Nikos C. Nakos
Priscilla J. Fossum
Clifford, Larmore & Nakos
Fort Wayne, Indiana Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Nikos C. Nakos
Priscilla J. Fossum
SHERMAN ANDRE JAMES,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
September 30, 1999
Defendant Sherman Andre James was tried for murdering an acquaintance. The trial ended in a hung jury. Fourteen months later, Defendant was retried and convicted of
a class A felony. Finding no trial court error, we reject Defendant's several
challenges to his conviction, including a right to speedy trial violation under Ind. Crim. Rule
4(B)(1) and 4(C).
We have jurisdiction over this direct appeal because the sentence exceeds 50 years.
Ind. Const. art. VII § 4; Ind. Appellate Rule 4(A)(7).
On March 20, 1996, Defendant was tried for the murder of Lawson but the jury was unable to reach a verdict. On September 9, 1996, Judge Surbeck set a retrial date of September 24, 1996. Defense counsel objected to this trial date, arguing that a computer error in the juror polling system excluded minority residents. Defense counsel agreed to
continue the retrial to a later date when a more fair and representative jury panel could be
selected. However, the next available trial date on Judge Surbeck's calendar was not until
May 27, 1997. In order to secure an earlier date, Judge Surbeck arranged for a different
judge, Judge Scheibenberger, to preside over the trial on January 21, 1997.
When that date arrived, Judge Scheibenberger was unable to preside because of a
conflict with another trial. After consulting with Judge Surbeck, Judge Scheibenberger
placed Defendant's case back on Judge Surbeck's calender for a trial on May 27, 1997.
This date was fourteen months after the date of the original trial. Defense counsel objected
to this trial date and orally requested a speedy trial under Ind. Crim. Rule 4(B)(1). Judge
Scheibenberger noted that the continuance of the retrial date was due to the court
On May 27, 1997, the date of the retrial, defense counsel filed a motion to dismiss requesting Defendant's discharge pursuant to Ind. Crim. Rule 4(B)(1) and 4(C). The trial court set forth findings explaining the court congestion that delayed Defendant's trial. The trial court then denied Defendant's motion to dismiss. On the same day, defense counsel also filed a motion for recusal alleging an improper ex parte communication between the deputy prosecutor and Judge Surbeck. The motion for recusal was also denied. Defendant was retried and found guilty of murder.
not held between January 21 and May 27, 1997.See footnote
This Court has held that Crim. R. 4(B)(1) applies to retrials. Poore v. State, 685
N.E.2d 36, 41 (Ind. 1997) (holding that the time limits for a speedy trial provided for in
Crim. R. 4(B) apply to a retrial following successful appeal of a habitual offender
enhancement); Young v. State, 482 N.E.2d 246, 249 (Ind. 1985) (holding that Crim. R. 4(B)
applies to a retrial following a successful appeal provided that the defendant makes a Crim.
R. 4(B) request after the retrial has been ordered).
In Clark v. State, this Court established the burden a defendant must meet when claiming a Crim. R. 4(B)(1) violation as well as the standard of appellate review upon denial of such a claim. 659 N.E.2d 548, 552 (Ind. 1995). Clark held that an appellate court will presume that a trial court's finding of congestion is valid. A defendant may overcome this presumption by demonstrating that the finding of congestion was factually or legally inaccurate. Such proof establishes a prima facie case for discharge unless the trial court sets forth an explanation for congestion. If the trial court provides further findings which explain the congestion and justify the delay, the appellate court will give reasonable deference to the trial court's explanation. The burden then shifts back to the defendant to
establish that he is entitled to relief of discharge by showing that the trial court was clearly
In this case, Defendant presented evidence in support of his motion to dismiss that there were a number of dates on which trials were not held between January 21 and May 27, 1997. (Motion to Dismiss, R. at 96; Br. of Appellant at 11). We find this evidence establishes a prima facie case for discharge.
However, we also find that the trial court provided the requisite further findings
explaining the congestion and justifying the delay. The court noted its policy that a speedy
trial is set on the first day available when there is no other speedy trial set. (R. at 286.)
The court expressly stated that Defendant's speedy trial was set on the first available speedy
trial date, which was May 27, 1997. This accords with Clark's mandate that speedy trial
requests under Crim. R. 4(B) require particularized priority treatment with trial dates
superseding those designated for civil cases and criminal cases in which Crim. R. 4
deadlines are not imminent. Clark, 659 N.E.2d 551. The court also explained that from
January 1997 to May 1997, cases had been scheduled but were not tried due to last minute
needs for continuance or last minute guilty pleas which left these days open, and that these
open days could not have been anticipated on January 21, the day the court re-scheduled the
trial. (R. at 242-43, 286.)
jury polling system. This initial delay is attributable to neither Defendant nor the trial court.
The next date for retrial was scheduled for January 21, 1997. However, due to trial court
congestion, this case was then rescheduled for May 27, 1997. For reasons discussed in Part
1-A supra, we find that this delay was not unreasonable.See footnote
herself from a proceeding. Ind. Judicial Conduct Canon 3(E)(1)(a);See footnote
Edwards, 694 N.E.2d
at 710. The test for determining whether a judge should recuse himself or herself under Jud.
Canon 3(E)(1) is whether an objective person, knowledgeable of all the circumstances,
would have a reasonable basis for doubting the judge's impartiality. Id.
Defendant contends that the judge engaged in misconduct in multiple respects, most of which we view as claims not of misconduct but of trial court error. As claims of error, these contentions, to the extent they are not reviewed elsewhere in this opinion, are not sufficiently supported to warrant review. Ind. Appellate Rule 8.3(A)(7). Three of the arguments warrant review as contentions of judicial misconduct.
Canon 3(B)(8)(a)(ii).See footnote
Generally, the Code of Judicial Conduct prohibits a judge from engaging in ex parte
conversations which relate to pending proceedings. Jud. Canon 3(B)(8); Bell v. State, 655
N.E.2d 129, 131 (Ind. Ct. App. 1995). An exception to this general rule is found under Jud.
Canon 3(B)(8)(a), which permits ex parte communications for scheduling, administrative
purposes, or emergencies that do not deal with substantive matters of a pending case. Under
this exception, the judge must (1) reasonably believe that no party will gain a procedural or
tactical advantage; and (2) promptly notify all other parties of the substance of the ex parte
communication and allow an opportunity to respond. Id.
In the present case, a police officer witness recalled on the eve of retrial that Defendant had confessed to him shortly after the murder. The officer had had no recollection of such a confession during Defendant's first trial. Given the nature of this
development, the prosecuting attorney immediately alerted the judge about this new
information. The prosecuting attorney told the judge that he would promptly inform defense
counsel about the alleged confession, and the prosecutor did so immediately. Relying upon
the prosecuting attorney's good faith, the judge found that it was unnecessary to call defense
counsel about the alleged confession. The judge stated for the record, I was satisfied that
notice would be had . . . . (R. at 312.) The judge said that he had not engaged in any
substantive discussion concerning the alleged confession.See footnote
In fact, the judge told the
prosecuting attorney that they would talk about the matter the following week when all
parties could discuss it together on the record.
We find, as the trial court did, that this ex parte communication was either
administrative in nature or an emergency and therefore fell within the exception of Jud.
Canon 3(B)(8)(a). We also agree with the trial court determination that under these
circumstances, neither party gained any procedural or tactical advantage as a result of this
communication. The trial court did not err in denying Defendant's motion for recusal with
regard to the ex parte communication.
appeal. Id. We therefore take such claims very seriously. Here our review of the record
strongly suggests that the trial judge shut off the recording device only after counsel was
given an adequate opportunity to make a record of his objection against sending photo
exhibits into the jury room. (R. at 229-32, 236, 734-35.) In any event, Defendant makes no
showing whatsoever of any additional argument that the judge prevented defense counsel
from presenting or of how he was prejudiced by the judge's actions. Absent such a
showing, he is not entitled to relief.
(1) That the jury was not to give any consideration of any kind to
Defendant's prior trial;
(2) That while the exhibits would be sent to the jury room for use during deliberations, the jury should not give any particular exhibit undue influence and not allow any particular exhibit to exert undue influence;
(3) That transcripts, witness statements, police reports, and similar materials would not be sent to the jury room; and
(4) That the two alternate jurors were not to involve themselves in deliberations in any way.
(R. at 729-31.)
While it would not have been inappropriate to reduce such matters to writing, we think the topics addressed were sufficiently ministerial in nature that the court did not abuse its discretion by reciting them. In any event, we find nothing in the record to suggest that Defendant requested these cautionary instructions be reduced in writing. Defense counsel objected to the oral cautionary instructions only after the jury retired for deliberations. Failure to timely object to a jury instruction waives a claim of error on appeal, unless the
claim of error rises to the level of fundamental error. Sanchez v. State, 675 N.E.2d 306,
308-09 (Ind. 1996); see also Ind. Trial Rule 51(C) (No party may claim as error the giving
of an instruction unless he objects thereto before the jury retires to consider its verdict,
stating distinctly the matter to which he objects and the grounds of his objection.)
(emphasis added). We find that in failing to object timely to the oral cautionary
instructions, Defendant waived such error on appeal. Furthermore, we find no basis for
concluding that there was fundamental error in this regard.
Lastly, Defendant argues that the trial court abused its discretion when the court
excused a juror during deliberation. But in fact, the record shows that trial court released
an alternate juror after deliberations had begun because the juror's wife was ill. As the jury
completed deliberations and returned a verdict without the assistance of any alternate jurors,
Defendant can show no prejudice.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
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