Pigg v. State

BAKER, Judge.

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).¹

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 Pigg with the cocaine Darden purchased in the December 1988 transaction. In August 1990, a jury convicted Cook on five of seven pending charges, including charges stemming from the December 1988 transaction, and Judge Brubaker sentenced her to an aggregate term of 80 years' imprisonment. While in prison on these convictions, Cook continued to send unsolicited letters to Judge Brubaker. In one of these letters, Cook offered to testify against Pigg. The letter was eventually reviewed by the Prosecutor's office, but in the end, Cook, who had previously been listed as a defense witness, did not testify for either the State or Pigg. Pigg argues this history, coupled with the fact Judge Brubaker rejected two plea agreements between Pigg and the State, leads to the conclusion Judge Bru-baker was biased against him. He is mistaken.

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 disclosing his address or other personal information, then the judge has the discretion to refuse to allow the inquiry. "If the trial judge concludes that the defendant does not have a right to the exact address of the witness and his employment, the defendant is entitled to ask any other relevant questions which may aid the jury in weighing the witness' credibility." Id. at 1199.

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.

BARTEAU, J., concurs with separate opinion. SULLIVAN, J., concurs with separate opinion and joins BARTEAU, J., in her concurring opinion.

1 . IND. CODE 35-48-4-1(b)(3)(A).