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

• Court: Indiana Court of Appeals
• Decided: April 6, 2017
• Docket: 49A05-1606-CR-1321
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 1 of 12 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,

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 2 of 12 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

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 3 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 4 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 5 of 12 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 Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 6 of 12 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,

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 7 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 8 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 9 of 12 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

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 10 of 12 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.

Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017 Page 11 of 12 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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