McKay v. State, 49A02-9811-CR-899.

• Decision Date: 05 August 1999
• Docket Number: No. 49A02-9811-CR-899.,49A02-9811-CR-899.
• Citation: 714 N.E.2d 1182
• Parties: Billy McKAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

714 N.E.2d 1182

Billy McKAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9811-CR-899.

Court of Appeals of Indiana.

August 5, 1999.

Sara R. Matticks, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Sarah E. Scherrer, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BROOK, Judge.

Case Summary

Appellant-defendant Billy McKay ("McKay") filed an interlocutory appeal from the trial court's denial of his petition for writ of habeas corpus.

Issue

McKay presents one issue for review, which we restate as whether the trial court erred in denying McKay's petition for writ of habeas corpus in violation of his right to a speedy trial under Ind.Crim. Rule 4(B).

Facts and Procedural History

For the sake of clarity, the relevant procedural history is stated as follows:

April 24, 1998: The State charged McKay by information with four counts: Count I, conspiracy to commit robbery as a Class B felony; Count II, robbery as a Class B felony; Count III, criminal confinement as a Class B felony; and Count IV, carrying a handgun without a license as a Class A misdemeanor.

May 7, 1998: The State added an habitual offender charge to the charges pending against McKay.¹

June 5, 1998: The initial hearing was held. McKay moved for a speedy trial pursuant to Crim. R. 4(B)(1).²

June 16, 1998: A pre-trial conference for McKay and two other defendants, Steven Bewley ("Bewley") and Mitchell Haynes ("Haynes") was held.³ Bewley requested that the trial be scheduled in September of 1998 to allow time for discovery to be completed. The trial court stated, "I'm kind of at the mercy of Mr. McKay's speedy trial request," and scheduled the trial for July 27, 1998, "which [was] within 70 days of Mr. McKay's speedy trial request." A pre-trial conference was also scheduled for July 22, 1998.

July 22, 1998: A pre-trial conference was held. McKay and Bewley appeared with counsel; counsel for Haynes was not present. While explaining the proceedings to Haynes, the trial court stated,

[A]pparently there is at least one case that is set for trial on the same day that your case is. And that case is older than this case. The way it works is, the older cases get tried before the new ones. That means that your case and that case [are] set on the same day [and] the Court will automatically move this case to make room for the other. . . . What I can do is go ahead and leave it on the Court calendar.. . . I've had a chance to talk to all lawyers from both sides about this and apparently there is a consensus that all the parties believe, uh, expecting that's what's going to happen next week, the case will be congested off. So, um, I'll go ahead and leave it on the calendar for next week. We are mindful of your motion for speedy trial, Mr. McKay, so I don't want you to think the Court doesn't recognize the fact you've made that request. But just preparing everybody for the possibility that your case is going to get moved because only one case can be tried, okay?

July 27, 1998: Due to a congested calendar, the court continued the trial, noting that the case of State v. Smith & Braeziel was the "first choice case," and rescheduled McKay's trial for September 28, 1998. A final pre-trial conference was scheduled for September 23, 1998.

July 28, 1998: McKay objected to the continuance, stating that no other trials were heard by the court on July 27, 1998; that the trial date of September 28, 1998, was past the seventy-day limit of Crim. Rule 4; and that counsel for McKay would be unavailable on September 28, 1998, due to a scheduling conflict with another previously scheduled jury trial.

July 30, 1998: McKay's trial was rescheduled for August 24, 1998.

August 14, 1998: The seventy-day period from the time that McKay first requested a speedy trial on June 5, 1998, expired.

August 19, 1998: A pre-trial conference was held. The court and the State expressed concern that the other two defendants who were not present at this conference may not be ready for trial, but left the trial as scheduled for August 24, 1998.

August 21, 1998: Once again, the court continued the trial, due to a congested court calendar, citing the jury trial of State v. Jackson as the first choice case, and rescheduled McKay's trial for October 5, 1998. Another pretrial conference was scheduled for September 30, 1998.

September 4, 1998: McKay filed a "Motion to Dismiss with Prejudice and Discharge" and a memorandum in support of his motion to dismiss. McKay asserted that the delay of his trial had not been due to a congested court calendar because no other trials were heard on either July 27, 1998, or August 24, 1998. McKay also objected to the October 5, 1998, trial date.

September 14, 1998: McKay's motion to discharge was denied.

September 30, 1998: A pre-trial conference was held. Bewley and Haynes requested and were denied continuances. McKay filed a "Motion to Reconsider Ruling on Motion to Discharge and Request for Hearing." During the pre-trial conference, McKay requested a hearing to examine court personnel on the record regarding the status of cases that caused his case to be reset by the court. The hearing was scheduled for October 2, 1998.

October 2, 1998: At this hearing, McKay presented the testimony of Barbara Woodson ("Woodson"), the bailiff who had been working in Marion County Criminal Court Five, on July 27, 1998, and August 24, 1998. On direct exam, Woodson testified as follows:

Q: And were you the bailiff in Criminal Court Five back on July 27th of this year?

A: Yes, I was.

Q: And on the date of July 27th how many cases were set for trial that morning?

A: . . . Andrew Smith set and then, Mr. Braeziel which are co-defendants. And then we had the case which you're on with the co-defendants; Haynes, Bewley and McKay.

Q: And on the other matters that were set that morning, or the other case with the co-defendants, had there been a Criminal Rule 4 motion or what we call a fast and speedy motion filed in that particular case?

A: Not that I know of. It's not marked on the file. . . .

Q: And on the morning of July 27th did any case actually go to trial before the Judge or by jury that morning?

A: It did not. . . .

Q: You were also bailiff in this court on August 24th of this year; is that right?

A: Yes, I was.

Q: To your knowledge on that date was the McKay matter set to go to trial on that date also?

A: Yes, it was.

Q: . . . Was there an order issued stating that the McKay matter was continued due to court congestion on that date?

A: Yes, there was.

Q: Do you recall what case was set for first choice on that date?

A: Eric Jackson.

Q: And in looking at the file do you have knowledge as to whether [or] not it was a fast and speedy motion filed in that matter?

A: There was not.

Q: There was not? And did that case go to trial on that date?

A: No, it didn't.

Q: Did any matter go to trial on that date?

A: No.

On cross-examination, Woodson testified as follows:

Q: Ms. Woodson, on July 27th, 1998 were you aware of the fact that the Braeziel and Smith trial that all parties came in the morning of that trial prepared and ready to go but that one defendant agreed to testify against the other one and that was the reason for the trial going off. Were you aware of that?

A: Yes, I am.

McKay again moved for a discharge and was denied. In denying McKay's motion, the court noted,

I think the record adequately establishes that we had other matters that were older matters that were before this court. And Crim[.] Rule 4 was adequately filed on Mr. McKay as a co-defendant with two other defendants who have not requested speedy trials. We have done everything we can to make sure these cases get tried as quickly as we possibly can considering the court's calendar.

Also on this date, McKay's trial was again continued due to a congested court calendar resulting from the jury trial of State v. Bellamy and was rescheduled for November 16, 1998. A final pretrial conference was scheduled for November 10, 1998. McKay objected to the continuance of the trial and filed a request for certification for an interlocutory appeal and stay of proceedings pending the outcome pursuant to Ind. Appellate Rule 4(B)(6).⁴

October 6, 1998: McKay's petition to certify for an interlocutory appeal was denied.

November 4, 1998: McKay petitioned the court to issue a writ of habeas corpus asserting that he was being held in violation of Crim. R. 4(B).

November 10, 1998: McKay's petition for writ of habeas corpus was denied.

November 12, 1998: McKay petitioned this court to accept jurisdiction of an interlocutory appeal pursuant to Ind. Appellate Rule 2(C).⁵

November 13, 1998: This Court accepted jurisdiction and granted a temporary stay of McKay's trial set for November 16, 1998.

Discussion and Decision

The Sixth Amendment to the United States Constitution and Article I, Section 12 of the Indiana Constitution both protect the right to a speedy trial. U.S. CONST. amend. VI; IND.CONST. art. 1, § 12. McKay filed a petition for a writ of habeas corpus seeking relief for an alleged violation of his right to a speedy trial. The trial court denied the petition from which McKay now appeals. As McKay notes in his brief, the purpose of a writ of habeas corpus is used to determine the lawfulness of custody or detention of the defendant and may not be used to determine collateral matters not affecting the custody process. Pruitt v. Joiner, 182 Ind.App. 218, 395 N.E.2d 276, 278 (1979), trans. denied. A defendant is entitled to a writ of habeas corpus if he or she is unlawfully incarcerated and is entitled to immediate release. Moore v. Smith, 181 Ind.App. 81, 390 N.E.2d 1052, 1053 (1979).

At his initial hearing on June 5, 1998, McKay requested a speedy trial. Under Ind. Crim. Rule 4(B), the State has an affirmative duty to try an incarcerated defendant who requests a speedy trial within...