951 N.E.2d 869 (Ind.App. 2011), 79A04-1004-CR-346, Marzette v. State

Docket Nº79A04-1004-CR-346.
Citation951 N.E.2d 869
Opinion JudgeBROWN, Judge.
Party NameTradell MARZETTE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyMichael B. Troemel, Lafayette, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelFRIEDLANDER, J., concurs. BAILEY, J., concurs in result as to issue VI.B. and concurs as to all other issues.
Case DateAugust 10, 2011
CourtCourt of Appeals of Indiana

Page 869

951 N.E.2d 869 (Ind.App. 2011)

Tradell MARZETTE, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 79A04-1004-CR-346.

Court of Appeals of Indiana.

August 10, 2011

Editorial Note:

This opinion appears in the reporter in a table titled "Disposition of Cases by Unpublished Memorandum Decision in the Court of Appeals of Indiana ." These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

Appeal from the Tippecanoe Circuit Court; The Honorable Donald L. Daniel, Judge; Cause No. 79C01-0905-FB-17.

Michael B. Troemel, Lafayette, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION— NOT FOR PUBLICATION

BROWN, Judge.

Tradell Marzette appeals his convictions and sentences for conspiracy to commit robbery as a class B felony; 1 four counts of criminal confinement as class B felonies; 2 and attempted robbery as a class B felony.3 Marzette raises several issues, which we revise and restate below. We raise one issue sua sponte.

I. Whether the trial court abused its discretion in granting the State's Application for Extension of Speedy Trial;

II. Whether the court erred in granting the State's motion to release Marzette on his own recognizance;

III. Whether the court erred in denying Marzette's motion to compel a witness to testify;

IV. Whether the court abused its discretion when it rejected Marzette's proposed alibi instruction;

V. Whether Marzette may be convicted of both conspiracy to commit robbery and attempted robbery under the circumstances; 4

VI. Whether the evidence is sufficient to sustain Marzette's convictions;

VII. Whether the court abused its discretion in sentencing Marzette; and

VIII. Whether Marzette's sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm and remand.

The relevant facts follow. In the spring of 2009, Charles Moritz, who was taking accounting courses towards an MBA at Purdue University, formulated plans to conduct robberies of persons who were drug dealers. Moritz delegated some responsibilities for performing the robberies to Dayna Alvarez and Sylvario Wilson. Moritz would use Google Earth to obtain aerial views of the residences so that the other participants could see the layout of the roads and escape routes. It was the responsibility of Alvarez and Wilson to plan the details as to escape routes and to find other persons to assist with the robberies. Moritz instructed the participants not to rob anyone of electronics but to take drugs and drug money only because most drug dealers would not report the robbery.

In April, Moritz visited Kyle Lehnen at Lehnen's upstairs apartment located at 1716 Vinton Street in Lafayette, Indiana, and purchased a quarter pound of marijuana. Moritz learned there was additional marijuana at the apartment. Moritz informed Alvarez, Wilson, and Randall Belmont, Wilson's cousin, about the amount of drugs at Lehnen's apartment, and a plan was formulated to attempt to take any and all money and drugs from Lehnen's apartment. Moritz used Google to observe an aerial view of the apartment building on Vinton Street and gave the address of Lehnen's apartment to Alvarez and the other men. At some point, a decision was made to carry out the robbery on the night of April 17, 2009. Marzette and Deon 5 joined Alvarez and Wilson to assist with the robbery.6

On April 17, 2009, Alvarez, Wilson, Deon, and Marzette went to 1714 Vinton Street, which was a downstairs apartment, and each of the men wore dark clothing, ski masks over their faces, and latex gloves. Each of the men was armed, and Marzette had a rifle or shotgun. Alvarez knocked on the door at 1714 Vinton Street, and Holly Nethercutt answered the door. When she did so, Alvarez rushed inside and Marzette, Deon, and Wilson followed him. The perpetrators were unaware that they had not entered Lehnen's apartment. Marzette, Deon, and Wilson attacked Nethercutt and her three guests, William Johnson, Michael Burnett, and Rusty Land. One of the perpetrators picked Nethercutt up by her throat, shoved her against a window, and said " bitch you say anything and I'm going to shoot you." Transcript at 36. The perpetrators struck the victims with their fists, pistol whipped Burnett and Land, which knocked Burnett unconscious, and then kicked and hogtied Johnson, Burnett, and Land with electrical extension cords. Nethercutt thought that the perpetrators would not leave any witnesses behind and that she and her friends would be shot.

The perpetrators kept asking " where's the weed at?" and " [w]ho's got the weed around here?" Id. at 38. The guests replied that they did not have any, and Nethercutt " told them that they had the wrong apartment" and that " they were looking for the upstairs apartment." Id. at 41. The perpetrators searched Nethercutt's apartment and took her identification and money.

Three of the perpetrators escorted Nethercutt upstairs to Lehnen's apartment while one of them stayed in Nethercutt's apartment and watched over Johnson, Burnett, and Land. Nethercutt knocked on the door to Lehnen's apartment, and Lehnen looked out through the window and observed Nethercutt, who was crying, and the three men, two of whom were holding guns aimed at the back of Nethercutt's head. Lehnen got his shotgun, went to the window, and shot one round at the ground.

After Lehnen fired his gun, " everybody scattered" and the four perpetrators ran to their vehicle and drove back to Moritz's house. Id. at 166. At Moritz's house, the men were upset because the robbery did not go according to plan and because they had gone to the wrong address. Marzette and Alvarez argued and yelled at each other.

Police were dispatched to Vinton Street in response to shots fired, arrived at the scene sometime around 1:15 a.m. on April 18, 2009, and discovered Nethercutt, as well as Johnson, Burnett, and Land, who were tied up with extension cords.

The police investigation into a string of robberies led to evidence linking the robberies to Wilson, Alvarez, Moritz, Belmont, and Marzette. Sometime after the robbery, Marzette spoke with Belmont. Marzette was upset because the police found gloves around the Vinton Street house and was unsure whether the discovered gloves were his gloves. Marzette also told Belmont that he " was going to say that he was with his uncle that night instead of committing that crime." Id. at 224.

During the investigation, police visited and spoke with Marzette, and Marzette stated that he had been at Disney World during the month of April. Marzette went with the officers to the police station, and the officers asked Marzette about the armed robbery. Marzette initially denied knowing Alvarez and Wilson but later admitted to knowing them. Marzette eventually stated that he could not have participated in the offenses because he worked at Subway on the day of the crimes from 8:00 p.m. to 3:00 a.m. and told the police that they should call his boss. Marzette also stated, " if I were there where's the gloves that I was wearing, where's the gun." Id. at 190. The officers were later able to determine that Marzette had not been working at the Subway restaurant at the time of the crimes. Marzette later stated that he was drinking with his uncle at the time of the crimes.

On May 13, 2009, the State charged Marzette and his co-defendants with various felony offenses, and filed an amended charge for Count I on July 15, 2009. 7 As amended, Marzette was charged with: Count I, conspiracy to commit robbery as a class B felony; Count II, criminal confinement of Nethercutt as a class B felony; Count III, criminal confinement of Land as a class B felony; Count IV, criminal confinement of Johnson as a class B felony; Count V, criminal confinement of Burnett as a class B felony; and Count VI, attempted robbery as a class B felony.

On June 1, 2009, Marzette filed a notice of alibi stating that he was " with his uncle and wife at his residence." Appellant's Appendix at 61. In response, the State filed a motion for a more definite statement, and Marzette filed a response containing additional information regarding his alibi defense.

On June 16, 2009, Marzette moved for a speedy trial, and the court subsequently set trial for August 12, 2009. On June 22, 2009, the State filed a Motion for an Order Authorizing the Obtaining of Fingerprints, Blood, Hair and Saliva Samples from Defendant, and the court granted the motion. On July 23, 2009, the State filed an Application for Extension of Speedy Trial, submitting that it would not have the results of certain DNA tests prior to the scheduled trial date. On July 29, 2009, the court granted the State's Application, and on July 31, 2009, rescheduled the trial for October 14, 2009.

On October 8, 2009, Marzette and the State jointly moved to continue the trial, and on October 29, 2009, the court granted the motion and rescheduled the trial for January 20, 2010. Also on October 8, 2009, the State moved to release Marzette on his own recognizance, and the court granted the motion. The chronological case summary (" CCS" ) indicates that, by order on January 19, 2010, the court on motion by the State set aside the trial date of January 20, 2010, and reassigned the cause for trial for March 2, 2010.

Marzette's jury trial commenced on March 2, 2010. At trial, the State presented testimony from, among others, Johnson, Nethercutt, Burnett, Land, Lehnen, Moritz, Belmont, and Alvarez. Marzette presented his own testimony and the testimony of William Watkins, Marzette's uncle. Also, Marzette called Wilson, one of Marzette's co-defendants, as a witness. Marzette moved the court to...

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