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
SUPREME COURT OF INDIANA
DWAYNE NOBLE, ) ) Appellant (Defendant Below ), ) ) v. ) No. 82S00-9811-CR-748 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
March 24, 2000
SHEPARD, Chief Justice.
Appellant Dwayne Noble appeals his convictions for attempted murder and attempted child molesting. Noble raises four questions:
Whether the court improperly limited his cross-examination of one of the witnesses;
Whether the court wrongly denied Nobles tendered instruction on battery as a lesser
included offense of attempted murder; and
Whether the court erred in denying Nobles motion for change of judge.
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
The State charged Noble with attempted murder
See footnote and attempted child molestingSee footnote 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 Nobles
status as an habitual offender. It ordered a consecutive sentence of forty
years for attempted child molesting.
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.
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 victims family had departed. We agree with counsel that the fact that the forensic serologist did not find any of Nobles DNA on the victim or any of the victims blood on Nobles clothing is worth consideration. See footnote 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.
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 thats why were
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 Clarks testimony about Cory,
saying the evidence tended to show that a third party might have committed
the crimes charged. (Appellants 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
Here, the defense gave no indication to the trial court, other than the
implication in counsels question, that Clark would testify that another person committed the
crimes charged against Noble. For all that appears, Clark would have answered
counsels 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).
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 Appellants Br. at
22; Appellees 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. (Appellants Br. at 22;
Appellees 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
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. Leons 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.
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 Nobles battery instruction.
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 jurys foreman, one Brian Schmitt was quoted as saying that Judge OConnor said the following:
He told us Noble is going to wish hed never done this.
A copy of this news story is attached hereto as Exhibit A.
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
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.
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 courts 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 judges 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,
See footnote 2) engaged in a private
conversation or an
ex parte communication regarding a pending case,
See footnote or 3) commented
about a case in open court during the course of a trial.See footnote
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 jurys 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.See footnote 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 judges 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 jurys 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. See footnote Thus, we address whether the judges 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 defendants trial and before sentencing. Id. Specifically, a reporter asked the judge to comment on the defendants threats to make a citizens arrest of the judge and other county officials. The judge responded that he was mad and concerned about the defendants threats. Id.
In affirming the trial courts decision to deny the defendants motion for change
of judge, this Court said:
We do not see the judges comments as reflected in the article as showing prejudice to appellant. The judge stated he was mad and concerned about the appellants 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.
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 defendants 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 counsels suggestion that Judge OConnors 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 Nobles motion for change of judge was clearly erroneous.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs in part and dissents in part with separate opinion.
John P. Brinson
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
James A. Garrard
Deputy Attorney General
INDIANA SUPREME COURT
DWAYNE NOBLE, ) Appellant (Defendant )
STATE OF INDIANA, )
Appellee (Plaintiff ) below). )
Supreme Court No. 82S00-9811-CR-748
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Maurice C. OConnor, Judge
Cause No. 82D02-9801-CF-85
March 24, 2000
I concur with the majoritys 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