ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VICTORIA URSULSKIS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
WILLIAM O. RIVERS, )
vs. ) No. 49A02-0202-CR-116
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. 49G05-9805-CF-83071
October 22, 2002
OPINION - FOR PUBLICATION
After a bench trial, William O. Rivers was convicted of robbery
as a Class
A felony. He now appeals, raising the following issues for review:
I. Whether he is entitled to discharge because the State failed to bring him
to trial within one year as required by Ind. Criminal Rule 4(C) and
failed to provide him with a speedy trial as guaranteed by the Sixth
Amendment to the United States Constitution where he was tried three years and
seven months after the charges against him were brought.
II. Whether there was sufficient evidence to support his conviction.
FACTS AND PROCEDURAL HISTORY
On May 17, 1998, an officer with the Indianapolis Police Department found eighty-four-year-old
Roberta Higginsons body in her Indianapolis home. Through the course of an
investigation of her death, officers learned that Rivers may have been involved.
On May 26, 1998, Rivers gave police a statement in which he told
officers that he and Rene Majors were high on drugs when Majors suggested
that they go to Higginsons home to obtain some money. After the
pair visited with Higginson for some time, Majors rose and approached Higginson as
though she were going to embrace her. Instead, she picked up a
light-colored object and began beating the elderly woman with it. Majors then
directed Rivers to the area of the house where Higginson kept guns and
money. When Rivers returned with a gun and money, he saw Majors
beating the woman with a cane. Majors also found a gun in
Higginsons home. Rivers told Majors they needed to leave, and they did.
The pair sold the guns. Higginson died from her injuries.
On May 27, 1998, Rivers was charged with murder, felony murder, and robbery.
He testified against Majors at her murder trial after receiving use immunity
for his testimony. After multiple continuances, on December 12, 2001, he was
tried at a bench trial on stipulated evidence consisting of his statement to
the police and the trial exhibits from Majors trial. The court convicted
Rivers of robbery, but acquitted him on the murder and felony murder charges
and sentenced him to twenty years imprisonment. He now appeals.
DISCUSSION AND DECISION
Rivers first contends that he should have been discharged because the State failed
to bring him to trial within one year. Crim. R. 4(C) provides:
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 his 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 congestion of the court calendar; provided, however, that
in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for
continuance as under subdivision (A) of this rule. Provided further, that a
trial court may take note of congestion or an emergency without the necessity
of a motion, and upon so finding may order a continuance. Any
continuance granted due to a congested calendar or emergency shall be reduced to
an order, which order shall also set the case for trial within a
reasonable time. Any defendant so held shall, on motion, be discharged.
Importantly for our purposes, subsection (F) of that same rule also provides in
part that [w]hen a continuance is had on motion of the defendant, or
delay in trial is caused by his act, any time limitation contained in
this rule shall be extended by the amount of the resulting period of
such delay caused thereby.
The States duty to try the defendant within one year is an affirmative
duty, and the defendant is under no obligation to remind the State of
its duty. Marshall v. State, 759 N.E.2d 665, 668 (Ind. Ct. App.
2001). Whether a particular delay in bringing a defendant to trial violates
the speedy trial guarantee is a determined by the specific circumstances of the
case. Id. The purpose of Crim. R. 4 is to ensure
early trials, not to allow defendants to manipulate the means designed for their
protection and permit them to escape trials. McKay v. State, 714 N.E.2d
1182, 1190 (Ind. Ct. App. 1999).
Generally, a defendant is responsible for any delay caused by his action including
seeking or acquiescing in any continuance.
Vermillion v. State, 719 N.E.2d 1201,
1204 (Ind. 1999); Marshall, 759 N.E.2d at 669; State v. Love, 576 N.E.2d
623, 626 (Ind. Ct. App. 1991), trans. denied. Moreover, when a trial
court, acting within the one-year period of the rule, schedules trial to begin
beyond the one-year limit, the defendant must make a timely objection to the
trial date or waive his right to a speedy trial. Vermillion, 719
N.E.2d at 1204; Marshall, 759 N.E.2d at 668.
Here, the trial court acted within the one-year period to set Rivers trial
outside the one-year period on June 28, 1999. Rivers did not object
to the setting of the trial. Rivers failure to object waived his
right to a trial within the one-year period of Crim. R. 4(C) and
constituted acquiescence to the later trial date.
In State v. McGuire, 754 N.E.2d 639, 642 (Ind. Ct. App. 2001), trans.
denied, the defendant asked for a continuance so that the parties could engage
in plea negotiations. Because the trial court granted the continuance but did
not set a date for trial, we concluded that the trial court granted
the defendant an indefinite continuance. We held that once the defendant has
requested an indefinite delay he must take some affirmative action to notify the
trial court that he is dissatisfied with the delay and desires to go
to trial in order to recommence the running of the Crim.R. 4(C) period.
Id. See also Isaacs v. State, 757 N.E.2d 166, 168 (Ind.
Ct. App. 2001), trans. denied (2002) (when defendant requests indefinite continuance then becomes
dissatisfied with progress of his case, he must take affirmative action to restart
running of the Crim. R. 4(C) period).
Here, Rivers requested that he be tried after Majors. The trial court
granted this request for a continuance, but did not schedule a trial date
at that time. Therefore, we conclude that Rivers requested and received an
indefinite continuance of his trial. Accordingly, it was incumbent upon him to
notify the trial court when he was no longer satisfied with the delay
in the proceeding and that he desired to go to trial to re-start
the running of the Crim. R. 4(C) time period.
to the completion of Majors trial, Rivers first notified the trial court that
he wished to proceed to trial on March 20, 2001 when he filed
his motion for discharge. Even after that point, he moved for two
continuances that amounted to 119 days. Assuming arguendo that the remaining time
accrued against the Crim. R. 4(C) time period, Rivers was tried within 148
days of asserting his desire for a speedy trial.
A defendant may not take affirmative steps that are inconsistent with being brought
to trial within one year, then complain that his or her speedy trial
rights were violated.
See State v. Suggs, 755 N.E.2d 1099, 1103 (Ind.
Ct. App. 2001). In this case, we will not discharge on speedy
trial grounds a defendant who acquiesces in a trial outside the one-year period,
specifically requests an indefinite continuance so that his co-defendant may be tried, then
makes at least fourteen express requests for continuances, and by his actions in
pursuing an interlocutory appeal delays the trial even further. A review of
the record demonstrates that of the entire three and one-half year period, all
but 323 days passed under an express request from Rivers or his co-defendant
for a continuance. Furthermore, some of the remaining 323 days are attributable
to Rivers. Under these circumstances, we hold that Rivers is not entitled
to discharge under Crim. R. 4(C). See also Webb v. State, 437
N.E.2d 1330, 1333 (Ind. 1982) (finding no speedy trial deprivation where record replete
with defense continuances strongly indicated that defendant did not desire a speedy trial).
Rivers claims that his constitutional right to a speedy trial was violated.
In reviewing claims of speedy trial right violations, Indiana and federal courts apply
the analysis established in
Barker v. Wingo, 407 U.S. 514, 92 S. Ct.
2182, 33 L. Ed. 2d 101 (1972). Sweeney v. State, 704 N.E.2d
86, 102 (Ind. 1998), cert. denied, 527 U.S. 1035, 119 S. Ct. 2393,
144 L. Ed. 2d 793 (1999). The Barker analysis employs four factors:
(1) the length of the delay, (2) the defendants assertion of his
or her right, (3) the governments reason for the delay, and (4) the
prejudice to the defendant. Id.; Eguia v. State, 468 N.E.2d 559, 564-65
(Ind. Ct. App. 1984).
The length of the delay is to some extent a triggering mechanism.
Lockert v. State, 711 N.E.2d 88, 91 (Ind. Ct. App. 1999). Until
there is some delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance. Id.
A post-accusation delay exceeding one year has been termed presumptively prejudicial to a
defendant and triggers the Barker analysis. Vermillion, 719 N.E.2d at 1206 (citing
United States v. Doggett, 505 U.S. 647, 652 n. 1, 112 S. Ct.
2686, 2691 n. 1, 120 L. Ed. 2d 520, 528 n.1 (1992)); Danks
v. State, 733 N.E.2d 474, 481 (Ind. Ct. App. 2000), trans. denied.
See, e.g., Sauerheber v. State, 698 N.E.2d 796, 805 (Ind. 1998) (delay from
arrest to trial of one year triggered analysis); Lahr v. State, 615 N.E.2d
150, 152 (Ind. Ct. App. 1993) (eighteen-month delay triggered analysis).
In Eguia, 468 N.E.2d at 564-65, we applied the Barker analysis to a
defendants claim that he had been denied his constitutional right to a speedy
trial. In that case, the delay between the defendants arrest and his
trial was more than three years, a sufficient amount of delay to trigger
an inquiry. However, we noted that the defendants tardiness in asserting his
right demonstrated that he had no desire to have a speedy trial.
The defendant filed an indefinite continuance, then waited nineteen months before making any
indication that he should have been tried sooner. He also moved for
continuances on two occasions when a trial date had been set. Based
on these facts, we concluded that the defendant took little action to assert
his right. Id.
We next examined the reason for the delay. We noted that the
record demonstrated that much of the delay was attributable to the defendant rather
than any action or inaction on the States part. Finally, we concluded
that the defendant failed to show he suffered any prejudice from the delay.
We rejected the defendants proposition that prejudice should be presumed because the
defendant was notified of the charges soon after his arrest. Ultimately, we
concluded that the defendants constitutional right to a speedy trial was not violated.
Id. at 565.
Here, the length of the delay between accusation and trial was three and
one-half years. This delay is sufficiently lengthy to trigger the Barker analysis.
However, an examination of the factors demonstrates that Rivers speedy trial rights were
not violated. The vast majority of the delay was directly attributable to
Rivers affirmative acts in seeking continuances, requesting a trial after his co-defendant, and
pursuing an interlocutory appeal. Moreover, Rivers failed to assert his speedy trial
right until nearly three years after the charges were first filed. This
course of action demonstrates that Rivers was not dissatisfied with the course of
his trial. In that time, he agreed to testify against his co-defendant
and engaged in plea negotiations. His delay of nearly three years in
asserting his speedy trial right weighs against a speedy trial violation.
Rivers also fails to demonstrate how he was prejudiced by the delay in
this case. Although his plea negotiations were ultimately unsuccessful, the delay in
Rivers trial is in part attributable to his efforts to avoid one.
Moreover, Rivers changed counsel numerous times. Several of the continuances he requested
were to enable new counsel sufficient time to review the case. Finally,
we also note that Rivers had confessed to his participation in the crime.
We find that Rivers has failed to demonstrate prejudice. We therefore
conclude that Rivers constitutional right to a speedy trial was not violated, and
the trial court did not err in denying his motion for discharge.
Rivers also maintains that there is insufficient evidence to support his conviction.
Specifically, he contends that the trial court acquitted him of the murder charges
because it found insufficient evidence of an agreement between Majors and Rivers to
commit those acts. Rivers maintains that the same logic applies to the
robbery charge and that his conviction for that charge may not stand.
When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor
determine the credibility of witnesses.
Luna v. State, 758 N.E.2d 515, 517
(Ind. 2001); Newcomb v. State, 758 N.E.2d 69, 71 (Ind. Ct. App. 2001).
We look solely to the evidence most favorable to the verdict together
with all reasonable inferences to be drawn therefrom. Luna, 758 N.E.2d at
517; Newcomb, 758 N.E.2d at 71. We will affirm if the probative
evidence and reasonable inferences to be drawn from the evidence could have allowed
a reasonable trier of fact to find the defendant guilty beyond a reasonable
doubt. Luna, 758 N.E.2d at 517; Newcomb, 758 N.E.2d at 71.
IC 35-42-5-1(1) provides that a person who knowingly or intentionally takes property from
another person or from the presence of another person by using or threatening
the use of force on any person commits robbery, a Class C felony.
However, the offense is a Class A felony if it results in
serious bodily injury to any person other than a defendant. Rivers contends
that there was insufficient evidence of force because he did not know before
he and Majors went to Higginsons home that Majors intended to beat Higginson
An individual who aids another person in committing a crime is as guilty
as the actual perpetrator.
Boyd v. State, 766 N.E.2d 396, 399 (Ind.
Ct. App. 2002). Rivers watched as Majors picked up a light-colored object
like an ashtray and beat the elderly Higginson until she slumped over in
her chair. Because he was in it now, Trial Exhibits, Exhibit 42
at 6, Rivers went to the area of the house where Majors said
Higginson kept her money and guns and retrieved a gun. When he
returned, he watched as Majors hit Higginson with a cane five or six
times. At some point, Rivers also found a strongbox, and Majors found
other property. The pair then fled through the back door. Regardless
of whether Rivers knew of Majors intentions before the pair entered Higginsons home,
once Majors began beating Higginson, her intent to use force to accomplish the
taking of Higginsons property became clear. At that point, Rivers searched the
home and located valuable property, witnessed Majors further beating of Higginson, then left
the house with the property, leaving Higginson to die. The evidence is
sufficient to sustain Rivers conviction for robbery.
BROOK, C.J., and DARDEN, J., concur.
See IC 35-42-5-1.