Black v. State

• Decision Date: 07 July 2017
• Docket Number: Court of Appeals Case No. 09A04-1610-CR-2312
• Citation: 79 N.E.3d 965
• Parties: Brandon BLACK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

79 N.E.3d 965

Brandon BLACK, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 09A04-1610-CR-2312

Court of Appeals of Indiana.

July 7, 2017

Attorney for Appellant : Mark K. Leeman, Leeman Law Office and Cass County Public Defender, Logansport, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Jodi Kathryn Stein, Larry Allen, Deputy Attorneys General, Indianapolis, Indiana

Baker, Judge.

[1] Brandon Black appeals his convictions for Level 2 Felony Conspiracy to Commit Robbery Resulting in Serious Bodily Injury¹ and Level 2 Felony Robbery Resulting in Serious Bodily Injury.²

He argues that he was denied the right to counsel at a critical stage of the proceedings, that the trial court erred by admitting into evidence the victim's identification of Black, and that his enhanced convictions violate Indiana's double jeopardy law. We find that Black was denied the right to counsel at a critical stage of the proceedings but that he was not prejudiced by the denial, that any error of admitting into evidence the victim's identification was harmless, and that his enhanced convictions violated double jeopardy. Accordingly, we affirm in part, reverse in part, and remand.

Facts³

[2] In January 2015, Sanjay Amin lived and worked at the Super 8 Motel in Logansport. Ashley Reinholt rented a room at the motel on two occasions that month. Christopher Brown stayed with Reinholt on both occasions, and Black, who was Brown's cousin, was often present as well. Amin knew both Black and Brown by sight.

[3] On January 17, 2015, Reinholt and Amin made a plan to meet at the Manor Motel and Amin would pay Reinholt for sex. Reinholt told Brown of their plan, and Brown suggested that they rob Amin instead. Brown told Black about the idea and left the motel to pick up Black. Around 11:00 p.m. that night, Amin observed from the front desk Brown return to the motel with Black. Brown and Black picked up Reinholt and drove to the Manor Motel. Shortly thereafter, Amin also departed for the Manor Motel, and he observed the other vehicle enter the Manor Motel parking lot.

[4] Reinholt rented a motel room and then briefly returned to Brown's vehicle before Black and Brown left the parking lot. Amin recognized them as they passed by. Reinholt entered the motel room by herself and texted the room number to both Amin and Brown. After Amin arrived, Reinholt stepped outside to smoke a cigarette; when she re-entered, she left the door unlocked. Reinholt told Amin to remove his clothing, which he did.

[5] A few minutes later, Black and Brown entered the motel room. Their faces were covered. Brown began to beat Amin's face with his fists while Black shoved Reinholt against the wall. Amin heard one of the men say Reinholt's name. He recognized Black and Brown from their clothing, which they had worn earlier that day at the Super 8 Motel. Amin suffered serious injuries from the beating. Black and Brown took Amin's clothes and wallet, and fled the scene. Amin returned to the Super 8 Motel. Reinholt stayed in the Manor Motel room and texted Brown to pick her up.

[6] Amin was in the Super 8 Motel lobby with another employee when Reinholt, Black, and Brown entered. Black and Brown quickly left and drove away. The police were called, and Logansport Police Officer Travis Yike responded at midnight. Amin, worried about his family's potential reaction to what had happened, initially told Officer Yike that he had fallen in the snow. Reinholt told Officer Yike that she and Amin had been robbed, but she was unable to consistently tell the same story. Amin eventually said that he had been robbed.

[7] Amin and Reinholt were taken to the hospital for treatment. Meanwhile, Detective D.J. Sommers went to the Manor Motel, where he observed blood in the bedding of the motel room and a blood trail from the motel room to the parking lot. Detective Sommers then went to the hospital, where he spoke with Reinholt and tried to speak with Amin. The detective could get only some information from Amin due to Amin's limited English skills and severe facial injuries.

[8] Early the next morning, Amin returned to his room at the Super 8 Motel. A police officer took him to the lobby and asked whether Amin could identify anyone; both Black and Brown stood outside in police custody. Because it was dark, Amin asked for additional light, and a police officer shined a light on the two men. Amin recognized Black and Brown based on their clothing as the two men who had beaten and robbed him, as the two men who had dropped Reinholt off at the Manor Motel, and as the two men living with Reinholt in her Super 8 Motel room.

[9] The State initially charged Black with Level 3 felony conspiracy to commit robbery resulting in bodily injury and Level 6 felony battery with moderate bodily injury. A February 2016 joint jury trial for Brown and Black ended in a mistrial because the jury was deadlocked.

[10] On February 24, 2016, the State filed an amended information. The modified charges included Level 2 felony conspiracy to commit robbery resulting in serious bodily injury, Level 2 felony robbery resulting in serious bodily injury, and Level 5 felony battery resulting in serious bodily injury. On February 29, 2016, an initial hearing took place on the amended information; Black's trial counsel was not present. During the hearing, the State said that after the trial court approved the amended charges, the State would dismiss the two original charges. The trial court stated the sentence range for each charge. The trial court asked Black whether he understood the allegations against him at this point. Black answered affirmatively and did not make any objections.

[11] On July 19, 2016, the day before the trial, the State filed an amended information that reflected the three pending charges against Black and did not include the two original charges. A jury trial took place on July 20-21, 2016. At the start of the trial, the State filed two more amended informations to clarify caption and citation mistakes. Black objected to these corrections. The trial court overruled the objection, finding that the corrections related to technicalities and not the substance of the allegations.

[12] At trial, Amin testified that he identified Black and Brown outside the Super 8 Motel early in the morning after the robbery. Black objected to the testimony, arguing that it was based on an impermissible show-up identification procedure. The trial court conducted a brief hearing outside the presence of the jury, overruled the objection, and admitted the evidence.

[13] The jury found Black guilty of Level 2 felony conspiracy to commit robbery resulting in serious bodily injury and Level 2 felony robbery resulting in serious bodily injury; it acquitted him of Level 5 felony battery. At sentencing, the trial court imposed consecutive thirty-year sentences for both Level 2 felonies for an aggregate of sixty years imprisonment. Black now appeals.

Discussion and Decision

[14] Black makes four arguments on appeal, which we consolidate and restate as:

(1) that he was denied the right to counsel at a critical stage of the proceedings,

(2) that the trial court erred by admitting into evidence the victim's identification of Black, and (3) that his enhanced convictions violate Indiana's double jeopardy law.

I. Hearing on Amendments to Charging Information

A. Right to Counsel

[15] Black first argues that he was denied the right to counsel during a critical phase of the case—specifically, during the February 29, 2016, hearing on the State's amendments to the charging information.

[16] The Sixth Amendment to the United States Constitution requires the assistance of counsel at all critical stages of proceedings. Hernandez v. State , 761 N.E.2d 845, 849 (Ind. 2002). The right to the assistance of counsel is so essential that prejudice is presumed when there is actual or construction denial of the assistance of counsel; however, "denial of this constitutional right is ‘subject to a harmless error analysis unless the deprivation, by its very nature, cannot be harmless.’ " Id. (quoting Rushen v. Spain , 464 U.S. 114, 117-18 n.2, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) ).

[17] The right to the assistance of counsel at a critical point in the trial encompasses any stage of the prosecution where counsel's absence might derogate the defendant's right to a fair trial. Id. at 850. A stage is a critical stage when incrimination may occur or when the opportunity for effective defense must be seized or be forgone. Id. Our Supreme Court has stated that a critical stage exists when "the defendant is confronted with the intricacies of the law or the advocacy of the public prosecutor or prosecuting authorities." Id. The defendant bears the burden of establishing that there is a critical stage in the proceeding. Id. If there is a critical stage, the State bears the burden of establishing the harmlessness of error. Id.

[18] At the February 29, 2016, hearing, regarding the amendment of the charging information, Black did not have counsel present. He contends that he was faced with the intricacies of the law and the advocacy of the public prosecutor. Black had already been tried once, and jeopardy had attached to his original two charges. The State argues that the hearing in question was an initial hearing on the amended charges, and that an initial hearing is not a critical stage of the proceedings that requires counsel.

[19] We find that the February 29, 2016, hearing was not an initial hearing; rather, it was one hearing in a proceeding that began on January 19, 2015, when the original charges were filed against Black. The February 29, 2016, hearing was a continuance of those proceedings during which the State filed to amend the charges against Black. Generally at initial hearings, defendants do not yet have attorneys to represent them; however, in this case, at the time of this hearing, Black had counsel who...