O'Neill v. State

• Decision Date: 20 August 1992
• Docket Number: No. 49A05-9108-CR-255,49A05-9108-CR-255
• Citation: 597 N.E.2d 379
• Court: Indiana Appellate Court
• Parties: Thomas O'NEILL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

Page 379

597 N.E.2d 379

Thomas O'NEILL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9108-CR-255.

Court of Appeals of Indiana Fifth District.

Aug. 20, 1992.

Transfer Denied Oct. 6, 1992.

Robert C. Perry, Steckler, Perry & Ryan, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

SHARPNACK, Judge.

Thomas O'Neill appeals both his conviction of four counts of armed robbery and his adjudication as a habitual offender. We affirm.

O'Neill raises five issues in his brief. We consolidate and restate these issues as follows:

1. Was O'Neill deprived of his right to a speedy trial?

2. Should the trial court have excluded from evidence O'Neill's confession?

3. Did the trial court err in admitting into evidence documents which were not properly certified?

4. Was O'Neill deprived of his right to counsel when the trial court compelled his defense counsel to testify in order to provide the foundation for admission into evidence of certain documents?

The following are the facts most favorable to the judgment of the trial court. In the early morning hours of May 28, 1989, O'Neill entered the Subway Sandwich shop located at 934 East Hanna in Indianapolis. He ordered a sandwich, and when the time came to pay, he gave the Subway employee who had waited on him a large bill in payment. When the employee opened the cash drawer to deposit the bill and retrieve O'Neill's change, O'Neill produced what appeared to be a semiautomatic pistol and ordered the employee to give him the money in the drawer. O'Neill also demanded money from the other customers who were in the shop.

Several of the customers gave O'Neill their money. The Subway employee also gave O'Neill money from the cash drawer. O'Neill then left the shop and ran off into the night.

Detective David Burks, who was investigating the Subway robbery, received information that O'Neill had committed the crime. After he received this information, Burks interviewed the Subway employee and showed him an array of photographs including O'Neill's photograph. The Subway employee identified O'Neill as the robber. Two of the customers who also had been victimized identified photographs of O'Neill in similar photo arrays. Following these identifications, officers of the Indianapolis Police Department obtained an arrest warrant and arrested O'Neill. On the evening of O'Neill's arrest, Detective Burks interviewed O'Neill and obtained a taped statement in which he confessed to the robbery.

O'Neill asserts that the state violated both the Indiana rules of criminal procedure and the federal constitution when it brought him to the trial that resulted in his conviction. In his appellant's brief, O'Neill offers extensive argument that various periods of delay both before and after his first trial--which ended in a mistrial--should be attributed to the state for purposes of determining whether the delay violated Ind.Crim.Rule 4(C) or United States Const. amend VI. In his reply brief he abandons this argument with regard to C.R. 4(C) in favor of the assertion that the state failed to bring him to trial within a reasonable period of time following the aborted trial. The state argues that it first brought O'Neill to trial within one year--excluding delays attributable to O'Neill--of the date of his arrest. In addition, the state argues that it brought O'Neill to retrial within a reasonable period of time following the mistrial.

The determination of whether a particular delay in bringing a defendant to trial violates the speedy trial guarantee largely depends on the specific circumstances of the case. Barker v. Wingo (1972), 407 U.S. 514, 530-531; 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. In judging whether the specific circumstances establish a violation of the speedy trial right, the court balances four factors: 1) the length of the delay; 2) the reasons for the delay; 3) the timeliness and vigor of the defendant's assertion of the right to a speedy trial; and 4) the prejudice, if any, the delay caused the defendant. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. In order to ensure that it does not deny criminal defendants the right to a speedy trial, a state may adopt a presumptive rule setting a fixed time limit within which criminal cases normally must be brought to trial. Barker, 407 U.S. at 430 n. 29, 92 S.Ct. at 2192 n. 29, 33 L.Ed.2d at 116 n. 29.

Our supreme court has adopted such a rule, C.R. 4(C), which provides in part:

"No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar...."

This rule is intended to give effect to the right to a speedy trial guaranteed by both the federal and state constitutions. State v. Moles (1976), 166 Ind.App. 632, 646, 337 N.E.2d 543, 552. However, the time limits for bringing a defendant to trial set forth in the rule are not coextensive with the requirements of the federal and state constitutions. Williams v. State (1976), 265 Ind. 190, 193, 352 N.E.2d 733, 738; they are, in fact, more rigorous than the constitutional requirements. Tyner v. State (1975), 166 Ind.App. 45, 49, 333 N.E.2d 857, 859.

Our supreme court has held that C.R. 4(C) does not anticipate mistrials. State ex rel. Brumfield v. Perry Circuit Court (1981), Ind., 426 N.E.2d 692, 695. Because the rule does not specify a time in which a retrial must be brought following a mistrial, the court held that the state is required to bring the defendant to retrial within a reasonable time. Id.; State v. Roth (1992), Ind.App., 585 N.E.2d 717, 718. The trial court possesses the discretion to determine what constitutes a reasonable time. Brumfield, 426 N.E.2d at 695.

When a trial court is vested with discretion in a matter, we may reverse its decision only if it abuses its discretion. Harvest Insurance Agency v. Inter-Ocean Insurance Co. (1986), Ind., 492 N.E.2d 686, 688. The trial court commits an abuse of discretion only when it reaches an erroneous conclusion and judgment--that is to say, one which is clearly against the logic and effect of the facts or the reasonable, probable deductions which may be drawn from the facts and circumstances of the case. Boles v. Weidner (1983), Ind., 449 N.E.2d 288, 290; Klagiss v. State (1992), Ind.App., 585 N.E.2d 674, 680.

Here, we do not find that the trial court abused its discretion in bringing O'Neill to trial approximately six months after the declaration of the mistrial. The trial court originally scheduled the second trial for December 3, 1990. However, on that day the court, apparently on its own motion, vacated the jury trial setting and continued the case due to calendar congestion. ¹ O'Neill has failed to show this court any facts which suggest that the four month delay after the trial court vacated the December 3 trial setting was not due to calendar congestion, and he has offered no other facts to show that this delay was unreasonable. ² In the absence of such facts, we cannot say that the six month delay was against the logic and effects of the particular facts of this case, and we are not prepared to hold that a six month delay following a mistrial is unreasonable as a matter of law. C.R. 4(C) provides no ground for reversal here.

Furthermore, even apart from the mandatory time limits set forth in C.R. 4(C), we do not find that the trial court violated O'Neill's speedy trial rights when it conducted the retrial commencing on April 8, 1991. Given the particular circumstances of this case, the time that elapsed between O'Neill's arrest and retrial was reasonable.

The following are the dates of the events relevant to O'Neill's sixth amendment claim:

June 1, 1989 Defendant charged with 6 counts of armed robbery.

June 2, 1989 Defendant arrested.

June 5, 1989 Initial hearing held.

July 11, 1989 Trial set for 8/16/89.

July 24, 1989 Defendant makes pro se motion for continuance.

Aug. 9, 1989 Defendant files motion to suppress statement.

Aug. 15, 1989 New defense counsel is appointed; pre-trial set for 9/26/89.

Sept. 26, 1989 Defendant moves to continue pre-trial; reset for 10/17/89.

Oct. 17, 1989 Trial set for 12/11/89.

Nov. 15, 1989 Defendant moves for psychiatric examination.

Dec. 7, 1989 Drs. Nie and Keglar appointed to examine defendant.

Dec. 11, 1989 State requests continuance; pre-trial set for 12/28/89.

Feb. 28, 1989 Secretarial mix-up discovered which delays defendant's second psychiatric examination. Dr. Perry appointed to conduct second examination.

Mar. 9, 1990 Defendant stipulates to doctors' reports; pre-trial set for 3/20/90.

Mar. 20, 1990 Trial set for 5/23/90.

Apr. 27, 1990 State moves to continue suppression hearing set for this date; reset for 5/18/90.

May 16, 1990 Defendant moves to continue suppression hearing; reset for 6/15/90.

May 17, 1990 Court vacates 5/23/90 trial date' pre-trial set for 7/1/90.

Jul. 10, 1990 Trial set for 8/20/90.

Aug. 16, 1990 Court vacates 8/20/90 date and sets guilty plea hearing on 8/17/90.

Aug. 17, 1990 Court rejects guilty plea; defense counsel Ragland informs court he is prepared for trial for following Monday; defendant informs court he wants new attorney; court appoints new defense counsel Clutter; pre-trial set for 9/4/90.

Sept. 4, 1990 Trial set for 10/1/90.

Oct. 1, 1990 Jury sworn; hearing conducted on defendant's motions for discharge and to suppress his statement.

Oct. 3, 1990 Court grants defendant's motion for mistrial due to admission of prejudicial testimony; pre-trial set for 10/23/90.

Oct. 23, 1990 Trial set for 12/3/90.

Dec. 3, 1990 Trial continued due to...