Ann M. Pfarr
Jeffrey A. Modisett
Arthur Thaddeus Perry
Indianapolis, IndianaAttorney for Appellee
Attorney General of Indiana
Deputy Attorney General
Ann M. Pfarr
Jeffrey A. Modisett
Arthur Thaddeus Perry
Appellant (Defendant below),
STATE OF INDIANA
Appellee (Plaintiff below).
) Supreme Court No.
on murder, he was convicted at a third trial and sentenced to 60 years. He now appeals,
claiming a speedy trial right violation and improper use of certain evidence. We affirm,
finding no speedy trial right violation and any error in admitting the evidence to be
This Court has jurisdiction over this direct appeal because the sentence exceeds 50
years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).
On July 17, 1985, Defendant was tried for the murder of Golden. The jury convicted
Defendant of Robbery,See footnote
Conspiracy to Commit Robbery,See footnote
Conspiracy to Commit Murder,See footnote
and Felony Murder.See footnote
The trial court followed the jury's recommendation and
sentenced Defendant to death. On March 10, 1989, this Court affirmed the trial court
judgment as to Defendant's convictions and sentence of death. See Underwood v. State,
535 N.E.2d 507 (Ind.), cert. denied., 493 U.S. 900 (1989).
On April 21, 1995, a post-conviction court granted Defendant's motion for summary judgment for post-conviction relief, vacated Defendant's convictions, and ordered a new trial. On June 20, 1995, Defendant, acting pro se, filed a motion for a fast and speedy trial. (R. at 25-26.) On July 5, 1995, the trial court appointed new counsel to represent
Defendant and set a retrial date for August 14, 1995 (a date within the prescribed 70 days
of Ind. Crim. Rule 4(B)). On July 28, 1995, defense counsel explained at a pre-hearing
conference, over what Defendant claims was his objection,See footnote
that he would not be adequately
prepared for trial on August 14, 1995. The court stated that Defendant's right to counsel
was more fundamental than the right to a speedy trial and rescheduled Defendant's retrial
for March 18, 1996.
On February 23, 1996, Defendant, again acting pro se but still represented by counsel, filed a motion to dismiss all charges on grounds that his right to speedy trial had been violated. On February 28, 1996, defense counsel filed a motion for continuance on grounds that he had to prepare and try other capital cases. The court granted counsel's request. On March 1, 1996, Defendant submitted a written letter to the court, reiterating his right to a speedy trial. On April 19, 1996, defense counsel filed a memorandum of law requesting a continuance of retrial on grounds that it was necessary for effective assistance of counsel. On April 26, 1996, the court denied Defendant's February 23 motion to dismiss. On June 13, 1996, Defendant, by defense counsel, filed another motion to continue retrial, or in the alternative, a motion to exclude the testimony of Huffman, the co-defendant in Defendant's first trial. On June 14, 1996, the court rescheduled the trial for a second time,
setting the retrial date for August 19, 1996.
On August 19, 1996, Defendant was retried and acquitted on the charges of Robbery,
Conspiracy to Commit Robbery, and Felony Murder. However, the jury was unable to
reach a verdict on the Murder and Conspiracy to Commit Murder charges. After the end of
the first retrial, the State withdrew the death penalty charge. On February 7, 1997, a second
retrial began and a jury found Defendant guilty of Murder and Conspiracy to Commit
On February 22, 1997, at Defendant's sentencing hearing, the trial court vacated
Defendant's Conspiracy to Commit Murder conviction. The trial court then sentenced
Defendant to 60 years in prison for the murder of Golden. Defendant's murder conviction
and sentence are the sole basis for this direct appeal.
Neither the parties nor the recordSee footnote 7 indicate that the court congestion exception to Crim. R. 4(B) explained the delay of the retrial. With regard to the other exception, the crucial question is whether Defendant caused the delay preventing him from discharge . Defendant concedes that defense counsel moved for a continuance resulting in the court rescheduling the retrial from August 14, 1995, to March 18, 1996. However, Defendant maintains that because defense counsel moved for continuance despite [his] objection, he
is still entitled to discharge under Crim. R. 4(B).
In response, the State argues, and we
agree, that Defendant moved for several continuances resulting in delays, and therefore,
Defendant is not entitled to discharge.
In the present case, the trial court was required to appoint new counsel for Defendant
after he was granted post-conviction relief. It may be that Defendant sought a speedy trial
on a pro se basis prior to counsel's appointment and objected to counsel's request for a
continuance. But once counsel was appointed, Defendant spoke to the court through
counsel. The trial court was not required to respond to Defendant's request or objection.
See Broome v. State, 687 N.E.2d 590, 594 (Ind. Ct. App. 1997) (citing Kindred v. State, 521
N.E.2d 320, 325 (Ind. 1988); Bradberry v. State, 266 Ind. 530, 537, 364 N.E.2d 1183, 1187
(1977)), summarily affirmed in relevant part, 694 N.E.2d 280 (Ind. 1998). To require the
trial court to respond to both Defendant and counsel would effectively create a hybrid
representation to which Defendant is not entitled. Id.; cf. Sherwood v. State, 717 N.E.2d
131, 134-37 (Ind. 1999) (holding that the trial court may not require hybrid representation
where a defendant makes a proper request to proceed pro se).See footnote
To the extent that Defendant claims that counsel's motion for continuance should have been denied, we find no error. Newly-assigned counsel explained to the court that he
needed more time to prepare adequately for a murder trial in which the State sought the death penalty. See Ind. Crim. Rule 24(B).See footnote 9 To represent Defendant effectively, defense counsel had to familiarize himself with the complexities of this case _ a capital murder case in which Defendant had already once been sentenced to death _ and develop a trial strategy. The trial court has the prerogative, particularly in a murder case, to assess the complexities of the situation and evaluate the necessity to delay the trial. See Roseborough v. State, 625 N.E.2d 1223, 1225 (Ind. 1993) (holding no violation of Crim. R. 4(B) where the trial judge extended the trial date after newly-appointed counsel explained that he needed further time to prepare a murder case); see also McGowan v. State, 599 N.E.2d 589, 592 (Ind. 1992) (ruling that no violation of Crim. R. 4(B) occurred even though the defendant personally objected to a trial continuance because it was within the trial judge's discretion to decide that newly-appointed counsel required more time to adequately prepare). There was no error in the exercise of that prerogative here.
In Little v. State, this Court adopted the doctrine of collateral estoppel as an analytical basis for determining the admissibility of evidence of former offenses for which
a defendant has been acquitted. 501 N.E.2d 412, 415 (Ind. 1986). The concept of collateral
estoppel means simply that when an issue of material fact has once been determined by a
valid and final judgment, that issue cannot again be litigated between the same parties in any
future lawsuit. Id. at 414 (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). To
determine whether evidence relating to an acquitted offense should be admitted, the trial
court must (1) determine what facts were necessarily decided in the first trial by examining
prior proceedings and considering the pleadings, evidence, the charge and other relevant
matters; and (2) decide whether the government in a subsequent trial attempted to relitigate
facts necessarily established against it in the first trial. If so, evidence of the former offense
must be suppressed. Little, 501 N.E.2d at 415.
We hold that if the use of the facts presented in the first retrial in which Defendant was acquitted was error at all, the error was harmless. To find an error harmless when a violation of a constitutional right is claimed, this Court must be sufficiently confident to declare the error harmless beyond a reasonable doubt. See Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991); see also Williams v. State, 715 N.E.2d 843, 847 (Ind. 1999) (recognizing that some constitutional errors do not require a new trial if the error was 'harmless beyond a reasonable doubt' (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
Without considering the references made regarding the robbery of Golden, the evidence presented to the jury in this case was overwhelming. Two State witnesses,
Huffman and Asbury, testified that they saw Defendant severely kick and beat the victim to
death with an iron tool. In fact, Huffman's testimony revealed that [Defendant] had picked
[Golden] up by his penis and was trying to carry him [and] drag him back towards the car
. . . . (R. at 904.) Asbury testified that Defendant said that the three of them had to kill
Golden because Golden could identify them as the perpetrators who beat him.
Asbury further testified that after they killed Golden, the three stopped at a gas
station to fix the muffler on Huffman's car and Defendant washed his bloody T-Shirt in the
restroom. The gas station attendant testified that on the night of the murder, he observed a
car with a loose muffler pull into the gas station. The attendant further testified that shortly
after he and Defendant exchanged a few words, he went to the restroom and discovered
bloody water and towels. The attendant made an in-court identification that Defendant was
the person who he spoke to at the gas station.
In light of this overwhelming evidence of guilt, we are confident that, to the extent that the trial court improperly denied the motion in limine, any claimed error was harmless beyond a reasonable doubt. See, e.g., Kuchel v. State, 570 N.E.2d 910, 915-17 (Ind. 1991) (holding that although the trial court erroneously admitted evidence of other crimes for which the defendant had been acquitted, admission of such evidence constituted harmless error).
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
(B)(3) Workload of Appointed Counsel. In the appointment of counsel, the
nature and volume of the workload of appointed counsel must be considered to
assure that counsel can direct sufficient attention to the defense of a capital case.
(a) Attorneys accepting appointments pursuant to this rule shall provide each client with quality representation in accordance with constitutional and professional standards. Appointed counsel shall not accept workloads which, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations.