Lee v. State

• Decision Date: 10 September 1997
• Docket Number: No. 71S00-9605-CR-00310,71S00-9605-CR-00310
• Parties: Dorian LEE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1143

684 N.E.2d 1143

Dorian LEE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 71S00-9605-CR-00310.

Supreme Court of Indiana.

Sept. 10, 1997.

Julie P. Verheye, Mishawaka, for Appellant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, for Appellee.

SULLIVAN, Justice.

On June 14, 1995, defendant, Dorian Lee, was charged with Murder; ¹ Burglary, ² a class B felony; three counts of Attempted Murder, ³ class A felonies; and Rape, ⁴ a class A felony. Defendant was sentenced to 60 years for Murder, 15 years for Burglary, 40 years for each of the Attempted Murder charges, and 40 years for Rape. The trial court ordered the defendant to serve consecutive sentences on all charges, except for Burglary and Rape, resulting in an aggregate sentence of 235 years.

Background

On June 12, 1995, defendant, along with two armed men, Terrance Mitchem and Michael Greer, broke and entered a home occupied by four adults. ⁵ The defendant raped one of the female victims and participated in the shooting of all four victims. One victim was killed, while the other three survived. Relevant facts will be provided as needed.

Discussion

Defendant raises four issues on appeal: (1) whether the continuance of the trial violated defendant's right to a speedy trial; (2) whether the trial court erred in denying a motion for a separate trial; (3) whether there was sufficient evidence to support the jury's finding that the defendant committed rape while armed with a deadly weapon; and (4) whether the trial court erred when it imposed enhanced and consecutive sentences.

I

Defendant contends that he was denied his right to a speedy trial when the trial court continued the trial date. Trial in defendant's case was originally set for July 31, 1995. Upon joining defendant's case with co-defendants Mitchem and Greer, trial was rescheduled for October 16, 1995. The trial date was later continued from October 16, 1995, to December 4, 1995. At the time the motion to continue was granted, defendant objected to the continuance but on grounds unrelated to speedy trial rights. As such, he has waived the right to assert on appeal any violation of his right to a speedy trial. Bradford v. State, 675 N.E.2d 296, 302 (Ind.1996); Holmes v. State, 671 N.E.2d 841, 856 (Ind.1996); Akins v. State, 429 N.E.2d 232, 235 (Ind.1981) (similar facts). Nevertheless, we elect to review defendant's claim on the merits.

Defendant is not claiming that his right to a speedy trial has been violated under Ind.Crim.Rule 4, but instead suggests that his constitutional guarantee thereto under art. I, § 12, of the Indiana Constitution has been violated. In analyzing whether there has been a violation of the right to a speedy trial under our state constitution, Indiana has applied the analysis used in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See Crawford v. State, 669 N.E.2d 141, 145 (Ind.1996); Wilburn v. State, 671 N.E.2d 143, 148 (Ind.Ct.App.1996) trans. denied; Scott v. State, 461 N.E.2d 141, 143 (Ind.Ct.App.1984). This analysis employs four factors: (1) length of delay, (2) defendant's assertion of his right, (3) the government's reason for the delay, and (4) the prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2191-92.

The defendant was charged on June 14, 1995, and the original trial was set for July 31, 1995. Upon an order joining defendant's case with his codefendants, trial was rescheduled for October 16, 1995. After granting motions by the codefendants to continue, trial was finally set for December 4, 1995, and concluded on December 11, 1995. Thus, the time between defendant's charge and the beginning of his trial was less than six months. We find that the length of delay was not unreasonable. Cf. Crim.R. 4(A) (requires that a defendant detained in jail be brought to trial no later than six months).

In order to claim a constitutional violation of the right to a speedy trial, defendant must assert such right. When the motion to continue the trial date was granted, defendant stated, "I want to make the Record clear that I'm not agreeing to a continuance," but never objected on the grounds that his right to a speedy trial was being violated. Because defendant did not assert this right until after trial was complete, we find that defendant did not properly assert the right to a speedy trial.

We also find that the state did not unreasonably delay the trial. Trial was originally rescheduled because the State was granted the motion to join the cases of all three defendants. The second continuance was granted at the request of the two codefendants. While the court was willing to proceed with defendant's case as scheduled by severing defendant from the codefendants, the State requested that the cases remain joined for the following reasons: (1) judicial economy, i.e., there was no reason to not try these defendants together because the evidence was the same in all three cases; and (2) to protect the victims from having to testify at trial on two occasions. We find that the State's reason for this delay was not to burden defendant unreasonably.

The last factor, prejudice, is assessed in light of three interests which the right to a speedy trial was designed to protect: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. See Scott, 461 N.E.2d at 143; Lahr v. State, 615 N.E.2d 150, 153 (Ind.Ct.App.1993). "Indiana courts have placed the burden of demonstrating actual prejudice on the defendant to prove a speedy trial deprivation." Scott, 461 N.E.2d at 143; Lahr, 615 N.E.2d at 153. See also Wade v. State, 270 Ind. 549, 551, 387 N.E.2d 1309, 1310 (1979).

Defendant has not provided us with any demonstration of prejudice except a contention that the delay resulted in a trial with the codefendants which in turn denied him the "opportunity to have the jury fairly determine his guilt or innocence due to the mutually antagonistic defenses of his co-defendants." This is not the kind of prejudice which the right to speedy trial was designed to prevent. The right prevents an impairment to a defense by protecting the defendant from such problems as the death or disappearance of witnesses during the delay or the inability of witnesses to recall events accurately after delay. See Lahr, 615 N.E.2d at 153 (citing Barker, 407 U.S. at 532, 92 S.Ct. at 2193). We find defendant was not prejudiced by the delay.

As none of the Barker v. Wingo factors point in defendant's favor, we conclude that defendant was not deprived of his right to a speedy trial under art. I, § 12, of the Indiana Constitution.

II

Defendant claims that the trial court committed reversible error when it refused to grant defendant's motion to sever his trial from his codefendants. We disagree.

Several defendants may be joined in a single prosecution. Ind.Code § 35-34-1-9 (1993). However, upon a motion by defendant, the trial court may order a separate trial "whenever the court determines that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant." Ind.Code § 35-34-1-11(b). The trial court has discretion to grant or deny a motion for separate trials. Gordon v. State, 609 N.E.2d 1085, 1088 (Ind.1993); Underwood v. State, 535 N.E.2d 507, 514 (Ind.1989). However, a trial court must grant severance of trials where there are mutually antagonistic defenses and the acceptance of one defense precludes the acquittal of the other. Underwood, 535 N.E.2d at 514. "Upon review, the trial court's decision is measured by what actually occurred at trial rather than what is alleged in the motion." Castro v. State, 580 N.E.2d 232, 234 (Ind.1991) (citing Rondon v. State, 534 N.E.2d 719 (Ind.1989)). See Blacknell v. State, 502 N.E.2d 899, 905 (Ind.1987).

In defendant's motion for a separate trial, defendant asserted that the codefendants, if they testified, would implicate defendant in the offenses charged against him and that such testimony would be mutually antagonistic to defendant's alibi defense. Codefendant Mitchem did, in fact, testify and his testimony placed the defendant at the scene of the crime and revealed defendant's involvement in the crimes. However, "[t]he mere fact that one defendant implicates another does not entitle the latter to a separate trial," and furthermore, "there is not a constitutional right to be protected from damaging evidence." Castro, 580 N.E.2d at 235 (citing Smith v. State, 474 N.E.2d 973 (Ind.1985)). See also Holifield v. State, 572 N.E.2d 490, 495 (Ind.1991); McChristian v. State, 272 Ind. 57, 61, 396 N.E.2d 356, 359 (1979). "Such protection would result in separate trials as a matter of right for all cases with more than one defendant." Blacknell, 502 N.E.2d at 905. Furthermore, Mitchem's testimony was not the only evidence that implicated defendant in the crimes. All three of the surviving victims testified that defendant was involved in the crimes being tried. Therefore, there is no ground for reversal simply because one of the codefendants implicated the defendant.

Defendant, however, contends that the defenses of the codefendants were mutually antagonistic to the defendant's alibi defense because the codefendants argued that (1) they lacked the requisite intent during the shooting as contrasted to defendant's intent and (2) the core of their defense was that defendant was the responsible party for the shooting. Defendant asserts that proof that the defenses were mutually antagonistic lies in the fact that Mitchem was acquitted of the burglary charge. Thus, defendant mistakenly contends that the jury must have believed Mitchem and rejected defendant's alibi defense.

Mitchem testified that his original...