Davenport v. State, No. 49S00-9510-CR-1245

Docket NºNo. 49S00-9510-CR-1245
Citation689 N.E.2d 1226
Case DateDecember 23, 1997
CourtSupreme Court of Indiana

Page 1226

689 N.E.2d 1226
Keith DAVENPORT, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 49S00-9510-CR-1245.
Supreme Court of Indiana.
Dec. 23, 1997.

Page 1228

Steven C. Litz, Monrovia, for Appellant.

Pamela Carter, Attorney General, Preston W. Black, Deputy Attorney General, Indianapolis, for Appellee.

SELBY, Justice.

Keith Davenport ("defendant") was convicted, after a jury trial, of murder, felony murder, attempted robbery, and auto theft. The abstract of judgment shows that defendant was sentenced to sixty years for murder, fifty years for felony murder, twenty years for attempted robbery, and eight years for auto theft. The murder and felony murder convictions were to be served concurrently with each other and consecutively to the attempted robbery and auto theft convictions for a total sentence of eighty-eight years. Defendant raises four issues in his appeal: 1) Whether the trial court properly denied his motion to dismiss all counts but murder? 2) Whether there was insufficient evidence to sustain the convictions? 3) Whether he received ineffective assistance of trial counsel? and 4) Whether the court committed sentencing errors? 1 We affirm the murder conviction but reverse all other convictions.

FACTS

The facts most favorable to the judgment show that during the early morning hours of June 29, 1994, defendant and Byron Smith were hoping to rob someone. William Sargent drove up beside them in his car. Defendant pulled out a BB gun and pointed it at Sargent. Defendant and Smith got into Sargent's car, and defendant drove them to an alley where he and Smith robbed Sargent of $100. Then, the three of them went to Sargent's house. Once at the house, Smith checked a china cabinet for money, carried a television to the front door, and went into the kitchen to rob Sargent of his food.

While in the kitchen, Smith heard defendant and Sargent struggling in the living room. Smith ran into the living room and saw defendant and Sargent struggling over a .38 handgun. Smith joined in the struggle, and he and defendant hit and kicked Sargent. The gun went off once before defendant got control of it. Defendant forced Sargent, at gunpoint, to leave the house.

Smith drove the three of them to a wooded area. The three of them exited the car and walked to the top of a small hill. Sargent pleaded for his life. Defendant told Sargent that he would give him five seconds to run, and, as Sargent turned to run, defendant shot him. Defendant also fired three more shots. Smith and defendant then left.

Later that morning, Sargent's body was found. An autopsy revealed that Sargent had been beaten about the head and shot five times. Two of the gunshot wounds were to the back. After finding Smith's fingerprints in the car and in Sargent's house, the police arrested Smith. Smith gave a statement wherein he stated that Sargent had invited Smith and defendant to his house to smoke marijuana; that Sargent accused Smith and defendant of selling him bad cocaine; that Sargent pulled a gun on them; that Smith and defendant attacked Sargent, took his gun, and drove him away from his house; and that, once the car stopped and defendant and Sargent exited, Smith heard defendant count to five and then fire four or five shots, but he did not see defendant shoot Sargent.

Defendant turned himself into the police and gave a statement. His statement was essentially the same as Smith's, except that he said that he and Smith left Sargent alive in the car. Defendant and Smith were charged with Sargent's murder. Smith was granted testimonial immunity and testified against defendant at trial.

DISCUSSION

I.

Defendant first argues that the trial court erred in denying his motion to dismiss the felony murder, attempted robbery, and auto theft charges. On July 14, 1994 in

Page 1229

Marion Superior Court, Criminal Division 5, the State charged defendant with one count of murder. On February 2, 1995, four days prior to trial, the State filed a motion to amend the charging information by adding the charges of felony murder, attempted robbery, and auto theft. The court denied the motion. On February 6, 1995, the State dismissed the murder charge and refiled it, along with the three new charges. The State then transferred the case to Marion Superior Court, Criminal Division 1. In the new court, defendant filed a motion to dismiss the added charges. The trial court conducted a hearing and denied the motion. Defendant argues that this was error because it allowed the State to abuse its power to his prejudice.

Under the authority of Ind.Code § 35-34-1-13, the prosecuting attorney may move for the dismissal of the information at any time prior to sentencing. Ind.Code § 35-34-1-13(a) (1993). So long as the motion states a reason for the dismissal, the trial court must grant the motion. See Ind.Code § 35-34-1-13(a); Burdine v. State, 515 N.E.2d 1085, 1089 (Ind.1987).

The dismissal of an information under Ind.Code § 35-34-1-13 is not necessarily a bar to refiling. See Joyner v. State, 678 N.E.2d 386, 393 (Ind.1997). Once an information has been dismissed by the State under Ind.Code § 35-34-1-13, the State may refile an information against the defendant, subject to certain restrictions. For example, Indiana courts have long held that the State may refile for the same offense so long as jeopardy has not already attached. See Joyner, 678 N.E.2d at 393; Willoughby v. State, 660 N.E.2d 570, 577 (Ind.1996); Burdine, 515 N.E.2d at 1089-90; Johnson v. State, 252 Ind. 79, 246 N.E.2d 181, 184 (1969); Winters v. State, 200 Ind. 48, 50-51, 160 N.E. 294, 294-95 (1928). Indiana courts have also long held that the State's power to dismiss and refile may not be used to evade the defendant's speedy trial rights. See Burdine, 515 N.E.2d at 1090; Maxey v. State, 265 Ind. 244, 353 N.E.2d 457, 461 (1976); Dennis v. State, 412 N.E.2d 303, 304 (Ind.Ct.App.1980).

The State may not refile if doing so will prejudice the substantial rights of the defendant. See Joyner, 678 N.E.2d at 394; Willoughby, 660 N.E.2d at 578; Dennis, 412 N.E.2d at 304. Speedy trial and jeopardy rights are two specific examples of substantial rights which cannot be prejudiced. While we have not specifically defined what a substantial right is in other contexts, it is relatively clear what situations do not necessarily prejudice a defendant's substantial rights. For example, the State does not necessarily prejudice a defendant's substantial rights if it dismisses the charge because it is not ready to prosecute and then refiles an information for the same offense. See Johnson, 246 N.E.2d at 183-84; Dennis, 412 N.E.2d at 304-05. Also, the State does not necessarily prejudice a defendant's substantial rights by dismissing an information in order to avoid an adverse evidentiary ruling and then refiling an information for the same offense. See Joyner, 678 N.E.2d at 392-94. 2 Furthermore, the State does not necessarily prejudice a defendant's substantial rights when, on the refiled information, it amends the original information but charges the same offense. See Willoughby, 660 N.E.2d at 576-78; Maxey, 353 N.E.2d at 460-61. 3 The defendant's substantial rights are not prejudiced in these situations primarily because the defendant can receive a fair trial on the same facts and employ the same defense in the second trial as in the first. See Willoughby, 660 N.E.2d at 578; Maxey, 353 N.E.2d at 461; State v. Joyner, 482

Page 1230

N.E.2d 1377, 1379 (Ind.Ct.App.1985). Public policy favors the prosecution of persons accused of criminal offenses when a fair trial is available. See Gregor v. State, 646 N.E.2d 52, 54 (Ind.Ct.App.1994).

While courts have allowed the State significant latitude in filing a second information, the State cannot go so far as to abuse its power and prejudice a defendant's substantial rights. In the present case, the State received an adverse ruling in the original trial court on its motion to amend the information. As a result, defendant had to defend against one count of murder. In response, the State dismissed the case and filed a second information which contained four counts: the original murder count plus the felony murder, attempted robbery, and auto theft counts. Then, for no apparent reason other than because the State knew that the court had already ruled that the State could not include those additional three counts in the information, the State moved for and was granted transfer to a different court. By doing so, the State not only crossed over the boundary of fair play but also prejudiced the substantial rights of the defendant. Because of a sleight of hand, the State was able to escape the ruling of the original court and...

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46 practice notes
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 2001
    ...testimony that contradicts witness's earlier statements does not make such testimony "incredibly dubious." See Davenport v. State, 689 N.E.2d 1226, 1230 (Ind. 1997), reh'g granted in part, 696 N.E.2d 870 (1998). Funk unequivocally identified Defendant as the perpetrator who shot the three v......
  • Shaw v. Wilson, No. 12–1628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 28, 2013
    ...attempts to get around those rulings by dropping the original charges and refiling more serious ones. See, e.g., Davenport v. Indiana, 689 N.E.2d 1226, 1230 (Ind.1997) (vacating conviction where the state had “received an adverse ruling in the original trial court on its [untimely] motion t......
  • Fisher v. State, No. 82A05-0704-PC-215.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 2007
    ...Fisher on the day of the crime, thereby calling into doubt the State's identification evidence before the jury. Cf. Davenport v. State, 689 N.E.2d 1226, 1231-32 (Ind.1997) (holding a defendant cannot show prejudice based on trial counsel's failure to introduce a witness's prior inconsistent......
  • Shaw v. Wilson, No. 12-1628
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 24, 2013
    ...attempts to get around those rulings by dropping the original charges and refiling more serious ones. See, e.g., Davenport v. Indiana, 689 N.E.2d 1226, 1230 (Ind. 1997) (vacating conviction where the state had"received an adverse ruling in the original trial court on its [untimely] motion t......
  • Request a trial to view additional results
45 cases
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • January 25, 2001
    ...testimony that contradicts witness's earlier statements does not make such testimony "incredibly dubious." See Davenport v. State, 689 N.E.2d 1226, 1230 (Ind. 1997), reh'g granted in part, 696 N.E.2d 870 (1998). Funk unequivocally identified Defendant as the perpetrator who shot the three v......
  • Shaw v. Wilson, No. 12–1628.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 28, 2013
    ...attempts to get around those rulings by dropping the original charges and refiling more serious ones. See, e.g., Davenport v. Indiana, 689 N.E.2d 1226, 1230 (Ind.1997) (vacating conviction where the state had “received an adverse ruling in the original trial court on its [untimely] motion t......
  • Fisher v. State, No. 82A05-0704-PC-215.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 28, 2007
    ...Fisher on the day of the crime, thereby calling into doubt the State's identification evidence before the jury. Cf. Davenport v. State, 689 N.E.2d 1226, 1231-32 (Ind.1997) (holding a defendant cannot show prejudice based on trial counsel's failure to introduce a witness's prior inconsistent......
  • Shaw v. Wilson, No. 12-1628
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 24, 2013
    ...attempts to get around those rulings by dropping the original charges and refiling more serious ones. See, e.g., Davenport v. Indiana, 689 N.E.2d 1226, 1230 (Ind. 1997) (vacating conviction where the state had"received an adverse ruling in the original trial court on its [untimely] motion t......
  • Request a trial to view additional results

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