Pelley v. State, 71A05-0612-CR-726.

CourtCourt of Appeals of Indiana
Citation883 N.E.2d 874
Docket NumberNo. 71A05-0612-CR-726.,71A05-0612-CR-726.
PartiesRobert Jeffrey PELLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Decision Date08 April 2008
883 N.E.2d 874
Robert Jeffrey PELLEY, Appellant-Defendant,
STATE of Indiana, Appellee-Plaintiff.
No. 71A05-0612-CR-726.
Court of Appeals of Indiana.
April 8, 2008.

[883 N.E.2d 876]

Stacy R. Uliana, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.



Robert Jeffrey Pelley appeals his convictions for four counts of murder.1 Pelley raises three issues, which we revise and restate as:

I. Whether the trial court abused its discretion by denying Pelley's motion to dismiss, which requested discharge based upon Ind. Criminal Rule 4(C);

I. Whether the trial court erred by denying Pelley's petition to appoint a special prosecutor;

III. Whether the trial court committed fundamental error by admitting hearsay statements of a victim;

IV. Whether the trial court abused its discretion by excluding Pelley's evidence that someone else may have committed the offenses;

V. Whether the trial court abused its discretion by excluding evidence regarding the delay in bringing charges against Pelley; and

VI. Whether the evidence is sufficient to sustain Pelley's convictions.

Because we find the first issue dispositive, we need not address the remaining issues. We reverse and remand.

883 N.E.2d 877

The relevant facts follow. In April 1989, seventeen-year-old Pelley lived in Lakeville, Indiana, with his father, Robert Pelley ("Bob"), his stepmother, Dawn, his fourteen-year-old sister, Jacque, and his three stepsisters, nine-year-old Jessica, eight-year-old Janel, and six-year-old Jolene. Bob was the minister of the Olive Branch Church, and the family lived in the parsonage next door to the church.

On Sunday, April 30, 1989, the Pelley family did not appear for church services, and parishioners noticed that the Pelleys' vehicles were in the driveway, the doors to the house were locked, and the blinds and curtains were drawn. Parishioners obtained a key to the house and found Bob, Dawn, Janel, and Jolene dead from shotgun wounds. Officers located Jessica and Jacque, who had spent the night with friends, and Pelley, who had attended his senior prom on Saturday night, had spent Saturday night with friends, and had gone to Great America amusement park in Illinois with friends on Sunday.

Although Pelley was questioned regarding the murders, the State did not charge him until August 7, 2002. At that time, the State charged Pelley with four counts of murder. Pelley was arrested on August 10, 2002. On August 22, 2002, the State issued a subpoena duces tecum to the Family & Children's Center ("FCC") seeking the production of "any and all counseling records from the Rev. Robert L. Pelley family from 1986-1989." Appellant's Appendix at 245. On February 26, 2003, FCC filed a motion to quash the subpoena, alleging that the communications were privileged based upon the counselor/client privilege, which is codified at Ind.Code § 25-23.6-6-1,2 and the psychologist/patient privilege, which is codified at Ind. Code § 25-33-1-17.3 At a hearing on FCC's motion to quash, FCC's attorneys argued that the communications were privileged, while the prosecutor argued that the "homicide exception" applied and that the counselor/client privilege did not apply because the statute came into effect after the communications were made. See Ind. Code §§ 25-23.6-6-1 & 25-33-1-17. The trial court asked for Pelley's input regarding the documents, and Pelley's attorney agreed with FCC's arguments but also objected to an in camera review of the documents by the trial court. After the hearing and an in camera inspection of the FCC documents, the trial court granted

883 N.E.2d 878

the motion to quash on March 20, 2003, finding that the communications in the records were privileged.

On April 2, 2003, the State petitioned for certification of the trial court's order for interlocutory appeal. On April 4, 2003, the trial court certified the order for interlocutory appeal but advised the State that any delay for the interlocutory appeal would be chargeable to the State. Further, the trial court warned the State that the documents "didn't contain what you wanted them to contain." Pretrial Transcript at 452; see also Appellant's Appendix at 285 ("[The] information as is contained in such records does not relate `directly to the fact or immediate circumstances of said homicide', whether that phrase is given a more limited meaning, or the more expansive meaning proffered by the State in its Memorandum of Law."). This court accepted jurisdiction over the interlocutory appeal and, on motion of the State, stayed the proceedings. Pelley did not participate in the interlocutory appeal.

On appeal, this court affirmed the trial court's order quashing the subpoena, State v. Pelley, 800 N.E.2d 630 (Ind.Ct.App. 2003), but the Indiana Supreme Court accepted transfer and, on June 14, 2005, reversed in part and affirmed in part, State v. Pelley, 828 N.E.2d 915 (Ind.2005). Specifically, the Indiana Supreme Court held that the counselor/client privilege of Ind.Code § 25-23.6-6-1 did not apply because the communications were made prior to the statute's enactment, that the counselor/client privilege did not have retroactive effect, and that the trial court did not abuse its discretion by concluding that the homicide exception in the psychologist/patient privilege statute did not apply. 828 N.E.2d at 920, 922-923. The opinion was certified on July 25, 2005.

Pretrial conferences were then held on August 17, 2005, and October 28, 2005.4 At the October 28th pretrial conference, the parties agreed to a July 10, 2006, trial date. On January 4, 2006, Pelley filed a motion to dismiss requesting discharge under Ind. Criminal Rule 4(C). The trial court denied Pelley's motion to dismiss as follows:

* * * * *

If the period of months during which the appeal pended were included in the calculation, Defendant is correct in his assertion that a Defendant need not object to a trial setting when the year had already expired. Pearson v. State, [619] N.E.2d 590[, 591-592 (Ind.Ct.App. 1993)].

If however the period of time is tolled by the Interlocutory Appeal, then Defendant's failure to timely object in October 2005 to the current trial setting would constitute a waiver of his right to object. Vermillion v. State, 719 N.E.2d 1201 [(Ind.1999)].

The Court having considered [State ex rel. Cox v. Superior Court of Madison County, 445 N.E.2d 1367 (Ind.1983),] and Martin [v. State, 245 Ind. 224, 194 N.E.2d 721 (1963),] finds that while the Defendant did not cause the delays attendant to the Interlocutory Appeal here, the period of such delay tolls the time period contemplated in C.R. 4.

In Martin, the Supreme Court of Indiana while considering a statute addressing the Defendant's speedy trial rights; and reiterating the duties of the prosecuting attorney and Trial Court to bring a Defendant to trial in a timely

883 N.E.2d 879

fashion, also noted that such rule did not apply to the Appellate Court. The Court noted that neither prosecutor nor Trial Court could exercise any control over the judicial process in the Supreme Court.[]

For the foregoing reasons, the Defendant's Supplemental Motion to Dismiss is denied.

Appellant's Appendix at 487-488 (footnote omitted). In a footnote, the trial court noted:

It should be further noted that the Indiana Court of Appeals entered a Stay of Proceedings on June 19, 2003 precluding the trial court from exercising jurisdiction herein pending resolution of the appeal. Though the grounds for the issuance of the stay are not a part of the record, this court assumes that the Appellate Court was aware that such stay would interfere with observance of the Defendant's C.R. 4(C) Rights.

Id. at 488 n. 3.

On June 29, 2006, Pelley filed a Petition for Writ of Prohibition and Writ of Mandamus, a Petition for Emergency Writ, and a brief in support with the Indiana Supreme Court. Pelley argued that the trial court should have granted his motion to dismiss based upon Ind. Criminal Rule 4(C). The Indiana Supreme Court denied Pelley's petition.

Pelley's jury trial began on July 10, 2006. The jury found Pelley guilty as charged. The trial court then sentenced Pelley to serve consecutive forty-year sentences for an aggregate sentence of 160 years. Pelley filed a motion to correct error, which the trial court denied.

The dispositive issue is whether the trial court abused its discretion by denying Pelley's motion to dismiss, which requested discharge based upon Ind. Criminal Rule 4(C). Before addressing the parties' specific arguments regarding Rule 4(C), we must first address the State's argument that this issue is barred by res judicata because Pelley raised this issue in his Petition for Writ of Mandamus and Writ of Prohibition.

The doctrine of res judicata bars a later suit when an earlier suit resulted in a final judgment on the merits, was based on proper jurisdiction, and involved the same cause of action and the same parties as the later suit. Reed v. State, 856 N.E.2d 1189, 1194 (Ind.2006). The doctrine of res judicata prevents the repetitious litigation of that which is essentially the same dispute. Id. We conclude that res judicata does not bar our consideration of Pelley's argument because Pelley's petition for writ of mandamus did not result in a final judgment on the merits.

Pelley's petition was brought as an original action. Such an action "is an extraordinary remedy, equitable in nature, and viewed with disfavor." State ex rel. Hoffman v. Allen Circuit Court, 868 N.E.2d 470, 472 (Ind.2007); Ind. Original Action Rule 2(E) ("Original actions are viewed with disfavor and may not be used as substitutes for appeals."). There are six general requirements for the issuance of a writ of mandamus or prohibition: (1) a showing that the Indiana Supreme Court has jurisdiction over the matter; (2) the writ is sought...

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4 cases
  • Pelley v. State, 71S05-0808-CR-446.
    • United States
    • Supreme Court of Indiana
    • February 19, 2009
    ...Court of Appeals reversed Pelley's convictions on the first issue and therefore did not address the remaining three. Pelley v. State, 883 N.E.2d 874, 876 (Ind.Ct. App.2008). We granted transfer and affirm the trial court on all four issues. We set out the facts and procedural steps relevant......
  • Russell v. State
    • United States
    • Court of Appeals of Indiana
    • June 28, 2012
  • Reid v. State, 79A05-0706-CR-321.
    • United States
    • Court of Appeals of Indiana
    • April 8, 2008
  • Pelley v. State
    • United States
    • Supreme Court of Indiana
    • August 14, 2008

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