ATTORNEY FOR APPELLANT
Michael Gene Worden
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
JERMAINE S. BROWN, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9901-CR-46
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane E. Barker, Judge Pro Tempore
Cause No. 49G06-9707-CF-104531
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
March 15, 2000
BOEHM, Justice.
Jermaine S. Brown was convicted of the murder of Michael Webster and conspiracy
to commit that murder. He was sentenced to consecutive terms of sixty-five
years for murder and forty-five years for conspiracy. Brown appeals contending that:
(1) his right to a speedy trial under Criminal Rule 4 was violated;
(2) the trial court erred in overruling his immunity objection to the State’s
evidence; and (3) the trial court admitted inadmissible hearsay at trial. We
affirm the judgment of the trial court.
Factual and Procedural Background
On July 9, 1997, Ernestine Bonds was carjacked at gunpoint. Robert Bonds,
her son, attempted to locate the individual responsible. Two days later, Bonds
and several of his friends were at Brown’s house when Bonds received a
page, stated, “Revco, let’s go,” and left the house with at least two
other men.
That afternoon Webster was shot to death by a group of men in
the parking lot of a strip mall containing a Revco drugstore. After
the shooting, two cars fled the scene pursued by a police officer who
had heard the shots. The officer lost sight of one of the
cars, but followed a white Oldsmobile into an alley. The driver of
the Oldsmobile fled the scene, but the officer recognized him as either Brown
or his brother, Jewan. The car proved to be owned by Brown’s
girlfriend, who initially claimed it had been stolen, but later admitted that Brown
was using it with her permission.
The police located and questioned Brown and Jewan. Brown waived his rights
and gave a statement in which he said he was with his father
at the time of the shooting. On July 17, Brown was arrested
and charged with murder, conspiracy to commit murder, and carrying a handgun without
a license. Five months later, on December 2, Brown again waived his
rights and told police that he went to the Revco store because he
wanted to keep his little brother, Jewan, out of trouble. In this
account, when Brown arrived, he saw Jewan, Bonds, and a third man shoot
Webster, whereupon he returned to the Oldsmobile and fled.
Jewan and Bonds were tried together and found guilty of murder and conspiracy
to commit murder. See Bonds v. State, 721 N.E.2d 1238 (Ind. 1999);
Brown v. State, 720 N.E.2d 1157 (Ind. 1999). Brown testified at that
trial and was given immunity for the testimony. In his separate trial
Brown testified to essentially the same account he gave in his December 1997
statement. At Brown’s trial several eyewitnesses testified that Brown, Bonds, Jewan, and
possibly others arrived at the parking lot in three different cars. All
of these witnesses agreed that after identifying Webster the group approached him and
killed him. Their testimony conflicted as to who fired the shots.
An autopsy revealed that Webster had been shot with two different guns at
least seventeen times. Brown was found guilty of murder and conspiracy to
commit murder, but not guilty of carrying a handgun without a license.
I. Criminal Rule 4
Brown first contends that he should be discharged because his right to a
speedy trial under Criminal Rule 4 was violated. Criminal Rule 4(C) protects
a defendant’s right to a speedy trial as guaranteed by Article I, §
12 of the Indiana Constitution. See Wooley v. State, 716 N.E.2d 919,
923-24 (Ind. 1999). It requires the discharge of any defendant “held on
recognizance or otherwise to answer a criminal charge for a period in aggregate
embracing more than one year from the date the criminal charge against such
defendant is filed, or from the date of his arrest on such charge,
whichever is later . . . .” Criminal Rule 4(C). Brown’s
claim appears to be based on the dubious contention that delays due to
court congestion do not extend the one year period of Rule 4(C) unless
they result in a trial setting after that period expires. Cf. Isaacs
v. State, 673 N.E.2d 757, 762-63 (Ind. 1996); Andrews v. State, 441 N.E.2d
194, 199-200 (Ind. 1982).
Although a defendant is not obliged under this rule to push the matter
to trial, a defendant whose trial is set outside the one-year period must
object to the setting at the earliest opportunity or the right to discharge
under the rule is waived.
See Diederich v. State, 702 N.E.2d 1074,
1075 (Ind. 1998); Austin v. State, 682 N.E.2d 1287, 1287-88 (Ind. 1997).
The time period for Criminal Rule 4(C) begins on the later of the
date the information is filed or the date of the defendant’s arrest.
In this case, the information was filed on July 16 and Brown was
arrested on July 17, 1997. After several continuances due to court congestion,
on July 14, 1998, Brown’s trial date was set for October 5.
Brown acknowledges that he failed to object to the October 5 trial date
when it was set and failed to file a motion for discharge in
the trial court. He argues that this Court’s waiver rules impermissibly shift
the burden to bring the defendant to trial within a year from the
State to the defendant.
As this Court has often stated:
The purpose of [Criminal Rule 4] is to assure early trials and not
to discharge defendants. . . . [W]hen a ruling is made that
is incorrect, and the offended party is aware of it, or reasonably should
be presumed to be aware of it, it is his obligation to call
it to the court's attention in time to permit a correction. If
he fails to do so, he should not be heard to complain.
The courts are under legal and moral mandate to protect the constitutional rights
of accused persons, but this should not entirely relieve them from acting reasonably
in their own behalf. We will vigorously enforce the right to a
speedy trial, but we do not intend that accused persons should escape trial
by abuse of the means that we have designed for their protection.
Utterback v. State, 261 Ind. 685, 687-88, 310 N.E.2d 552, 553-54 (1974); accord
State ex rel. Wernke v. Superior Ct., 264 Ind. 646, 649, 348 N.E.2d
644, 646 (1976). We do not agree that the waiver rules for
Criminal Rule 4 impermissibly shift the burden of enforcement to the defendant or
are “uncalled-for burdens” on the defendant’s right to a speedy trial. To
the contrary, the requirement that a defendant object to a trial date set
after a Criminal Rule 4 deadline and move for discharge facilitates compliance by
trial courts with the speedy trial requirement. The objective of the rule
is to move cases along and to provide the defendant with a timely
trial, not to create a mechanism to avoid trial. Accordingly, if the
time period provided by the rule has not expired and a trial date
is set for a date beyond that period, a timely objection must be
made. The issue may not be raised for the first time on
appeal when it is too late to do anything but discharge the defendant.
Because Brown neither objected to the setting of the October 5, 1998
trial date nor moved the trial court for discharge, any claim of a
violation of Criminal Rule 4 is waived.
II. Immunity Objection
Brown also claims that the trial court erred in overruling his objection to
the State’s evidence, which he contends was derived from his testimony in his
co-conspirators’ trial. There is no dispute that Brown was given use and
derivative use immunity for his testimony. See generally In re Caito, 459
N.E.2d 1179, 1182-83 (Ind. 1984) (explaining use and derivative use immunity). Brown
contends that the State failed to demonstrate that it did not use his
testimony or any evidence derived from his testimony in the case against him.
The State responds that the prosecution established in a pretrial conference that
none of Brown’s testimony would be used against him. The State also
contends that Brown’s testimony was essentially the same as his statements to police
that were not made under a grant of immunity, and therefore nothing was
derivable from his testimony that was not equally available from his earlier nonimmunized
statements.
On October 5, 1998, shortly before the start of Brown’s trial, Brown objected
to the State’s evidence based on his grant of immunity. Specifically, he
claimed that the State had the burden to show that it would not
use his immunized testimony and that this burden could not be carried because
the information Brown had given had colored the way in which the investigation
was conducted and the witnesses were questioned. The State responded that it
would present both eyewitness testimony and Brown’s nonimmunized statements to the police.
The State contended that neither would use any information obtained from Brown’s immunized
testimony. The State also claimed that the witnesses in Brown’s co-conspirators’ trial
did not hear any of his testimony in that matter or see transcripts
of Brown’s testimony. The trial court concluded that “the State has established
that there is an independent source to the information that these witnesses provide”
and overruled Brown’s objection.
Indiana Code § 35-37-3-3 provides for the grant of use and derivative use
immunity for a witness in a trial. Once immunized, “any evidence that
the witness gives, or evidence derived from that evidence, may not be used
in any criminal proceeding against that witness.” Ind. Code § 35-37-3-3 (1998).
Both the United States Supreme Court and this Court have held that
use and derivative use immunity statutes are not unconstitutional infringements of the Fifth
Amendment privilege against self-incrimination.
See Kastigar v. United States, 406 U.S. 441,
462 (1972); Zicarelli v. New Jersey, 406 U.S. 472, 475-76 (1972); Caito, 459
N.E.2d at 1183-84. To ensure that the prohibition on using immunized testimony
against the witness was effective, the Supreme Court stated:
“Once a defendant demonstrates that he has testified, under a state grant of
immunity, to matters related to the federal prosecution, the federal authorities have the
burden of showing that their evidence is not tainted by establishing that they
had an independent, legitimate source for the disputed evidence.” This burden of
proof, which we reaffirm as appropriate, is not limited to a negation of
taint; rather, it imposes on the prosecution the affirmative duty to prove that
the evidence it proposes to use is derived from a legitimate source wholly
independent of the compelled testimony.
Kastigar, 406 U.S. at 460 (quoting Murphy v. Waterfront Comm’n, 378 U.S. 52,
79 n.18 (1964)). The same burden must be carried in a state
prosecution of an immunized witness. See Caito, 459 N.E.2d at 1184 (applying
Kastigar language to Indiana state courts).
The State has the “heavy burden of proving that all of the evidence
it proposes to use was derived from legitimate independent sources.”
Kastigar, 406
U.S. at 461-62. Although courts in this State have never addressed the
sufficiency of a Kastigar hearing, it requires more than generalized arguments about the
sources of the State’s evidence. See, e.g, United States v. Byrd, 765
F.2d 1524, 1532 (11th Cir. 1995) (courts generally resolve Kastigar issues with an
adversarial evidentiary hearing); State v. Peters, 637 N.E.2d 145, 149-50 (Ind. Ct. App.
1994). In this case, the hearing conducted by the trial court was essentially
an oral argument of counsel, not an evidentiary hearing. This is insufficient
to establish that the evidence used against Brown was obtained wholly through independent
sources, not through any of his immunized testimony. See Block v. Consino,
535 F.2d 1165, 1169 (9th Cir. 1976) (good faith allegations are not enough,
the government must show how it acquired the evidence).
Under these facts, however, it does not appear that a
Kastigar hearing was
necessary. Brown gave two statements to the police, one shortly before his
arrest and one five months later. Neither of these statements was subject
to his grant of immunity. At his trial, Brown testified that he
had earlier testified at his brother’s trial. He responded affirmatively when asked,
“And your testimony that you gave at the trial, was it substantially
the same thing that you said in the statement to the detective in
December?” In United States v. Lipkis, 770 F.2d 1447, 1451 (9th Cir.
1985), the Ninth Circuit held that there was no need for a full
hearing where “there were only minimal differences between the May 1980 nonimmunized statements
and the December 1980 immunized statements[.] [A] subsequent hearing would have served
no purpose. . . . Because the May and December statements were
substantially identical, all of the government’s information reasonably could have derived from the
May statements.” We agree with the Ninth Circuit that a full Kastigar
hearing is not required where the immunized testimony of the defendant/witness is already
in the public domain. Cf. United States v. Dynalectric Co., 859 F.2d
1559, 1580 (11th Cir. 1988) (a full hearing is not necessary in all
cases). Therefore, there was no error in failing to conduct a full
hearing or in allowing the State to present its evidence at trial.
III. Hearsay
Brown finally contends that the trial court erred by admitting inadmissible hearsay.
At trial, the State called Brown’s girlfriend, Shawntae Kelly. She was at
Brown’s home when she heard Bonds receive a page and state, “Revco, let’s
go.” Brown objected to her recollection of Bonds’ statements on the basis
of hearsay. The trial court ordered the State to lay a foundation
and then overruled a further objection by Brown. Brown claims that this
statement was hearsay and therefore should not have been admitted. The State
contends that “Revco, let’s go” is not an assertion capable of being true
or false and therefore is not hearsay.
Hearsay is an out of court statement, other than one made by the
declarant while testifying at a trial or hearing, offered to prove the truth
of the matter asserted. Ind. Evidence Rule 801(c). A statement is
hearsay only if it is offered to prove the truth of the matter
asserted in the statement. See 13 Robert L. Miller, Jr., Indiana Practice
§ 801.302 (2d ed. 1995). In this case, Kelly testified that Bonds
stated, “Revco, let’s go,” after receiving a page. This evidence was not
used to prove the truth of the matter asserted—that Webster was at Revco
or that Bonds and his associates were headed there. Rather, the statement
was used to show that there was prearrangement by Brown and the other
conspirators. As such it was not hearsay. See Buie v. State,
633 N.E.2d 250, 255 (Ind. 1994), abrogated on other grounds by Richardson v.
State, 717 N.E.2d 32, 49 (Ind. 1999); see also United States v. Guyton,
36 F.3d 655, 658 (7th Cir. 1994). The trial court did not
err by allowing Kelly’s testimony of Bonds’ statement.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.