ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID E. MOSLEY KAREN FREEMAN-WILSON
Assistant Public Defender Attorney General of Indiana
ADAM M. DULIK
AMBER C. SHAW Deputy Attorney General
Jefferson, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
MICHELLE HARVEY, )
vs. ) No. 10A01-0012-CR-436
STATE OF INDIANA, )
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Cecile Blau, Judge
Cause No. 10D02-9904-CF-55
June 7, 2001
OPINION - FOR PUBLICATION
SHARPNACK, Chief Judge
Michelle Harvey appeals the revocation of her bond. She raises two issues,
which we restate as follows:
whether the trial court abused its discretion when it revoked her bond; and
whether the trial court displayed bias when it ordered Harvey to submit to
a drug test.
Additionally, the State raises two issues that can be construed as cross-appeal issues,
which we restate as follows:
whether Harvey has waived consideration of her appeal by failing to comply with
the procedure for initiating interlocutory appeals; and
whether Harvey has waived consideration of her bond revocation claim by failing to
file an adequate record.
The relevant facts follow. On April 22, 1999, Harvey was charged with
dealing in cocaine within 1000 feet of a family housing complex, a class
A felony.See footnote On May 6, 1999, the trial court held an initial
hearing, during which the trial court set bond in the amount of $25,000.
Harvey was unable to post bond and remained incarcerated.
On February 15, 2000, Harvey filed a motion for bond reduction. On
March 8, 2000, the trial court held a hearing on Harveys motion.
After the hearing, the trial court issued an order that provides as follows:
Defendant is remanded to the custody of the Clark County Sheriff pending
the posting of the bond in the amount of $2,500, cash only/cash, court
cash, or surety, with specific added conditions to report every Monday to probation
office. Record, p. 48. Although the record does not reveal the
nature of other added conditions, the parties agree that the trial court also
required Harvey to submit to drug testing while on bond. Harvey posted
bond and was no longer incarcerated.
On June 15, 2000, Harvey appeared before the trial court, along with other
criminal defendants, for a final pre-trial hearing. At that time, the trial
court instructed all of the defendants as follows:
Okay, as you will recall, most of you if you have made bond
had certain conditions of bond. Those additional conditions of bond were to,
not violate any of the laws of the State of Indiana or any
other jurisdiction; to attend hearings such as this, . . . , and
to report for drug or alcohol testing as a condition of bond.
Today we are going to do drug tests on all Defendants that are
in the room. . . . So after we do your
Final Pre-Trial, then youll exit by this door, and youll meet with the
Probation Officers, and they will be doing urine tests, at this time.
Record, p. 86. Harvey objected to the drug test. The trial
court concluded that the drug testing requirement was a valid condition of probation
but did not order Harvey to submit to a test at that time.
On June 20, 2000, the State filed a motion to revoke Harveys bond.
A hearing was held on July 26, 2000, during which the trial
court found that there was a failure to follow the conditions of bond
at the request of the Court and . . . that there has
been a violation of that Order. Record, p. 105. On September
14, 2000, the trial court entered an order in which it revoked Harveys
bond, ordered her to serve twenty-four hours in jail for contempt of court,
and stayed the proceedings pending Harveys appeal.
We first address the States cross-appeal issues because if either of them has
merit, it would be dispositive of one or both of Harveys claims.
The States first issue is whether Harvey has waived consideration of her appeal
by failing to comply with the procedure for initiating interlocutory appeals.
This court may dismiss appeals when it discovers it does not have jurisdiction.
Bayless v. Bayless, 580 N.E.2d 962, 964 (Ind. Ct. App. 1991), rehg
denied, trans. denied. An appeal from an interlocutory order is not allowed
unless the Indiana Constitution, statutes, or the rules of court grants specific authority
to do so. Id. An attempt to appeal an interlocutory order
as if it were a final judgment results in waiver of the appeal.
See id. at 966.
Here, the State contends that Harveys appeal from the revocation of bond is
interlocutory rather than final, and that Harvey failed to follow the certification procedure
for interlocutory appeals set forth in former Ind. Appellate Rule 4(B).
a result, the State concludes that Harvey has waived appellate review of her
For guidance, we turn to former Ind. Appellate Rule 4(E), which provides:
No appeal will be dismissed as of right because the case was not
finally disposed of in the court below as to all issues and parties,
but upon suggestion or discovery of such a situation the appellate tribunal may,
in its discretion, . . . pass upon such adjudicated issues as are
severable without prejudice to parties who may be aggrieved by subsequent proceedings in
the court below.
Thus, this court has discretion to pass upon the severable adjudicated issues that
pertain to the parties, and this court can consider the merits of a
case in order to facilitate a speedy disposition of it. See Burke
v. Wilfong, 638 N.E.2d 865, 868 (Ind. Ct. App. 1994).
The question of whether the trial court erred in revoking Harveys bond is
severable from the adjudication of the charge against her. Furthermore, the following
colloquy occurred among the trial court and counsel at the hearing on the
States motion to revoke her bond:
THE COURT: I will find that this Order [on the States motion]
was [a] Final and Appealable Order, so its not an Interlocutory Appeal, it
is a regular Appeal. And so for purposes of that, todays date
would be [the] date when the time would start to run. Is
that the consensus of counsel?
[HARVEY]: Yes, Your Honor.
[THE STATE]: Yes, Your Honor.
Record, pp. 109-110. Thus, the trial court and the parties agreed that
any appeal of the trial courts ruling would be a final appeal.
Because the bond issue is severable from the criminal charge, and because the
parties agreed that this appeal would be from a final judgment rather than
interlocutory in nature, we choose to exercise our discretion and disregard any procedural
irregularities. See, e.g., Burke, 638 N.E.2d at 868.
The States second cross-appeal issue is whether Harvey has waived consideration of her
bond revocation claim by failing to file an adequate record. It is
the duty of an appellant to provide this court with a record sufficient
to enable us to review the claim of error. Lenhardt Tool &
Die Co. v. Lumpe, 703 N.E.2d 1079, 1084 (Ind. Ct. App. 1998), trans.
denied, 722 N.E.2d 824, trans. denied. We cannot reverse a judgment for
error alleged in a ruling dependent upon facts not before us. Id.
Here, the State argues that Harveys record is fatally inadequate because it does
not contain a transcript from the March 8, 2000, hearing on Harveys motion
to reduce bail, during which the trial court required Harvey to submit to
a program of drug testing as a condition of bond.
contends that the absence of the transcript is important because without the transcript
we cannot ascertain whether the drug-testing requirement imposed upon Harvey was random or
scheduled. Harvey claims that the drug testing was to be imposed randomly.
On the other hand, the State contends, In light of [Harveys] responsibility
to report to a probation officer every Monday while on bond, it may
be that her bail was conditioned on providing a urine sample every week.
Appellees Brief, p. 5.
We agree that the trial courts order reducing Harveys bond does not discuss
whether she was required to submit to drug testing or whether such testing
was to be random or scheduled weekly, and that the hearing transcript may
have resolved the question. However, for the purposes of the States argument
on Harveys bond revocation claim, it does not matter if the drug testing
was to be done randomly or on a regularly scheduled basis. The
States primary contention regarding the drug testing program is that it was constitutional
for the trial court to require Harvey to submit to drug testing even
though the authorities lacked a reasonable suspicion that Harvey was using drugs.
Whether the drug test was randomly imposed or scheduled on a weekly basis
is irrelevant to the States argument because in either case the search would
be suspicionless. Consequently, we will assume that the drug testing was to
be performed on a random basis, as Harvey claims, and the absence of
the hearing transcript does not prevent us from addressing Harveys bond revocation claim.
Cf. Lenhardt, 703 N.E.2d at 1084.
The first issue raised by Harvey is whether the trial court abused its
discretion when it revoked her bond. Initially, we must determine the appropriate
standard of review. The determination of whether to grant bail in a
particular case is within the trial courts discretion and is reviewable only for
an abuse thereof. See Tinsley v. State, 496 N.E.2d 1306, 1308 (Ind.
Ct. App. 1986). The decision to grant bail and the decision to
revoke bail are similar, and we conclude that the same standard of review
applies to both.
Harvey contends that the trial courts order to submit to a drug test
constitutes an unconstitutional search and seizure pursuant to the Fourth Amendment to the
United States Constitution,
and because the order was unconstitutional, her refusal to take
a drug test does not establish good cause to revoke her bond.
The State contends that Harvey did not object to random drug testing as
a condition of her bond at the March 8th bond reduction hearing, and
that by consenting to that condition she has waived review of her claim,
notwithstanding her objection when the trial court ordered her to take a test
at the June 15th hearing. When a defendant does not properly bring
an objection to the trial courts attention so that the trial court may
rule upon it at the appropriate time, she is deemed to have waived
that possible error. Brown v. State, 587 N.E.2d 693, 703 (Ind. Ct.
Harvey conceded at oral argument that she did not object to the imposition
of random drug testing as a condition of probation. Nevertheless, Harvey contends
that random drug testing as a condition of probation is not at issue.
It is her position that the trial court may require random drug
testing as a condition of probation, but the trial court cannot order a
defendant to submit to an actual random drug test in the absence of
reasonable suspicion. We disagree.
Random is defined, in relevant part, as lacking aim or method; purposeless; haphazard.
Websters New World Dictionary 1112 (3d college ed., 1988). Giving the
word its plain meaning, a random drug test is haphazardly given and is
ordered without regard for the circumstances of a defendants case. A random
search lacks cause, including reasonable suspicion. Thus, Harvey is essentially arguing that
the trial court may provide, as a condition of probation, that a defendant
must submit to random drug tests, but the trial court cannot actually order
a defendant to take a random drug test, because reasonable suspicion must be
We cannot agree with this reasoning, and we conclude that Harveys
failure to object when the trial court imposed random drug testing as a
condition of probation waived subsequent objections to such testing, as well as appellate
review of the issue. See, e.g., Sweeney v. State, 704 N.E.2d 86,
101 (Ind. 1998) (holding that a defendant waived his right to a speedy
trial by failing to object to a trial setting, and determining that the
waiver rendered the defendants subsequent request for a speedy trial immaterial), cert. denied,
527 U.S. 1035, 119 S. Ct. 2393 (1999).
The second issue raised by Harvey is whether the trial court displayed bias
when it ordered Harvey to submit to a drug test. A judge
is presumed unbiased and unprejudiced, and to rebut the presumption, a defendant must
establish from the judges conduct actual bias or prejudice that places the defendant
in jeopardy. Cook v. State, 612 N.E.2d 1085, 1088 (Ind. Ct. App.
1993). Such bias or prejudice exists only where there is an undisputed
claim or where the judge has expressed an opinion on the merits of
the pending controversy. Id. While a trial judge has the discretion
to disqualify herself whenever any semblance of judicial bias or prejudice arises, disqualification
is not required unless actual prejudice or bias exists. Id. at 1087.
Harvey does not accuse Judge Blau of an improper motive or want to
suggest that she acted unethically. Appellants Brief, p. 9. Instead, she
contends that when Judge Blau issued an en masse order without reasonable suspicion
or cause, she gave an appearance that the court was acting on behalf
of the prosecution to disclose incriminating evidence. Id. As a result,
Harvey concludes that reversal of the trial courts ruling is warranted, presumably so
that the trial judge may recuse herself.
Harveys claim is without merit. Cook specifically provides that the mere appearance
of partiality does not require the trial judge to recuse herself. See
Cook, 612 N.E.2d at 1087-1088. Even if we assume without deciding that
the trial courts rulings created an appearance of partiality in favor of the
State, we will not reverse the trial courts judgment because Harvey has not
alleged and shown actual bias on the part of the trial court.
For the foregoing reasons, we affirm the judgment of the trial court.
Mattingly-May, J. and Bailey, J. concur.
Oral argument was held on May 16, 2001, at Our Lady
of Providence Junior/Senior High School in Clarksville. We thank the staff, faculty,
and students for their hospitality.
Ind. Code § 35-48-4-1.
A transcript of that hearing has not been included in the
A revised version of the Indiana Rules of Appellate Procedure went
into effect on January 1, 2001. However, because Harvey initiated this appeal
prior to that date, we are applying the former appellate rules to this
The State also argues that the record is inadequate because it
does not contain a copy of the trial courts order revoking Harveys bond.
However, the order has been filed with this court in a supplemental
The Fourth Amendment to the United States Constitution provides, in relevant
part, The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, .
. . .
Harvey also raises a claim pursuant to article 1, § 11 of the
Indiana Constitution. However, when she objected to being ordered to take a
drug test, she only discussed the Fourth Amendment, not the Indiana Constitution.
Consequently, Harvey is raising her Indiana Constitution claim for the first time on
appeal, and has waived the claim for our review.
See Smith v.
State, 643 N.E.2d 944, 945 (Ind. Ct. App. 1994), trans. denied.
At oral argument, Harvey argued that a proper random drug test
occurs when the authorities have reasonable suspicion to require Harvey to take the
test, but Harvey is unaware of the drug test until she is asked
to take one. Because a random drug test is one that lacks
a specific reason, and in her view authorities must always have reasonable suspicion
to conduct a test, we reject this argument.