RATLIFF, Chief Judge.
STATEMENT OF THE CASE
Michael Andrews appeals his conviction for recklessly remaining in a voting booth longer than one minute, a class A misdemeanor. We affirm.
At the 1984 general election, Michael Andrews and three co-defendants staged a form of protest against the absence of write-in ballots in Indiana. Several minutes after entering the voting booth of Precinct 7 in Bloomington, Andrews was asked if he needed assistance and he demanded a write-in ballot. Andrews was informed that write-in ballots were not available and that he would either have to leave the voting booth or be arrested. Andrews
On November 7, 1984, Andrews was charged with recklessly remaining in a voting booth for longer than one minute in violation of Indiana Code section 3-1-23-28. Following a jury trial, Andrews was found guilty. Andrews was sentenced to one year for the misdemeanor, with all but ninety days suspended, and sentenced to over one hundred days for being in contempt of court. Applying credit time, the Department of Corrections released Andrews at the expiration of his sentence. Following a hearing, the trial court recommitted Andrews after finding that credit time did not apply to contempt sentences. Thereafter, Andrews perfected this appeal.
Andrews presents twelve issues for review which we have reworded and subsumed into the following:
1. Whether the evidence is sufficient to sustain Andrews' conviction for remaining in a voting booth for over one minute.
2. Whether the one minute rule was used in a discriminatory manner so as to deny Andrews due process and equal protection of the law, and whether the provision is unconstitutionally vague and overbroad.
3. Whether the trial court erred in refusing to dismiss the charge against Andrews for lack of subject matter jurisdiction.
4. Whether the trial court erred in refusing to admit certain evidence and in taking other actions all resulting in allegedly denying Andrews a fair trial.
5. Whether the trial court erred in denying Andrews' motion for impartial jury selection which allegedly resulted in systematically excluding from the jury independent, third party, and low income voters.
6. Whether the trial court erred in denying Andrews' motions for a mistrial and disqualification where the trial judge consulted with outside sources during the trial.
7. Whether the trial court erred in finding Andrews in contempt of court or whether the trial court erred in failing to state specifically the acts complained of in its memoranda of contempt.
8. Whether the trial court committed reversible error in failing to rule on Andrews' motions to reconsider its contempt citations.
9. Whether the trial court erred in denying his motion to dismiss the November 19, 1985, hearing wherein the trial court determined good-time credits to be inapplicable to contempt sentences.
DISCUSSION AND DECISION
It should be noted that when reviewing the sufficiency of the evidence, this court does not judge the credibility of witnesses nor weigh the evidence. Rather, we consider the evidence most favorable to the verdict together with all inferences which may be drawn therefrom. If there is substantial evidence of probative value to support each element of the offense, the judgment will be affirmed. Johnson v. State (1982), Ind. App., 441 N.E.2d 1015, 1016; Anderson v. State (1980), Ind. App., 406 N.E.2d 351, 352, trans. denied; Stocklin v. State (1976), 169 Ind.App. 49, 50, 345 N.E.2d 863, 864, trans. denied.
Andrews was convicted of recklessly remaining in a voting booth longer than one minute. Indiana Code section 3-1-23-28
A violation of this provision is made a class A misdemeanor by Indiana Code section 3-1-32-63
It is Andrews' conduct, not his motivation, that is at issue in this case. Andrews' argument that he has a constitutional right to a write-in ballot may or may not have merit.
Andrews recklessly remained in the voting booth longer than statutorily permitted. Andrews and his co-defendants entered the Bloomington poll well aware of the fact that many other people were waiting to exercise their right to vote. Andrews entered
Moreover, a lawful objective will not justify the employment of means which are themselves unlawful. Roth v. Local Union 1460 of Retail Clerks Union (1939), 216 Ind. 363, 24 N.E.2d 280 (lawful objective does not justify disorderly or unlawful picketing). Neither does evidence of good motive for commission of a crime constitute a defense even when specific intent is required. 22 C.J.S. Criminal Law § 31 (1961); 1 Wharton's Criminal Evidence § 166 (12th ed. 1955). Various individual constitutional rights exist as a unitary portion of a group of corollary rights, each of which can be exercised only to the extent that such does not encroach upon or erode the others. Cunningham v. State (1973), 261 Ind. 256, 258, 301 N.E.2d 638, 640, quoting Campbell v. State (1971), 256 Ind. 630, 633, 271 N.E.2d 463, 465.
Campbell, at 633, 271 N.E.2d at 465. Thus, despite Andrews' motivation or good intentions he does not have the right to exercise his rights at the expense of other peoples' rights. W. Stanmeyer, The New Left and the Old Law, 55 A.B.A.J. 319 (1969). Andrews could have chosen a legal method of protesting or challenging Indiana's lack of write-in ballots. However, he chose instead to break the law and impede the voting rights of fellow voters. Regardless, as we noted above Andrews' motivation is irrelevant under the circumstances and the evidence was sufficient to support his conviction for recklessly remaining in a voting booth longer than the law allows.
Based on his argument in Issue One, Andrews claims the one minute rule is unconstitutional because it denied him equal protection and is overbroad and vague. Andrews' argument is based on his assumption that the one minute rule was used to deny him the right to cast a writein ballot. In other words, Andrews claims that the one minute rule was used as a tool to deny him his right to vote. Once again, Andrews misunderstands the actual issue involved regarding the one minute rule.
The Equal Protection Clause directs that "all persons similarly circumstanced shall be treated alike." F.S. Royster Guano Co. v. Virginia (1920), 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989, 990-91; Plyler v. Doe (1982), 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786, 798. Under traditional equal protection principles, distinctions need only be
Enforcement of the one minute rule, in this case, did not result in a violation of Andrews' Equal Protection rights. The one minute rule of Ind. Code § 3-1-23-28 serves a compelling state interest in moving the flow of voters into the polls in a quick and orderly fashion thereby enabling all of them to exercise their voting rights. Andrews again confuses the issue involved in his case. There is no evidence in the record to demonstrate that the one minute rule was used as a means solely to deny Andrews, or anyone else, the right to a write-in ballot. Neither is there any evidence to demonstrate that the rule was applied unequally or strictly to Andrews. On the contrary, voters who appeared to be having trouble casting their vote were approached by election judges who asked if they needed assistance. Unlike other voters, Andrews, after being repeatedly told that the name of the person he was searching for on the ballot was not a candidate, and that no write-in ballots were available, insisted on remaining in the machine until his arrest. Andrews was not treated differently or unequally. He was simply the only person to abuse the rule. There is no evidence the one minute rule was used only to arrest people asking for write-in ballots. The one minute rule did not serve to create a classification in violation of the Equal Protection Clause but merely served as a means by which the state could ensure that each voter had their opportunity to cast a vote.
Andrews' argument that I.C. § 3-1-23-28 is vague and overbroad must also fail. Andrews asserts that the one minute rule allows election officials not only "to pick and choose which voters having trouble would be arrested, but also allowed them to cull out for arrest those who like Andrews sought to vote a particular way[.]" In order to satisfy due process requirements, a statute must be so explicit as to inform individuals of ordinary intelligence of the consequences of their conduct. It must not cause men of common intelligence to guess at its meaning or differ as to its application. Graham v. State (1985), Ind. App., 480 N.E.2d 981, 987, trans. denied; Miller v. State (1983), Ind. App., 449 N.E.2d 1119, 1128. Overbreadth involves a challenge to a statute based not upon the defendant's conduct, but rather upon legitimate conduct which might foreseeably be prohibited by a statute which is not drawn
Andrews argues that the trial court erred in failing to dismiss the charge against him for lack of subject matter jurisdiction. Specifically, Andrews argues that the statute under which he was charged, I.C. § 3-1-23-28, fails to state a crime and that the Constitution of Indiana, Article 2, § 12, grants electors freedom from arrest while at the polls exercising the right to vote. The trial court denied Andrews' motion for a directed verdict on these grounds following the close of the State's presentation of evidence.
First, it should be noted that Andrews has waived any alleged error regarding his motion for a directed verdict. A trial court's ruling on a motion for a directed verdict is not subject to review on appeal where the movant has introduced evidence on his behalf after the motion was denied. Dziepak v. State (1985), Ind., 483 N.E.2d 449, 452; Buck v. State (1983), Ind., 453 N.E.2d 993, 995; see Marsillett v. State (1986), Ind., 495 N.E.2d 699, 702 n. 2. Since Andrews proceeded to present evidence after his motion was denied, he cannot now claim the trial court erred.
Andrews is correct in noting that the one minute rule, I.C. § 3-1-23-28, does not state a crime. However, it proscribes conduct, the violation of which is made a class A misdemeanor by Indiana Code section 3-1-32-63.
Neither does Andrews' constitutional argument bear any merit. The Constitution of Indiana, Article 2, § 12 states, "In all cases, except treason, felony, and breach of the peace, electors shall be free from arrest, in going to elections, during their attendance there, and in returning from the same." Apparently, Andrews views his actions, resulting in his conviction of a misdemeanor, as something other than a breach of peace. On the contrary, Andrews' actions disrupted and delayed the voting process at the 7th precinct. His conduct impeded the voting of approximately one hundred and fifty people, essentially violating their constitutional right to vote. These actions constitute a breach of the peace and so Andrews does not come under the protection of Article 2, § 12 of the Indiana constitution.
Andrews argues that, through numerous actions and decisions of the trial court, he was denied a full and adequate opportunity to present a defense on his own behalf. Though not particularly clear, Andrews' overall complaint appears to be that relevant evidence was excluded as a result of these errors.
Rulings of a trial court on the relevancy of evidence are accorded wide latitude. The rejection or admission of evidence is in the sound discretion of the trial court. Fischer v. State (1984), Ind., 468 N.E.2d 1365, 1368; Hossman v. State (1985), Ind. App., 482 N.E.2d 1150, 1156, trans. denied. We will reverse only when it is shown that the trial court manifestly abused its discretion and the complaining party was denied
As Andrews' argument in his brief demonstrates, the evidence he attempted to admit dealt with the underlying motive of his offense; the evidence concerned his defense that he was denied his constitutional right to a write-in ballot, and that, therefore, the State was guilty of violating the statute with which he was charged. Andrews admitted he committed the act but insisted that his motivation rendered his conduct legal since he intended only to assert what he viewed as a constitutional right. Motive is not an essential element of a crime. Griffin v. State (1980), Ind. App., 413 N.E.2d 293, 295. Although evidence of motive has been found admissible and probative, Biggerstaff v. State (1982), Ind., 432 N.E.2d 34, 36, its admission is still committed to the discretion of the court. Drummond v. State (1984), Ind., 467 N.E.2d 742, 747. Moreover, evidence, otherwise admissible, may be excluded if its probative value is substantially outweighed by its potential to prejudice or confuse the jury. Mers v. State (1986), Ind., 496 N.E.2d 75, 80. Again, Andrews' assertion of an alleged constitutional right to a write-in ballot is not at issue here. The only question presented was what Andrews' intention or mens rea was when he chose to remain in the booth. Here, Andrews intended to cause some form of disruption. Andrews' culpability for conscious reckless activity is not excused simply because he believes such action will further what he believes to be a constitutional right. At trial, Andrews merely attempted to litigate his alleged constitutional right to cast a write-in ballot. We would point out that evidence regarding Andrews', or others', knowledge of the election code does not negate intent. Andrews' constant references to write-in ballots as his purpose and their tangential connection to the real issue at bar could easily have confused the jury. We agree with the state that it was within the judge's discretion, if not his duty, to prevent such an easy confusion and keep the trial directed to the proper issues. The trial court did not abuse its discretion in refusing to admit certain evidence and testimony.
Andrews also argues the trial court erred in refusing to grant his request for the advise and assistance of counsel in order to help him prepare his pro se defense. Andrews and his co-defendants did not want to be represented by counsel but merely to have one appointed to advise them:
Record at 400.
Record at 400-401.
Record at 403.
Record at 404-405. As the record demonstrates, Andrews was offered representation by counsel and turned it down. He cannot now be heard to complain of lack of assistance when he was repeatedly offered counsel by the trial court. Moreover, the public defender offered to assist Andrews on his own time. There is no error here.
Andrews attempts to raise a couple of other alleged errors under this issue apparently concerning the time he was given to prepare instructions and statements made by the trial judge during the trial. These assertions are made in passing without development of any type of argument or citation to any authority. Bald assertions of error unsupported by either cogent argument or citation to authority result in waiver of any error on review. Indiana Rules of Procedure, Appellate Rule 8.3(A)(7); Whitaker v. St. Joseph's Hospital (1981), Ind. App., 415 N.E.2d 737, 746; Dominguez v. Gallmeyer (1980), Ind. App., 402 N.E.2d 1295, 1298, trans. denied. Therefore, any error Andrews attempts to assert on these grounds is waived.
Andrews argues the trial court erred in denying his motion for impartial jury selection which resulted in systematically excluding from the jury a particular class of persons. Specifically, Andrews asserted that over 30,000 adult Monroe County residents were not registered voters and that voter registration lists underrepresented independent, third party, and low income voters. Therefore, Andrews urged the court to use the Post Office address list to call the jury venire, which motion the trial court denied.
Absent a showing of a deliberate attempt to exclude certain groups from jury participation, our supreme court has held that the practice of selecting jurors from registered voters is permissible. Lamar v. State (1977), 266 Ind. 689, 696, 366 N.E.2d 652, 656; Baum v. State (1976), 264 Ind. 421, 424, 345 N.E.2d 831, 833; see also Moore v. State (1981), Ind. App., 427 N.E.2d 1135, 1138, trans. denied. In order to establish a prima facie violation of the fair cross-section requirement, a defendant must show:
Duren v. Missouri (1979), 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 587. The problem depends upon what may be said to constitute a "distinctive" group. Adopting California's definition, we have stated:
Moore, at 1138, quoting Adams v. Superior Ct. of San Diego Co. (1974), 12 Cal.3d 55,
Andrews argues the trial court erred in denying his motions for a mistrial and for the trial judge to disqualify himself based on consultations the trial judge had with outside sources during the trial. After lengthy arguments on the admissibility of evidence concerning write-in votes, and Andrews' belief that such a right existed in Indiana, the trial court ruled the evidence was inadmissible. In response to Andrews' inquiry, the trial judge stated that he had discussed the admissibility of the offered evidence with other judges and agencies but that the decision was solely his own. Record at 1784. Andrews then inquired as to the identity of each party the trial judge had consulted and the content of the consultation. Andrews then moved for the judge to recuse himself and declare a mistrial.
Andrews argues that the trial judge's consultation violated Canon 3(A)(4) of the Code of Judicial Conduct. Canon 3(A)(4) provides:
Canon 3(C)(1)(a) provides:
Accordingly, this court has held that a judge's personal knowledge acquired through extrajudicial sources requires recusal. Stivers v. Knox County Dept. of Public Welfare (1985), Ind. App., 482 N.E.2d 748, 751; Jones v. State (1981), Ind. App., 416 N.E.2d 880, 881.
However, the law also presumes that a judge is unbiased and unprejudiced in the matters before him. Jones, at 881; Leistikow v. Hoosier State Bank of Indiana (1979), 182 Ind.App. 150, 152, 394 N.E.2d 225, 227. The only type of prejudice which will disqualify a judge is a personal prejudice for or against a party. Jones, at 881; Leistikow, 394 N.E.2d at 227. The record must show actual bias and prejudice of the judge against the defendant before a conviction will be reversed on the ground that the trial judge should have disqualified himself. Rose v. State (1986), Ind. App., 488 N.E.2d 1141, 1144.
Andrews raises four issues concerning contempt convictions he incurred during the course of the trial. Essentially Andrews argues none of these incidents disturbed the proceedings enough to amount to contempt. In the alternative, Andrews argues that the trial court, in its memorandum of contempt, failed to set out the contemptuous act with the specificity required by statute. It is this latter argument we address in three of the instances and so we have re-grouped Andrews' issues accordingly.
Indiana Code section 34-4-7-7 provides, in pertinent part:
It has been held that the mere recital of the trial court's conclusions is not sufficient to satisfy the requirement that the acts constituting the alleged direct contempt shall be stated distinctly in the court's order. State ex rel. Stanton v. Murray (1952), 231 Ind. 223, 236, 108 N.E.2d 251, 257. Instead, the court's finding must recite in detail the acts found to have been committed and which constitute the contempt for which the defendant is punished. State ex rel. Allen v. Vermillion Circuit Court (1967), 248 Ind. 258, 262, 226 N.E.2d 324, 326.
At a preliminary hearing, on July 19, 1985, the following exchange took place between Andrews and the trial court which resulted in his first contempt conviction.
Record at 24, 117.
Following Andrews' explanation, another exchange occurred which resulted in a second contempt conviction:
Record at 551-52. The court then entered the following Memorandum of Contempt:
Record at 117.
On August 2, 1985, the third day of trial, Andrews was again found in direct contempt due to the following exchange which occurred after a ruling by the trial court concerning whether Monroe County used electronic voting machines:
Record at 1688-90. After the jury was dismissed the following exchange took place:
Record at 1710-13. The trial court issued the following memorandum of contempt:
Record at 217.
While there is little doubt that Andrews' obstreperous conduct was contemptuous, these convictions cannot stand. As noted, Ind. Code § 34-4-7-7 and case law require the trial court to issue an order explicitly detailing the contemptuous conduct. In the above three instances, the trial court's orders did not meet the specificity required and therefore these convictions must be reversed.
Finally, at the close of the July 19, 1985, hearing, Andrews left the courtroom despite the trial court's immediate prior order that he remain until the sheriff could take custody of him to serve the six days for the two previous contempt findings of that day. The court issued the following memorandum of contempt:
Record at 24, 118. This order sufficiently meets the requirements of specificity set out in Ind. Code § 34-4-7-7.
Andrews argues, however, that his conduct amounted to indirect contempt and that the trial court ignored the requirements of Indiana Code sections 34-4-7-8, 34-4-7-9, and 34-4-8-1 thereby denying him due process of law.
Direct contempt usually refers to conduct directly interfering with court proceedings while court is in session. Indiana Code sections 34-4-7-1; 34-4-7-2. Such conduct must generally take place in or immediately adjacent to the courtroom, while court is in session, so that the judge has personal knowledge of such conduct in his official capacity. La Grange v. State (1958), 238 Ind. 689, 694, 153 N.E.2d 593, 596; see State ex rel. Stanton v. Murray (1952), 231 Ind. 223, 108 N.E.2d 251. However, it has been held that, under the inherent power theory, the statutory definitions of contempt are not so all-inclusive as to exclude other acts or conduct which may constitute contempt. La Grange, 238 Ind. at 694, 153 N.E.2d at 596.
Indirect contempt is the willful disobedience of any lawfully entered court order of which the offender has notice. Indiana Code section 34-4-7-3. Indirect contempt arises from conduct not occurring in the presence of the court, such as failure of a party to obey a court order or process, whereas direct contempt is committed in the immediate view or presence of the court. Hegedus v. Hegedus (1978), 178 Ind.App. 620, 621, 383 N.E.2d 446, 447 n. 1.
At an August 8, 1986, hearing concerning Andrews' contempt convictions, the trial court indicated he was personally aware of Andrews' departure from the courtroom moments after the occurrence. Summarizing Andrews' previous contemptuous acts the court stated:
Record at 2518-19. Direct contempt may result from an act committed within the personal knowledge of the judge. La Grange, 238 Ind. at 694, 153 N.E.2d at 596. The record indicates that Andrews left the courtroom after the trial judge had departed. However, as the judge's above account reveals, he returned to the courtroom to find that Andrews had left in violation of his order. The judge had immediate personal knowledge of Andrews' disobedience of his order which constituted a blatant disrespect for the court's authority. Therefore, Andrews' conduct was properly punishable as direct contempt of the court and the trial court did not err in failing to follow the procedure for adjudication of indirect contempt.
On July 31, 1985, Andrews filed, pursuant to Ind. Code § 34-4-7-7, a motion to reconsider his three contempt citations received at the July 19th hearing. Following several procedures and delays, the trial court failed to rule on this motion. On September 5, 1985, Andrews filed a motion requesting a ruling on his motion to reconsider, which the trial court did not act on. Andrews argues the court's neglect denied him due process and resulted in reversible error.
Andrews was not harmed by the court's failure to rule on his motions. Indiana Rules of Procedure, Trial Rule 53.4(B), providing for the effect of a court's delay in ruling upon a repetitive motion or a motion to reconsider ruling on a motion, states that "[u]nless such a motion is ruled upon within five (5) days it shall be deemed denied, and entry of service of notice of such denial shall not be required." In addition, Ind. Code § 35-4-7-7 merely permits a defendant to file a motion to reconsider, and then if that is overruled, to proceed to appeal the denial. Andrews presents no authority that the court's omission requires reversal. Had the trial court specifically denied Andrews' motion, he would be in the same position he is in now. No prejudice resulted from the trial court's omission because the issue is before this court now on appeal. This is clearly demonstrated by our reversal of three of the contempt convictions. The trial court did not commit reversible error in failing to rule on Andrews' motions to reconsider.
Finally, Andrews argues the trial court erred in denying his motion to dismiss the November 19, 1985 hearing which, he asserts, resulted in an increased sentence in violation of the Double Jeopardy Clause. The Department of Correction released Andrews after calculating good-time credit and applying the credit to his misdemeanor and contempt sentences. Apprised of Andrews' release, the trial judge ordered him into court to determine the propriety of applying credit time to contempt sentences. Determining that the credit time was wrongly applied to the contempt sentences, the trial judge returned Andrews to the Department of Correction for further incarceration. Andrews challenged the court's action by way of a writ in aid of appellate jurisdiction, which this court denied. No further appeal or challenge was made.
Any question as to the applicability of good-time credit to contempt sentences is moot in the present case.
ROBERTSON, J., concurs.
NEAL, J., concurs with separate opinion.
NEAL, Judge, concurring.
I concur completely in the well reasoned majority opinion which is well supported by authority. I wish merely to add that the record does not reflect existence of any particular candidate or party for whom Michael Andrews wanted to cast his write-in ballot. It appears that the whole episode was a bizarre act calculated to harass, annoy, and absorb the time, energy, and efforts of election officials, prosecuting attorneys, the trial court, and now the court of appeals. Absent is any good faith motive to effect legitimate constitutional or statutory rights. While public officials and courts should be ever sensitive to the constitutional and statutory rights of citizens, they need not humor self-annointed messiahs whose sole motive is to make a nuisance out of themselves by the disruption of public business.
Andrews bases his argument that he has a constitutional right to a write-in ballot on the United States District Court decision Socialist Labor Party v. Rhodes (S.D.Ohio 1968), 290 F.Supp. 983, cert. grantea Williams v. Rhodes and Socialist Labor Party v. Rhodes (1968), 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, and the Supreme Court's opinion on appeal. Specifically, the district court stated:
"Voters are often not content to vote for one of the candidates nominated by the two major parties. A write-in ballot permits a voter to effectively exercise his individual constitutionally protected franchise. The use of write-in ballots does not and should not be dependent on the candidate's chance of success. The denial of this unfettered freedom of choice is a denial of the equal protection of the laws as guaranteed by the Fourteenth Amendment."
Socialist Labor Party, at 987. Thus, the court granted the Socialist Labor Party relief to the extent of permitting write-in ballots despite Ohio law. On appeal, the United States Supreme Court affirmed this remedy. Williams, at 34-35, 89 S.Ct. at 12-13, 21 L.Ed.2d at 33-34. In addition, Andrews argues that Indiana Code section 3-1-31-2(15) provides him with the right to cast a write-in ballot. I.C. § 3-1-31-2 states:
Regardless of this statute, since repealed, or the federal and Supreme Court decisions and their possible impact upon Indiana law, the question of the right to cast a write-in ballot is not an issue in this case.