ATTORNEY FOR APPELLANT
Kenneth T. Roberts
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
CALVERT BAXTER, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9812-CR-751
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Ruth D. Reichard, Judge
The Honorable Cale Bradford, Judge
Cause No. 49G02-9710-CF-153318
ON DIRECT APPEAL
April 24, 2000
Calvert Baxter was found guilty of murder and sentenced to sixty-five years imprisonment.
In this direct appeal, Baxter raises seven issues for review: (1) whether
the State committed prosecutorial misconduct by charging a defense witness with the same
crime shortly before trial; (2) whether Baxter was prejudiced by a continuance granted
to the State; (3) whether the State put a witness on the stand
who it knew would perjure himself; (4) whether the jurors were improperly separated
after they started their deliberations; (5) whether an alleged improper communication between the
bailiff and jurors necessitates a new trial; (6) whether the evidence was sufficient
to convict Baxter of murder based on accomplice liability; and (7) whether imposition
of the maximum sentence for murder was proper. We affirm the conviction
for murder, but reduce Baxters sentence to fifty-five years.
Factual and Procedural Background
In the evening of June 14, 1997, Baxter, Michael Johnson, and Curtis Williams
drove from the south side of Indianapolis to pick up Vernell Woods at
86th Street and Allisonville Road on the north side. Baxter drove because
he was the only one who possessed a valid drivers license. On
the return trip, Johnson was in the front passenger seat, and Woods and
Williams were in the rear, with Woods on the passenger side.
46th Street and Allisonville, Kirsten Knoebel pulled out in front of them in
her mini-van, causing Baxter to swerve to avoid hitting her. Woods yelled
an obscenity out the window. When the two cars stopped at the
next light, Knoebel shouted a racial epithet at the group. Knoebel, Woods,
and Williams continued to scream back and forth at one another until the
light turned green. Woods told Baxter to follow Knoebel and Baxter complied.
According to Williams testimony, Woods normally carried a gun and had shown Williams
a weapon earlier in the evening. As the four pursued Knoebel, Woods
was playing with his side where the gun was stowed, and Johnson was
throwing trash or pennies out the window at Knoebel. Approximately midway in
the chase, according to Williams, he expressed concern that somebody else riding down
the . . . street might get injured. The chase continued.
Near 46th Street and Rookwood, approximately four miles from the first encounter, Baxter
pulled up beside Knoebel. Woods fired several shots at Knoebels van, breaking
the windows and striking Knoebel. After the shots were fired, Baxter turned
into a driveway, where the four remained for several seconds, screaming profanities.
Baxter then pulled back out, turned out the lights, and headed in the
opposite direction. According to both Williams and Baxter, after the shooting, Woods
said, [I]f anybody opens up their mouth about this, then theyre going to
be just like her.
Knoebels van continued along 46th Street and then swerved off across a lawn
at the Butler University campus and came to rest in the library parking
lot. At 12:03 a.m. on June 15, a campus police officer saw
Knoebels van parked at an odd angle in the Butler lot and found
Knoebel dead inside.
Baxter learned of Knoebels death on the news the next evening. Three
months later, on September 15, 1997, police received a tip implicating Woods and
Williams in the shooting. Police then located Baxter, who was a friend
of Woods, and Baxter told them that he had been the driver of
the car involved in the incident.
Baxter was charged with murder under an accomplice liability theory and also with
assisting a criminal. He was found guilty on both counts. After
merging the assisting a criminal conviction into the murder conviction, the trial court
sentenced Baxter to sixty-five years imprisonment, the maximum sentence for murder. Baxter
filed a motion to correct error, which the trial court denied. This
I. The States Continuance
Baxter argues that he was prejudiced when the trial court granted the States
motion for a continuance on December 24, 1997. Specifically, he argues that
Johnson, who had not yet been charged with a crime at the time
of the motion, would have been available to testify at trial if the
State had not been granted the continuance.
Courts do not favor continuances to allow more time to prepare for trial
and should grant these motions only where good cause is shown and it
is in the interests of justice.
Williams v. State, 681 N.E.2d 195,
202 (Ind. 1997). However, the granting of a motion for a continuance
on nonstatutory grounds
lies within the discretion of the trial court and will
be reversed only for an abuse of that discretion. See id.; Kindred
v. State, 540 N.E.2d 1161, 1177 (Ind. 1989) (citations omitted); Sims v. State,
521 N.E.2d 336, 338 (Ind. 1988); Mengon v. State, 505 N.E.2d 788, 791
(Ind. 1987). There is no abuse of discretion if the appellant was
not prejudiced by the continuance. Sims, 521 N.E.2d at 338.
The continuance in question was granted at the request of the prosecution after
it had located officials from the City of Indianapolis to conduct a study
of the traffic flow on the route along which Baxter followed Knoebel.
The State contended that this material would assist the trier of fact in
determining the Defendant[s] intent concerning these allegations. The States inability to obtain
this information earlier was alleged to be a result of the prosecuting attorneys
heavy trial calendar. At trial, this witness testified to the amount of
time it would have taken for Baxter to drive that route.
Because the State charged Johnson on December 29, 1997, and Baxters initial trial
date of December 15 had already been pushed back to January 5, 1998
due to the trial courts congested calendar, the grant of a continuance to
January 20, 1998 did not result in any prejudice to Baxter. There
was no abuse of discretion under these circumstances.
II. Prosecutorial Misconduct
Baxter maintains that the State committed prosecutorial misconduct by charging Johnson shortly before
Baxter was scheduled for trial and then refusing to grant Johnson use immunity.
Baxter argues that he was deprived of critical exculpatory evidence when Johnson
invoked his Fifth Amendment privilege against self-incrimination. Specifically, Baxter alleges that the
States decision to grant use immunity to Williams but not Johnson was made
with the deliberate intention of distorting the fact-finding process, and that for this
reason the conviction must be reversed. Baxters foundation for this claim is
that Johnson was not charged in October after his involvement in the incident
was first discovered, but rather two and a half months later, six days
before the trial was scheduled to begin and three weeks before it actually
Distortion of the fact-finding process may be established by showing: (1) that prosecutorial
overreaching, through threats, harassment, or other forms of intimidation, has effectively forced the
witness to invoke the Fifth Amendment, or the prosecutor has engaged in discriminatory
use of immunity grants to gain a tactical advantage; (2) the witness testimony
is material, exculpatory, and not cumulative; and (3) the defendant has no other
way to obtain the evidence. State v. Goudy, 689 N.E.2d 686, 696
(Ind. 1997) (citations omitted).
The States decision to charge Johnson and refuse him use immunity was reviewed
by the trial court at the hearing on Baxters motion to correct error.
The prosecution testified that the timing of the charge was a result
of Johnsons failure to cooperate and remain in touch with the police as
he had initially agreed. Johnson testified that he was unsure if he would
have testified even if he had not been charged. In addition, defense
counsel never asserted that the State had acted improperly. The contention in
the trial court was: We are merely seeking justice . . . and
if the jury heard the evidence of Mr. Johnson, they might have reached
a different result. The trial court then concluded that there had not
been prosecutorial overreaching, through threats, harassment, or otherwise.
We agree with the trial court that the record exhibits no evidence of
prosecutorial overreaching, and Baxter is not entitled to reversal on this basis.
III. Williams Testimony
Baxter claims that the State put Williams on the stand knowing that Williams
would give perjured testimony. It is well established that the knowing use
of perjured testimony constitutes grounds for reversal. See Evans v. State, 489
N.E.2d 942, 948 (Ind. 1986) (The knowing use of perjured testimony is fundamentally
unfair and a conviction obtained by the use of such testimony will not
be upheld.). It is equally clear, however, that contradictory or inconsistent testimony
does not constitute perjury, and that it is up to the jury to
resolve conflicting testimony. See id.
Baxter maintains that because the State had acquired information through Johnson and Baxter
implicating Williams as the shooter, the State knew that Williams testimony would be
perjured. At the hearing on the motion to correct error, the prosecutor
at trial testified that, [w]e just simply had the facts as we were
given them by the participants to the incident, and [a]t no time did
I feel comfortable that any of these people . . . was telling
the complete truth. According to the prosecutor, this was a fact-sensitive case
in which only the participants knew what had really happened, and therefore he
could not have known whether Williams would commit perjury on the stand.
Williams in-court testimony at trial varied significantly from his previous statements to the
authorities. In particular, his testimony bearing on Baxters knowledge of the events
in the back seat as the car pursued Knoebel varied from his earlier
accounts. Williams initially gave a statement in which he said that Woods
had brandished the gun at College Avenue, at least a mile before he
finally shot at Knoebel. At trial, however, he admitted only that Woods
was playing with his side, tending to indicate that Baxter would not have
known there was a gun in the car.
The trial court found that the State had not knowingly used perjured testimony.
Although Williams testimony was contradictory, there is no evidence that the State
knew what actually transpired or knew that Williams account on the stand was
false. Indeed, the trial testimony was more favorable to Baxter than the
pretrial account. The use of Williams testimony is not reversible error.
IV. Jury Separation
At some point during deliberations, the bailiff allowed three jurors to walk outside
to smoke. Baxter maintains that this separation of smokers from nonsmokers in
the midst of deliberations requires reversal. The jurors remained in the bailiffs
range of vision through a window, but not within his hearing. At
the hearing on the motion to correct error, the trial court found that
the separation was not improper, and noted that no objection was raised when
The rule regarding jury separation during deliberations is well established and strict.
Barring exigent circumstances, in a criminal trial the jury is to remain together
throughout deliberations and until a verdict is returned.
See Bradford v. State,
675 N.E.2d 296, 304-05 (Ind. 1996) (citing Follrad v. State, 428 N.E.2d 1201,
1202 (Ind. 1981)). Ordinarily, if the jury is allowed to separate, the
State must prove beyond a reasonable doubt that the verdict was not affected
by the separation and that the verdict is clearly supported by the evidence.
Pruitt v. State, 622 N.E.2d 469, 471 (Ind. 1993). We have
never been asked to consider whether a separation is permissible to allow jurors
who smoke to do so without requiring the nonsmokers to be in the
same room. This Court has held, however, that unless there is an
objection to the separation at the time it occurs, it is not properly
preserved for appellate review. See Bradford, 675 N.E.2d at 305. Baxter
did not object to the jury separation until the filing of the motion
to correct error and has therefore waived this argument for review.
V. Bailiffs Response to Jurors Question
Baxter alleges that his conviction must be reversed because of an alleged improper
communication between the bailiff and jury. When an improper communication takes place
between the bailiff and the jury, there [is] a presumption of harm to
the defendant that the State must rebut to avoid reversal. Alexander v.
State, 449 N.E.2d 1068, 1074 (Ind. 1983). Reversal may be avoided only
if no harm or prejudice to the defendant results. See Randall v.
State, 474 N.E.2d 76, 79 (Ind. 1985) (When an irregularity such as this
. . . occurs harm will be presumed, and if the irregularity is
not explained, a reversal of the judgment should follow. However, if an
explanation for the alleged misconduct is offered, and if this Court is satisfied
that no harm or prejudice resulted, then the judgment of the trial court
will not be disturbed.) (citations omitted). When the trial court has addressed
the issue of improper communications, we do not reweigh its determinations as to
the credibility of the witnesses. See Wilson v. State, 511 N.E.2d 1014,
1018 (Ind. 1987). Because this is a factual determination, it is subject
to a clearly erroneous standard of review. See Butler v. State, 724
N.E.2d 600, 603-04 (Ind. 2000).
Baxter challenged this alleged error at his hearing on the motion to correct
error. In an affidavit, one juror alleged that, after the jury had
been deliberating six to seven hours, the bailiff was questioned regarding what would
happen if the jury hung. Allegedly, the bailiff told jurors that [they] had
not been there long enough and to not even think about that.
This juror further stated that [t]he exchange did not affect the verdict as
far as I was concerned. The bailiff testified at the hearing on
the motion to correct error that he had not made this statement at
The trial court found that the alleged comment was not made by the
bailiff, and also concluded that, even if it had been made, there was
no evidence that it had affected the verdict. The trial courts finding
that no harm resulted to Baxter was not clearly erroneous.
VI. Sufficiency of the Evidence
Baxter contends that the evidence was insufficient to convict him of murder.
This Court will affirm the conviction if there is sufficient probative evidence from
which a reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Garrett v. State, 714 N.E.2d 618, 621 (Ind. 1999). We
do not reweigh the evidence or assess the credibility of the witnesses, id.,
and we consider only the evidence that supports the verdict and the reasonable
inferences to be drawn therefrom, Harrison v. State, 707 N.E.2d 767, 788 (Ind.
In order to be found guilty of murder based on accomplice liability, a
jury must find beyond a reasonable doubt that a defendant knowingly or intentionally
aid[ed], induce[d], or cause[d] another person to commit an offense. Ind. Code
§ 35-41-2-4 (1998). A defendants mere presence at the crime scene, or
lack of opposition to a crime, standing alone, is insufficient to establish accomplice
See Harris v. State, 425 N.E.2d 154, 156 (Ind. 1981).
These factors, however, may be considered in conjunction with a defendants course of
conduct before, during, and after the crime, and a defendants companionship with the
one who commits the crime. See id.
At trial, Williams testified that Woods was carrying a gun in his pocket
on the day of the crime, that Woods was fumbling with his side
in the back seat, and that Woods always carried a gun. Baxter
reported that he had grown up with Woods, knew Woods better than the
other passengers that night, and also knew that Woods had spent time in
prison. Williams also testified that, at one point, he expressed concern about
injuring another driver on the road, at which point everyone turned around.
Woods responded, urging that the chase continue. Despite Williams alleged urging to
abandon the chase, Baxter continued in pursuit of Knoebel for seven to ten
minutes. The jury was free to believe Williams testimony, even if contradictory,
tending to establish that Baxter was aware that Woods had a gun and
wanted to fire it at Knoebels van. The jury was also free
to infer from Baxters continued pursuit of the van that he was guilty
beyond a reasonable doubt of knowingly or intentionally aiding Williams in committing murder.
Thus, the evidence was sufficient to uphold the verdict.
VII. The Sentence
Baxter alleges that his sentence is manifestly unreasonable. Although this Court has
the constitutional authority to revise and review sentences, see Ind. Const. art. VII,
§ 4, it will do so only when the sentence is manifestly unreasonable
in light of the nature of the offense and the character of the
offender. Ind. Appellate Rule 17(B). This Courts review under Rule 17(B)
is very deferential to the trial court: The issue is not whether in
our judgment the sentence is unreasonable, but whether it is clearly, plainly, and
obviously so. Bunch v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (quoting
Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997)).
We conclude that this is one of those cases. The record before
the Court reveals that the nature of the offense, but more importantly, the
character of the offender is such that sentencing him to the maximum term
allowable is manifestly unreasonable. Throughout his adult life, Baxter held steady employment
with his father and elsewhere up until shortly after the murder. Baxters
former girlfriend testified that Baxter provided economic and financial support to their son
as well as played the role of father to her sons by another
man. The record also shows that Baxter remained in close contact with
his other child by his fiancée. Several friends and family members testified
at the sentencing hearing to his reputation for peacefulness, and to the support
he had provided them over the years. Baxter also exhibited remorse for
his role in Knoebels murder, although he continued to maintain that he did
not know Woods had a gun. Moreover, unlike the more typical accomplice
to a crime, Baxter had no inkling at the outset of the evening
that his association with Woods or Williams would result in any crime, much
less one with these tragic consequences.
Finally, Baxter offered some explanation for his criminal history, which was the sole
statutory basis for aggravating his sentence. Baxter had three arrests while he
was a juvenile, one of which resulted in a conviction, and three as
an adult, two resulting in convictions. None involved any violent offenses, and
three of the arrests involved mistaken identifications. According to Baxter, his only
conviction as a juvenile, for burglary and theft, consisted of entering an abandoned
school through an open window. Baxter stated that he remembered the burglary
part of the conviction, but not the theft, contending that nothing in the
building was worth taking. The other two arrests were for fighting, but
Baxter was released after it was determined that Baxters twin brother had been
in the fights.
As an adult, Baxter was first arrested and convicted for resisting law enforcement.
According to Baxter, he was arrested with a group of people, believing
he was rightfully where he was, when he kept walking after he was
told to freeze. Second, he was arrested for resisting arrest, but charges
were dismissed after it was determined the wrong person had been arrested.
Finally, his last arrest came after he was in a home in which
cocaine was found. He pleaded guilty to resisting law enforcement, a crime
he claims he did not know he had committed, in exchange for authorities
dropping a charge for possession of cocaine. Baxter successfully completed probation for
these misdemeanor convictions as an adult.
In view of Baxters uncertain criminal history, the evidence submitted regarding Baxters character,
and Baxters limited involvement in the murder of Knoebel,
it was manifestly unreasonable
to impose the maximum sentence allowable. We therefore remand to the trial
court with instructions to reduce Baxters sentence to the presumptive term of fifty-five
Baxters conviction for murder is affirmed. This case is remanded to the
trial court with instructions to reduce the sentence to fifty-five years.
SHEPARD, C.J., and RUCKER, J., concur.
SULLIVAN, J., concurs in parts I-VI and concurs in result in part VII.
DICKSON, J., dissents from the sentence reduction but otherwise concurs.
In Baxters statement to police, he placed Williams in the front
seat next to him, with Johnson and Woods in the back.
Judge Reichard presided over Baxters trial and sentencing. She recused
herself before the hearing on Baxters motion to correct errors, and the case
was reassigned to Judge Bradford.
Baxter also argues that, under Indiana Code § 35-36-7-2, the State
must show that the evidence is material and that it has not been
able to procure the evidence in the exercise of due diligence in order
to be entitled to a continuance. However, [t]he statute does not restrict
the courts discretionary powers. Instead it merely compels the granting of a
continuance under certain clearly delineated circumstances. Bates v. State, 520 N.E.2d 129,
131 (Ind. Ct. App. 1988).
Baxters trial was originally set for December 15, 1997, then rescheduled
due to court congestion for January 5, 1998, and rescheduled again for January
20, 1998 after the State was granted its motion for a continuance.
Johnson was charged on December 29, 1997, one week after the State had
moved for a continuance.
Cf. Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995) (considering defendants
lack of involvement in planning and initiating a murder and robbery, along with
other factors, in reducing a sentence).
Baxter also argues that the trial court abused its discretion in failing
to consider the mitigators presented in his sentencing submission. Because reduction of
the sentence to the presumptive is the relief Baxter seeks on appeal, the
conclusion that Baxters sentence was manifestly unreasonable renders superfluous discussion of this issue.