Pigg v. State
Pigg v. State
Opinion of the Court
Defendant-appellant Leonard Pigg appeals his convictions and sentences for two counts of dealing in cocaine, Class A felonies (dealing cocaine within 1,000 feet of school property).
Pigg raises several issues for our review, but because we reverse, we need address only two:
I. Whether the trial judge erred in denying Pigg's motion for change of judge.
II. Whether the trial court erred in refusing to allow Pigg to ascertain the informant's then current residence address through cross-examination.
FACTS
On December 12, 1988, James Darden, a Kokomo police confidential informant, met with Kokomo police officers to prepare for a controlled buy of cocaine. - Police searched Darden, made sure he had no drugs, wired him, gave him marked money, and followed him to the tavern appellant Pigg owned. Darden went inside alone and returned with a white powder he said was cocaine he purchased from Pigg. Four months later, on April 13, 1989, police and Darden repeated the security procedure and Darden went alone into Pigg's home and again returned with a white powder he said was cocaine he purchased from Pigg. Subsequent chemical tests by the Indiana State Police Laboratory revealed the powder Darden purchased in both transactions was in fact cocaine.
Additional facts will be supplied as necessary.
DISCUSSION AND DECISION
I
Pigg first argues Judge Brubaker should have granted Pigg's motion for change of judge because the judge was biased against him. Although this question is not disposi-tive of the appeal, we address it because it is likely to arise on retrial.
Prior to the events of December 1988 and April 1989, one Diane Cook was tried and convicted on confinement charges before Judge Brubaker, who sentenced Cook to eight years' imprisonment. - Additionally, Judge Brubaker presided over a juvenile proceeding involving Cook's son. During Cook's incarceration, she sent several unsolicited letters to Judge Brubaker requesting his assistance in various personal matters: Judge Brubaker did not respond.
The record does not reveal the specific chronology, but Judge Brubaker suspended a portion of Cook's sentence and put her on probation. One of the terms of her probation was to have no contact with Pigg. Cook failed to abide by this condition, however, and Darden testified Cook provided
At the outset, we note it is a matter of utterly mundane routine for trial judges to receive letters from parties, including criminal defendants. If we were to adhere to Pigg's view that receipt of letters is tantamount to bias, very few cases, criminal or civil, would be resolved. Moreover, the law presumes a judge is unbiased and unprejudiced. Lasley v. State (1987), Ind., 510 N.E.2d 18340. A motion for change of judge is committed to the judge's discretion and we will reverse a decision on a change of judge motion for an abuse of that discretion only when the record discloses actual prejudice and bias against the appellant. Smith v. State (1985), Ind., 477 N.E.2d 857. Pigg has wholly failed in his burden as appellant to show any type of bias or prejudice here.
First, Pigg's reliance on the content of Cook's letters is immaterial. The effect of a communication, not its content, is the issue, and it is an issue committed to the trial judge's discretion. Austin v. State (1988), Ind.App., 528 N.E.2d 792, 794. "[I)n the absence of cireumstances supporting a contrary conclusion, we assume the judge would have complied with the obligation to disqualify [himjself had there been any reasonable question concerning" his ability to be impartial. Id. Second, the fact Judge Brubaker had knowledge of Pigg as a result of the proceedings against Cook does not show bias. Reynolds v. State (1991), Ind.App., 575 N.E.2d 28, 30, trans. denied. Conduct alone can show bias. Id. Third, trial judges are free to reject tendered plea agreements, Reffett v. State (1991), Ind., 571 N.E.2d 1227, and a rejection does not establish prejudice. Clemons v. State (1981), Ind., 424 N.E.2d 118.
Pigg has pointed to no facts which would establish that Judge Brubaker was biased against him and Judge Brubaker therefore did not err in denying Pigg's motion for change of judge.
II
At trial, Pigg's counsel cross-examined Darden, the confidential informant. When counsel asked Darden for his then current residence address, the State objected on relevancy grounds, and the trial court sustained the objection. This was error.
Darden was the only witness to the controlled buys; attacks on his credibility were the keystone of Pigg's defense, and "the very starting point in 'exposing falsehood and bringing out the truth' through cross-examination must necessarily be to ask the witness who he is and where he lives." Crull v. State (1989), Ind., 540 N.E.2d 1195, 1198 (quoting Smith v. Illinois (1968), 390 U.S. 129, 181, 88 S.Ct. 748, 750, 19 L.Ed.2d 956, 959). By establishing the government witness's residence, as well as his true name, place of employment, and other personal data, the foundation is laid for determining the witness's reputation for veracity within his community. Id. Darden's address was relevant.
Smith and its progeny make clear that reversible error flows directly from the refusal to allow the inquiry into the government witness's personal data. The defendant need not establish additional prejudice. Crull, 540 N.E.2d at 1198. The trial court, however, is not absolutely required to allow the inquiry. If the State can show, through an in camera proceeding, that the witness will be endangered by
As in Crull, the State here made no attempt to show the witness was in danger, and thereby denied the trial judge an opportunity to make an informed decision on the admission of Darden's address into evidence.
CONCLUSION
Under the mandate of the United States Supreme Court in Smitk, as followed by our supreme court in Crwll, the judgment of the trial court is reversed and the cause is remanded for a new trial.
. IND. CODE 35-48-4-1(b)(3)(A).
Concurring Opinion
concurring.
I concur, writing separately to express my concern about seemingly contradictory Indiana precedents regarding cross-examination of a State's witness as to the witness's address. In particular, I perceive divergent caselaw on a burden-of-proof question: must the State demonstrate why its objection to the "witness's address" question should be sustained, or must the accused show why the witness's address should be disclosed.
It is axiomatic that the scope of cross-examination is a matter committed to trial court discretion, and that such issues are reviewed for abuse of discretion only. However, discretion to limit cross-examination of government witnesses by an accused must be measured against the sixth amendment right to confront such witnesses. In my view, the majority opinion in Smith v. Ilinois (1968), 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 holds that a per se abuse of discretion occurs if a trial judge sustains a prosecutor's objection to the witness's address question.
Turning to Indiana cases, in Crull v. State (1989), Ind., 540 N.E.2d 1195, our supreme court reversed a narcotics conviction because the trial court sustained an objection to the witness's address question. Crull discussed Smith v. Illinois at length, then cited United States v. Palermo (1969), Tth Cir., 410 F.2d 468, which had agreed with the concurring opinion in Smith v. Tilinois, for the idea that "the threat to the witness must be actual and not a result of conjecture, and that the government bears the burden of proving to the [trial] court the existence of such a threat." 540 N.E.2d at 1199. See also Jackson v. State (1989), Ind., 544 N.E.2d 853, 854-56 (where witness was in federal witness protection program, supreme court required disclosure of witness's prior felonies but not prior identity or address).
Crull stated that it was consistent with Johnson v. State (1988), Ind., 518 N.E.2d 1078. In Johnson, the supreme court held no error occurred in prohibiting the witness's address question where the witness testified during a hearing in camera that he had received anonymous threats and was under police protection. The cases seem inconsistent, however, because John
When this issue was raised in Corbin v. State (1990), Ind., 568 N.E.2d 86, the supreme court held no error occurred, finding Johnson dispositive, and quoting the portion of Johnson stating that the defendant must demonstrate how he was prejudiced. As to Crull, Corbin distinguished itself in this way: "[iIn the instant case, unlike Crull, appellant made no request for an in camera hearing to determine reasonableness of refusal to disclose [the State's witness's address]." 563 N.E.2d at 90.
In this case, there was no in camera hearing, nor any request for one. Thus, Pigg was situated similarly to the defendant in Johnson, who had "point[ed] to no evidence he was prevented from presenting by failure to be advised of the witness' address." Johnson, 518 N.E.2d at 1075. However, the State in Pigg's case did not show an "actual" threat to the witness. Crull, 540 N.E.2d at 1199. Indeed, the witness started to give his address before the prosecutor objected. Record at 459.
In my opinion, Johnson and Corbin are authority to hold that there was no error here. On the other hand, Crull and Smith v. Illinois teach that it is reversible error to sustain an objection to the address question unless the government shows an actual threat to the witness. Faced with these divergent precedents, I choose to follow the higher authority, Smith v. Illinois, Accordingly, I coneur. '
. Smith v. Illinois acknowledged that it would be no abuse of discretion to limit cross-examination to protect a witness who has invoked the privilege against self-incrimination, or to prohibit cross-examination designed "merely to harass, annoy or humiliate [the witness]." 390 U.S. 129, 133, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (quoting Alford v. United States (1931), 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624.
. The majority opinion in Smith v. Illinois followed, and quoted extensively, Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. The quoted portion of Alford included the following:
It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them.... To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial.
Smith v. Illinois, 390 U.S. at 132, 88 S.Ct. at 750.
Concurring Opinion
concurring.
While I agree that Pigg has not demonstrated as a matter of law that Judge Bru-baker was actually biased and prejudiced against him or his defense, the facts and circumstances lead me to the conclusion that the appearance of justice would have been better served by the granting of Pigg's Motion for Change of Judge. See Board of Trustees of Public Employees' Retirement Fund v. Hill (1985) Ind., 472 N.E.2d 204. Nevertheless, cause for reversal has not been shown by the denial of the Motion. Furthermore, it is assumed that the retrial will be conducted before a different judge.
I concur in Judge Baker's opinion which holds that it was reversible error to sustain the State's objection to Pigg's questions concerning the informant's place of residence and employment. I also join Judge Barteau's separate opinion noting an apparent inconsistency in Indiana precedent with respect to the burden of showing an actual threat to the safety of the witness and with respect to prejudice occasioned to a defendant by failure to disclose such identity information.
Reference
- Full Case Name
- Leonard PIGG, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
- Cited By
- 5 cases
- Status
- Published