Hill v. State

• Decision Date: 16 August 2002
• Docket Number: No. 49A02-0107-CR-440.,49A02-0107-CR-440.
• Citation: 773 N.E.2d 336
• Parties: Asher HILL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

773 N.E.2d 336

Asher HILL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0107-CR-440.

Court of Appeals of Indiana.

August 16, 2002.

Katherine A. Cornelius, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Asher Hill appeals his convictions for carrying a handgun without a license, a class A misdemeanor,¹ criminal confinement, a class B felony,² and robbery, a class A felony.³ Hill raises four issues, which we restate as:

I. Whether Hill's right to a speedy trial under Ind. Criminal Rule 4(B) was violated;

II. Whether the trial court's refusal to allow Hill to proceed to trial in the absence of witnesses denied him his Sixth Amendment right to represent himself III. Whether the trial court's actions, when combined, denied Hill of his right to free and complete justice under Article I, section 12 of the Indiana Constitution; and

IV. Whether the evidence is sufficient to sustain Hill's convictions.

We affirm.

The facts most favorable to the convictions follow.⁴ On May 9, 2000, Gary Barr was working as a cashier at a liquor store on south Sherman Drive in Marion County. Mike Wagner was in the store talking to Barr at the counter. An African-American male ("the robber"), who was five feet, eleven inches tall and was wearing jean shorts, white tube socks, tennis shoes, and a long sleeve, hooded, white shirt or jacket, entered the store. Immediately upon entering the store, the robber shot Barr in the abdomen and grabbed Wagner from behind. The robber walked Wagner around to the back of the counter and insisted that Wagner open the cash register. However, Wagner did not know how to open the register because he did not work at the liquor store. After trying unsuccessfully to open the register, Wagner unplugged it and gave it to the robber. The robber ordered Wagner to get on the floor, a location from which Wagner was able to observe the robber's legs and clothing. The robber threw the cash register to the ground and began kicking it until it finally opened. When the robber left the store, Wagner telephoned the police. The police dispatch report indicated that Wagner's call came in at 9:43 p.m.

At 9:45 p.m. that same night, Earnest Rich was driving on south Sherman Drive, when a mid-sized gray Mazda came speeding up behind him with its headlights on bright. Rich saw the car leave the road and run into trees on Pleasant Run Parkway. The intersection of Sherman and Pleasant Run Parkway is approximately one-half mile north of the liquor store on Sherman. Rich circled around to the accident scene and found that there was no one in the car. Rich telephoned the police.

Before the police dispatch for the accident occurred, Indianapolis Parks Department Ranger Jerald Knuckles noticed the Mazda against the trees as he was driving by on patrol. When Ranger Knuckles arrived, he noticed that the headlights and windshield wipers were on and that the engine was running. Ranger Knuckles opened the car door and saw a gun on the passenger seat. Ranger Knuckles removed the bullets from the gun and placed the gun and bullets in his patrol car until the police arrived.

The police arrived at the accident scene with Rader, a dog trained to track scents. Rader tracked a scent from the car to Pleasant Run Creek. Because the creek was high from recent rains, the officer took Rader around to the other side of the creek, where Rader was able to find the scent again. Rader tracked the scent from the creek to Pleasant Run Drive near Gale Street. Also around 9:45 that same night, Hill, who is African American, knocked on the door at the Sterlings' house, which is on Gale Street near Pleasant Run Drive. When Mrs. Sterling saw Hill, he was "out of breath, and sort of frightened" and was wearing knee-length jean pants, tennis shoes and white socks. Transcript at 206. Hill told her that he had been carjacked and needed to use their phone. Because Hill had trouble using her phone, Sterling made a phone call for Hill. Sterling thought it was unusual that Hill was not calling the police to report the carjacking, so she went to her bedroom and called 9-1-1. At some point, Hill took off his shoes and socks so that he could wring the water out of his socks. The police arrived at the Sterlings' house within minutes of Mrs. Sterling's call.

The police brought Wagner to the Sterlings' house to see if Wagner recognized Hill as the man who committed the robbery and shooting at the liquor store. Wagner reported that Hill's shoes and shorts appeared to be the same as those worn by the robber. In addition, Hill had $392.23, mostly in five-dollar and ten-dollar bills.

Police found money in, and on the ground around, the Mazda. A beige colored coat was found on the bank of the creek. A crime technician found Hill's fingerprint on the driver's side window of the Mazda. On April 9, 2000, the police had conducted a traffic stop of the Mazda, at which time Hill was driving the car, which belonged to his ex-girlfriend. Ballistics tests indicated that the gun found in the Mazda was the gun used to shoot Barr.

The State charged Hill with attempted murder as a class A felony,⁵ robbery as a class A felony, criminal confinement as a class B felony, unlawful possession of a firearm by a serious violent felon as a class B felony,⁶ carrying a handgun without a license as a class A misdemeanor, and carrying a handgun without a license as a class C felony.⁷ The State also filed informations alleging that Hill was an habitual offender subject to sentence enhancement pursuant to Ind.Code § 35-50-2-8 and that Hill was an habitual offender subject to a sentence of life imprisonment without parole pursuant to Ind.Code § 35-50-2-8.5.

After delays that will be discussed in more detail in subsequent portions of this opinion, a jury tried Hill. The jury found Hill guilty of robbery as a class A felony, criminal confinement as a class B felony, and carrying a handgun without a license as a class A misdemeanor. The jury found that the State had proved that Hill was an habitual offender subject to either an enhancement of years or an enhancement to life without parole. The trial court sentenced Hill to one year for carrying a handgun without a license, which was to be served concurrent with a ten-year sentence for criminal confinement. The trial court ordered that the confinement sentence be served consecutive to a thirty-year sentence for robbery, which the trial court enhanced to life imprisonment without parole.⁸

I.

The first issue is whether Hill's right to a speedy trial under Ind. Criminal Rule 4(B) was violated. There are no disputed facts regarding this issue; rather, the dispute at issue is whether the delays that occurred are chargeable to Hill or the State. We review this matter de novo. See Vaughan v. State, 470 N.E.2d 374, 377 (Ind.Ct.App.1984) (implicitly reviewing an Ind. Criminal Rule 4(B) question about which party was responsible for a delay under a de novo standard), reh'g denied, trans. denied.

Ind. Criminal Rule 4(B)(1) provides that if a defendant requests a speedy trial, he shall either be brought to trial within seventy days of his motion or be discharged. See Underwood v. State, 722 N.E.2d 828, 831 (Ind.2000), reh'g denied. The rule also provides two exceptions that may excuse the State from bringing the defendant to trial within seventy days. Id. The first exception applies when the trial court's calendar is too congested to permit a trial for the defendant within seventy days. Id.; Ind.Crim. Rule 4(B)(1). The second exception applies when the delay in adjudicating the defendant's guilt is caused by the defendant. Underwood, 722 N.E.2d at 831; Ind.Crim. Rule 4(B)(1); Ind.Crim. Rule 4(F). When we compute how many days have passed since the defendant's motion for a speedy trial, we include Saturdays, Sundays, and legal holidays. Ind. Crim. Rule 4(B)(2). However, if the seventieth day falls on a Saturday, Sunday, or legal holiday, then the defendant need not be discharged if the State brings the defendant to trial on the first business day following the seventieth day. Id.; see also Ind.Crim. Rule 4(E).

Hill requested a speedy trial on May 16, 2000. Hill concedes that his trial was postponed a number of times due to court congestion, and Hill does not question the propriety of those continuances. Rather, Hill claims that there are three continuances that are chargeable to the State against the seventy day deadline. The first continuance at issue is a twenty-eight day delay from February 12, 2001 to March 12, 2001 that occurred because the State needed more time to depose Hill's defense witnesses. The second continuance at issue is a seven day delay from March 12, 2001 to March 19, 2001 that occurred because the State chose the later of two trial dates offered by the trial court. The third continuance at issue is a fifty-six day delay from March 19, 2001 until May 14, 2001 that occurred when the State requested a continuance because Barr would be unable to attend trial due to a health emergency.

The combined total days attributable to those three continuances is ninety-one days. If, as Hill argues, all of these days are chargeable to the State, then the State exceeded the seventy day deadline for bringing Hill to trial, and Hill must be discharged. If, however, some of these days are not chargeable to the State, then the State may not have exceeded the seventy day deadline, and Hill would not have to be discharged. We address the continuances in chronological order.

The trial court granted the continuance from February 12, 2001 until March 12, 2001 at a pre-trial conference on February 7, 2001. The circumstances surrounding that continuance were as follows. The State had filed a motion to exclude evidence, specifically the testimony...