John L. Davis
Jeffrey A. Modisett
Cynthia L. Ploughe
Bonnie K. Wooten
Pritzke & Davis
Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
John L. Davis
Jeffrey A. Modisett
Cynthia L. Ploughe
CHARLES EDWARD SWEENEY, JR.,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
Defendant Charles Edward Sweeney, Jr., appeals his conviction for Murder.See footnote 1 Defendant was
sentenced to 60 years. We have jurisdiction over this direct appeal because the longest single
sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind.Appellate Rule 4(A)(7). We affirm defendant's conviction and sentence.
On May 28, 1991, the victim, Danny Guthrie, left his family to go fishing with defendant.
Guthrie did not return home that evening and his wife assumed that he decided to camp over with
defendant. The next morning defendant called to see if Guthrie wanted to check the trout lines.
Guthrie's wife informed the defendant that Guthrie never returned home and the defendant told
Guthrie's wife that he brought Guthrie home between 4:00 and 6:00 p.m. the previous day. After
several unsuccessful attempts to obtain more information from defendant, Guthrie's wife called the
police. On May 29, 1991, Detective Kramer, the lead investigator, and other police officers
questioned the defendant at his home. However, no arrest was made and Guthrie remained missing.
In February, 1992, defendant was investigated by the Bureau of Alcohol, Tobacco and Firearms for placing a pipe bomb under Detective Kramer's police car.See footnote 2 After being charged for these offenses, defendant entered into a plea agreement with the U.S. Attorney's Office on June 26,
1992. Pursuant to the plea agreement, defendant pled guilty to placing the bomb under Kramer's
car, agreed to implicate all others involved in the bombing and also to disclose the whereabout of
Guthrie's body and any information relating to the cause of Guthrie's death.See footnote
defendant's story as communicated to federal authorities as follows.See footnote
According to defendant, on the return trip from the fishing expedition, defendant agreed to give Guthrie approximately 150 marijuana plants in exchange for a saddle. Immediately after arriving at defendant's home, defendant explained to Guthrie where the marijuana plants were located and provided Guthrie with a shovel, two buckets, and a 9 mm gun for protection. Defendant claimed that he then went to play bingo at the Sellersburg Moose Lodge and did not see Guthrie again that evening.See footnote 5 The next day (May 29, 1991), after Guthrie's wife claimed that Guthrie never came home, defendant alleges that he went to look for Guthrie and found him dead with a gunshot wound to the head. He also found the 9mm gun that he had given Guthrie the day before with one round missing and an empty shell casing a foot or two south of Guthrie's body. Because defendant did not want the police to discover the marijuana, he dragged Guthrie's body to a ditch located behind a trailer
and buried the body with sweet lime and covered it with dirt and trash. He then threw the shell
casings in a creek, and placed one shoeSee footnote
and a pair of sunglasses in the burn barrel by his trailer.
Defendant also buried the gun in an ammunition can near his home, but at a later date retrieved the
gun and had it in his possession for personal protection. Defendant told the authorities that eventually the gun was seized from him in the State of Utah as a result of a routine traffic violation. At all
times, defendant proclaimed his innocence.See footnote
On July 1, 1992, the police obtained a search warrant for defendant's property and located
Guthrie's body in the area described by defendant. An autopsy was performed on the body on July
2, 1992, and the medical examiner positively identified the body as that of Daniel Guthrie. The
examiner also retrieved the bullet that caused Guthrie's death. The bullet and the 9mm gun that was
confiscated from defendant by a Utah police officer was sent to the Bureau of Alcohol, Tobacco and
Firearm Laboratory. The Bureau confirmed that the bullet that killed Guthrie had been fired from the
9mm gun belonging to the defendant.
On August 10, 1992, Judge Donahue in the Clark Circuit Court issued a warrant to arrest the defendant for the murder of Guthrie. On October, 8, 1992, upon the State's request, Judge Donahue issued a writ of habeas corpus ad prosequendum (a writ of habeas corpus ad prosequendum is referred to in this opinion as a Writ) so that the State could obtain temporary custody of defen
dant. At that time, defendant was incarcerated in federal prison in Louisville, KentuckySee footnote
scheduled to be sentenced that very same day by Judge Barker in the United States District Court for
the Southern District of Indiana.See footnote
The defendant was transported to Clark County shortly after the
Writ was issued. On October 22, 1992, defendant filed a Motion to Quash the Writ, and a hearing
was held on the motion on November 10, 1992. The focus of the hearing concerned whether the
State had jurisdiction over the defendant. Defendant argued that before he was sentenced in federal
court, the State could have sought temporary custody of him through the use of the Writ, but once
defendant was sentenced, the State was obligated to follow the procedures set forth in the Interstate
Agreement on Detainers (referred to in this opinion as the IAD).See footnote
In order to avoid conducting
a trial and then having a higher court decide that the trial court had no jurisdiction over defendant,
Judge Donahue decided that the safer approach would be to return defendant to federal prison and
proceed appropriately. Consequently, Judge Donahue granted defendant's motion and ordered that
the Writ be held for naught and declared void.
On April 22, 1993, the State dismissed charges against the defendant, and defendant was sent back to federal prison in Kentucky. The State refiled charges on March 30, 1994. On August 1,
1994, upon the State's request, Judge Donahue granted another writ of habeas corpus ad prosequendum so that the State could obtain temporary custody of defendant. At this time, defendant was
being held at the Federal Correctional Institution in Manchester, Kentucky. For the second time,
defendant was transported to Clark County. In response, defendant filed a Motion to Quash the Writ
on September 13, 1994, and on October 3, 1994, Judge Donahue held a hearing on this matter.
Once again, defendant contended that the IAD was the exclusive means of obtaining temporary
custody of defendant. Additionally, defendant argued that the circumstances surrounding the
issuance of both Writs were identical and that because the issue had been litigated, the doctrine of res
judicata and collateral estoppel applied. Judge Donahue denied defendant's Motion to Quash the
Writ, relying on the fact that defendant's custody status had changed since the first Writ was issued.
A jury trial was conducted on November 14, 1995, and defendant was found guilty the
murder of Guthrie. The trial court sentenced defendant to 60 years to be served upon the completion
of his federal sentence of 210 months.
Additional facts will be provided as necessary.
Defendant raises the following claims on appeal: (1) the trial court erred in denying his motion to quash the second writ of habeas corpus ad prosequendum; (2) defendant was denied his statutory and constitutional right to a speedy trial; (3) the trial court erred in refusing to suppress
defendant's pre-trial statements; (4) the trial court erred in denying defendant's motion to suppress
the handgun; (5) defendant was denied the right to cross-examine witnesses; (6) the trial court
erred in denying the defendant credit time for pre-trial detention; (7) the trial court failed to
articulate the reasons for sentencing defendant to a term of years consecutive with his federal
sentence and used an improper factor to enhance defendant's sentence; (8) the trial court refused to
admit certain statements provided by defendant; (9) the trial court refused to allow testimony
concerning other possible reasons for the death of the victim; and (10) the State failed to establish
the corpus delicti for the Murder.
Defendant contends that the trial court erred in denying his motion to quash the second Writ.
As discussed in Background supra, defendant's motion to quash the first Writ was granted. In
defendant's motion to quash the second Writ issued against him, defendant argued that because both
the first and second Writs were identical, the issue had been litigated in the hearing on the first Writ.
As such, the doctrine of res judicata applied to bar enforcement of the second Writ. We disagree
The principle of res judicata prevents the repetitious litigation of that which is essentially the same dispute. Wagle v. Henry, 679 N.E.2d 1002, 1005 (Ind. Ct. App. 1997) (citing Scott v. Scott, 668 N.E.2d 691, 699 (Ind. Ct. App. 1996)). For principles of res judicata to apply, there must have been a final judgment on the merits and that judgment must have been entered by a court of compe
tent jurisdiction. Matter of Sheaffer, 655 N.E.2d 1214, 1217 (Ind. 1995).See footnote
In his motion to quash the first Writ, defendant argued that the IAD provided the exclusive means by which the State could secure his presence for trial and that a Writ was not available for this purpose. Our statute authorizing Writs provides that it may be used to seek the presence for criminal trial in state court of a defendant "who is confined in a federal prison." Ind. Code § 35-33-10-5. The record indicates that at the time the first Writ was issued, defendant had not yet been sentenced on federal charges and was being held on behalf of federal authorities in a Kentucky state correctional facility. Our review of the record indicates that the trial court concluded that, under these circumstances, the defendant was not confined in a federal prison within the meaning of the Writ statute. See R. at 527-28. The trial court granted the motion to quash the first Writ because, not yet having been sentenced on federal charges (albeit guilty thereof) and not being confined in a federal prison (albeit in custody for federal offenses), only the IAD and not the Writ procedures were available to the state to secure defendant's presence for trial. (The mutual availability of IAD and Writ procedures is discussed in part II, infra; it is not essential to do so here.) However, we hold that the trial court made no determination that the Writ procedures would be unavailable at some future time should defendant be sentenced and confined in a federal prison. (This is in fact what happened). As such, in granting defendant's motion to quash the first Writ, the trial court only held that the Writ was not available to secure the presence for trial of the defendant given defendant's
custody status at the time the first Writ was issued. This is clear from the trial court's findings and
conclusions denying the motion to quash the second Writ:
4. It is unclear from the Order of November 10, 1992, the grounds upon
which the Writ was quashed. No Findings of Fact or Conclusions of Law were
entered. During the argument on the Motion in 1992, some argument was had
relating to the custody status of the Defendant. At the time of the Motion in 1992,
the Defendant was not housed in a federal prison. When the 1994 Writ was issued
and served, the Defendant was housed in a federal prison at the Federal Correctional
Institution in Manchester, Kentucky.
5. I.C. 35-33-10-5 requires that the Defendant be confined in a federal prison or other institution before a Writ of Habeas Corpus Ad Prosequendum may issue.
6. In light of the general nature of the 1992 Order quashing the Writ, and in light of the Defendant's change of custody status since 1992, the issue now facing the Court cannot be said to have been litigated and determined previously. It cannot be said that the 1992 Order determined that a Writ of Habeas Corpus Ad Prosequendum would forever be an improper means of securing the attendance of a Defendant in federal custody. On this basis, the doctrines of res judicata and collateral estoppel do not bar litigation of the issues raised by the 1994 Writ of Habeas Corpus Ad Prosequendum and the Defendant's Motion to Quash.
(R. at 85-86.)
Because the trial court's determination to grant the motion to quash the first Writ was a
function of the defendant's custody status at the time the first writ was issued, res judicata did not
preclude the trial court from reaching a different determination after defendant's custody status had
changed. See Matter of a Search Warrant, 448 N.E.2d 1089, 1094 (Ind. Ct. App. 1983)("Each
search warrant application was a distinct justiciable matter, supported by independent proof.").
Defendant claims that he was entitled to have the murder charges against him dismissed
because the State violated the anti-shuffling provision of the IAD. In general, the IAD prohibits the
transporting of defendants back and forth between jurisdictions. Defendant contends that by being
transported back and forth between Indiana and Kentucky (as described in Background supra), the
anti-shuffling provision of the IAD was violated. Defendant's argument is correct if in fact the IAD
is applicable in this case. See generally State v. Greenwood, 665 N.E.2d 579, 583 (Ind. 1996) (the
IAD requires dismissal with prejudice if the prisoner is returned to the first state prior to trial).
Analyzing defendant's claim requires a discussion of two Indiana statutes _ Ind. Code § 35-
33-10-4 (1988), adopting the IAD, and Ind. Code § 35-33-10-5 (1988), providing for Writs. While
the statutes are separate and distinct, they have similar purposes in that both set forth procedural
safeguards for securing the presence of a prisoner in Indiana who is located in a foreign jurisdiction.See footnote
See generally United States v. Kenaan, 557 F.2d 912, 915 (1st Cir. 1977).
sentences may be imposed on him or if and when he would be able to employ the education and skills
developed while in prison.See footnote
Mauro, 436 U.S. at 353 (quoting H.R.Rep. No. 91-1018, p. 3 (1970);
S.Rep. No. 91-1356, p. 3 (1970), U.S.Code Cong. & Admin. News 1970, pp. 4864, 4866).
As a result of the problems created by the use of detainers, the federal government and all the
states that adopted the IAD determined that the primary purpose of the IAD would be to provide
for expeditious disposition of all outstanding charges which may affect the conditions or duration of
imprisonment and treatment, and also to prescribe procedures by which a state may obtain a
prisoner incarcerated in another state. Interstate Agreement on Detainers Act, 18 U.S.C.A., pp.
1395-1398 (1976 ed.), Art. I. See Mauro, 436 U.S. at 351; Greenwood, 665 N.E.2d at 583; Webb
v. State, 437 N.E.2d 1330, 1332 (Ind. 1982). The IAD also provide[s] cooperate procedures
among member states to facilitate such disposition. Mauro, 436 U.S. at 351.
The central provisions of the IAD are contained in Articles 3 and 4. Article 3 establishes a procedure by which a prisoner against whom a detainer has been lodged can demand a speedy disposition of the charges. If the prisoner makes such a request, the prisoner must be brought to trial within 180 days after the prisoner causes to be delivered to the prosecuting officer and the appropriate court written notice of imprisonment and request for final disposition of the charges. Article 4 provides the means by which a prosecutor can obtain temporary custody of a defendant in order to dispose of outstanding charges. Under Article 4, the prisoner must be brought to trial within 120
days of the arrival of the prisoner in the receiving state. If the prisoner is not brought to trial
within the allotted time periods or the prisoner is returned to the sending state without bringing the
prisoner to trial, the charges will be dismissed with prejudice. This is often referred to as the anti-
The statue providing for Writs is less complex than the statute providing for the IAD, but is deeply rooted in history. The WritSee footnote 15 has origins dating back to the first Judiciary Act, 1 Stat. 81, § 14 (1789),See footnote 16 and it has always served as a means by which to bring a prisoner from a foreign jurisdiction to another jurisdiction for criminal prosection of outstanding charges.See footnote 17
In Mauro, the Supreme Court elaborated on three main differences between detainers and Writs. Mauro, 436 U.S. at 358. First, a Writ may only be issued by a court, whereas a detainer may be lodged against a prisoner either upon the initiative of a prosecutor or law enforcement officer. Id. Second, a Writ requires the immediate presence of the prisoner but a detainer merely notifies prison authorities that the prisoner is wanted in another jurisdiction upon release to face pending criminal
charges. Id. If a detainer is lodged, the receiving state must take further action in order to obtain
temporary custody over the prisoner. Finally, because a Writ requires immediate action, it is valid
only for a short period of time. On the other hand, a detainer may remain lodged against the
prisoner for a lengthy period of time, even for the span of the prisoner's sentence. Id.
The decision of whether to use a detainer or a Writ to obtain custody of a prisoner only arises when the prisoner is confined in a federal prison; Writs are not available with respect to prisoners incarcerated or confined in other states.See footnote 19 Ind. Code § 35-33-10-5.
Under the circumstances of this case, we find that the Writ statute, and not the IAD statute,
was controlling. Upon the State's request, the Clark County court issued a Writ on two occasions.
There is no indication that a detainer was ever lodged against the defendant nor is there any indication that the State intended a Writ to serve as a detainer.
The facts of this case are similar to the facts of one of the cases disposed of by the landmark
decision in Mauro. 436 U.S. 340. In Mauro, federal authorities were granted two Writs which
directed the wardens of the state prison to produce two defendants for prosecution in federal court.
Because of the overcrowded conditions in the federal court, the defendants were returned to their
respective state prisons. Several months later, the defendants were again removed from state prison
and taken into federal custody pursuant to a Writ. The defendants moved to dismiss the charges on
the grounds that the anti-shuffling provisions of the IAD had been violated.
In holding that dismissal was not appropriate, the United States Supreme Court held that a writ issued by a federal court to state authorities, directing the production of a state prisoner for trial on criminal charges, is not a detainer within the meaning of the [IAD] and thus does not trigger the application of the [IAD]. Mauro, 436 U.S. at 349. See Flick v. Blevins, 887 F.2d 778, 781 (7th Cir. 1989); McLemore, 311 N.W.2d at 721; People v. Befeld, 413 N.E.2d 550, 552 (Ill. Ct. App. 1980). [T]he provisions of the [IAD] are triggered only when a 'detainer' is filed with the custodial
(sending) State by another State (receiving) having untried charges pending against the prisoner.
Mauro, 436 U.S. at 343.
Although the watershed decision rendered in Mauro set forth that Writs are not detainers
which invoke the application of the IAD, it is notable that Mauro dealt exclusively with Writs issued
by federal courts. However, [t]he decision in Mauro has been followed regardless of whether the
writ emanated from federal or state court. McLemore, 311 N.W.2d at 721 (footnote containing
citations omitted). See Runck, 497 N.W.2d at 80. Because there appears to be little reason for
distinguishing between Writs issued by federal and state courts, we hold this to be the law in Indiana.
Pursuant to Ind. Code § 35-33-10-5, courts in Indiana have statutory authority to issue Writs
to secure the presence of prisoners in federal custody for purposes of criminal prosecution. The
State requested the issuance of a writ both in 1992 and in 1994, but never requested that a detainer
be lodged against defendant. The trial court found, No evidence has been presented that the State
of Indiana ever filed a detainer so as to trigger the requirements of the I.A.D. In the absence of such
proof, the I.A.D. simply does not apply. (R. at 87.)
Defendant, however, claims that the IAD is the exclusive means to secure the presence of a defendant for purposes of prosecution. Br. of Appellant at 14. Defendant's contention is clearly mistaken. First, Indiana has definitively denominated two methods of securing the presence of defendants who are in the custody of foreign jurisdictions _ the IAD pursuant to Ind. Code § 35-
33-10-4 and the Writ set forth in Ind. Code § 35-33-10-5.See footnote
Second, as we discussed supra, the Writ
has continued to be accepted as a proper procedure for securing the presence of prisoners for
criminal prosecution. See Mauro, 436 U.S. at 358 (The role and functioning of the ad prosequendum writ are rooted in history, and they bear little resemblance to the typical detainer which activates
the provisions of the [IAD].). See also McLemore, 311 N.W.2d at 721 (The decision by federal
authorities to honor a writ in the absence of a detainer as a matter of comity does not trigger the
provision of the [IAD].); Flick, 887 F.2d at 778.See footnote
And finally, a Writ does not constitute a detainer
for purposes of the IAD. This is true regardless of whether the Writ is issued by a state or federal
For the foregoing reasons, we find that the Writ statute and not the IAD statute was applicable in this case. Consequently, the anti-shuffling provision of the IAD was never implicated and defendant was not entitled to dismissal on that basis.See footnote 22
Defendant contends that he was denied his constitutional and statutory right to a speedy trial
under U.S. Const. Amend. VI,See footnote
Ind. Const. art. I, § 12,See footnote
and Ind.Crim.Rule 4(C).See footnote
When reviewing a claim for a violation of the right to a speedy trial, we ordinarily begin our analysis with Crim.R. 4. This is because Crim.Rule 4 generally implements the constitutional right
of a criminal defendant to a speedy trial, thereby establishing time limits and providing for discharge
in the event that limits are exceeded. Bridwell v. State, 659 N.E.2d 552, 553 (Ind. 1995). See
Austin v. State, 682 N.E.2d 1287, 1288 (Ind. 1997); Joyner v. State, 678 N.E.2d 386, 391 (Ind.
1997). Before determining whether Crim.R. 4(C) was violated, we must first determine whether the
rule applies to the circumstances of this case. We hold that it does.
The State contends that Crim.R. 4(C) does not apply because defendant was incarcerated in
a foreign jurisdiction at the time the present charges were filed. Instead, the State contends that the
IAD applies for purposes of speedy trial rights and relies on Brown v. State, 497 N.E.2d 1049 (Ind.
1986), for this contention. We believe the State misapplies Brown.
In Brown, the defendant was charged in Indiana and was released on bond. Two days later, defendant was arrested in Kentucky and served approximately a one year sentence before being returned to Indiana. We concluded in Brown that the IAD, rather than Crim.R. 4(C), governs the speedy trial rights of a defendant incarcerated in another jurisdiction. See Williams v. State, 533 N.E.2d 1193, 1195 (Ind. 1989) (Ind.R.Cr.P. 4 does not apply when the IAD statute is applicable. Brown v. State (1986), Ind., 497 N.E.2d 1049.). This conclusion was based on Heflin v. State, 275 Ind. 197, 416 N.E.2d 121 (1981), where the IAD applied because a detainer had been lodged. In Heflin, after Indiana authorities placed a detainer on a defendant in federal prison, the defendant filed
a motion for a speedy trial and later filed a motion to dismiss for a denial of his constitutional right
to a speedy trial, but not a violation of Crim.R. 4(B). On appeal from the denial of post-conviction
relief, defendant asserted that appellate counsel was ineffective for not raising or preserving for
appeal the issue of Crim.R. 4(B). We held that since defendant was imprisoned in another jurisdiction, his request for a speedy trial triggered the application of the IAD. Id. at 124. Cf. United States
v. Castor, 937 F.2d 293, 296 (7th Cir. 1991) (detainee awaiting trial in local jail does not have a
sufficient interest in the confining institution's rehabilitative programs to justify invocation of the
IAD). Our holding in Heflin should have been more precise. In fact, the IAD was applicable for
purposes of a speedy trial because a detainer had been lodged and not simply because the defendant
was in a foreign jurisdiction. See, e.g., McLemore, 311 N.W.2d at 721 (Since the prosecution in
the instant case obtained temporary custody as a result of the writ and no detainer had been lodged
against the defendant, the time provision for trial in Article IV(c) [of the IAD] is inapplicable.).
Heflin stated that it is irrational to extend the application of Criminal Rule 4(B) to a defendant who is incarcerated in another jurisdiction. Id. at 124 (citing Smith v. State, 267 Ind. 167, 368 N.E.2d 1154 (1977)). However, the inapplicability of Criminal Rule 4 to defendants in foreign jurisdictions should not extend to defendants who are brought into Indiana under Writs or other forms of temporary custody. This court has determined that defendants in Indiana criminal prosecutions have certain speedy trial rights which we have embodied in Criminal Rule 4. Where the legislature has prescribed an alternate set of time deadlines as part of a broader statutory scheme as it has done in the IAD, we properly subordinate Criminal Rule 4 thereto. But where the state elects not to invoke the IAD for purposes of securing a defendant's presence at trial, it cannot invoke
selectively provisions of the IAD that it finds to its liking. Defendant here is entitled to the pro
tections of Criminal Rule 4.
Defendant was charged in August of 1992, and on October 8, 1992, the Clark Circuit Court granted the first Writ. Defendant was transported to the Clark Circuit Court and arraigned on November 9, 1992.See footnote 26 Defendant being brought to Indiana is equivalent to an arrest and thus the one year period for determining a violation of Crim.R. 4(C) commences on November 9, 1992.See footnote 27
After the court granted defendant's Motion to Quash the Writ, the State dismissed the charges on
April 22, 1993. In holding the State responsible for the time elapsed between defendant's arrest
and the dismissal of the charges, 165 days is charged to the State.
On March 30, 1994 the State refiled the charges against the defendant and was granted the second Writ on August 1, 1994. The defendant was transported to Clark County on August 15, 1994. Dismissing and refiling charges does not reset the speedy trial clock _ it merely tolls it for the actual days between dismissal and refiling. Hornaday v. State, 639 N.E.2d 303, 307 (Ind. Ct. App. 1994). See Goudy v. State, 689 N.E.2d 686, 691 (Ind. 1997); Young v. State, 521 N.E.2d 671, 673 (Ind. 1988). However, the speedy trial time does not re-commence on the date charges were refiled because, as we stated supra, Crim.R. 4(C) sets forth that the speedy trial clock commences from the date the criminal charge against [ ] defendant is filed, or from the date of his arrest on such charge, whichever is later. See Crawford v. State, 669 N.E.2d 141, 145 (Ind. 1996) (defendant's speedy trial rights do not attach until the filing of a formal indictment or information or until actual restraints are imposed by an arrest and holding to answer a criminal charge); Goudy, 689 N.E.2d at 691 (because defendant was absent from the jurisdiction when charges were refiled, the speedy trial clock did not begin to run again until defendant was again held in jail in Indiana). Consequently, for purposes of calculation, the speedy trial clock re-commences on August 15, 1994, the date defendant was returned to Indiana, and not March 30, 1994, the date the charges were re-filed. Again, defendant's transportation to Indiana is the equivalent of an arrest. On September 21, 1994, the defendant filed a motion for a speedy trial and thus, trial was set for November 15, 1994.See footnote 28 On November 15,
1994, the defendant joined the State in a motion for continuance of the trial. The defendant requested that trial be continued indefinitely until either the Indiana Supreme Court or the Indiana
Court of Appeals issued a final opinion on his interlocutory appeal.See footnote
Additionally, the defendant
stated in this motion that he withdraws his motion for a speedy trial, waives his right to a speedy
trial, and recognizes that any and all delays between the filing of this Motion and the next scheduled
trial date following his interlocutory appeal, are attributable to him and not the State of Indiana. (R.
at 135-36.) We charge the State with 93 days which elapsed between August 15, 1994 (the re-
arrest), and November 15, 1994 (joint motion for a continuance), bringing the total expired time to
The Court of Appeals refused to accept the interlocutory appeal on February 6, 1995, and the trial date was thereafter set for April 11, 1995.See footnote 30 On March 28, 1995, the defendant, along with the State, filed a joint motion seeking to continue the trial indefinitely and attributing the delays to defendant. The trial court granted the motion. The State is not charged with any time between the November 15, 1994, filing of the motion for a continuance and March 28, 1995, because of defendant's concession that all delays would be attributable to him. See Spann v. State, 681 N.E.2d 223, 226 (Ind. Ct. App. 1997) (A defendant is responsible for any delay caused by his action including
seeking or acquiescing in any continuance.).
On June 6, 1995, the trial court set the jury trial for October 3, 1995. Defendant did not object to this trial date nor did defendant at this time request a speedy trial. On July 14, 1995, the defendant filed a motion to dismiss for a violation of Crim.R. 4(C) (R. at 234) and a hearing was held on this matter on September 11, 1995. The trial court denied the motion to dismiss. Defendant contends that the filing of a motion to dismiss was a request for a speedy trial. We have held before that a motion to dismiss for a violation of the right to a speedy trial is an assertion of a defendant's right. Crawford, 669 N.E.2d at 150 (failure of defendant to timely move to have case dismissed, on grounds that state violated 180 day period provided by IAD for final disposition of charges, waives that right). However, defendant already waived his right to a speedy trial when he failed to object on June 6, 1995, to the trial court's decision to set trial for October. Once a trial date is set beyond the one-year limit provided for in Crim.Rule 4(C), the defendant must file a timely objection to the trial date or waive his right to a speedy trial. Randall v. State, 455 N.E.2d 916, 922 (Ind. 1983). See Wheeler v. State, 662 N.E.2d 192, 194 (Ind. Ct. App. 1996). Additionally, when defendant asks for a continuance, the time between the motion for a continuance and new trial date is chargeable to defendant. Henderson v. State, 647 N.E.2d 7, 12-14 (Ind. Ct. App. 1995). See Wheeler, 662 N.E.2d at 194. This would comprise the time which elapsed from March 28, 1995 (joint motion for a continuance), to October 3, 1995 (new trial date). And finally, on September 19, 1995, the defendant filed a motion to stay proceedings and continue the trial date in order to pursue a Petition
for Writ of Mandamus and/or Prohibition.See footnote
The motion was granted with delays chargeable to
defendant. We denied the Petition on October 12, 1995. The trial eventually occurred on November
14, 1995, with defendant being found guilty on November 21, 1995, and being sentenced on
December 20, 1995. In totality, the State is charged with causing trial to be delayed by 258 days,
which is well within the one year time limitation of Crim.R. 4(C). Consequently, defendant was not
denied his statutory right to a speedy trial.
We next turn to whether defendant was deprived of his right to a speedy trial under the
Indiana and United States Constitution. In reviewing claims of speedy trial rights, Indiana and
federal courts apply the analysis established in Barker v. Wingo, 407 U.S. 514 (1972). See Lee v.
State, 684 N.E.2d 1143, 1146 (Ind. 1997) (citations omitted). The Barker analysis employs four
factors: (1) length of delay, (2) defendant's assertion of his right, (3) the government's reason for
the delay, and (4) the prejudice to the defendant. Barker, 407 U.S. at 530.
The defendant was first charged on August of 1992 and eventually brought to trial on November 14, 1995. As stated in part A-2 supra, the State was charged with delaying the trial for 256 days. Because defendant was brought to trial within one year as prescribed by Crim.R. 4(C), the length of the delay was not unreasonable. See Lee, 684 N.E.2d at 1146 (delay not unreasonable
since defendant was brought to trial in less than six months as required by Crim.R. 4(A)).
Defendant must assert his right to a speedy trial before claiming a constitutional violation.
Our review of the record suggests that defendant did request a speedy trial on several occasions.
However, we also recognize that on one occasion defendant waived his right to a speedy trial after
filing a joint motion for a continuance and that on several occasions was the protagonist of the delays
by engaging in the following actions: (1) filing several other motions for continuances; (2) seeking
an interlocutory appeal; and (3) filing a Verified Petition for Mandamus and/or Prohibition. Additionally, when the trial date was set on June 6, 1995 for October 3, 1995, defendant did not object
to the trial date nor did defendant at that time request a speedy trial. Defendant's attempts to assert
his right to a speedy trial were insufficient.
We do not find that the State unreasonably delayed the trial. As discussed earlier, after the
trial court granted the motion to quash the first Writ, the State dismissed the charges against
defendant. Thus, a majority of the delay (165 days) that was charged to the State related to the
skirmishing over the first Writ. The only other delay charged to the State was 91 days attributable
to the time between re-arresting defendant and defendant's motion to continue the trial date. We do
not find that the State engaged in any actions with the purpose of delaying trial.
The final factor in the Barker test, prejudice, is assessed in light of the three interests which the right to a speedy trial was designed to protect: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense
will be impaired. Barker, 407 U.S. at 532. See Lee, 684 N.E.2d at 1146 (citing Scott v. State, 461
N.E.2d at 143; Lahr v. State, 615 N.E.2d 150, 153 (Ind. Ct. App. 1993)). Indiana courts have
placed the burden of demonstrating actual prejudice on the defendant to prove a speedy trial deprivation. Lee, 684 N.E.2d at 1146 (quoting Scott, 461 N.E.2d at 143; Lahr, 615 N.E.2d at 153).
The only prejudice which defendant asserts that he suffered was an impairment of his defense.
Defendant contends that he suffered a presumptive prejudice as described in Harrell v. State, 614
N.E.2d 959 (Ind. Ct. App. 1993), or at least a palpable prejudice. Br. of Appellant at 17. In Harrell,
the Court of Appeals stated that excessive delay presumptively compromises the reliability of a trial
in ways that neither party can prove or, for that matter, identify. Id. at 965. Because we do not
find that the delay in bringing defendant to trial was excessive, the Harrell standard of presumptive
prejudice is not applicable. Additionally, in Harrell, the defendant submitted evidence of actual
impairment. In this case, defendant merely asserts that he was prejudiced because evidence sought
to be presented with regard to a blue van or other people who might have wanted to kill [the victim]
were not able to be produced after the delay caused by the State. Br. of Appellant at 17. Defendant has not provided us with what evidence would have been available but for the delay or by what
means the delay prevented him from presenting this asserted evidence. Consequently, defendant has
not proved that his defense was impaired.
As none of the Barker v. Wingo factors point in defendant's favor, we conclude that defendant was not deprived of his right to a speedy trial under either the Sixth Amendment to the United States Constitution or art. I, § 12, of the Indiana Constitution.
Defendant contends that the trial court erred in denying his motion to suppress statements
provided by him regarding the location of the victim's body. Defendant presents three reasons
supporting his claim: (1) defendant was not advised of his Miranda rights and the State failed to
present evidence that defendant waived his Fifth Amendment rights; (2) defendant was provided with
use immunity for the statements; and (3) defendant's trial counsel were ineffective for giving him the
impression that he had use immunity.
As detailed in Background, supra, defendant was charged with two federal crimes which could have resulted in a sentence of a minimum of 30 years to a maximum of life imprisonment. The federal officials offered defendant a plea agreement whereby they would recommend a sentence reduction if defendant would provide the federal officials with certain kinds of information, the most relevant to this case being the location of Danny Guthrie's body. After this proposal was made, defendant's attorneys telephoned the Clark County prosecutor to advise the prosecutor of the agreement which had been offered by the federal officials, and asked if the prosecutor would give the defendant use immunity for any statements which were provided. What happened next is disputed. Defense counsel testified that, based on the fifteen minute telephone conversation, it was absolutely clear that a use immunity agreement existed. One of the attorneys advised defendant that any statements he made regarding the whereabouts of Guthrie's body could not be used against him in
a criminal prosecution. Defendant then provided federal officials and a Clark County detectiveSee footnote
his recollection of the events leading up to Guthrie's death. These facts are provided in Background,
Defendant contends that because the State failed to advise him of his Miranda rights, the
statements he provided regarding the location of the victim's body were inadmissible. The record
reflects indisputable evidence that defendant was in federal custody and indeed was not advised of
his Miranda rights. However, under the circumstances of this case, we find that it was unnecessary
for defendant to be advised of his Miranda rights.
In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court established several broad prophylactic rights in order to protect citizens interrogated while in custody. See Allen v. State, 686 N.E.2d 760, 769 (Ind. 1997). Miranda requires that defendants be advised of their right to an attorney, their right to remain silent, that their statements may be used against them in a court of law, and that the State will provide them with an attorney if they cannot afford one. Allen, 686 N.E.2d at 769. The purpose of requiring the Miranda warnings before custodial interrogation is to combat state-sanctioned coercion. Id. However, the warnings required by Miranda are in the absence of a fully effective equivalent. Miranda, 384 U.S. at 444, 478. See Poulton v. State, 666
N.E.2d 390, 392 (Ind. 1996). In this case, we believe that an equivalent to the advisement of
Miranda rights existed. Defendant had two of his lawyers present when he provided the statements
which he now wishes to suppress. Irrespective of the fact that the defense attorneys encouraged
defendant to provide certain statements to federal authorities to solidify a plea agreement, certainly
these attorneys advised defendant of his rightsSee footnote
and protected defendant from being coerced by the
State. Under these circumstances, we find no error in the State's failure to advise defendant of his
Defendant next contends that even if the Miranda warnings were unnecessary under the
circumstances of this case, the statements which defendant provided were inadmissible because they
were made under the belief that the State had granted him use immunity. The trial court determined
that there was a misunderstanding between the defense counsel and the State and that in fact no use
immunity existed. We agree with the trial court's finding.
Use immunity is a procedural tool utilized by prosecutors to encourage or force reluctant witnesses to testify. Under Ind. Code § 35-37-3-3 (1988), only the prosecutor may request immunity for witnesses in criminal prosecutions and only the trial court may grant such immunity. See Lucas v. State, 499 N.E.2d 1090, 1094 (Ind. 1986).
just solely rely on information provided by defendant. In Indiana, in order for a confession to be
introduced at trial, the State must produce corroborating or independent evidence of the corpus
Johnson v. State, 653 N.E.2d 478, 479 (Ind. 1995) (citing Willoughby v. State, 552 N.E.2d
462, 466 (Ind. 1990)).
The record reflects no court approval or supervision of the asserted use immunity agreement.
See generally Everroad v. State, 571 N.E.2d 1240, 1243 (Ind. 1991). Because defendant has failed
to prove the first two factors, we find it unnecessary to discuss the third factor _ detriment to
defendant. However, a discussion of whether defendant suffered any prejudice is set forth in detail,
Defendant finally contends that, if he was not entitled to Miranda advisements and if use immunity was not granted, at least he was denied the effective assistance of counsel. We analyze claims of ineffective assistance of counsel according to the two-part test established in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., Canaan v. State, 683 N.E.2d 227, 229 (Ind. 1997); Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994). First, defendant must show that, in light of all the circumstances, counsel's performance was outside the wide range of professionally competent assistance. Canaan, 683 N.E.2d at 229 (citing Lowery, 640 N.E.2d at 1041). In order to make such
a showing, defendant must demonstrate that counsel's performance was unreasonable under
prevailing professional norms. Id. Second, the defendant must show adverse prejudice as a result
of the deficient performance. Id. This requires a demonstration that counsel's performance was so
prejudicial that it deprived the defendant of a fair trial. Id. There is a strong presumption that
counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment. Bellmore v. State, 602 N.E.2d 111, 123 (Ind. 1992). An appellant must
present strong and convincing evidence to rebut that presumption. Duncan v. State, 514 N.E.2d
1252, 1253 (Ind. 1987).
Defendant's claim of ineffective assistance of counsel is based on the fact that his counsel failed to obtain a writing or recording of the grant of use immunity. As set forth supra, Ind. Code § 35-37-3-3 (1988), indicates that a prosecutor must make a request for a witness to be granted use immunity and only the court can grant such a request. The record suggests that this procedure was not followed. However, we acknowledge the possibility that in some counties, familiarity and trust between the prosecutor and defense attorneys is such that at times informal agreements are entered into.See footnote 36 Indeed, in this case, the defense attorney testified as follows: [I] advised [defendant] that we did not have this in writing, but I had talked with the Prosecuting Attorney, it was clearly my understanding that's what the agreement was, . . .. (R. at 611.) However common it may be for
attorneys to engage in this informal practice of negotiating agreements, we cannot approve extra-
judicial use immunity. In fact, we presume that the legislature's mandate of court supervision for
matters relating to use immunity and plea bargaining was designed to avoid the situation which
has arisen here _ a misunderstanding over whether a use immunity agreement exists. For this
reason, we assume, without deciding, that counsel was deficient for failing to obtain an agreement
The constitutional guarantee of counsel under the Sixth Amendment has been construed to include four rights: the right to counsel, the right to effective assistance of counsel, the right to a preparation period sufficient to ensure a minimal level of quality of counsel, and the right to be represented by counsel of one's own choice. United States v. McCutcheon, 86 F.3d 187, 189 (11th Cir. 1996) (citations omitted). The Sixth Amendment right to counsel attaches when a prosecution is commenced, that is, 'at or after the initiation of adversary judicial criminal proceedings _ whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). In United States v. Alvarez, No. 97-4061, 1998 WL 207912 (10th Cir. 1998), the defendant, after meeting with a court-appointed attorney at his request, made several incriminating statements to DEA agents in the hope that he would receive a reduced sentence for his cooperation. After being convicted, the defendant claimed his counsel was ineffective for various reasons. The court determined that defendant had no Sixth Amendment right to effective assistance of counsel at the time he was questioned because the government had not initiated formal proceedings. Additionally, the Supreme Court has determined that the Sixth Amendment right to counsel is offense specific. McNeil, 501 U.S. at 175. The right cannot be invoked once for all
future prosecutions. Id. [T]o exclude evidence pertaining to charges as to which the Sixth
Amendment right to counsel had not attached at the time the evidence was obtained, simply because
other charges were pending at that time, would unnecessarily frustrate the public's interest in the
investigation of criminal activities. . . . Id. at 175-76 (quoting Maine v. Moulton, 474 U.S. 159,
In this case, although federal charges had been filed, the State had not yet filed charges for
the murder of Guthrie. Consequently, defendant's Sixth Amendment right to counsel and, thus, his
right to the effective assistance of counsel had not attached when he provided statements regarding
the location of Guthrie's body. See United States v. MacDonald, 966 F.2d 854, 859 n.9 (4th Cir.
1992) (where no Sixth Amendment right to counsel attaches to the proceeding, an ineffective
assistance claim cannot be sustained).
Defendant contends that the trial court erred when it denied his motion to suppress a handgun obtained through a warrantless search. As described in Background, supra, defendant said he provided this gun to Guthrie and initially buried the gun after finding Guthrie dead. Defendant said he later retrieved the gun for protection. This gun was seized by a Utah police officer. Laboratory testing revealed that defendant's gun was the weapon from which the fatal shot was fired to kill Guthrie. We have reviewed the evidence and affirm the trial court's decision to deny the motion to suppress.
We believe that the circumstances of this case demonstrate that the police officer was well within the bounds of his authority to search and seize defendant's handgun. In support of this finding, we provide the specific facts which led up to the seizure as testified to by Officer Barney.See footnote 38
1240 (Ind. 1994).
Even assuming, without deciding, that defendant's consent to a search of his trunk was not
a consent to a search of his entire vehicle, the facts demonstrate that Officer Barney had valid
reasons for searching defendant's vehicle without a warrant. An officer is permitted to search for
weapons when he has reason to believe that he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the individual for a crime. Terry v. Ohio, 392
U.S. 1, 27 (1968). In this case, the officer noticed defendant lean over as though he was placing
something under the seat, defendant was nervous and shaking, the officer observed two loaded
handgun clips in the trunk, and finally, the officer learned that defendant had an extensive criminal
history. The officer's decision to search the vehicle was reasonable. See Walker, 527 N.E.2d at 708
(the officer obtained knowledge of facts which were sufficient to form the basis of probable cause
that the defendant was illegally carrying a weapon); State v. Nixon, 593 N.E.2d 1210, 1213 (Ind. Ct.
App. 1992) (observations of the movements in the front seat of the car and the white packets,
coupled with [officer's] knowledge of the ways in which drug sales occur from vehicles, provided the
probable cause necessary to effectuate a warrantless, but lawful search. . .); Young v. State, 564
N.E.2d 968, 970 (Ind. Ct. App. 1991) (pat down search of defendant was reasonable where officer
was aware that defendant had a prior arrest for possession of a sawed-off shotgun and the search
was motivated by safety concerns); Collett v. State, 167 Ind.App. 185, 338 N.E.2d 286 (1975)
(officer's previous information that defendant carried a gun sufficient to justify pat down search).
We affirm the trial court's denial of the motion to suppress the handgun.
Defendant claims that the trial court erred in quashing his subpoena duces tecumSee footnote
Dr. Handy, a pathologist who performed the autopsy on the victim, to produce all documentation,
notes, articles, etc. of [her] investigation of the epidemiology and manner of death in fatal gunshot
wounds in Jefferson [sic] County Kentucky, 1982-1989. (R. at 380.) Defendant claims that the
quashing of the subpoena denied him the Sixth Amendment right to cross-examine witnesses.
The decision to enforce, modify, or quash a subpoena duces tecum is a question for the trial
court and will not be disturbed unless the decision is clearly arbitrary. Turpin v. State, 435 N.E.2d
1, 4 (Ind. 1982). See Norris v. State, 516 N.E.2d 1068, 1070 (Ind. 1987) (The trial court has
discretion in making decisions regarding discovery matters as a part of its inherent power to guide
and control the proceedings.). A court may quash or modify the subpoena if it is unreasonable and
oppressive. Ind.Crim.R. 2(1); Ind. Trial Rule 45(B).
In the hearing on the motion to quash the subpoena duces tecum, the court determined that the subpoena was too broad and not relevant to this case. Additionally, the court advised defendant that if [the witness] testifies you'll have the right to cross examine her as to her methodology and
how she arrives at certain opinions and conclusions and so on and so forth. Defendant has presented
us with no reason why the unavailability of Dr. Handy's research prevented defendant from effectively cross-examining her. As such, we find the trial court's decision to quash the subpoena duces
tecum to have been reasonable. See Small v. State, 632 N.E.2d 779, 786 (Ind. Ct. App. 1994)
(when the defendant issued a subpoena duces tecum directing the police department to produce all
records and information contained by the [police department] concerning arrests, stops, inquiries,
searches of defendant's home, car(s), and any other police encounters concerning [defendant], the
Court of Appeals determined that it was reasonable for the trial court to conclude that defendant's
subpoena duces tecum was unreasonable and oppressive).
Defendant contends that the trial court erred in denying him credit time for pretrial detention.
As discussed supra, defendant was serving a federal sentence when he was brought to Indiana to face
pending criminal charges. On two separate occasions, defendant was detained in the Clark County
Jail before being convicted for the crime of Murder. The trial court determined that because
defendant was incarcerated for some other crime by some other court, he was not entitled to credit
for the time served in Indiana. We affirm the trial court's decision.
Ind. Code § 35-50-6-3 (1988)See footnote 40 establishes the credit time that may be earned by a defen
dant. There are two criteria to consider in determining whether a defendant has a right to pretrial
credit: (1) pretrial confinement (2) which was a result of the criminal charge for which sentence is
now imposed. Cohen v. State, 560 N.E.2d 1246, 1249 (Ind. 1990).See footnote
The facts of this case are substantially similar to the facts in Smith v. State, 330 N.E.2d 384,
388 (Ind. Ct. App. 1975). After being released on bail from state charges, defendant Smith was
convicted for another crime and incarcerated in federal prison. The State of Indiana, pursuant to a
Writ, obtained temporary custody of Smith from federal authorities. Smith argued that he should
receive credit time for the period after Indiana assumed jurisdiction over him. The Court of Appeals
denied pre-trial credit time because Smith's incarceration was occasioned by his conviction in
federal court, and not by reason of the charges in the case at bar. Smith, 330 N.E.2d at 388.
Additionally, the court noted that the trial court's custody of defendant was with the permission and
on behalf of federal officials. Id. Similarly, defendant in this case was incarcerated as a result of his
federal conviction and not due to the charges filed by the State of Indiana. For the same reason, we
find that defendant should be denied pre-trial credit time.
Defendant contends that the trial court erred by using an improper factor to enhance his
sentence and for failing to articulate the reasons for imposing consecutive sentences. The trial court
sentenced defendant to the presumptive term of 40 years and added an additional 20 years for
aggravating circumstances. Also, the Indiana sentence was ordered to be served consecutive to the
federal sentence. We affirm the trial court's sentencing decision.
Ind. Code § 35-38-1-7.1(b)(4) (1990) permits courts to consider whether the imposition of
a reduced sentence or suspension of a sentence and non-aggravation of the sentence would depreciate the seriousness of the crime, as an aggravating factor when determining the proper sentence to
be imposed. However, we have stated on numerous occasions that this factor may be used only
when considering the imposition of a sentence of shorter duration than the presumptive sentence.
Mitchem v. State, 685 N.E.2d 671, 679 (Ind. 1997) (quoting Jones, 675 N.E.2d at 1088; Gregory-
Bey v. State, 669 N.E.2d 154, 159 (Ind. 1996) (quoting Ector v. State, 639 N.E.2d 1014, 1015 (Ind.
1994)). This factor may not be used, as it appears to have been here, as the basis for enhancing a
sentence. Because there is nothing in the record to indicate that the trial court was considering a
reduced sentence, the use of this aggravating factor was inappropriate.
Nevertheless, we find the enhanced sentence to be reasonable in light of the other aggravating
factors that the trial court identified. See Widener v. State, 659 N.E.2d 529, 533 (Ind. 1995) (The
improper use of the 'depreciate seriousness' aggravating circumstance will not necessarily invalidate
a sentence enhancement where other valid aggravating circumstances are found. Ector v. State, 639
N.E.2d 1014, 1026 (Ind. 1994)"). The court justified the enhanced sentence with the following other
aggravating factors: (1) defendant's criminal history; (2) the cruelty perpetuated by defendant upon
the Guthrie family by having information which he did not reveal for a long period of time; and (3)
the victim's physical condition at the time of the murder. We find all of these factors which the court
considered to be proper under Ind. Code § 35-38-1-7.1(b) (Supp. 1990). The court specifically
found no mitigating circumstances to exist.
Defendant also contends that since the trial court did not articulate any reasons for consecutive sentencing, the matter should be remanded to the court for an appropriate explanation. Br. of
Appellant at 30. While we agree that the trial court gave no explanation for its imposition of
consecutive sentences, we do not believe an explanation was necessary due to the circumstances of
It is not contrary to law for a defendant's State sentence to commence after the service of his Federal sentence. Ridley v. State, 690 N.E.2d 177, 182 (Ind. 1997); Shropshire v. State, 501 N.E.2d 445, 446 (Ind. 1986). [I]t is established law that there is no right to serve concurrent sentences for different crimes in the absence of a statute so providing, and that concurrent sentences may be
ordered only when they are to be served at the same institution. Id. (quoting Smith v. State, 165
Ind.App. 37, 330 N.E.2d 384 (1975)). See Carrion v. State, 619 N.E.2d 972, 973 (Ind. Ct. App.
1993). Additionally, a defendant is not even entitled to credit on his Indiana sentence while he is
incarcerated in another jurisdiction for a totally different offense. Carrion, 619 N.E.2d at 973
At the time that defendant was sentenced, Ind. Code § 35-50-1-2 (1988), was in effect. This
statutory provision provides in pertinent part: (a) . . . the court shall determine whether terms of
imprisonment shall be served concurrently or consecutively. We recently determined that this
provision is an express grant of authority to the trial court to impose consecutive sentences and
noted that this section has been held to include the authority to impose a sentence consecutive to
that of another jurisdiction. Ridley v. State, 690 N.E.2d 177, 182 (Ind. 1997) (citing Penick v.
State, 659 N.E.2d 484, 489 (Ind. 1995); Carrion, 619 N.E.2d at 973). See Morrow v. State, 690
N.E.2d 183, 184 (Ind. 1997). The trial court was authorized to order the defendant's Indiana
sentence to be served consecutive with his federal sentence.
Defendant contends that the trial court erred by not allowing testimony of the complete statement given by defendant to federal authorities. Defendant contends that the court should have permitted him to introduce evidence that Guthrie owed money to some cocaine dealers and that there was some indication that Guthrie may have been being followed by a blue van [which allegedly
belongs to the cocaine dealers]. Br. of Appellant at 31. In other words, defendant seems to suggest
that since incriminating portions of his statement were admitted, he was entitled to introduce the
exculpatory portions of the statement as well.
Generally, a defendant who does not testify cannot introduce exculpatory statements made
outside of court in order to enhance his credibility at trial. See Canaan v. State, 541 N.E.2d 894,
904 (Ind. 1989); Washburn v. State, 499 N.E.2d 264, 268 (Ind. 1986). However, defendant
correctly notes that When one party introduces part of a conversation or document, opposing party
is generally entitled to have the entire conversation or entire instrument placed into evidence.
McElroy v. State, 553 N.E.2d 835, 839 (Ind. 1990). See Evans v. State, 643 N.E.2d 877, 881 (Ind.
1994). This rule is often referred to as the doctrine of completeness. The remainder of the
statement or document is subject to the general rules of admissibility, however, and any portions
found immaterial, irrelevant, or prejudicial must be redacted. Evans, 643 N.E.2d at 881. See
Saperito v. State, 490 N.E.2d 274 (Ind. 1986); Ryans v. State, 518 N.E.2d 494, 496 (Ind. Ct. App.
1988). We recently held that the doctrine of completeness applies for even self-serving hearsay
statements. McElroy, 553 N.E.2d at 839. In balancing the potential harm resulting from the
introduction of self-serving hearsay against that resulting from the exclusion of relevant portions of
prior statements otherwise admitted, we find persuasive the policy expressed in Ind.Trial Rule 43(A):
'In any case, the statute or rule which favors the reception of evidence governs. . . .' Id. at 839-40.
The trial judge focussed on the words fairness ought to be considered contemporaneously
with it from Ind.Evid.R. 106See footnote
and the words exclusion of relevant portions from the McElroy
case. Consequently, the court ruled that only those portions of the statement given by [defendant]
that are relevant and that relate to the context regarding his discovery of the body of Danny Guthrie
will be admitted through the testimony of this police officer. (R. at 1454-55.) The defendant's
statements regarding money that defendant contended Guthrie owed to cocaine dealers and the
asserted presence of a blue van was not relevant to the discovery of Guthrie's body.See footnote
As such, we
find no error in the trial court's decision to exclude this evidence.
In this argument, defendant also complains that the State performed no tests to exclude the
possibility of suicide. We find no merit to this claim since defendant's own expert testified, out of
the presence of the jury, to the following:
My opinion will be to this Jury that this was not a self-inflicted gunshot wound, that
there were fragments of metal in this wound and in this cadaver when it was exhumed
that are unexplained, and that there was definitely room for procedures to be done to
make some determinations in this investigation which were omitted at the time the
investigation was done by both investigating officers and the medical examiner's
(R. at 1710.)See footnote
Defendant contends that the State did not present evidence to establish the corpus delicti for
murder. According to defendant, absent his statement, the State could not even establish that
Guthrie was dead, since he was missing and the State had found no body. Br. of Appellant at 34.
A crime may not be proven solely on the basis of a confession. Light v. State, 547 N.E.2d 1073, 1080 (Ind. 1989). There must be some other proof of the crime, in order to prevent confessions to crimes which never occurred. Id. (citing Smith v. State, 167 Ind. App. 428, 339 N.E.2d 118 (1975)). In Indiana, to support the introduction of a defendant's confession into evidence, the corpus delicti of the crime must be established by independent evidence of (1) the occurrence of the
specific kind of injury and (2) someone's criminal act as the cause of the injury. Stevens v. State,
691 N.E.2d 412, 424-25 (Ind. 1997) (quoting Willoughby v. State, 552 N.E.2d 462, 466 (Ind.
1995)). See Moore v. State, 498 N.E.2d 1,4 (Ind. 1986); Anthony v. State, 409 N.E.2d 632, 635
(Ind. 1980). [T]he independent evidence need not be shown beyond a reasonable doubt; rather, the
evidence need only provide an inference that a crime was committed. Stevens, 691 N.E.2d at 425
(citing Johnson v. State, 653 N.E.2d 478, 480 (Ind. 1995)). Such inference may be established
through circumstantial evidence. See Moore, 498 N.E.2d at 4; Anthony, 409 N.E.2d 632, 635 (Ind.
1980) (citations omitted).
We begin by noting that defendant's statements to federal authorities did not constitute a confession. Indeed, defendant at all times proclaimed that he was innocent and only admitted to finding Guthrie dead and to having knowledge as to the whereabouts of Guthrie's body. Nevertheless, even without defendant's statements relating to finding Guthrie dead with a gunshot wound to the head, there was a sufficient evidence to establish corpus delicti. The medical examiner testified that Guthrie's death was a result of a gunshot wound to the face. A firearm's expert testified that the bullet which killed Guthrie was fired from defendant's 9mm gun. The medical examiner also testified that no gunpowder residue was found on the external surface of Guthrie's bones. Although the evidence did not exclude the possibility that Guthrie committed suicide, there was sufficient evidence, both physical and circumstantial, to create a reasonable inference that a crime occurred and thus establish corpus delicti. The independent evidence supporting the corpus delicti need not
preclude every possible explanation of the circumstances.See footnote
Stevens, 691 N.E.2d at 425 (quoting
Johnson, 653 N.E.2d at 480 n.4). See Grey v. State, 404 N.E.2d 1348, 1351 (Ind. 1980) (although
the circumstances did not exclude the hypothesis that the child had been injured in some other
manner, because the lacerations to child's vagina were consistent with rape, corpus delicti had been
established as a result of the reasonable inference created); Light v. State, 547 N.E.2d 1073, 1080
(Ind. 1989) (forensic pathologist's testimony that victim's fatal skull injuries by either a hammer, tire
tool, or a large rock adequately established corpus delicti); Harkrader, 553 N.E.2d 1231, 1233-34
(where defendant was convicted of dealing in a controlled substance, the court determined that
corpus delicti had been established Although the evidence does not exclude the hypothesis that [the
codefendant] found the pills, stole them, or manufactured them herself, the evidence gives rise to a
reasonable inference that someone had delivered the pills to [the codefendant].)
We affirm defendant's conviction and sentence.
SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.
all the * * * courts of the United States * * * to issue writs of scire facias, habeas
corpus, and all other writs not specially provided for by statute, which may be
necessary for the exercise of their respective jurisdictions, and agreeable to the
principles and usages of law. And * * * either of the justices of the supreme court,
as well as judges of the district courts, shall have power to grant writs of habeas
corpus for the purpose of an inquiry into the cause of commitment._ Provided, That
writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they
are in custody, under or by colour of the authority of the United States, or are
committed for trial before some court of the same, or are necessary to be brought
into court to testify. 1 Stat. 81-82 (1789).
Carbo v. United States, 364 U.S. 616, 614 (1961).
date. People v. Squitieri, 397 N.Y.S.2d 888, 891 (N.Y. 1977).
Another disadvantage of using a detainer, although minor, is that a prisoner may challenge
the legality of his delivery to the receiving state. Ind. Code § 35-33-10-4, Art. 4(d). The statute
providing for the use of Writs does not establish any such rights for the prisoner.
The primary advantage to the State of utilizing detainers is that a uniform procedure under
the IAD exists and both sending and receiving states (and the federal government) must comply with
the procedures. On the other hand, Writs can only be issued to obtain custody of defendants confined
in federal prison. See Ind. Code § 35-33-10-5 (permitting the use of Writs only for prisoners
confined in federal prisons or institutions). Additionally, the United States Supreme Court has held
that state courts lack jurisdiction to issue Writs to order the production, or otherwise interfere, with
prisoners in federal custody. Ableman v. Booth, 62 U.S. 506, 523-24 (1859). This principle has
been reaffirmed on several occasions. See Comm. of Puerto Rico v. Perez Casillas, 624 F.Supp.
822, 830 n.5 (D.P.R. 1985). However, the federal government may, based on principles of comity,
honor state-issued Writs. See Ponzi v. Fessenden et al., 258 U.S. 254, 261-62 (1922); People v.
McLemore, 311 N.W.2d 720, 721 (Mich. 1981); Runck v. State, 497 N.W.2d 74, 80 n.3 (N.D.
1993). This is apparently what happened here.
Another advantage of using detainers is that they can be lodged against a prisoner relatively easily because they can be filed by either a prosecutor or law enforcement official and do not need to be authorized by a court. Writs, on the other hand, can only be issued by a court in which the criminal action against the prisoner is pending.
temporary custody' within the meaning of Article 4 of the IAD. Webb, 437 N.E.2d at 1331. This was true in Webb because the State initially filed a detainer against the defendant while he was serving a sentence in a federal prison, thus invoking the IAD. The detainer only served as a notice to federal prison authorities that defendant was wanted by Indiana to face pending criminal charges. In order to actually obtain temporary custody of defendant, a written request had to be made which in this case was done by utilizing a Writ. Consequently, only because a detainer was initially lodged was the Writ considered a written request for temporary custody within the meaning of the IAD. On the other hand, if a detainer had never been lodged, the issuance of the Writ would not have invoked the IAD. See United States v. Mauro, 436 U.S. 340, 361 (1978). Therefore, the circumstances in Webb were sufficiently different from this case so as not to control its disposition.
No person shall be 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 this arrest on such charge, whichever is later, except where a continuance was had on his Motion or the delay was caused by his act, or where there was not sufficient time to try him during such period because of the congestion of the court calendar . . . .
imprisoned for a crime or confined awaiting trial or sentencing.
Converted from WP6.1 by the Access Indiana Information Network