Osborne v. State

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:

WILIAM C. MENGES, JR. KAREN M. FREEMAN-WILSON

Howard County Public Defender Attorney General of Indiana

Kokomo, Indiana

ARTHUR THADDEUS PERRY

Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

RICKEY OSBORNE, )

)

Appellant-Defendant, ) Supreme Court Cause Number

) 34S00-0009-CR-531

v. )

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE HOWARD SUPERIOR COURT I

The Honorable Dennis H. Parry, Judge

Cause No. 34D01-9812-CF-313

ON DIRECT APPEAL

September 13, 2001

RUCKER, Justice

A jury convicted Rickey Osborne of attempted murder, burglary, and

robbery in connection with the iron bar and hammer beating of Dan Williams.

Osborne then pleaded guilty to being a habitual offender. The trial court

sentenced Osborne to a total term of 100 years. In this direct appeal, we

address the following rephrased issues: (1) did the trial court deny

Osborne his right of self-representation; (2) did the trial court err by

admitting into evidence Osborne’s confessions; (3) did the trial court

erroneously allow two testifying police officers to remain in the courtroom

throughout the trial despite ordering a separation of witnesses; (4) was

the evidence sufficient to support Osborne’s conviction for attempted

murder; and (5) did the trial court’s use of Osborne’s pre-trial conduct to

both convict him of criminal contempt and enhance his attempted murder

conviction violate the Double Jeopardy Clause of the United States

Constitution.

We affirm the trial court.

Facts

The facts most favorable to the verdict show that on the afternoon of

December 5, 1998, Osborne and his twenty-year-old nephew Charles Osborne

broke into the Kokomo home of Dan Williams because they knew he kept large

sums of money in his house. While Osborne and Charles were searching for

money, Mr. Williams came home. Osborne and Charles hid in the basement.

Osborne then instructed Charles to find something with which to hit Mr.

Williams. Charles decided on a hammer, and Osborne selected an iron bar.

When Osborne and Charles went back upstairs, Osborne struck Mr. Williams

approximately seven times in the head and face with the iron bar and

hammer, and then Charles struck him approximately twelve times with the

hammer. Osborne took Mr. Williams’ wallet from his pants pocket, which

contained $1,000 in cash. Osborne and Charles then fled the scene.

Despite his injuries, Mr. Williams was able to call 911.

Police apprehended Osborne and Charles near Mr. Williams’ house

shortly after the 911 call. Police returned them to the crime scene, but

Mr. Williams was unable to make a positive identification. Police then

released Osborne and Charles. However, Charles later confessed to the

crimes and implicated Osborne. A warrant was issued for Osborne’s arrest,

and police apprehended him two days later in Madison County.

The State initially charged Osborne with burglary and robbery.

Thereafter, the State filed an amended information adding the charge of

attempted murder and alleging that Osborne was a habitual offender. A jury

convicted Osborne of attempted murder, burglary, and robbery. He then

pleaded guilty to being a habitual offender. The trial court sentenced

Osborne to presumptive, concurrent sentences of thirty years for burglary

and ten years for robbery and also ordered an enhanced, consecutive forty-

year sentence for attempted murder, increased by thirty years for the

habitual offender status. Osborne now appeals. Additional facts are set

forth below where relevant.

Discussion

I.

Osborne first contends the trial court denied him his right to self-

representation. The basis of a defendant’s right to self-representation

under the Sixth Amendment of the United States Constitution was articulated

in Faretta v. California, 422 U.S. 806 (1975). In Faretta, the United

States Supreme Court held that a State may not “constitutionally hale a

person into its criminal courts and there force a lawyer upon him, even

when he insists that he wants to conduct his own defense.” Id. at 807.

The Court acknowledged that when a defendant manages his own defense, he

relinquishes many of the traditional benefits associated with the right to

counsel, such as an attorney’s training and experience, and may even

“conduct his own defense ultimately to his own detriment.” Id. at 834-35.

Therefore, the Court declared that in order for an accused to represent

himself, he must knowingly, intelligently, and voluntarily forgo these

relinquished benefits. Id. at 835.

However, before waiving these benefits, a trial court must make an

accused “aware of the dangers and disadvantages of self-representation, so

that the record will establish that ‘he knows what he is doing and his

choice is made with eyes open.’” Id. (quoting Adams v. United States ex

rel. McCann, 317 U.S. 269, 279 (1942)). “There are no prescribed ‘talking

points’ the court is required to include in its advisement to the

defendant; it need only come to a considered determination that the

defendant is making a voluntary, knowing, and intelligent waiver.” Poynter

v. State, 749 N.E.2d 1122, 1126 (Ind. 2001).

In addition, although a defendant need not have the skill and

experience of an attorney, he must be competent to stand trial. Godinez v.

Moran, 509 U.S. 389, 400 (1993). That is, he must have the mental capacity

to understand the proceedings. Id. at 401 n.12. Before claiming that his

right to self-representation has been denied, a defendant must timely,

clearly, and unequivocally assert that right. Dobbins v. State, 721 N.E.2d

867, 871 (Ind. 1999); Sherwood v. State, 717 N.E.2d 131, 135 (Ind. 1999).

If a defendant’s right to self-representation has been denied, a new trial

is warranted because this right is not subject to harmless error analysis.

McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).

Osborne’s initial hearing took place on December 10, 1998. At that

time, the trial court advised him of the charges of burglary and robbery:

JUDGE PARRY: Now you understand, Mr. Osborne, you have the right to

be represented by counsel, someone you hire that you choose and pay

for or if you want an attorney but cannot afford to hire one, you can

ask for the appointment of the public defender to represent you at no

cost or you can represent yourself without counsel, you understand

those choices?

THE DEFENDANT: Sure do.

JUDGE PARRY: What do you intend to do about an attorney, sir?

THE DEFENDANT: I’ll represent myself.

JUDGE PARRY: Not by me. You’ll get the public defender. With a Class

A felony --

R. at 263-64. The State filed an amended information on January 14, 1999.

The trial court held a second initial hearing on the additional charges of

attempted murder and habitual offender status on January 21, 1999. At this

initial hearing, the following discussion took place:

JUDGE PARRY: Now as to these other two charges you have the same

rights as you had previously as to the original ones. In fact your

trial is already set. You have the right to counsel, which you have.

You have the right to a speedy trial, which you asked for, and you

have the right to confront witnesses. Those rights all remain again

for these, you understand that?

THE DEFENDANT: Yes, Your Honor.

R. at 272 (emphasis added). Osborne made no request for self-

representation at the second initial hearing.

We first observe that it would have been better practice for the

trial court to determine Osborne’s competency and advise him of the perils

of proceeding pro se before ruling on his request to represent himself.

See Dobbins, 721 N.E.2d at 872 (“Generally, a trial court should conduct a

pre-trial hearing to determine a defendant’s competency to proceed without

counsel and to establish a record of a defendant’s waiver of his right to

counsel.”). However, by not acting consistent with his earlier request to

represent himself when the trial court advised him during the second

initial hearing of his rights regarding counsel, Osborne acquiesced in the

presentation of his defense by appointed counsel. See Sherwood, 717 N.E.2d

at 136 (in arriving at the conclusion that the defendant’s right to self-

representation was violated, this Court found significant that

“[t]hroughout the entire trial, [the defendant] at no time acquiesced in

the presentation of a defense by appointed counsel.”); cf. Stone v. State,

531 N.E.2d 191, 194 (Ind. 1988) (declaring that when a defendant makes a

motion for a speedy trial, he is required to maintain a position which is

reasonably consistent with that request; otherwise, he is considered to

have abandoned the request, and the motion ceases to have legal viability).

We therefore conclude that the trial court did not violate Osborne’s

right to self-representation.

II.

Osborne gave two confessions to police: one on the way to the police

station and the other, which was tape-recorded, at the police station. The

trial court, over defense counsel’s timely objections, admitted both

statements into evidence. In this appeal, Osborne challenges their

admission on the ground that they occurred after he requested an attorney.

Once a suspect asserts the right to counsel, police must cease

interrogation until counsel is present or the suspect initiates further

communication with police. Minnick v. Mississippi, 498 U.S. 146, 156

(1990); Oregon v. Bradshaw, 462 U.S. 1039, 1043 (1983); Edwards v. Arizona,

451 U.S. 477, 484-85 (1981). However, the initiation of further

communication by an accused, standing alone, is not sufficient to establish

a waiver of the previously asserted right to counsel. Grimm v. State, 556

N.E.2d 1327, 1330 (Ind. 1990). If the accused is found to have initiated

further communication, then the subsequent inquiry is whether there is a

valid waiver of the right to counsel; that is, whether the purported waiver

was knowing and intelligent and found to be so under the totality of the

circumstances. Id.

The record shows police apprehended Osborne in Madison County two

days after the crimes occurred. When Detectives Donald Whitehead and Mike

Sanders from the Kokomo Police Department arrived at the Madison County

jail to transport Osborne back to Howard County, they advised Osborne of

his Miranda rights, and he signed a waiver of those rights. However,

Osborne then requested an attorney, at which point the detectives ceased

all questioning. En route to Howard County, Osborne began asking the

detectives how they had located him. Detective Whitehead responded that he

could not discuss the case because Osborne had invoked his right to

counsel. Osborne then attempted to discuss the case two more times with

Detective Whitehead, who twice responded that he could not discuss the case

because Osborne had invoked his right to counsel. Shortly thereafter,

Osborne exclaimed, “Oh, I’m going to represent myself; I don’t care; I want

to talk about it; I want to know how you found me.” R. at 855. Osborne

then admitted that he “beat that old man” and that he meant to kill him.

Id. Detective Whitehead asked Osborne if he would give a tape-recorded

statement when they arrived at the Kokomo Police Department, and Osborne

agreed. In his tape-recorded statement, the following exchange occurred

before Osborne gave a full confession to the crimes:

[Detective Whitehead]: Okay. Richard [Osborne], prior to this

discussion, myself and Detective Sanders picked you up at the Madison

County Jail where you had been transported after being arrested on a

warrant out of Howard County today. Is that correct?

[Osborne]: Yeah.

[Detective Whitehead]: And prior to speaking with you in Madison

County I read to you what was titled an “Interrogation: Advice of

Rights” form[]?

[Osborne]: Yeah.

[Detective Whitehead]: Did you understand all those rights as read to

you?

[Osborne]: Yeah.

[Detective Whitehead]: Did you affix your signature to the waiver of

those rights at that time in Madison County?

[Osborne]: Yeah.

[Detective Whitehead]: And during that initial conversation you

didn’t wish to speak to us, is that correct?

[Osborne]: Right.

[Detective Whitehead]: And later on the way back to Kokomo in the car

you initiated a conversation with myself and Detective Sanders

regarding this investigation, is that correct?

[Osborne]: Yeah.

[Detective Whitehead]: And you said at that time that you wanted to

tell us what happened?

[Osborne]: Yeah.

[Detective Whitehead]: And you in fact began that conversation [].

You began that conversation by telling us that you, you had in fact

broken into Dan Williams’ house Saturday and beaten him with a hammer

is that correct?

[Osborne]: Yeah.

R. at 41.

The totality of the circumstances shows that Osborne knowingly,

intelligently, and voluntarily waived his right to counsel. Osborne asked

Detective Whitehead on three separate occasions how they had located him.

Each time Detective Whitehead responded that he could not discuss the case

because Osborne had invoked his right to counsel. Undeterred by Detective

Whitehead’s warnings, Osborne then stated that he did not care about the

fact that he had invoked his right to counsel because he was going to

represent himself at trial. Osborne then confessed and agreed to give a

tape-recorded statement at the police station, which he did shortly

thereafter. At the beginning of the tape-recorded statement, Detective

Whitehead reminded Osborne of his Miranda rights as well as the waiver that

he had previously signed. Thus, the trial court did not err in admitting

Osborne’s confessions. See Owens v. State, 732 N.E.2d 161, 164 (Ind. 2000)

(holding that the trial court did not err in admitting the defendant’s

confession where the defendant requested an attorney, police ceased all

questioning, and the defendant initiated further communication, admitted to

the crime, and then gave a full tape-recorded confession after police read

him his Miranda rights).

III.

Osborne next contends the trial court erroneously allowed two Kokomo

police officers, both testifying witnesses, to remain in the courtroom

throughout the trial. Defense counsel requested, and the trial court

ordered, a separation of witnesses pursuant to Indiana Evidence Rule 615,

which provides:

At the request of a party, the court shall order witnesses excluded so

that they cannot hear the testimony of or discuss testimony with other

witnesses, and it may make the order on its own motion. This rule

does not authorize the exclusion of (1) a party who is a natural

person, or (2) an officer or employee of a party that is not a natural

person designated as its representative by its attorney, or (3) a

person whose presence is shown by a party to be essential to the

presentation of the party’s cause.

After the trial court ordered the separation of witnesses, the prosecutor

requested to keep two police officers at counsel table during

trial—presumably one as an officer of the State under clause (2) and the

other as a person essential to the presentation of the State’s case under

clause (3). The prosecutor gave the following reasoning: “[T]he complex

nature of this case and the fact that these officers supervised the

investigation on different shifts and therefore had responsibilities for

different parts of the investigation would require that I have them both in

the courtroom with me.” R. at 381. Over defense counsel’s objection, the

trial court permitted both police officers to remain in the courtroom

throughout the trial. Id.

Although the majority view on this issue is reflected in Justice

Boehm’s concurring opinion, we recently explained that the basic premise of

Rule 615 is that, upon request of any party, witnesses should be insulated

from the testimony of other witnesses. Long v. State, 743 N.E.2d 253, 256

(Ind. 2001). Therefore, Rule 615’s exemptions “should be narrowly

construed and cautiously granted.” Id. A party seeking to exempt a

witness from exclusion as “essential to the presentation of the party’s

cause” under clause (3) must convince the trial court that the “witness has

such specialized expertise or intimate knowledge of the facts of the case

that a party’s attorney would not effectively function without the presence

and aid of the witness.” Id. (quotation omitted). Exclusion under clause

(3) is thus inappropriate where a person excluded under clauses (1) and (2)

can provide the expertise and knowledge adequate to assist counsel. Id.

The determination of whether a witness qualifies for the exemption found in

clause (3) is within the trial court’s discretion and is subject to review

for an abuse of that discretion. Id. at 256-57.

Osborne does not challenge the prosecutor’s explanation that the

complex nature of this case and the police officers’ division of

responsibilities required them both to remain at counsel table during

trial. Nor does he allege or point to any evidence in the record that the

trial court abused its discretion. Further, our own review of the record

does not show an abuse of discretion. Osborne has failed to meet his

burden of showing that the trial court abused its discretion in permitting

the two police officers to remain in the courtroom throughout the trial.

IV.

Osborne next contends the evidence is insufficient to support his

attempted murder conviction. The standard for reviewing sufficiency of the

evidence claims is well settled. We do not reweigh the evidence or judge

the credibility of the witnesses. Albrecht v. State, 737 N.E.2d 719, 731

(Ind. 2000). We will affirm the trial court if the probative evidence and

reasonable inferences drawn from the evidence could have allowed a

reasonable jury to find the defendant guilty beyond a reasonable doubt.

Id.

To establish attempted murder, the State must prove beyond a

reasonable doubt that (1) the defendant acted with the specific intent to

kill; and (2) the defendant engaged in conduct constituting a substantial

step toward commission of the crime. Mitchem v. State, 685 N.E.2d 671, 676

(Ind. 1997). “Intent may be inferred from the use of a deadly weapon in a

manner likely to cause death or great bodily harm.” Id. (quotation

omitted).

Osborne claims that the State failed to meet its burden because his

intent was to knock out Mr. Williams, not to kill him. However, Osborne’s

confessions and actions show otherwise. Osborne told Detective Whitehead

on the way to the police station that he intended to kill Mr. Williams. R.

at 855. Osborne expanded on this in his tape-recorded confession:

[Detective Whitehead]: And what were you gonna do to [Mr. Williams

when you went back upstairs]?

[Osborne]: We was gonna kill him. Or try to anyways. That’s why we

hit him in the head.

[Detective Whitehead]: And why would you want to kill him to take his

money?

[Osborne]: So he couldn’t call you guys.

. . .

[Detective Whitehead]: So it was your intent Saturday when you went

in his house to, to kill him and take his money? Was that Charlie’s

plan too?

[Osborne]: He, he knew what I had in my mind. . . .

. . .

[Detective Whitehead]: [After you hit him] [d]id you think he was

dead?

[Osborne]: I knew there wasn’t no sense to keep hitting him cause he

wasn’t moving. The whole time we was hitting him he was fighting.

The last time we hit him he quit moving so—

[Detective Whitehead]: So you didn’t know whether he was dead or not?

[Osborne]: No.

[Detective Whitehead]: Would it have surprised you if he was? No?

[Osborne]: I thought we hit him enough times, you know what I mean?

[Detective Whitehead]: So your intent was to go in there and wait on

him and then kill him and you thought that you had possibly done that?

[Osborne]: Right.

R. at 44, 45, 50-51. Additionally, according to both Charles’ trial

testimony and Osborne’s tape-recorded confession, Osborne struck Mr.

Williams approximately seven times in the head and face with an iron bar

and hammer. R. at 46-49, 508-12. The evidence is sufficient to support

Osborne’s conviction for attempted murder.

V.

When the trial court denied Osborne’s request to represent himself at

the first initial hearing, Osborne erupted, calling the judge various

insulting names and threatening him. Even after warnings, Osborne

continued verbally attacking the judge. As a result, the judge found

Osborne in direct criminal contempt and sentenced him to 120 days

imprisonment with no good time credit. R. at 25, 265-66. At sentencing,

the trial court enhanced Osborne’s sentence for attempted murder by ten

years in part because of Osborne’s behavior during the first initial

hearing which landed him a criminal contempt conviction. R. at 980-81.

Osborne contends that the trial court’s use of his pre-trial conduct

to both convict him of criminal contempt and enhance his attempted murder

conviction violates the Double Jeopardy Clause of the United States

Constitution because he was punished twice for the same offense. However,

we have held that enhancements for earlier convictions “are not

punishments; they are merely tools enabling a trial court to impose an

appropriate sentence for the current conviction.” Elmore v. State, 657

N.E.2d 1216, 1220 (Ind. 1995). As such, Osborne was not punished twice for

the same offense.

Further, when enhancing Osborne’s attempted murder conviction, the

trial court found no mitigators and another aggravator: Osborne’s criminal

history. R. at 980. Only one aggravator is necessary for a trial court to

enhance a sentence. Georgopulos v. State, 735 N.E.2d 1138, 1146 (Ind.

2000). The trial court did not err in enhancing Osborne’s sentence for

attempted murder.

Conclusion

We affirm the judgment of the trial court.

SULLIVAN, J., concurs. SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur

in Parts I, II, IV and V.

BOEHM, J., concurs in result with separate opinion as to Part III, in which

SHEPARD, C.J., and DICKSON, J., join.

ATTORNEY FOR APPELLANT

William C. Menges, Jr.

Howard County Public Defender

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Karen Freeman-Wilson

Attorney General of Indiana

Arthur Thaddeus Perry

Deputy Attorney General

Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

RICKEY OSBORNE, )

)

Appellant (Defendant Below), )

)

v. ) Indiana Supreme Court

) Cause No. 34S00-0009-CR-531

STATE OF INDIANA, )

)

Appellee (Plaintiff Below). )

__________________________________________________________________

APPEAL FROM THE HOWARD SUPERIOR COURT

The Honorable Dennis H. Parry, Judge

Cause No. 34D01-9812-CF-313

__________________________________________________________________

ON DIRECT APPEAL

__________________________________________________________________

September 13, 2001

BOEHM, Justice.

I concur in Parts I, II, IV, and V. I believe that the trial court

should not have allowed two police officers to remain in the courtroom

after granting a separation of witnesses order pursuant to Indiana Rule of

Evidence 615. I also believe that the burden of showing harmless error

falls on the State, but because that burden is satisfied in this case, I

concur in result in Part III.

Prior to the adoption of Indiana Rule of Evidence 615, when a motion

for separation of witnesses was granted, each party had a right to have one

person in the courtroom to assist counsel. Bell v. State, 610 N.E.2d 229,

233 (Ind. 1993). It was also the common law rule that the party

representative could be a police officer who was also a testifying witness.

Id. These rules were supplanted by Rule 615, which abolished the

automatic exemption for police officers and gave the trial court discretion

to allow witnesses to remain in the courtroom if they met any of the three

criteria specified in the rule. The second of these allows “an officer or

employee of a party that is not a natural person designated as its

representative by its attorney.” Several Indiana cases have held that a

police officer who has a supervisory role in the investigation of the

defendant meets this test as a representative of the State. Stafford v.

State, 736 N.E.2d 326, 330 (Ind. Ct. App. 2000); Heeter v. State, 661

N.E.2d 612, 614-15 (Ind. Ct. App. 1996); Fourthman v. State, 658 N.E.2d 88,

91 (Ind. Ct. App. 1995).

In this case, the State asked that two police officers remain at the

prosecutor’s table throughout the trial without reference to any of the

Rule 615 exemptions. The purpose of the party representative exemption is

to humanize those parties who are not natural persons. It allows only one

representative. Stafford, 736 N.E.2d at 329-30. One or more witnesses may

be permitted under the third exemption in Rule 615 for persons “essential

to the presentation of the party’s case.” To be present under this

provision the trial court must be persuaded that the “witness has such

specialized expertise or intimate knowledge of the facts of the case that a

party’s attorney could not effectively function without the presence and

aid of the witness.” Hernandez v. State, 716 N.E.2d 948, 950 (Ind. 1999).

As the Court points out, Rule 615’s exemptions “should be narrowly

construed and cautiously granted.” Osborne v. State, __ N.E.2d __, __

(Ind. 2001) (citing Long v. State, 743 N.E.2d 253, 256 (Ind. 2001)).

Accordingly, if an “essential witness” is an employee of the institutional

party, there is no reason to permit an additional investigative witness as

a representative of the party to avoid the problem of a human being versus

an empty chair. Therefore, if two are needed, both must be qualified as

essential.

The Advisory Committee Notes to Federal Rule of Evidence 615, the

federal counterpart to Indiana Rule of Evidence 615, state that the

essential witness “category contemplates such persons as an agent who

handled the transaction being litigated or an expert needed to advise

counsel in the management of the litigation.” This case does not turn on

scientific or other specialized knowledge, so only the need for mastery of

complex facts can be cited as a reason to exempt additional witnesses.

Earlier this year, this Court affirmed a trial court’s decision to allow an

FBI agent to sit with the prosecutor as an “essential” witness. Long, 743

N.E.2d at 256-57. In the course of the seven-day trial, forty-five non-

police, non-expert witnesses testified for the State and sixty-six exhibits

were offered into evidence by the State. In preparation for the trial, the

police conducted over 500 witness interviews and executed thirty searches

during three to four years of police work covering leads in Ohio, Illinois,

and Indiana. Id. In that case, the FBI agent was “essential” to the

prosecutor because he was familiar with the details of a complex and

lengthy investigation.

In this case, the prosecutor contended that the two officers were

“essential” because “the complex nature of this case and the fact that

these officers supervised the investigation on different shifts and

therefore had responsibilities for different parts of the investigation

would require that I have them both in the courtroom with me.” Osborne,

however, was apprehended immediately after the crime took place, was

arrested two days later, and gave two confessions to police, both of which

were admitted at trial. Unlike Long, this case did not involve complicated

facts, a plethora of witnesses, or an extensive investigation. There is no

showing that the presence of any witness was essential.

A number of police officers testified at Osborne’s trial, but the

record does not indicate which two officers were allowed to stay in the

courtroom despite the witness separation order. Osborne does not indicate

what prejudice he might have suffered as a result of the officers’ presence

in the courtroom and his failure to identify which officers were affected

makes it impossible for us to guess at what prejudice might exist. The

opinion of the Court concludes that Osborne has failed to meet his burden

of showing that the trial court abused its discretion. But as I observed

in dissent in Hernandez v. State, it is often difficult or impossible to

assess the effect on the testimony of a witness of having heard the

testimony of others. 716 N.E.2d at 954-55. For that reason, I would

follow the federal circuits that require the party supporting the erroneous

decision to show that the error was harmless. I think that Osborne is

entitled to a presumption of prejudice that the State must overcome to

prevail. Hernandez, 716 N.E.2d at 955.

All of the foregoing does not cause me to dissent from the result in

this case. The State presented overwhelming evidence supporting Osborne’s

conviction independent of the testimony of investigating officers. Osborne

confessed, DNA testing matched Osborne to a weapon used in the attack, and

Osborne’s accomplice testified against him. Under these circumstances,

even if we assume the testimony of the unsequestered witnesses was shaped

by their presence in the courtroom, I would find the error to be harmless.

Accordingly, I concur in result as to Part III of the majority

opinion.

SHEPARD, C.J., and DICKSON, JJ., concur.