
The jurors in this case had already completed their function when the
judge spoke with them, so the remark could not have interfered with or
affected the jury’s verdict. See Jud. Canon 3(B)(10); Willis, 512 N.E.2d
at 877-78. At the time the remark was made, however, the court had not yet
fully performed its own functions, as a sentence had not yet been
imposed.[8] Thus, we address whether the judge’s comment, as reflected in
the article, supports a rational inference of bias or prejudice.
The present case bears some resemblance to another Vanderburgh County
case, Yager v. State, 437 N.E.2d 454 (Ind. 1982). In Yager, the defendant
claimed that the trial judge should have recused himself based on a
“prejudiced and biased attitude” toward the defendant. Id. at 462. This
claim was based on comments made by the judge that were repeated in a
newspaper story. The remarks were made after the defendant’s trial and
before sentencing. Id. Specifically, a reporter asked the judge to
comment on the defendant’s threats to make a “citizen’s arrest” of the
judge and other county officials. The judge responded that he was “mad”
and “concerned” about the defendant’s threats. Id.
In affirming the trial court’s decision to deny the defendant’s
motion for change of judge, this Court said:
We do not see the judge’s comments as reflected in the article as
showing prejudice to appellant. The judge stated he was “mad” and
“concerned” about the appellant’s threats. However, we do not see
these remarks as showing such prejudice against appellant as to
deprive him of the right to be tried before an impartial judge.
Id.
Conversely, in Thakkar v. State, 644 N.E.2d 609 (Ind. Ct. App. 1994),
our Court of Appeals determined that a trial judge should have recused
himself based on comments made to the press during the defendant’s appeal,
but prior to sentencing. The trial judge attended the appellate oral
argument and publicly commented that the defendant “had received a fair
trial, that the evidence was devastating,” and that “it was common for
lawyers to blame the misfortunes of their clients upon the trial judge.”
Id. at 611. The defendant claimed that these comments demonstrated bias
and prejudice that would have a negative impact upon him at sentencing.
Id. The court agreed, concluding that, although the remarks did not relate
specifically to sentencing, “the remarks stray far afield from the
objectivity and impartiality which trial courts are obligated to display.”
Id.
We accept counsel’s suggestion that Judge O’Connor’s statement might
be seen as that of a judge declaring himself for a lengthy sentence. It
might also be seen, however, as declaring the straightforward truth that
defendants who are convicted typically wish they had not committed their
crimes.
Relying on the standard of review for such matters, we find ourselves
unable to say that denying Noble’s motion for change of judge was clearly
erroneous.
Conclusion
Accordingly, we affirm.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs in part and dissents in part with separate opinion.
Attorneys for Appellant
John D. Clouse
John P. Brinson
Evansville, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
James A. Garrard
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
DWAYNE NOBLE, ) Appellant (Defendant )
below), )
)
v. )
)
STATE OF INDIANA, )
Appellee (Plaintiff ) below). )
Supreme Court No. 82S00-9811-CR-748
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Maurice C. O’Connor, Judge
Cause No. 82D02-9801-CF-85
ON DIRECT APPEAL
March 24, 2000
SULLIVAN, Justice, concurring in part and dissenting in part.
I concur with the majority’s opinion in this case except as to Part
IV from which I respectfully dissent. It seems clear to me that the judge
here was “declaring himself for a lengthy sentence” in advance of receiving
the pre-sentence investigation report required by Ind. Code § 35-38-1-8
(Supp. 1997) and other pre-requisites to making the sentencing decision.
As such, I believe the requirements of Ind. Crim. Rule 12(B) for a change
of judge have been met.
-----------------------
[1] Ind. Code Ann. § 35-41-5-1 (West 1998); Ind. Code Ann. § 35-42-1-1
(West 1998).
[2] Ind. Code Ann. § 35-41-5-1 (West 1998); Ind. Code Ann. § 35-42-4-3
(West 1998).
[3] The scientist also made it clear, however, that this did not exclude
Noble as the perpetrator. (R. at 445.)
[4] See, e.g., Matheney v. State, 688 N.E.2d 883 (Ind. 1997) (judge
discussed feelings about pending case with other judges at a conference),
cert. denied, 525 U.S. 1148 (1999); Willis v. State, 512 N.E.2d 871 (Ind.
Ct. App. 1987) (judge was quoted in local newspaper regarding allegations
that judge engaged in a private conversation with defendant before
defendant’s trial).
[5] Matheney, 688 N.E.2d 883 (judge remarked on pending motion to a deputy
public defender and county prosecutor while in chambers); In re Sanders,
674 N.E.2d 165 (Ind. 1996) (judge met with State’s witness in county jail
outside presence of the State or defense counsel); In re Lewis, 535 N.E.2d
127 (Ind. 1989) (judge met with client in chambers and discussed merits of
pending case against client’s son); Flynn v. State, 494 N.E.2d 312 (Ind.
1986) (judge referred to defendant by use of a vulgar expletive while in
chambers conversing with his court commissioner).
[6] Spaulding v. State, 533 N.E.2d 597 (Ind. Ct. App. 1989) (judge made
extraneous remarks during voir dire and during witness’s testimony).
[7] Ind. Judicial Conduct Canon 3(B)(11); Jud. Canon 3(B)(11) cmt.
(“Commending or criticizing jurors for their verdict may imply a judicial
expectation in future cases.”).
[8] See People v. Belmontes, 755 P.2d 310, 352 (Cal. 1988) (judge’s
decision to write personal letter praising jurors for their service and
disposition of the case was improper, particularly where judge had not yet
sentenced defendant, although error not reversible).