Hatchett v. State

• Decision Date: 03 February 1987
• Docket Number: No. 1284S495,1284S495
• Citation: 503 N.E.2d 398
• Parties: Charles HATCHETT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 398

503 N.E.2d 398

Charles HATCHETT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1284S495.

Supreme Court of Indiana.

Feb. 3, 1987.

Rehearing Denied March 24, 1987.

Reginald B. Bishop, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Judge.

Appellant Charles Hatchett was tried by a jury and convicted of five counts of robbery, class B felonies, Ind.Code Sec. 35-42-5-1 (Burns 1985 Repl.) and one count of confinement, a class B felony, Ind.Code Sec. 35-42-3-3. The judge imposed a sentence of twenty years for each conviction, such sentences to be served consecutively for a total term of one hundred twenty years. Hatchett raises the following issues in this direct appeal:

1) Whether the trial court erred in trying Hatchett jointly with a co-defendant;

2) Whether the trial court erred in limiting cross-examination of two State witnesses regarding prior criminal conduct;

3) Whether the trial court erred in instructing the jury that, if convicted, Hatchett would be sentenced by the judge from various sentencing alternatives, and

4) Whether the evidence supported the enhanced sentences.

The evidence at trial showed that on January 24, 1984, Hatchett, along with cohorts Steven Hunter and Linell Beard, robbed an Indiana National Bank branch at gunpoint. The robbers forcibly removed the assistant manager to the parking lot, taking his car keys in an apparent attempt to escape in his car. Discovering a more likely vehicle, the three escaped in a van owned by a bank customer who was using the outdoor automatic teller machine. When the van proved unsuitable, the robbers ran another vehicle off the road, hit the seventy-eight-year-old driver over the head, and attempted to escape in that vehicle, only to find it stuck in an icy ditch. They were later successful in commandeering yet another car from another elderly victim.

Although the bank robbery was photographed by a surveillance camera, only co-defendant Hunter could be identified, as the other robbers were masked. However, an exploding packet of red dye marked the stolen money. On the day following the robbery, Howard Smith was arrested with red-dyed money in his possession.

Smith testified at trial that, though he was not a participant in the bank robbery, he had allowed Hatchett, Hunter and Beard to use a hand gun and a sawed-off shotgun "to get some money" on the morning of the robbery and that they had later returned with red-marked bills. Smith received some of the money, which he attempted to launder, in exchange for the use of his weapons. The police recovered the weapons used in the robbery from Smith and also recovered a firearm resembling a machine gun, later identified as a rifle.

Smith identified Hatchett at trial as one of the men who borrowed the weapons and returned with the money. He also pointed him out in the surveillance photographs by identifying the clothes Hatchett wore on the day of the crime. Smith was not prosecuted for his part in the robbery or for the possession of illegal firearms.

Anthony Thompson also saw Hatchett, Hunter and Beard following the robbery. Hunter told Thompson about the robbery, and Thompson helped Smith launder some of the bills in exchange for a share of the money. Thompson was likewise not charged. Another resident of Smith's apartment saw the three robbers return and divide the red-dyed money.

I. Joint Trial

Two months before trial, the State filed a motion for consolidation of the trials of Hatchett, Hunter and Beard, each of whom had been charged separately. The court granted the motion. Hatchett and Hunter were tried together, Beard having pled guilty before trial commenced. Hatchett objected to the joinder twice before the trial, objected during trial to being seated with Hunter and to sharing voir dire time and peremptory challenges. He renewed his objection at the close of the evidence. Though he filed no written motion for severance, he made his desire for a separate trial abundantly clear and adequately preserved the issue for appellate review.

Hatchett and Hunter could have been jointly charged in the same information, as each was charged with the same five counts of robbery and one count of confinement. Ind.Code Sec. 35-34-1-9(b) (Burns 1985 Repl.). Absent any statutory provision for consolidated trials of separately charged defendants, it is within the court's discretion to determine whether defendants should be joined. Cf., Roark v. State (1955), 234 Ind. 615, 130 N.E.2d 326 (joinder of offenses for trial within trial court's discretion). As the defendants properly could have been joined at the charging phase, it was well within the trial court's discretion to consolidate the defendants' trials.

The trial court may order severance of jointly charged defendants when it determines a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of guilt or innocence. Ind.Code Sec. 35-34-1-11(b) (Burns 1985 Repl.). The decision to grant or deny a separate trial is within the court's discretion. To show an abuse of discretion, appellant must demonstrate that in light of what occurred at trial, the denial of a separate trial subjected him to actual prejudice. Hunt v. State (1983), Ind., 455 N.E.2d 307.

Hatchett raises several specific allegations of prejudice resulting from the joint trial. He first complains of prejudice in the jury selection process, arguing that he was forced to share voir dire time and peremptory challenges with co-defendant Hunter. However, the transcript of voir dire is not included in the record of proceedings. Therefore, it is unclear whether the defendants exhausted their voir dire time or their peremptory challenges. Hatchett does not point to any individual juror he was unable to challenge due to lack of voir dire or peremptory challenges.

Moreover, the trial court has broad discretion in regulating voir dire. Kalady v. State (1984), Ind., 462 N.E.2d 1299. In this case, the court allowed one hour of voir dire by the State and one hour of voir dire time to be shared by the defendants. Additionally, the court allowed the parties to submit written questions for possible use by the court. We have affirmed the trial court's limitation of voir dire to thirty-five minutes total per side to be shared by two co-defendants. Lucas v. State (1986), Ind., 499 N.E.2d 1090. Appellant has not shown that limiting shared voir dire time to one hour restrained him with respect to any particular juror or any given subject. Accordingly, we regard the trial judge's decision as being within the range of his discretion. ¹

Additionally, when two or more defendants are tried together, they must share challenges. Ind.Code Sec. 35-37-1-3(d) (Burns 1985 Repl.). Sharing of peremptory challenges does not constitute any prejudice to the defendant absent actual prejudice at trial. Hunt, 455 N.E.2d 307. While Hatchett has stated his general aversion to sharing in the jury selection process with his co-defendant, he has not shown any actual prejudice which resulted. This generalized complaint is not sufficient to show an abuse of discretion.

Hatchett further alleges that he was prejudiced by appearing at counsel table with co-defendant Hunter. The record indicates that neither Hunter's appearance nor his conduct at trial was in any way out of the ordinary. Rather, Hatchett argues that he was subject to "guilt by association." However, as presiding Judge Hoffman wrote for the Court of Appeals:

The trial court does not abuse its discretion in refusing to order separate trials on the basis that a defendant may be found guilty by association where the evidence presents clearly defined and distinctive roles for each defendant and there is no confusion over who may have spoken certain words or may have done certain acts. (citations omitted.)

Johnson v. State (1981), Ind.App., 423 N.E.2d 623, 629.

In this case, Hatchett and Hunter were identified in court by both Thompson and Smith, and Smith identified both robbers in the surveillance photographs. Bank employees testified as to the specific actions taken by each robber. There was no confusion about the distinct role each defendant played in the crimes. The fact that the evidence tended to show the guilt of Hunter in the same trial did not unduly prejudice the determination of Hatchett's guilt. Smith v. State (1984), Ind., 465 N.E.2d 1105.

Appellant also charges that his joint trial resulted in prejudicial jury instructions. Specifically, he points to instructions which name both Hatchett and Hunter in a single instruction and refer to "defendants" in the plural. He suggests that this plurality infers a conspiracy or joint culpability. Such a grammatical inference is tenuous at best. Moreover, the judge instructed the jury that it should give separate consideration to each defendant, that each defendant's case should be decided on the evidence and law applicable to him, and that any evidence limited to one defendant should not be considered as to the other defendant. Taken as a whole, the joint instructions were proper.

Finally, Hatchett alleges prejudice in the "possibility" that Beard, originally joined as a co-defendant for trial, could have given a statement implicating him, citing Baniszewski v. State (1970), 256 Ind. 1, 261 N.E.2d 359. The defendant in Baniszewski was tried with co-defendants who in fact gave statements used at trial to implicate the defendant. Of course, in this case, Beard pled guilty and was not a co-defendant at trial. No statement by Beard was introduced against Hatchett, nor was there indication that Beard had ever given a statement against Hatchett. Though called as a witness by the State, Beard asserted his Fifth Amendment privilege and did not testify. The brief joinder of Hatchett and Beard as co-defendants prior to trial did...