Vermillion v. State

• Citation: 719 N.E.2d 1201
• Decision Date: 19 November 1999
• Docket Number: No. 84S00-9708-CR-428.,84S00-9708-CR-428.
• Parties: Jay F. VERMILLION, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Supreme Court of Indiana

719 N.E.2d 1201

Jay F. VERMILLION, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 84S00-9708-CR-428.

Supreme Court of Indiana.

November 19, 1999.

John Pinnow, Special Assistant to the State Public Defender, Greenwood, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Carol A. Nemeth, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. DICKSON, Justice.

The defendant, Jay Vermillion, was convicted of murder,¹ burglary as a class B felony,² auto theft,³ and dealing in a sawedoff shotgun.⁴ In this direct appeal, he asserts the following errors: (1) the denial of his motions for discharge alleging violation of Indiana Criminal Rule 4(C); (2) the denial of a speedy trial under the Sixth Amendment; (3) the denial of his motion to dismiss alleging the State's failure to preserve evidence; (4) the refusal of his tendered instruction on reckless homicide; and (5) the ineffective assistance of counsel. We affirm.

Criminal Rule 4(C)

The defendant contends that the trial court erroneously denied his motions for discharge under Indiana Criminal Rule 4(C), which provides for the discharge of a defendant held to answer a criminal charge for a period aggregating more than one year, except when the delay is caused by the defendant or by reason of emergency or congestion of the court calendar.⁵

When a trial court, acting within the one-year period of the rule, schedules trial to begin beyond the one-year limit, the defendant must make a timely objection to the trial date or waive his right to a speedy trial. Sweeney v. State, 704 N.E.2d 86, 102 (Ind.1998). If a defendant seeks or acquiesces in a delay that results in a later trial date, the time limitations set by Criminal Rule 4 are extended by the length of such delays. State v. Hurst, 688 N.E.2d 402, 407 (Ind.1997). The defendant's failure to object timely will be deemed acquiescence in the setting of that date. Young v. State, 482 N.E.2d 246, 249 (Ind.1985). Additionally, when a defendant asks for a continuance, the time between the motion for a continuance and the new trial date is chargeable to the defendant. Id. If a defendant's actions cause his attorney's resignation or withdrawal, then the defendant is charged with that delay. Isaacs v. State, 673 N.E.2d 757, 763 (Ind.1996).

In this case, the defendant was arrested and charged on May 25, 1995. Criminal Rule 4(C) therefore required that the defendant be brought to trial within 365 days, or by May 25, 1996, unless the defendant or trial court congestion or emergency caused the delays. The defendant's trial commenced on March 4, 1997, 649 days after he was charged.

On September 12, 1995, the defendant, by counsel, filed a motion for continuance, claiming that he had not received requested copies of medical records or the State's production. The State complied with the discovery requests on September 13, 1995. On October 3, 1995, the defendant requested that his counsel be replaced. After a hearing on this matter, the trial court instead elected to appoint co-counsel. On October 10, 1995, the defendant objected to the trial court's decision to appoint co-counsel and again requested other counsel. When the trial court denied the defendant's request to appoint other counsel, the defendant asked that the trial be delayed until after June 1, 1996, so that he would have time to prepare his case. Considering the defendant's request and accommodating scheduling conflicts, the court re-set the case for trial on February 26, 1996. For the delay from October 11, 1995, to February 26, 1996, the defendant is charged with 147 days.

On January 29, 1996, the defendant, by counsel, requested resources and a continuance in order to consult with a ballistics expert and obtain a psychological evaluation. At the February 6, 1996, hearing on the defendant's motions, the trial court granted the defendant's motions for continuance and experts and re-set the trial for June 10, 1996. This 105-day delay is also chargeable to the defendant.

On February 13, 1996, the defendant filed several motions pro se, requesting that the trial court dismiss appointed counsel, grant permission to proceed pro se, and reverse its grant of a ballistics expert. The trial court granted the defendant's motions at a hearing on February 27, 1996. On the State's motion, without objection from the defendant, the trial was re-set for June 17, 1996. The defendant acquiesced in this rescheduling of the trial from June 10 to June 17 and thus waived the right to object to this 7-day delay.

On March 22, 1996, the defendant filed a motion for pre-trial discovery, and, on March 28, 1996, the trial court found that the State had complied with the local rules for discovery. On May 13, 1996, at the pre-trial conference, the defendant reported that he was not ready for trial and requested appointment of a psychiatric consultant. The court granted the request, but the trial date remained set for June 17, 1996. On May 22, 1996, the defendant requested a continuance, and the trial was re-set for October 7, 1996. The defendant is charged with 112 days for this delay from June 18 to October 7, 1996. On June 16, 1996, the defendant requested another continuance. The trial court granted the request and set trial for November 12, 1996. The defendant is charged with 36 days from October 7 to November 12, 1996. On October 28, 1996, the defendant filed several pre-trial motions, including a motion to discharge and a motion to continue the trial.⁶ At the defendant's request, the trial was re-set for March 3, 1997. The defendant is charged with 111 days for the period from November 13, 1996, to March 3, 1997.

The defendant contends that delays resulting from his requests for continuance should not be attributed to him because the State failed to provide prompt discovery. The defendant claims that, because of the State's discovery non-compliance, he did not know until trial that the State intended to present Detective Compton's testimony regarding comments the defendant made after he completed his taperecorded statement. The defendant objected to the presentation of this evidence, claiming the State failed to disclose it timely. When the deputy prosecutor attempted to lay a foundation showing that the prosecution informed the defendant of the statement, the trial court expressed doubt that the prosecutor had spoken to the defendant because the prosecutor had repeatedly stated off the record that he refused to talk to the defendant. This, however, does not establish that the State failed to comply with discovery requests, but only that the prosecutor refused to speak directly with the defendant. Nevertheless, the trial court did not allow Det. Compton to testify about the statement, and, thus, the defendant suffered no prejudice as a result of the alleged discovery violation.

We find that the defendant caused 511 days of delay and acquiesced in 7 days, extending the permissible period under Criminal Rule 4(C) to 883 days. Even if we were to find that the entire 168 day period from September 16, 1996, to the trial on March 4, 1997, should be attributed to discovery-related delays caused by the State, there was no violation of Criminal Rule 4(C). Under this calculation, the trial court had 715 days to bring the defendant to trial, and the trial commenced in 649 days. The trial court did not err in denying the defendant's motion to discharge.

Speedy Trial Under the Sixth Amendment

The defendant contends that his Sixth Amendment right to a speedy trial was violated by the twenty-one month delay between his arrest and the trial. The inquiry as to whether a defendant has been denied a speedy trial under the Sixth Amendment involves balancing a number of factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of the right to a speedy trial; and (4) any resulting prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972). However, "these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." Id. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118.

Initially, the defendant must show that his trial was not prompt. Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d 520, 528 (1992). Although the Supreme Court in Doggett noted that many courts find the passage of approximately one year between charging and trial "presumptively prejudicial," constituting sufficient delay to trigger the analysis, it also noted that "presumptive prejudice" does not necessarily indicate "statistical probability" of prejudice, but rather simply marks the point at which the Barker inquiry is triggered. Id. at 652 n. 1, 112 S.Ct. at 2691 n. 1, 120 L.Ed.2d at 528 n. 1.

The delay in this case was twentyone months, but the reasons for the delay are attributable largely to the defendant. He dismissed his attorney and elected to proceed pro se. He requested a ballistics expert and then withdrew that request, only to later request a continuance to consult with a ballistics or forensic science expert. And he requested a continuance to obtain a psychiatric evaluation. While the defendant contends that some of the delay may be attributed to the State for failure to provide discovery promptly, we find that most of the delays are attributable to the defendant, with regard to both the length and the reasons for the delay.

As to the defendant's assertion of his right to a speedy trial, we note that, when he sought to dismiss his attorneys, the defendant told the trial court at least twice that he did not claim the right to a speedy trial. In fact, the defendant concedes that he did not assert his right to a speedy trial until October 28, 1996, one year and five months after he was charged. This was over one year after he first told the trial court that he was not seeking a...