Sylvester v. State

• Decision Date: 09 July 1998
• Docket Number: No. 48S00-9608-CR-550,48S00-9608-CR-550
• Citation: 698 N.E.2d 1126
• Parties: Gary SYLVESTER, Defendant, v. STATE of Indiana, Plaintiff.
• Court: Indiana Supreme Court

Page 1126

698 N.E.2d 1126

Gary SYLVESTER, Defendant, v. STATE of Indiana, Plaintiff.

No. 48S00-9608-CR-550.

Supreme Court of Indiana.

July 9, 1998.

Mark Maynard, Hasler & Maynard, Anderson, Thomas D. Chaille, Decker & Lawyer, Anderson, for Defendant.

Jeffrey A. Modisett, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Plaintiff.

SELBY, Justice.

Defendant, Gary Sylvester, admitted that he killed his wife, Debra Sylvester, but claimed that the act was manslaughter and not murder because it was committed under sudden heat. IND.CODE §§ 35-42-1-1 (Murder) and 35-42-1-3 (Voluntary manslaughter) (1993). On April 4, 1996, the jury found defendant guilty of murder and the trial court sentenced him to sixty years imprisonment. Defendant raises the following issues on appeal: whether the trial court erred in denying defendant's Motion for Discharge; whether the trial court erred by excluding statements made by the victim as hearsay; whether the trial court erred in failing to grant a mistrial or admonish the jury when the prosecutor referred to defendant's post-arrest silence; whether the trial court erred in its final instructions by refusing to include defendant's tendered instruction; and whether the trial court erred in sentencing by imposing the maximum sentence. We answer each of these issues in the negative and affirm the defendant's conviction and sentence.

FACTS

Defendant suspected that his wife, Debra Sylvester, was having an extra-marital affair and that she may have been planning to leave him. Distraught over this possibility, he had commented to co-workers about his frustration on several occasions. Defendant worked for a refuse disposal company in Shelbyville. He had on occasion made statements to David Caves, his step-son, that he could hide a body or get rid of a body through the incinerator and that no one would ever be able to find it. He also commented that if he ever found out that his wife was having an affair he would kill her. Defendant had taken time off work prior to the murder because of his distress, and had told his supervisor that he was upset over the situation with his wife and that if he found out she was having an affair he would kill her. On the day of the murder, defendant had stated to a co-worker that it was past the point of confronting Debra and that the situation David Caves, upon returning home from work that evening, found both the front and rear doors locked, which was unusual. While walking around the house, David looked into the dining room window and saw his step-father in the bathroom, apparently wiping something off of the floor. David knocked on the window and defendant finally responded by telling David to wait. Defendant eventually allowed him to come inside and told David that Debra was asleep in the bedroom and that David's half-sister was visiting a friend. David left to pick up his girlfriend and when they returned, he noticed that the bedroom door lock had been broken, that the bed was in disarray, and that there appeared to be spatters of blood in the bathroom. Defendant then told David that he had hit Debra during a fight and that she had fled the house on foot. David called the Anderson Police Department to see if his mother had reported a battery. Upon learning that she had not, he reported her as missing.

                would be resolved after that day. 1  That evening, defendant and Debra engaged in a fight which culminated in Debra's death by strangulation
                

After defendant killed Debra, he wrapped her head with duct tape and placed her body in garbage bags which he taped together, along with the bloody bathmat, robe, and bedspread. He then put her in the trunk of the car, went to a store to cash a check, stopped at a liquor store to buy beer, drove to Wal-Mart to buy a new jacket, and then drove to his work place, where he hid her body under a dumpster near his truck. He then shared some pizza with co-workers and went to sleep at the site to rest before his shift started.

Later that night, two Shelby County police officers were searching the parking lot of the refuse disposal company for a car similar to defendant's on an unrelated incident. Upon finding defendant's car parked in an out-of-the-way location, they ran a check on the license plate and learned that the car belonged to defendant's wife and that they were to detain defendant. Anderson police were contacted, and when they arrived, defendant was advised of his Miranda rights and was questioned on the battery charge, whereupon he told the officer a story similar to that which he had told David. He was then arrested for battery.

Ten days after the incident, Anderson police found Debra's body at the refuse disposal company under an overturned dumpster, approximately sixty feet from the truck which defendant would have driven on a route to the Indianapolis incinerator. The charges against defendant were changed from battery to murder.

DISCUSSION

I.

Defendant filed a request for speedy trial under Ind.Crim.Rule 4(B). The right to a speedy trial arises from the 6th Amendment to the United States Constitution, and Article I, Section 12 of the Indiana Constitution. When a defendant files a request for speedy trial, the state is obligated to bring him to trial within seventy days of the request. Crim.R. 4(B). If the state fails to bring the defendant to trial within the allotted time frame, the defendant is entitled to discharge, unless the delay is caused by him. Id. The trial court denied defendant's motion for discharge for failure to obtain a speedy trial. Defendant argues that any delay beyond the seventy day period should not have been charged to him, and that he is entitled to discharge. The time line of procedural events is as follows:

November 9, 1994 Defendant files a request for speedy trial (seventy day period to end on January 18, 1995)

Court sets trial date for January 3, 1995, as second choice setting

January 3, 1995 Court resets trial date for January 5, 1995, as second choice setting

Prosecutor files petition to recuse and for appointment of special prosecutor January 5, 1995 Due to court congestion, trial is reset for January 17, 1995

January 6, 1995 Court-appointed special prosecutor files his consent

January 11, 1995 Special prosecutor files a motion to continue

Defendant objects to any continuance beyond January 18, 1995

January 13, 1995 Court grants special prosecutor's motion to continue

January 17, 1995 Court resets trial for January 18, 1995

January 18, 1995 Defendant files motion to continue

Seventy-day period for speedy trial motion expires

Defendant claims that his counsel was forced to request a continuance beyond the seventy day speedy trial period due to counsel's reliance on the court's decision on January 13, 1995, to continue the trial date and that the court was thus in error to deny his motion for discharge. We disagree. We have already resolved this situation, under almost identical circumstances, in Carter v. State, 686 N.E.2d 834, 838-39 (Ind.1997). As in Carter, the delay is properly charged to defendant and he is not entitled to discharge. ²

II.

Defendant next contends that the trial court erred when it excluded statements made by the victim as hearsay. " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind.Evidence Rule 801(c). Hearsay is inadmissible unless it meets one of the exceptions found in Indiana Rules of Evidence. Evid.Rule 802. When a statement has been excluded from evidence which was not, in actuality, hearsay, this Court will review the trial court's decision under a harmless error analysis. Ind.Trial Rule 61; See also Smith v. State, 490 N.E.2d 300 (Ind.1986); Isaacs v. State, 659 N.E.2d 1036 (Ind.1995). "An error will be found harmless if its probable impact on the jury, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties." Fleener v. State, 656 N.E.2d 1140, 1142 (Ind.1995).

Defendant is correct in his assertion that the statements which the trial court excluded as hearsay were not, in fact, hearsay statements. The court sustained a hearsay objection when defendant attempted to testify as to statements made by Debra Sylvester to defendant during conversations which occurred a few weeks before the murder. The conversations concerned defendant's belief that his wife was having an affair and was going to leave him. Debra denied the affair. The State argues that the victim's statements were hearsay and did not fit into any exceptions to the hearsay rule. Thus, the key issue, before examining any exceptions to the hearsay rule, is whether the evidence is, in fact, hearsay. Here, it plainly is not. Defendant wanted to introduce the statements in order to show the circumstances which led to his "sudden heat." Thus, the statements were not being offered to show the truth of the assertions contained therein, and were not hearsay. Defendant was not trying to prove the truth of Debra's remarks but rather was attempting to show the effects of those remarks on his own behavior. Statements made by a victim which are offered to show the reasons why a person acted in the way he or she did are not hearsay. See Allen v. State, 686 N.E.2d 760 (Ind.1997); Isaacs, 659 N.E.2d 1036. ³ Since Where the wrongfully excluded testimony is merely cumulative of other evidence presented, its exclusion is harmless error. Lopez v. State, 527 N.E.2d 1119, 1124 (Ind.1988); Smith v. State, 490 N.E.2d 300 (Ind.1986). Here, the statements excluded as hearsay would have been cumulative. The jury heard testimony from co-workers that defendant was upset over his belief that his wife was having an affair and may leave him. Further, defendant testified that the victim had been talking to a man on the phone late at night a few weeks before the murder and that...