Barnett v. State
| Citation | 637 N.E.2d 826 |
| Decision Date | 25 July 1994 |
| Docket Number | No. 49A02-9310-CR-526,49A02-9310-CR-526 |
| Parties | Bobbie BARNETT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Kenneth T. Roberts, Roberts & Bishop, Indianapolis, for appellant.
Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant-defendant Bobbie Barnett was convicted by a jury of Attempted Murder, 1 a Class A felony. On appeal, he presents the following issues which we restate as:
1. Whether the State violated his right to a speedy trial contained in Ind.Crim.Rule 4(B)(1).
2. Whether the State violated his right to equal protection of the law when it exercised a peremptory challenge to remove a member of his race from the jury venire.
3. Whether the trial court erred by refusing to instruct the jury on battery as a lesser included offense.
4. Whether there was sufficient evidence to support his conviction.
5. Whether there was an accumulation of errors during the course of the trial which collectively denied him due process of law.
We affirm.
The facts most favorable to the jury's verdict establish that during the summer of 1990, Barnett initiated a casual relationship with the victim, Sylvia Knowlton, who worked at a variety store which Barnett frequented. Their relationship progressed until Barnett began living in Sylvia's home located at 1130 North Pershing in Indianapolis. By March 1991, Barnett and Sylvia's relationship deteriorated.
On April 26, 1991, Sylvia left the variety store at about 8:00 in the evening. At about 12:30 a.m., Sylvia and two friends went to Sylvia's home where Barnett was watching television. Sylvia's two children, Brandie and Bart, were also at the home.
When the three women arrived, Barnett began cursing and complaining about Sylvia's friends. After her friends left her home some time between 1:00 or 1:30 a.m. on April 27, 1991, Sylvia expressed her anger with Barnett's treatment of her friends, and asked him to leave. Barnett gathered some personal belongings and left the house. Sylvia locked the door behind Barnett and went to the back bedroom. At approximately 4:00 a.m., Sylvia went to the door to get the newspapers for her newspaper route. She looked out the window of the door and saw Barnett standing outside. Without opening the door, Sylvia refused Barnett's offer to help deliver the newspapers. She told him to deliver the newspapers himself and returned to the bedroom.
When Sylvia awoke at approximately 7:00 a.m., Barnett was standing in the bedroom. Barnett told Sylvia he had returned to get an item of clothing he had left behind and asked if he could stay with her for a couple of additional weeks. When Sylvia refused, Barnett asked her to walk him to the door. As Sylvia got up and started to come around the end of the bed, Barnett cut the back of her neck with a box cutter. Sylvia pleaded with Barnett to stop and told him that he could stay with her for a couple of weeks if he would stop cutting her. Barnett replied that it was "too late for that now" and continued to attack Sylvia. Record at 708. He also told Sylvia that "If I can't have you, nobody will." Record at 715. When Sylvia's two children entered the bedroom, Barnett lifted Sylvia's head as she lay face down on the floor and cut the front of her neck. When Barnett left the bedroom, Sylvia got up and went to look for her daughter who was screaming. Sylvia walked outside where she saw Barnett take off running before she passed out in the grass. Sylvia's son ran after Barnett.
At approximately 7:30 a.m., Indianapolis Police Officer Mark Rush responded to an emergency dispatch concerning a person stabbed at 1130 North Pershing. Bystanders at the scene provided Officer Rush with Barnett's name, his general physical description, and his direction of flight. They also told Officer Rush that Sylvia's son was chasing Barnett with a two by four. Officer Rush left Sylvia's residence and drove south on Pershing. As he started up an alley, he saw a young man with a two by four; the man shouted, "He went this way." Record at 874. Officer Rush continued up the alley where he saw a man matching Barnett's physical description. The man turned and saw the police car, continued walking up the alley, and threw an object into a vacant field. Officer Rush ordered him to stop; the man complied. Officer Rush identified Barnett as the man he stopped in the alley. After handcuffing Barnett, Officer Rush returned to the vacant field where he saw the object Barnett threw away. Officer Rush identified the item as a box cutter with blood stains on it.
Sylvia was transported from her home to Wishard Hospital where she was treated by trauma surgeon Dr. Brian Plaisier. When Dr. Plaisier first saw Sylvia, she had two wounds: one across the front of her neck and one across the back of her neck. The two wounds were separated by a gap of about one centimeter so that nearly ninety percent of Sylvia's neck was encircled by the lacerations. The wound on the front of Sylvia's neck varied in depth from three to five millimeters. The wound on the back of her neck was 1.5 centimeters (approximately one-half inch) at its deepest point. Dr. Plaisier explained at trial that the digestive tract, respiratory tract, esophagus, major nerves, and great vessels (carotid arteries and jugular veins) all pass through the neck. All but Additional facts necessary to the disposition of the procedural issues Barnett raises are stated below.
the nerves lie within one-half inch of the neck's surface.
Barnett first contends that he was denied his right to a speedy trial. That right is expressed in Ind.Crim.Rule 4(B)(1) which provides in relevant part:
"If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar."
On October 8, 1991, Barnett requested an early trial. While other trial dates were scheduled and continued, January 13, 1992 is the trial date critical to resolution of Barnett's speedy trial claim. Taking into account periods of delay which tolled the running of the applicable time period, the January 13, 1992 trial date was within the 70-day period set forth in Crim.R. 4(B)(1). A trial did not take place on that date, however, because Barnett pled guilty pursuant to a plea agreement with the State. The trial scheduled for January 13, 1992 was replaced with a hearing at which Barnett entered his guilty plea. The trial court took Barnett's plea under advisement and scheduled the matter for sentencing on February 28, 1992. On that date, the court rejected Barnett's plea.
The question presented is whether Barnett abandoned his speedy trial motion by electing to plead guilty on the day his early trial was scheduled, even though his plea was ultimately rejected by the trial court. Barnett argues that although the running of the speedy trial clock was suspended during the time his plea was under advisement, the clock resumed ticking upon rejection of the plea. The State contends that Barnett abandoned his speedy trial motion when he elected to plead guilty and that upon rejection of the plea, a new motion was required to invoke Barnett's speedy trial right and begin the running of a new 70-day clock. We agree with the State.
Resolution of this issue is guided by Mickens v. State (1982), Ind., 439 N.E.2d 591. In that case, the defendant twice moved for a speedy trial; once on September 25, 1980, and again on November 19, 1980. The November motion was made at the same time Mickens rejected a plea agreement. Id. at 595. In finding that Mickens' speedy trial rights had not been violated, our supreme court held:
Id. (emphasis added). Use of the phrase "rather than" implies a choice for the defendant, either a speedy trial or a guilty plea. It is logically inconsistent for a defendant to request a speedy trial and then plead guilty because the former is waived by the latter. As our supreme court has noted, Gosnell v. State (1982), Ind., 439 N.E.2d 1153, 1155. See also Wright v. State (1986), Ind., 496 N.E.2d 60, 61.
Barnett contends that Mickens and Vaughan v. State (1984), Ind.App., 470 N.E.2d 374, trans. denied, stand only for the proposition that a defendant be charged with any delay arising during the period of plea negotiations. According to Barnett, those cases do not require a new speedy trial request once a plea is aborted. As discussed above, we read Mickens differently. Furthermore, this court rejected an invitation to analyze, on a case by case basis, whether plea negotiations constitute a delay tolling the Crim.R. 4 time limitations. Vaughan, 470 N.E.2d at 377. Following the precedent set in Vaughan, we decline to engage in a case by case review of plea negotiations for purposes of determining whether any Crim.R. 4 delay exists. Rather, we adhere to the principles espoused in Mickens and hold that a...
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