Ware v. State

560 N.E.2d 536, 1990 Ind. App. LEXIS 1318, 1990 WL 151873
CourtIndiana Court of Appeals
DecidedOctober 9, 1990
Docket49A04-8904-CR-00150
StatusPublished
Cited by14 cases

This text of 560 N.E.2d 536 (Ware v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ware v. State, 560 N.E.2d 536, 1990 Ind. App. LEXIS 1318, 1990 WL 151873 (Ind. Ct. App. 1990).

Opinions

MILLER, Presiding Judge.

On March 30, 1988, Defendant-appellant Randall L. Ware was charged by information with operating a motor vehicle while his privileges were forfeited for life in violation of Ind.Code 9-12-3~2, a Class C felo[538]*538ny. After a bench trial, the court found Ware guilty as charged. He was sentenced to two years imprisonment. Ware appeals his conviction and sentence, claiming that comments and actions by the judge, including his alleged assumption of an improper prosecutorial stance, denied him a trial before a fair and impartial tribunal. After an examination of the evidence and circumstances under which the trial judge acted, we find that Ware was not denied a fair trial and affirm.

FACTS

In the early morning hours of March 29, 1988, Officer Mark Christoff of the Indianapolis Police Department observed an automobile pull into the parking lot of a motor lodge in Indianapolis. Christoff testified he observed the vehicle from approximately one block away and when the vehicle pulled into the motor lodge-an area of high drug activity-he became suspicious. Christoff testified he waited approximately two and one half minutes to see if the car was "just turning around" (R. 161). When the car did not exit the lot, Christoff followed the vehicle. As he entered the lot, he noticed the parked vehicle's trunk lock had been "punched out". Christoff testified he saw Ware exit the driver's side of the car and attempt to leave the area,. After observing the car's broken steering column (@a fact which, together with the punched out lock, indicated the car might be stolen) Christoff ordered Ware to return to the car. Ware could not produce a driver's license or registration. The officer testified he ran a computer check and the report came back indicating Ware had a lifetime suspension of his driving privileges due to a habitual offender status. Ware was then arrested. The officer testified there were two other female passengers in the car at the time of Ware's arrest, however, neither passenger was arrested.

At trial, Ware's defense was that he did not drive the vehicle. Ware claimed that on the night he was arrested he and three friends were out looking for a car that Ware had been hired to repossess. Ware claimed his friend, Donnie, was driving. Ware's wife, Sandra, and Mary Miller, a passenger in the car, testified at trial and corroborated this defense. Sandra testified Ware and Donnie left their home at approximately 9:80 p.m. to look for a car Ware had been hired to repossess. Sandra testified Donnie was driving the Wares' 1972 Chevrolet Impala and Ware was in the passenger seat. Mary Miller, a passenger in the car when Ware was arrested, testified that Donnie was driving, Ware was in the passenger seat and she and another woman named Tammy, Donnie's sister, were in the backseat of the car. Mary testified when they stopped at the motor lodge, Donnie exited and went into the lodge and Ware climbed out of the car when a police officer arrived on the scene. Officer Christoff testified both women passengers told him Donnie had been driving the vehicle. Offi cer Christoff also testified he did not see Ware drive the vehicle. Ware, Donnie and Tammy did not testify at trial.

DECISION

On appeal, Ware claims he was denied a fair trial because the trial judge was biased against him. We note Ware did not raise this issue in his motion to correct error. Generally, the failure to include allegations of bias and prejudice on the part of the trial judge in the motion to correct error results in a waiver of the right to have this issue considered on appeal. Thompson v. State (1985), Ind.App., 482 NE.2d 1372.1 However, Ware claims the issue is reviewable under the fundamental error doctrine, citing Kennedy v. State (1972), 258 Ind. 211, 280 N.E.2d 611; Decker v. State (1987), Ind.App., 515 N.E.2d 1129.

In Kennedy, our supreme court refused to apply the waiver doctrine to unobjected incidents of improper judicial intervention because "[al fair trial by an impartial judge and jury is an essential element in due [539]*539process." Id. 258 Ind. at 218, 280 N.E.2d at 615. Similarly, in Decker, this court reviewed a defendant's claim of improper judicial intervention even though the defendant failed to make a specific objection at trial. Relying on Kennedy, the Decker court noted the fundamental error doctrine of review applies to claims of improper judicial intervention in a criminal trial. The court stated:

" Fundamental error is error that, if not rectified, would deny a defendant fundamental due process. Johnson v. State (1979), [271] Ind. [145], 890 N.E.2d 1005. It is not enough, in order to invoke this doctrine, to urge that a constitutional right is implicated. Only when the record reveals clearly blatant violations of basic and elementary principles, and the harm or potential for harm could not be denied, will this Court review an issue not properly raised and preserved. Nelson v. State (1980), [274] Ind. [218], 409 N.E.2d 637.

Id. at 1182, quoting Williams v. State (1984), Ind., 464 NE.2d 898, 894. Al though Kennedy and Decker involved jury trials and the case before us is a bench trial, we believe the same principles apply. Here, Ware contends the judge's bias against him, as demonstrated by the judge's comments and numerous judicial interruptions during trial, denied him a fair trial. If the trial judge was biased against Ware, it is fundamental error since a fair trial by an impartial judge is an essential element in due process. Kennedy, supra. Thus, we will review Ware's claim.

We begin our discussion by noting that in a bench trial, the judge may, in his discretion, ask questions of a witness to aid in the fact finding process as long as it is done in an impartial manner and the defendant is not prejudiced. Taylor v. State (1988), Ind., 580 N.E.2d 1185. The judge may not assume an adversarial role in criminal proceedings. Fox v. State (1986), Ind., 497 N.E.2d 221. Further, a judge's discretion to question witnesses is greater in bench trials than in trials before juries. Michigan v. Meatte, (1980), 98 Mich.App. 74, 296 N.W.2d 190.

When Ware's trial began, the State indicated it was not ready to proceed because a crucial witness was unavailable. Ware expressed his concern that his witnesses might not be available for trial at a later date and the trial court stated that, if the parties wished, he would conduct the trial in a "bifurcated way" and would allow Ware to present his witnesses prior to the presentation of the State's case. (R. 80) The judge asked the State to make an opening statement; however, Ware was not given the same opportunity. Ware's first witness was Bob Wilson, the owner of Lucky Auto Sales. Wilson testified that he employed Ware to repossess cars and that in March of 1988 he hired Ware to repossess a 1981 white Dodge Omni, which was apparently located in the area where Ware was arrested. Ms. Julian, the prosecutor, objected to this line of questioning as irrelevant and the following colloquy occurred between the court and Ware's counsel:

THE COURT: How is it relevant, Mr. Darden?
MR.

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Ware v. State
560 N.E.2d 536 (Indiana Court of Appeals, 1990)

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Bluebook (online)
560 N.E.2d 536, 1990 Ind. App. LEXIS 1318, 1990 WL 151873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-v-state-indctapp-1990.