Odonis D. Parker v. State of Indiana ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANTHONY S. CHURCHWARD GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
FILED
Indianapolis, Indiana
Mar 15 2012, 9:32 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
ODONIS D. PARKER, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1108-CR-381
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-1001-FD-83 & 02D05-1102-FB-26
March 15, 2012
OPINION – FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Odonis D. Parker (Parker), appeals his sentence for robbery,
a Class B felony, Ind. Code § 35-42-5-11.
We affirm.
ISSUES
Parker raises two issues on appeal, which we restate as:
(1) Whether Parker’s right to a speedy trial, pursuant to Indiana Criminal Rule 4(B),
was violated even though he was released from incarceration upon expiration of
the seventy-day period; and
(2) Whether the trial court violated Parker’s right to present a defense.
FACTS AND PROCEDURAL HISTORY
The facts most favorable to the verdict are as follows. In January of 2011, Pervis
Hall (Hall) and Trevon Thomas (Thomas) attempted to sell Thomas’ X-box gaming
system by advertising it for sale on Hall’s Facebook page. Parker expressed his interest
in buying the X-box and the parties reached an agreement on a purchase price of $300.
On January 25, 2001, Parker came over to Hall’s house to pick up the gaming system.
Hall and Trevon had placed the X-box on the porch and went to meet Parker when he
drove up in a white Chevrolet Impala. Although there were other people in the car, only
Parker exited the vehicle. Parker inspected the system and asked Hall and Thomas to
help him carry the X-box to the car. While walking over to the car, Parker pulled out a
1
Although this is a consolidated appeal that also involved a probation revocation issue under a different
cause number, Parker does not raise any issue with respect to his probation case.
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handgun, pointed it at Thomas, and told both Thomas and Hall “it’s mine now, keep it
movin’.” (Transcript p. 140). After placing the X-box in the trunk of the vehicle,
Thomas and Hall backed away and Parker drove away without paying the purchase price.
On February 7, 2011, the State filed an Information charging Parker with robbery,
a Class B felony. On February 10, 2011, Parker requested a speedy trial. The trial was
initially set for April 7, 2011. However, on April 4, 2011, the State moved for a
continuance because it had not yet been able to obtain the telephone records for Hall and
Parker that it had been seeking. Over Parker’s objection, the trial court granted the
continuance and rescheduled the trial for April 21, 2011, which was the seventieth
calendar day following Parker’s speedy trial request.
On April 21, 2011, the State again moved for a continuance because even though
it had obtained the telephone records, they were not in a form that would be admissible at
trial. The trial court granted the motion over Parker’s objection, reset the trial for June 1,
2011, but released Parker on his own cognizance. On June 1, 2011, the trial court
continued the cause due to congestion on the trial court’s calendar and rescheduled the
trial for July 6, 2011.
On July 6, 2011, a jury trial was held. Prior to trial, Parker alerted the trial court
and the State that he would request a lesser-included instruction on theft and announced
his theory of defense. Specifically, Parker stated that the transaction involved marijuana,
not an X-box system, and that he had failed to return with payment after being fronted the
marijuana. Parker later made an offer of proof with respect to this theory of defense.
The State objected, noting that the parties had known since March that Hall would be
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testifying by deposition, that the accusation of marijuana had never been raised before,
and that Hall could not respond to this new allegation. The trial court granted the State’s
objection, finding that the degree of prejudice to the State substantially outweighed the
probative value. The trial court ruled that Parker could testify to his version of events
without mentioning that the subject of the transaction was marijuana. At the close of the
evidence the jury found Parker guilty as charged.
Parker now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Indiana Criminal Rule 4(B)
Parker contends that his right to a speedy trial pursuant to Indiana Criminal Rule
4(B) was violated when the trial court failed to conduct his trial prior to the end of the
seventy-day period. Initially, we note that even though Parker objected every time his
trial date was continued, this was not sufficient to preserve this issue for our review. We
have previously held that a defendant waives review of a speedy trial request on appeal
“if he does not make a motion for discharge or motion for dismissal prior to trial.”
Hampton v. State, 754 N.E.2d 1037, 1039 (Ind. 2001). There is no indication in the
record that Parker moved for discharge or dismissal prior to trial. Therefore, his claim is
waived.
Waiver notwithstanding, we will address Parker’s claim on its merits. Indiana
Criminal Rule 4(B) provides, in relevant part as follows:
If any defendant held in jail on an indictment or an affidavit shall move for
an early trial, he shall be discharged if not brought to trial within seventy
(70) calendar days from the date of such motion, except where a
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continuance within said period is had on his motion, or the delay is
otherwise caused by his act, or where there was not sufficient time to try
him during such seventy (70) calendar days because of the congestion of
the court calendar.
Here, Parker requested a speedy trial on February 10, 2011. Therefore, the seventieth day
from the date of that motion was April 21, 2001. Although a trial was scheduled for
April 21, 2001, at the request of the State, the trial court continued the trial date.
Nevertheless, on that same day, Parker was released in the instant cause on his own
recognizance.
The purpose served by Crim. R. 4(B) is to prevent a defendant from being
detained in jail for more than seventy days after requesting an early trial. Williams v.
State, 631 N.E.2d 485, 486 (Ind. 1994). Once released from custody, a defendant
receives no further benefit from Crim. R. 4(B). Id. at 487. Instead, a non-incarcerated
defendant’s right to a speedy trial is implemented by the one-year limitation period
contained in Crim. R. 4(C). Id. Thus, as Parker was released from pre-trial incarceration
on the seventieth day of his speedy trial request in the instant cause, his Crim. R. 4(B)
right was not violated.2
II. Right to Present a Defense
Next, Parker contends that the trial court impermissibly restricted his right to
present a defense by denying him the opportunity to testify that he was trying to buy
marijuana rather than an X-box gaming system. The State objected to this proffered
2
It should be noted that Parker continued to be incarcerated subsequent to April 21, 2011 on a pending
probation revocation charge. However, Parker fails to make any arguments that his incarceration in a
different cause has any impact on his speedy trial right in the instant cause.
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testimony on Evidence Rule 403 grounds as it created the highly prejudicial impression
that Hall and Thomas were drug dealers and Hall was unavailable to respond to the
allegation. The trial court agreed with the State, ruling that “while [the proffered
testimony] was relevant it’s substantially outweighed by the prejudicial impact to the
State.” (Tr. p. 178). The trial court added that Parker could refer to it as “a transaction”
and prohibited any “mention of marijuana.” (Tr. p. 178).
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Payne v. State, 854 N.E.2d 7, 17 (Ind. Ct. App. 2006). An abuse of discretion
occurs if a trial court’s decision is clearly against the logic and effect of the facts and
circumstances before the court. Id. Although the right to present a defense, which
includes the right to present the defendant’s version of the facts, is of the utmost
importance, it is not absolute. Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001);
Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998). “The accused, as is required of the
State, must comply with established rules of procedure and evidence designed to assure
both fairness and reliability in the ascertainment of guilt and innocence.” Id. One of the
Rules of Evidence a defendant must abide by is Evid. R. 403, which provides that
otherwise relevant evidence may be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury.”
Although Parker had notified the State in advance that he would seek a jury
instruction on theft, as a lesser included of robbery, Parker did not divulge his theory of
defense until the day of trial. Both parties knew that Hall would not be available for trial,
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and Parker had agreed “with the State [] that this witness was not going to be present and
that his deposition could be used in lieu of live testimony.” (Tr. p. 176). Allowing
Parker to testify at trial that instead of buying an X-Box, he met Hall to purchase
marijuana, would raise an accusation that Hall is a drug dealer. Being unavailable, Hall
would not be able to respond to this allegation and the jury would not be able to observe
Hall denying the allegation. We agree with the State that “[i]n a case that largely
amounted to a credibility contest between the victims and [Parker], it was extremely
prejudicial to make this drug dealing accusation at a time and in a manner where [Hall]
would have no chance to refute it.” (Appellee’s Br. p. 14).
Furthermore, although the trial court prohibited Parker from testifying that the
item was marijuana, the trial court’s ruling did not prevent the jury from making an
inference adverse to the victims. Parker testified that he did not tell the police officers
about the transaction because he “didn’t feel comfortable talking about it.” (Tr. p. 212).
Also, in closing argument, Parker’s counsel referred to the transaction as “less th[a]n
legitimate.” (Tr. p. 134).
In sum, we cannot conclude that Parker’s defense was impaired because he could
not specifically name the marijuana as the item he claimed to attempt to purchase from
Hall. Therefore, we find that the trial court did not abuse its discretion by excluding
specific references to marijuana and Parker’s right to present a defense was not violated.
CONCLUSION
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Based on the foregoing, we conclude that Parker’s right to a speedy trial was not
violated and the trial court did not impair Parker’s right to present evidence when it
excluded certain evidence.
Affirmed.
BARNES, J. and BRADFORD, J. concur
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