Harbert v. State
| Decision Date | 04 February 2016 |
| Docket Number | No. 79A02–1412–CR–874.,79A02–1412–CR–874. |
| Citation | 51 N.E.3d 267 |
| Parties | Landon T. HARBERT and Malcolm M. Smith, Appellants–Defendants, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant Landon T. Harbert.
Caroline B. Briggs, Lafayette, IN, Attorney for Appellant Malcolm M. Smith.
Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney
General, Indianapolis, IN, Attorneys for Appellee.
, Judge.
[1] Landon Harbert appeals his conviction for Robbery,1 a class B felony, and the twenty-year sentence imposed by the trial court. Malcolm Smith, Harbert's co-defendant, appeals his convictions for two counts of Robbery,2 a class B felony.
[2] Harbert and Smith both raise the following arguments:
Harbert raises the following additional arguments:
Finally, Smith argues as follows:
Finding no error, we affirm.
[3] On October 23, 2012, two men robbed a money lending store located in a strip mall in West Lafayette. The first man, wearing dark or black clothing, a ball cap, and gloves, entered the store and stated he wanted to cash a check. As the store clerk began explaining the cash checking process, the second man, wearing dark, baggy clothing or a gray sweatsuit, entered the store and pulled a ski mask over his face. The first man, who was holding a small silver handgun, instructed the employee to do as the second man asked. The second man ordered the clerk to open her cash drawer and give him the money inside of it. She complied, giving the two men approximately $1500 in cash.
[4] During this altercation, a second clerk entered the store from the back and a customer entered from the front door. The man with the gun took a cell phone from the customer. The men ordered the two clerks and the customer into the store's back room. Eventually, the two men left and one of the clerks called 911.
[5] Outside, employees of an adjacent business observed two men enter a gray Dodge Durango with a breast cancer
awareness license plate. The vehicle then drove away at a high rate of speed. One of these witnesses described the men as wearing gray and black hooded sweatshirts.
[6] Responding police officers recovered the following items in nearby roadways within approximately a half of a mile of the robbery: a pair of high top sneakers, sweatpants, a hat, and a South Pole brand 5XL sweatshirt. The sneakers matched a description of the suspects' sneakers provided by one of the clerks. Inside the sweatpants was a wallet containing Smith's social security card and an Indiana Works identification card. A hair recovered from the pants contained Smith's DNA.
[7] Police were able to identify the Dodge Durango as a vehicle belonging to Kristin Harbert, who is Harbert's wife. When questioned by police about their whereabouts that day, Kristin and her friend, Megan Simpson, initially lied. Both women deleted their text messages from that day, and records show that some of those messages were to and from Harbert and Smith. When officers described the sweatshirt they had recovered, Simpson stated that Harbert owned that sweatshirt and that Kristin usually kept it in her vehicle. Eventually, Kristin and Simpson told police officers that they had gotten a call from Harbert's brother, Shawn, that day, indicating that the keys to Kristin's vehicle were in Indianapolis. Kristin and Simpson later retrieved the keys from a bush at a Steak ‘n Shake restaurant. The Dodge Durango was later recovered in an impound lot near Smith's residence in Indianapolis and appeared to have been burned. One witness testified that she had seen Harbert driving a dark-colored Dodge Durango a few days before the robbery.
[8] Phone records for October 23, 2012, showed that Harbert's phone was near Lafayette in the morning, travelled to the east side of Indianapolis, returned to near Lafayette, and then returned to the east side of Indianapolis that afternoon. Smith's phone remained in Indianapolis during the time of the robbery, but records show calls between Smith and Harbert on the morning of the robbery and after the robbery. Also, records show calls between Smith and Harbert's brother, Shawn, on the night of the robbery. Additionally, phone records show calls and text messages between Smith and Simpson during the afternoon and evening after the robbery.
[9] Approximately one week after the robbery, West Lafayette Police Officer Troy Harris contacted Smith about the recovered wallet. Smith denied any involvement in the robbery. He told Officer Harris that he and Harbert had grown up together. Smith said that someone had stolen his wallet three or four weeks earlier around the same time he had last seen Harbert, Harbert's brother, and a group of other people who they had been with that day. Smith did not report the theft to the police. When Officer Harris stated that Smith's wallet was found at the scene of the robbery, Smith replied, “Well, that just told me something right there ... Who the hell stole my wallet.” Ex. 76RT at 5.
[10] On February 14, 2013, the State charged Harbert and Smith each with two counts of class B felony robbery and two counts of class C felony theft. In April 2013, the State added charges of class B felony conspiracy to commit robbery to each defendant and alleged that Smith was a habitual offender.
[11] Before the first trial, the trial court granted a motion in limine barring evidence regarding the co-defendants' prior arrests. At the trial, which commenced in September 2013, Officer Harris testified regarding the way in which he identified the Dodge Durango:
Tr. p. 287–88. Both defendants moved for a mistrial. In response, the prosecutor explained that he was attempting to elicit information about the Durango's BMV records. The deputy prosecutor acknowledged that he had not specifically instructed Officer Harris to avoid mentioning the arrest, but explained that he did not believe such a warning was required due to “the nature of the case and the ... [officer's] experience.” Id. at 290. The trial court granted the mistrial.
[12] Before the second trial, both defendants moved to dismiss all charges on the basis of double jeopardy. The trial court denied the motion to dismiss. The second trial ended in another mistrial after the jury deadlocked.
[13] At a January 2014 status hearing, when the State confirmed its intentions to proceed with a third trial, the trial court informed Smith that he has a right to an appointed attorney if he could not afford to hire his own attorney. Smith indicated that he planned to hire an attorney. The trial court warned Smith that it would not allow the matter to “just linger on very long” and set another hearing in two weeks. Id. at 1186. At the next hearing, Smith stated that he had already selected an attorney, who would be in place by the end of February. Based on that representation, the trial court scheduled trial for June 2, 2014. On April 4, 2014, Smith told the court that his attorney would soon be appearing and that the attorney was aware of the trial date. The court warned Smith that the trial would go forward whether counsel had appeared or not. In early May 2014, the attorney had still not filed an appearance but Smith indicated that he had the money together to pay the retainer, so the trial court granted a trial continuance until August 4, 2014. On May 28, 2014, the private attorney told the court that he would not be representing Smith because Smith had failed to pay him. At that time, the trial court appointed an attorney to represent Smith, leaving in place the August 2014 trial date. At some point following his appointment, Smith's attorney requested a continuance, which the trial court denied.
[14] On May 4, 2014, Harbert filed a pro se motion to sever the joint prosecutions.3 The trial court denied the motion.
[15] The third jury trial took place on August 4–7, 2014. Following the trial, the jury found both defendants guilty as charged. On September 16, 2014, the trial court sentenced Smith to concurrent terms of twenty years imprisonment for each of the two counts of class B felony robbery.4 The trial court also adjudged Smith to be a habitual offender and enhanced the sentence by ten years as a result, for an aggregate term of thirty years imprisonment. On November 25, 2014, the trial court sentenced Harbert to twenty years imprisonment for one count of class B felony robbery.5 Both defendants now appeal.
[16] Smith and Harbert argue that principles of double jeopardy required dismissal after the first mistrial. Both the United...
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