James Hill v. State of Indiana

FILED
Jan 17 2018, 7:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott King Curtis T. Hill, Jr.
Russell W. Brown, Jr. Attorney General of Indiana
Scott King Group
Merrillville, Indiana Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Hill, January 17, 2018
Appellant-Defendant, Court of Appeals Case No.
45A04-1702-CR-325
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff Judge.
Trial Court Cause No.
45G01-1609-MR-00004
May, Judge.
[1] In this interlocutory appeal, James Hill appeals the denial of his motion to
dismiss the charges against him. He argues his due process rights were violated
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by the thirty-six year delay in charging him with murder, 1 murder in
perpetration of robbery, 2 and Class A felony attempted robbery. 3 He contends
his defense was prejudiced because his alibi witnesses died in the intervening
years. He also claims the State was not justified in its delay.
[2] While we agree the State’s reason for delay was tenuous at best, we conclude
Hill has not demonstrated prejudice. Thus, we affirm the trial court’s denial of
Hill’s motion to dismiss and remand.
Facts and Procedural History
[3] In the early morning of November 14, 1980, Hammond Police Officer Larry
Pucalik was murdered during an attempted robbery at the Holiday Inn-
Southeast located in Hammond, Indiana. Later that day, Hammond Police
Detective Robert Seaman received an anonymous phone call from a person
who stated, “Pierre Catlett killed your cop.” (App. Vol. III at 146.) 4
[4] On November 18, 1980, police arrested Hill on an unrelated charge. 5 When he
was arrested, Hill “made the spontaneous utterance ‘I know you guys think I
1
Ind. Code § 35-42-1-1(1) (1976).
2
Ind. Code § 35-42-1-1(2) (1976) (murder); Ind. Code § 35-42-5-1 (1977) (robbery); Ind. Code § 35-41-5-1
(1977) (attempt).
3
Ind. Code § 35-42-5-1(1) (1977) (robbery); Ind. Code § 35-41-5-1 (1977) (attempt).
4
There are two transcripts in the record, one for the hearing regarding Hill’s motion to dismiss (“MTD Tr.”)
and one for Hill’s request for habeas corpus (“Habeas Tr.”).
5
This arrest was related to a crime that occurred on October 5, 1980. Hill was subsequently convicted of
rape, criminal deviate conduct, and robbery for the incident occurring October 5, 1980. In 2009, those
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shot that Hammond cop.’” (Id. at 149.) On March 9, 1981, Hill asked jail staff
if he could speak with a detective. According to the probable cause affidavit
used in Hill’s 2016 indictment:
Hill confessed to detectives that he drove the vehicle used in the
attempted robbery and murder of Hammond Police Officer Larry
Pucalik. Hill recalled that [sic] Lee Mayes and Michael LNU 6 as
the subjects who went inside of the hotel. Detectives showed Hill
a spread of photographs. Hill picked out the photograph of Larry
Mayes, who [sic] Hill called Lee Mayes as one of the persons
who went inside of the Holiday Inn-Southeast. Hill then picked
out the photograph of Pierre Catlett, who [sic] Hill called
Michael LNU as the other person who went inside of the
Holiday Inn-Southeast.
(Id.) (footnote added).
[5] On October 3, 1983, Hammond Police Detective Michael Solan, Sr. spoke with
Jimmy Dale Woods, who told Detective Solan:
[Mayes] came over to Jimmy Dale’s house . . . and once Mayes
entered the house, he was walking back and forth really nervous
speaking out the window, so Jimmy asked him what’s wrong and
he said the police are looking for me. Something went wrong in
convictions were overturned as part of Hill’s petition for post-conviction relief. In that case, the trial court
found the prosecution’s concealment of certain exculpatory evidence violated Brady v. Maryland, 373 U.S. 83
(1963). Despite its ability to do so, the State declined to retry Hill after his convictions were overturned:
“After consultation with the complaining witness and in consideration of the fact that multiple witnesses are
now deceased and the defendant’s sentence has been completely served the State does not intend to re-try
[Hill] on the original charges.” (App. Vol. III at 51.) Hill has filed a federal lawsuit against Hammond
Police and certain officers involved in his 1980 conviction for civil rights violations, and that suit was pending
when the State charged him with the murder at issue herein. (See MTD Tr. at 31-4.)
6
“LNU” presumably means “last name unknown.”
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Hammond. A security guard was shot and eventually he asked
for some money to get out of town which [sic] his mother gave
him $160, I believe, to Mayes to get out of town and Mayes went
to Indianapolis.
(MTD Tr. at 55.) When asked about the original investigation from the 1980s,
Detective Solan indicated:
We had substantial evidence, but we did not have enough
evidence -- we had substantial evidence, but my opinion, I was
the one that would decide if we were going to charge. We had
substantial evidence, but we weren’t going to charge, roll the dice
because we had some problems with the investigation at that
time so we continued on.
(Id. at 56.) Detective Solan testified the investigation into Officer Pucalik’s
murder stymied in 1992 or 1993, with no charges filed.
[6] In 2009, Woods was being investigated for federal firearms and drug trafficking
crimes. Special Agent Jason Gore submitted, as part of a probable cause
affidavit, that Woods told Special Agent Gore:
In 1980 [Woods] was living with his mother Betty Schular, now
deceased, in Gary, Indiana. Woods recalled that one evening
Larry Mayes came over to his house in a very excited manner.
Woods recalled that Mayes told Schuler “I think I did something
today, I think I killed somebody”. [sic] Woods stated that Mayes
told him and Schuler that he was in trouble and needed some
money to get out of town.
Woods stated that Mayes went on to say that he, (Mayes), James
HILL and Mike LNU were driving around looking to rob
someone. Woods recalled that Mayes stated that they found a
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Holiday Inn that only had one female desk clerk. Woods
remembered Mayes stating that they figured the desk clerk was
alone and would be an easy target. Woods explained that Mayes
told him that during the robbery, a security guard came out from
the backroom, and went for his gun. Woods stated that Mayes
told him he shot the security guard and fled the area without
getting any money from the clerk. Woods recalled that Vincent
Johnson was also at his house the night Mayes came over.
Woods stated that he and Schuler gave Mayes some drugs to
calm him down and some money to get out of town. Woods
believed that Mayes went to Indianapolis to hide out. Woods
recalled that the following Monday, Mayes returned back to
Gary, Indiana and came over to Schuler’s house again. Woods
stated that Mayes told him that the guy he shot was an ex-cop
and a military hero.
(App. Vol. III at 149-50.) Based on Woods’ statement, Special Agent Gore also
interviewed Vincent Johnson, who corroborated portions of Woods’ version of
events.
[7] Further, Special Agent Gore testified Woods gave him additional information
in 2009 “tying Mr. Hill and Mayes together.” (MTD Tr. at 44). He testified:
Prior to that, there is -- had been a strong denial from both Mayes
and Hill that they even knew each other. Mr. Woods put them
together at his house. He even gave a specific story where Mr.
Mayes who’s older than Mr. Hill came and was going to sell him
a couch or brought him a couch, to his home in Gary. And
along with him was James Hill and that was the first time that he
had met James Hill. That information, your Honor, is brand
new. It was -- it was showing an association that, in fact, Mr.
Hill and Mayes did know each other prior to the events that
occurred November 17, 1980, and it showed that they did know
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each other, that they did have a relationship. That was
information that was never provided to Hammond [Police
Department].
(Id.)
[8] In early 2011, the Northwest Indiana Major Crimes Taskforce reopened the
investigation into Officer Pucalik’s murder. Special Agent Gore reviewed old
files and re-interviewed witnesses. On June 22, 2012, the State charged Hill,
Mayes, and Catlett with Officer Pucalik’s murder. The charge against Catlett
was dismissed because he was serving another sentence in Illinois. The charge
against Mayes was dismissed after he suffered a “cerebral vascular accident,”
(id. at 23), and was deemed incompetent to stand trial. On March 27, 2014, the
charge against Hill was dismissed. When asked why the charge was dismissed
against Hill, Special Agent Gore testified:
[T]his is my understanding coming from David Urbanski who
was the Lake County prosecutor who was handling the case, and
it was because the evidence that we had, the case that we had
against Mr. Hill was tied to Mr. Mayes. The two cases were in
part together. Mr. Catlett lives in Illinois. The case against him,
some of the evidence is the same, but Mr. Hill and Mayes are
tied together. And Mr. Urbanksi [sic] told me that the reason
why he dropped the case against Mr. Hill was that we had to
separate and -- we could only make sure we had the evidence that
we could use against Mr. Hill because not all the same evidence,
statements, et cetera, could be used against, you know, that was
used against Mayes could be used against Hill. They were tied
together.
(Id. at 24.)
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[9] On September 1, 2016, the State again filed charges against Hill for the events
leading to the death of Officer Pucalik, including murder, murder in
perpetration of robbery, and Class A felony attempted robbery. On December
2, 2016, Hill filed a motion to dismiss the charges against him, arguing the
State’s delay in bringing charges against him denied him a defense. Hill stated
his great-uncle, James Stokes, and his great-grandmother, Elnoria Stokes,
would have testified that they lived with Hill at the time and “Mr. Hill was
home the entire night and did not leave the residence.” (App. Vol. III at 198.)
However, James died in 2008 and Elnoria died in 1996, and thus were
unavailable as witnesses. The State stated in its memorandum in opposition of
Hill’s motion to dismiss “other relatives of the Defendant, also residing with
Elnoria Stokes at the time of the murder, are available to testify, and have made
statements that Defendant often went out during the week[.]” (Id. at 217.)
[10] The trial court held a hearing on Hill’s Motion to Dismiss on January 13, 2017,
and denied his motion the same day. The trial court found:
6. In this case, notwithstanding the prejudice proffered by the
Defendant (the death of potential alibi witnesses), the State has
presented information and new evidence to support the delay,
such as, inter alia, the re-interview of Jimmy Dale Woods that
ties the three suspects [Hill, Catlett, and Mayes] together during
the time period of November 1980.
7. Furthermore, the Court finds that the State has gained no
tactical advantage in this delay since several potential witness
[sic] are no longer available to it due to death.
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(App. Vol. IV at 50.)
[11] On February 3, 2017, Hill requested the trial court certify its order for
interlocutory appeal. The trial court granted his request the same day. On
March 24, 2017, our court accepted jurisdiction over Hill’s interlocutory appeal
of the denial of his motion to dismiss.
Discussion and Decision 7
[12] Our standard of review in cases involving a criminal defendant’s motion to
dismiss is well-settled:
A defendant has the burden of proving, by a preponderance of
the evidence, all facts necessary to support a motion to dismiss.
Townsend v. State, 793 N.E.2d 1092, 1093 (Ind. Ct. App. 2003),
trans. denied. When a party appeals from a negative judgment,
we will reverse the trial court’s ruling only if the evidence is
without conflict and leads inescapably to the conclusion that the
party was entitled to dismissal. Id.
Johnson v. State, 810 N.E.2d 772, 775 (Ind. Ct. App. 2004), trans. denied. When
examining a motion to dismiss for pre-indictment delay, our analysis is guided
by our Indiana Supreme Court’s opinion in Ackerman v. State, 51 N.E.3d 171
(Ind. 2016), cert. denied 137 S. Ct. 475 (2016):
7
We held oral argument regarding this matter on December 18, 2017, at Mississinewa High School in Gas
City, Indiana. We thank the students and staff for their hospitality and counsel for their able presentations.
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Although the prosecution can exercise discretion on when to
bring charges, that discretion is not unlimited. Schiro v. State, 888
N.E.2d 828, 834 (Ind. Ct. App. 2008). The United States
Supreme Court has recognized that a pre-indictment delay in
prosecution can result in a Due Process Clause violation. United
States v. Valenzuela-Bernal, 458 U.S. 858, 869, 102 S. Ct. 3440, 73
L. Ed. 2d 1193 (1982). 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 constitute a violation of due
process.” Patterson v. State, 495 N.E.2d 714, 718 (Ind. 1986).
Despite this, the passage of time alone is not enough to establish
prejudice. Id. 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.” Schiro, 888 N.E.2d at 834.
Id. at 189-90. Hill argues the trial court abused its discretion when it denied his
motion to dismiss the charges against him because the passage of time had
prejudiced his ability to bring forth witnesses in his own defense.
[13] Hill relies on Barnett v. State, 867 N.E.2d 184 (Ind. Ct. App. 2007), trans. denied,
in which our court held the State’s twelve-year delay in filing murder charges
against Barnett violated Barnett’s due process rights. In that case, Barnett was
involved in a physical confrontation with another inmate, Combs, in 1993.
Combs died as a result of that altercation. The State charged Barnett with
Combs’ murder on July 7, 2005.
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[14] Barnett argued the State’s unjust delay in bringing the charge against him
prejudiced his defense because many witnesses were dead or unable to be
located and, if they were able to testify, the passage of time had faded the
witnesses’ memories. The record indicated Detective Michael Minnicus
investigated the incident in 1993 and submitted the findings of his investigation
and a potential witness list to the prosecutor’s office. However, the prosecutor’s
office did not conduct a follow-up investigation in 1993. Detective Minnicus
testified “that the case had been brought to his attention numerous times
between 1993 and 2005,” id. at 187, and there was confusion regarding who
was handling the case during that time. The State conceded “that the
investigators and prosecutors on Barnett’s case made a mistake by waiting
twelve years to prosecute him.” Id.
[15] Our court examined whether Barnett was prejudiced by an “inability to conduct
a proper investigation, to interview and depose eyewitnesses, and to prepare a
proper defense.” Id. We determined Barnett had demonstrated prejudice in the
State’s delay in filing charges because a significant number of witnesses to the
incident with Combs were dead or could not be located. In addition, Barnett
presented evidence those who were there and could be interviewed had limited
memories of the event. We held “Barnett was clearly prejudiced by the State’s
unexplained and unjustified delay - whether intentional or negligent - in
bringing charges.” Id. at 188.
[16] Hill argues his case is analogous to the facts in Barnett, as he was prejudiced by
the State’s delay in filing charges because his great-uncle and great-grandmother
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would have testified “he was home the entire night and did not leave the
residence.” (Br. of Appellant at 11.) We disagree.
[17] “A defendant must do more than show that a particular witness is unavailable
and that the witness’ testimony would have helped the defense. He must also
show that the witness would have testified and withstood cross-examination,
and that the jury would have found the witness credible.” United States v. Spears,
159 F.3d 1081, 1085-6 (7th Cir. 1998), reh’g and suggestion for reh’g en banc denied,
cert denied 528 U.S. 896 (1999). A panel of our court used the Seventh Circuit’s
holding in Spears to support its holding in Schiro, a case with facts very similar
to those before us here. See Schiro, 888 N.E.2d at 834 (citing Spears as
authority).
[18] In Schiro, the State delayed charging Schiro for twenty-five years for crimes
associated with two incidents that allegedly occurred in 1980. Schiro argued he
was prejudiced by the delay because his parents, whom he would have called as
alibi witnesses were available due to death and infirmary. We rejected Schiro’s
argument as speculative, as he “offered no testimony, affidavit, or depositions
in support of this claim.” Id. at 835.
[19] The same is true here. Hill argued, as part of his motion to dismiss:
6. . . .Mr. Hill’s defense against these allegations is that he was
not involved.
7. Had the State not delayed in bringing these charges, Mr. Hill
would have filed a Notice of Alibi and named his Great-uncle,
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James Stokes and Great-grandmother, Elnoria Stokes, as alibi
witnesses.
8. James Stokes would have testified that in November 1980 he
lived with Mr. Hill and Elnoia [sic] Stokes at 2379 Fillmore St.,
Gary, IN.
9. James Stokes would have further testified that he was home
the night of November 13 through the early morning hours of
November 14, 1980 and Mr. Hill and Elnoria Stokes were also
home.
10. James Stokes would have further testified that Mr. Hill was
home the entire night and did not leave the house.
11. Similarly, Elnoria Stokes would have testified that both
James Stokes and Mr. Hill lived with her at 2379 Fillmore St.,
Gary, IN.
12. Elnoria Stokes would have further testified that she was
home the night of November 13 through the early morning hours
of November 14, 1980 and James Stokes and Mr. Hill were also
home that night.
13. Elnoria Stokes would have further testified that Mr. Hill was
home the entire night and did not leave the residence.
14. This evidence would be crucial to Mr. Hill’s defense.
15. Unfortunately, James Stokes died in 2008 and Elnoria Stokes
died in 1996.
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16. Due to the State’s delay in bringing charges, Mr. Hill has lost
the ability to present a defense.
17. The inability to call these witnesses to testify at trial in this
matter caused an actual and substantial prejudice to Mr. Hill’s
right to a fair trial.
(App. Vol. III at 197-8.)
[20] Unlike Schiro, Hill provided an affidavit wherein he indicated he was home the
night of Officer Pucalik’s murder. However, we note, as the trial court did, that
Hill did not present an alibi defense as part of his 2012 indictment for the same
crime. (See MTD Tr. at 87) (“You offer alibi, but I can’t ignore the idea that in
2013 [sic] when the case was submitted and later dismissed in 2015 that no alibi
was submitted, yet there is one now.”). Additionally, the State indicated in its
memorandum in opposition of Hill’s motion to dismiss “other relatives of the
Defendant, also residing with Elnoria Stokes at the time of the murder, are
available to testify, and have made statements that Defendant often went out
during the week[.]” (App. Vol. III at 217.)
Conclusion
[21] We conclude Hill has not met the bar set by Spears and adopted by this court in
Schiro: he has not shown Elnoria and James “would have testified and
withstood cross-examination,” Spears, 159 F.3d at 1085, and that the jury would
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have found them credible. 8 Thus he has not demonstrated he suffered actual
and substantial prejudice to his right to a fair trial. Accordingly, we affirm the
decision of the trial court and remand.
[22] Affirmed and remanded.
Baker, J., and Altice, J., concur.
8
As we conclude Hill has not met his burden to demonstrate he suffered actual and substantial prejudice to
his right to a fair trial, we need not consider the other prong of the test - whether the State’s delay was
justified. See Ackerman, 51 N.E.3d at 189-90 (“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[.]’”) (emphasis added) (internal citations omitted).
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