James Bates v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 06 2017, 10:11 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General
Indianapolis, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Bates, April 6, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1606-CR-1321
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G01-1407-MR-33883
Crone, Judge.
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Case Summary
[1] James Bates appeals his convictions for murder and class A misdemeanor
carrying a handgun without a license. He asserts that the trial court erred in
denying his pretrial motion to dismiss the charges against him. We affirm.
Facts and Procedural History
[2] The facts most favorable to the convictions indicate that shortly after midnight
on December 28, 2007, Kenneth Beeler, Tawana Pannell, and their two
teenaged sons were watching television in the family room of their home when
Bates knocked on their front door. Kenneth Beeler called out “who is it?” and
Bates responded, “James.” Tr. Vol. 1 at 34, 38, 180. Bates was friends with
Beeler and had spent time at Beeler’s house with the family less than a week
prior. Beeler and one of his sons, Kenneth, Jr., answered the door. When
Beeler opened the door, Bates called Beeler a “mother f*cker” and started
shooting. Id. at 40. As Beeler and Kenneth, Jr., turned and ran from the door
into the house, Bates shot Beeler in the back. After he was shot, Beeler said to
Pannell, “Call the police, James just shot me.” Id. at 42. Beeler later died at
the hospital.
[3] On December 31, 2007, the State charged Bates with murder, class D felony
criminal recklessness, and class A misdemeanor carrying a handgun without a
license. After multiple continuances requested by both parties and granted by
the trial court, on May 15, 2009, Bates moved for a speedy trial. On May 29,
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2009, the State arranged for Pannell to take a polygraph with examiner Michael
Turk. Pannell answered “yes” to the following three questions:
1. Regarding the shooting, do you know for sure it was James
Bates[’s] voice at the door?
2. Regarding the shooting, have you been completely truthful
with the police?
3. Did James Bates call you on your cell phone when the
detectives were on the scene?
Defendant’s Ex. G. In his report prepared contemporaneously with the
polygraph, Turk stated that he observed “significant reactions” that “indicate[d]
deceptive responses” to those three questions. Id. He noted that during the
post-test interview when he informed Pannell of her reactions to those
questions, she stated “that she wasn’t completely sure that it was James
Bates[’s] voice at the door” and that “is what bothered her about that question”
as well as “the question regarding the cell phone call.” Id. Accordingly, Turks
recorded the results of the polygraph examination as “INCONCLUSIVE.” Id.
Shortly thereafter, on June 2, 2009, the State dismissed the charges and Bates
was subsequently released from jail.
[4] In the summer of 2009, Bates told Summer Castillo that he had robbed a drug
dealer with a man who would not give Bates his share of the money, so Bates
knocked on the man’s door and shot him. Apparently, Castillo’s ex-boyfriend,
Harold Buntin, was already aware of this information because he had talked to
Bates the day after the shooting. Bates told Buntin that he and Beeler had
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robbed someone and Beeler did not give Bates his share of the money, so Bates
shot him. In the summer of 2010, Bates also told his friend Matthew Dickerson
that he had shot a man.
[5] In 2013 and 2014, Castillo had a welfare fraud case pending. She told her
attorney about her conversation with Bates, who in turn reported it to
authorities. Indianapolis Metropolitan Police Department Detective David
Ellison of the cold case homicide unit began reviewing Beeler’s murder case
and interviewed Pannell and Beeler’s two sons. He also interviewed Castillo,
Buntin, and Dickerson.
[6] On July 2, 2014, the State charged Bates with Beeler’s murder and class A
misdemeanor carrying a handgun without a license based upon the same facts
underlying the original charges. Again, multiple motions for continuances were
filed by both parties and granted by the trial court. On November 24, 2015,
Bates filed a motion to dismiss the charges against him asserting that the State’s
delay in prosecuting him for his crimes violated his due process and speedy trial
rights. Following an evidentiary hearing, the trial court denied the motion.
Bates sought permission to seek an interlocutory appeal which was denied by
the trial court.
[7] A bench trial was held in April 2016. The trial court found Bates guilty as
charged and sentenced him to an aggregate sentence of sixty years. This appeal
ensued. We will provide additional facts in our discussion as necessary.
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Discussion and Decision
[8] Bates challenges the trial court’s denial of his pretrial motion to dismiss the
charges against him. “A defendant has the burden of proving, by a
preponderance of the evidence, all facts necessary to support a motion to
dismiss.” Barnett v. State, 867 N.E.2d 184, 186 (Ind. Ct. App. 2007), trans.
denied. Because Bates now appeals from a negative judgment, we will reverse
only if the evidence is without conflict and leads inescapably to the conclusion
that he is entitled to a dismissal. Id.Section 1 – Bates has not met his burden to establish that the
State violated his due process rights.
[9] Bates first argues that the five-year delay between the State’s dismissal of his
original charges and the refiling of those charges violated his due process rights,
and that the trial court erred in denying his motion to dismiss on those
grounds.1 Our supreme court recently explained,
Although the prosecution can exercise discretion on when to
bring charges, that discretion is not unlimited. The United States
Supreme Court has recognized that a pre-indictment delay in
prosecution can result in a Due Process Clause violation.
Although statutes of limitations often operate to prevent too
much delay before criminal charges are brought, “even where a
charge is brought within the statute of limitations, the particulars
of the case may reveal that undue delay and resultant prejudice
1
The State initially charged Bates with Beeler’s murder, criminal recklessness, and carrying a handgun
without a license on December 31, 2007, but dismissed those charges after 519 days, on June 2, 2009. The
State refiled the murder and carrying a handgun charges on July 2, 2014.
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constitute a violation of due process.” Despite this, the passage of
time alone is not enough to establish prejudice. If it were, then
the Constitution would serve as a functional statute of limitation.
Rather, the defendant has the burden of proving that he suffered
“actual and substantial prejudice to his right to a fair trial,” and
upon meeting that burden must then demonstrate that “the State
had no justification for delay,” which may be demonstrated by
showing that the State “delayed the indictment to gain a tactical
advantage or for some other impermissible reason.”
Ackerman v. State, 51 N.E.3d 171, 189-90 (Ind. 2016) (citations omitted), cert.
denied.
[10] Bates acknowledges that this Court has upheld a pre-indictment delay of
twenty-two years, see Glenn v. State, 884 N.E.2d 347 (Ind. Ct. App. 2008), trans.
denied, and that our supreme court has upheld a delay of thirty years, see
Crawford v. State, 669 N.E.2d 141 (Ind. 1996), such that the five-year delay
between the dismissal of the original murder charges here and the refiling of
those charges “may not appear so prejudicial.” Appellant’s Br. at 13. Indeed,
when an especially egregious offense, such as murder, carries no statute of
limitation, “it is inevitable that at times lengthy delays will occur ….”
Ackerman, 51 N.E.3d at 190. Moreover “[t]he mere passage of time is not
presumed to be prejudicial, and to satisfy the threshold burden of prejudice, a
defendant must make specific and concrete allegations of prejudice that are
supported by the evidence.” Allen v. State, 813 N.E.2d 349, 366 (Ind. Ct. App.
2004), trans. denied. Bates maintains that he suffered actual and substantial
prejudice for multiple reasons including: (1) the memory of his alibi witness,
Chloe Walker, had faded; (2) the recording of Pannell’s polygraph was not
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preserved; (3) the crime scene had been destroyed so bullet trajectory testing
could not occur.
[11] Regarding the faded memory of his alibi witness, Bates claims that although
when she was originally interviewed five days after the murder Walker stated
that Bates was at her apartment the night of the shooting, by the time of trial,
she could not remember the specific date. However, our review of the trial
record reveals that Walker’s memory regarding the specific date was adequately
refreshed by reference to her original statement, and that she stood by her prior
statement such that we fail to see how Bates’s alibi defense was weakened in
any way. Indeed, even during her original statement, Walker admitted that
Bates was still awake when she went to sleep around 11:00 p.m. and that she
could not account for his whereabouts at 1:00 a.m., the approximate time
Beeler was shot. Thus, other than the specific date for which her memory was
refreshed, Walker never provided a solid alibi for Bates at the actual time of the
murder. Bates has not demonstrated that Walker’s faded memory caused him
actual and substantial prejudice.
[12] As to the absence of the recording of Pannell’s 2009 polygraph, again Bates has
not established prejudice. Bates claims that, without the recording, he could
not effectively impeach Pannell at trial when she denied admitting to polygraph
examiner Turk that she “wasn’t completely sure that it was [Bates’s] voice at
the door.” Tr. Vol. 1 at 56. He also points to the fact that, due to the passage
of time, Turk testified that he no longer had independent recollection of the
exact words used by Pannell when she made such admission. Be that as it may,
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Turk’s contemporaneous report referencing Pannell’s admission was preserved
and available during trial, see Defendant’s Ex. G, and Bates was permitted to
and did challenge the credibility of Pannell’s trial testimony by referring to her
statement in the report and its inconsistencies with her trial testimony. Tr. Vol.
2 at 365. We note that this was a bench trial, and Bates has not explained (nor
will we speculate) how he would have fared better before the court with the
recording of Pannell’s exact words. Bates has not shown that he was actually
and substantially prejudiced by the absence of the recording.
[13] Bates’s final assertion that he was prejudiced by his inability to conduct bullet
trajectory testing because the crime scene was destroyed is similarly unavailing
because he fails to explain how that evidence would have benefitted him. As
noted above, “a defendant must make specific and concrete allegations of
prejudice that are supported by the evidence.” Allen, 813 N.E.2d at 366. 2 Bates
has not met his burden to establish actual or substantial prejudice to his right to
a fair trial.
[14] Even assuming Bates could establish that the five-year delay in prosecution
resulted in actual and substantial prejudice, he has failed to prove that the State
had no justification for delay, or gained some tactical advantage due to the
delay. The central contested issue in this case was the identity of the individual
who shot Beeler. The State originally dismissed the charges against Bates
2
Bates makes brief reference to “other evidence” that was destroyed or cannot be located but he fails to
identify any specific evidence or how he was prejudiced by the absence of such evidence. Appellant’s Br. at
15. Accordingly, we decline to discuss it further.
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simply because the credibility of its key identification witness, Pannell, was
called into question by the results of her polygraph, which indicated that she
was not confident in her identification of Bates as the person whose voice she
heard at the door and who shot Beeler. The State determined that it did not
have enough credible evidence identifying Bates as the shooter to proceed to
trial. However, once Castillo came forward regarding her conversation with
Bates, the State had reason to reopen its investigation, which led to Buntin and
Dickerson, giving the prosecution three additional witnesses identifying Bates
as the shooter.
[15] In other words, because a witness possessing credible and corroborated
information unexpectedly came forward five years after the original charges
were dismissed, we cannot say that the State’s delay in prosecution lacked
justification. Indeed, under the circumstances presented, “it does not appear
that ‘the prosecution deliberately utilize[d] delay to strengthen its position by
weakening that of the defense ….’” Ackerman, 51 N.E.3d at 193 (quoting Schiro
v. State, 888 N.E.2d 828, 834 (Ind. Ct. App. 2008), trans. denied). Rather, new
information came to light which gave the State additional evidence identifying
Bates as the shooter. Bates has failed to establish that the State had no
justification for delay, or gained some tactical advantage due to the delay. In
sum, Bates has failed to establish that the prosecutorial delay rose to the level of
a due process violation. The trial court properly denied his motion to dismiss
on that basis.
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Section 2 – Bates has not met his burden to establish that the
State violated his right to a speedy trial.
[16] Bates next argues that he was entitled to dismissal of the charges against him
because the State violated his right to a speedy trial under both the federal and
state constitutions. The Sixth Amendment to the United States Constitution
provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial ....” Article 1, Section 12 of the
Indiana Constitution states, in applicable part, that “[j]ustice shall be
administered freely, and without purchase; completely, and without denial;
speedily, and without delay.” The speedy trial right is “an important safeguard
to prevent undue and oppressive incarceration prior to trial, to minimize
anxiety and concern accompanying public accusation and to limit the
possibilities that long delay will impair the ability of an accused to defend
himself.” United States v. Ewell, 383 U.S. 116, 120 (1966).
[17] Bates points to his “18 months in jail” before the State dismissed his original
charges and the “five years” between the dismissal and refiling of charges as the
relevant time for us to consider regarding whether he was denied his speedy
trial right. Appellant’s Br. at 17. However, as noted by the State, the United
States Supreme Court has observed that “[o]nce charges are dismissed, the
speedy trial guarantee is no longer applicable” because ‘“a citizen suffers no
restraints on his liberty and is [no longer] the subject of public accusation: his
situation does not compare with that of a defendant who has been arrested and
held to answer.’” United States v. MacDonald, 456 U.S. 1, 8-9 (quoting United
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States v. Marion, 404 U.S. 307, 321 (1971)). Here, the State dismissed the
original charges in 2009 and Bates was released from jail and was no longer the
subject of public accusation until charges were again filed in 2014.
Accordingly, Bates’s current speedy trial right did not attach until charges were
filed in July 2014, see Crawford, 669 N.E.2d at 145,3 and contrary to Bates’s
contention, the time before the State’s refiling of the charges is not relevant to
his current speedy trial claim. See MacDonald, 456 U.S. at 8.4 Thus, the only
relevant time here is the 649 days between when charges were refiled on July 2,
2014, and his trial on April 11, 2016.
[18] Our supreme court recently reiterated that “[i]n evaluating both federal and
Indiana constitutional speedy trial claims, courts balance the same four factors:
(1) the length of the delay; (2) the reason for delay; (3) the defendant’s assertion
of the right to a speedy trial; and (4) any resulting prejudice to the defendant.”
Griffith v. State, 59 N.E.3d 947, 955 (Ind. 2016) (citing Barker v. Wingo, 407 U.S.
514, 530 (1972), and Sweeney v. State, 704 N.E.2d 86, 102 (Ind. 1998), cert denied
(1999)). Turning to these factors, we note that while a delay of 649 days, even
for a murder trial, is substantial, the record indicates that Bates was the primary
reason for the delay. He requested five continuances in a row, causing a full
year of delay. In contrast, the State moved for only one continuance after Bates
3
“It has long been the law that a defendant’s speedy trial rights do not attach until the filing of a formal
indictment or information or until actual restraints are imposed by an arrest and holding to answer a criminal
charge.” Crawford, 669 N.E.2d at 145.
4
“Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized
under the Due Process Clause, not the Speedy Trial Clause.” MacDonald, 456 U.S. at 8.
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filed a belated notice of alibi. Bates also moved for a sixth continuance and
sought an extension of time even after he had filed his motion to dismiss the
charges. As for his assertion of his speedy trial right, although Bates did move
for a speedy trial back in 2009, he did not make the same request when charges
were filed in 2014. Indeed, he did not assert his speedy trial right until he filed
the motion to dismiss on November 24, 2015, and, as we already noted, he
moved for an additional continuance and sought an extension of time after that
date. Finally, and most significantly, Bates fails to develop any argument that
he was prejudiced by the 649-day delay.5 Under the circumstances, we
conclude that Bates was not deprived of his right to a speedy trial and the trial
court did not err in denying his motion to dismiss.
[19] Affirmed.
Riley, J., and Altice, J., concur.
5
Bates’s argument as to prejudice concentrates solely on the five-year delay between dismissal of the original
charges and the current charges. Appellant’s Br. at 18. As we already determined, the time before the State
refiled the charges is irrelevant to his speedy trial claim. See MacDonald, 456 U.S. at 8-9.
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