Baxter v. State

ATTORNEY FOR APPELLANT

Kenneth T. Roberts

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Arthur Thaddeus Perry

Deputy Attorney General

Indianapolis, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

CALVERT BAXTER, )

)

Appellant (Defendant Below), )

)

v. ) Indiana Supreme Court

) Cause No. 49S00-9812-CR-751

STATE OF INDIANA, )

)

Appellee (Plaintiff Below). )

__________________________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Ruth D. Reichard, Judge

The Honorable Cale Bradford, Judge

Cause No. 49G02-9710-CF-153318

__________________________________________________________________

ON DIRECT APPEAL

__________________________________________________________________

April 24, 2000

BOEHM, Justice.

Calvert Baxter was found guilty of murder and sentenced to sixty-five

years imprisonment. In this direct appeal, Baxter raises seven issues for

review: (1) whether the State committed prosecutorial misconduct by

charging a defense witness with the same crime shortly before trial; (2)

whether Baxter was prejudiced by a continuance granted to the State; (3)

whether the State put a witness on the stand who it knew would perjure

himself; (4) whether the jurors were improperly separated after they

started their deliberations; (5) whether an alleged improper communication

between the bailiff and jurors necessitates a new trial; (6) whether the

evidence was sufficient to convict Baxter of murder based on accomplice

liability; and (7) whether imposition of the maximum sentence for murder

was proper. We affirm the conviction for murder, but reduce Baxter’s

sentence to fifty-five years.

Factual and Procedural Background

In the evening of June 14, 1997, Baxter, Michael Johnson, and Curtis

Williams drove from the south side of Indianapolis to pick up Vernell Woods

at 86th Street and Allisonville Road on the north side. Baxter drove

because he was the only one who possessed a valid driver’s license. On the

return trip, Johnson was in the front passenger seat, and Woods and

Williams were in the rear, with Woods on the passenger side.[1] At 46th

Street and Allisonville, Kirsten Knoebel pulled out in front of them in her

mini-van, causing Baxter to swerve to avoid hitting her. Woods yelled an

obscenity out the window. When the two cars stopped at the next light,

Knoebel shouted a racial epithet at the group. Knoebel, Woods, and

Williams continued to scream back and forth at one another until the light

turned green. Woods told Baxter to follow Knoebel and Baxter complied.

According to Williams’ testimony, Woods normally carried a gun and had

shown Williams a weapon earlier in the evening. As the four pursued

Knoebel, Woods was “playing with his side” where the gun was stowed, and

Johnson was throwing trash or pennies out the window at Knoebel.

Approximately midway in the chase, according to Williams, he expressed

concern that “somebody else riding down the . . . street” might get

injured. The chase continued. Near 46th Street and Rookwood,

approximately four miles from the first encounter, Baxter pulled up beside

Knoebel. Woods fired several shots at Knoebel’s van, breaking the windows

and striking Knoebel. After the shots were fired, Baxter turned into a

driveway, where the four remained for several seconds, screaming

profanities. Baxter then pulled back out, turned out the lights, and

headed in the opposite direction. According to both Williams and Baxter,

after the shooting, Woods said, “[I]f anybody opens up their mouth about

this, then they’re going to be just like her.”

Knoebel’s van continued along 46th Street and then swerved off across

a lawn at the Butler University campus and came to rest in the library

parking lot. At 12:03 a.m. on June 15, a campus police officer saw

Knoebel’s van parked at an odd angle in the Butler lot and found Knoebel

dead inside.

Baxter learned of Knoebel’s death on the news the next evening.

Three months later, on September 15, 1997, police received a tip

implicating Woods and Williams in the shooting. Police then located

Baxter, who was a friend of Woods, and Baxter told them that he had been

the driver of the car involved in the incident.

Baxter was charged with murder under an accomplice liability theory

and also with assisting a criminal. He was found guilty on both counts.

After merging the assisting a criminal conviction into the murder

conviction, the trial court[2] sentenced Baxter to sixty-five years

imprisonment, the maximum sentence for murder. Baxter filed a motion to

correct error, which the trial court denied. This appeal followed.

I. The State’s Continuance

Baxter argues that he was prejudiced when the trial court granted the

State’s motion for a continuance on December 24, 1997. Specifically, he

argues that Johnson, who had not yet been charged with a crime at the time

of the motion, would have been available to testify at trial if the State

had not been granted the continuance.

Courts do not favor continuances to allow more time to prepare for

trial and should grant these motions only where good cause is shown and it

is in the interests of justice. Williams v. State, 681 N.E.2d 195, 202

(Ind. 1997). However, the granting of a motion for a continuance on

nonstatutory grounds[3] lies within the discretion of the trial court and

will be reversed only for an abuse of that discretion. See id.; Kindred v.

State, 540 N.E.2d 1161, 1177 (Ind. 1989) (citations omitted); Sims v.

State, 521 N.E.2d 336, 338 (Ind. 1988); Mengon v. State, 505 N.E.2d 788,

791 (Ind. 1987). There is no abuse of discretion if the appellant was not

prejudiced by the continuance. Sims, 521 N.E.2d at 338.

The continuance in question was granted at the request of the

prosecution after it had located officials from the City of Indianapolis to

conduct a study of the traffic flow on the route along which Baxter

followed Knoebel. The State contended that this material would “assist the

trier of fact in determining the Defendant[’s] intent concerning these

allegations.” The State’s inability to obtain this information earlier was

alleged to be a result of the prosecuting attorneys’ heavy trial calendar.

At trial, this witness testified to the amount of time it would have taken

for Baxter to drive that route.

Because the State charged Johnson on December 29, 1997, and Baxter’s

initial trial date of December 15 had already been pushed back to January

5, 1998 due to the trial court’s congested calendar, the grant of a

continuance to January 20, 1998 did not result in any prejudice to Baxter.

There was no abuse of discretion under these circumstances.

II. Prosecutorial Misconduct

Baxter maintains that the State committed prosecutorial misconduct by

charging Johnson shortly before Baxter was scheduled for trial and then

refusing to grant Johnson use immunity. Baxter argues that he was deprived

of critical exculpatory evidence when Johnson invoked his Fifth Amendment

privilege against self-incrimination. Specifically, Baxter alleges that

the State’s decision to grant use immunity to Williams but not Johnson was

made “with the deliberate intention of distorting the fact-finding

process,” and that for this reason the conviction must be reversed.

Baxter’s foundation for this claim is that Johnson was not charged in

October after his involvement in the incident was first discovered, but

rather two and a half months later, six days before the trial was scheduled

to begin and three weeks before it actually started.[4]

Distortion of the fact-finding process may be established by showing:

(1) that prosecutorial overreaching, through threats, harassment, or other

forms of intimidation, has effectively forced the witness to invoke the

Fifth Amendment, or the prosecutor has engaged in discriminatory use of

immunity grants to gain a tactical advantage; (2) the witness’ testimony is

material, exculpatory, and not cumulative; and (3) the defendant has no

other way to obtain the evidence. State v. Goudy, 689 N.E.2d 686, 696

(Ind. 1997) (citations omitted).

The State’s decision to charge Johnson and refuse him use immunity

was reviewed by the trial court at the hearing on Baxter’s motion to

correct error. The prosecution testified that the timing of the charge was

a result of Johnson’s failure to cooperate and remain in touch with the

police as he had initially agreed. Johnson testified that he was unsure if

he would have testified even if he had not been charged. In addition,

defense counsel never asserted that the State had acted improperly. The

contention in the trial court was: “We are merely seeking justice . . . and

if the jury heard the evidence of Mr. Johnson, they might have reached a

different result.” The trial court then concluded that there had not been

“prosecutorial overreaching, through threats, harassment, or otherwise.”

We agree with the trial court that the record exhibits no evidence of

prosecutorial overreaching, and Baxter is not entitled to reversal on this

basis.

III. Williams’ Testimony

Baxter claims that the State put Williams on the stand knowing that

Williams would give perjured testimony. It is well established that the

knowing use of perjured testimony constitutes grounds for reversal. See

Evans v. State, 489 N.E.2d 942, 948 (Ind. 1986) (“The knowing use of

perjured testimony is fundamentally unfair and a conviction obtained by the

use of such testimony will not be upheld.”). It is equally clear, however,

that contradictory or inconsistent testimony does not constitute perjury,

and that it is up to the jury to resolve conflicting testimony. See id.

Baxter maintains that because the State had acquired information

through Johnson and Baxter implicating Williams as the shooter, the State

knew that Williams’ testimony would be perjured. At the hearing on the

motion to correct error, the prosecutor at trial testified that, “[w]e just

simply had the facts as we were given them by the participants to the

incident,” and “[a]t no time did I feel comfortable that any of these

people . . . was telling the complete truth.” According to the prosecutor,

this was a fact-sensitive case in which only the participants knew what had

really happened, and therefore he could not have known whether Williams

would commit perjury on the stand.

Williams’ in-court testimony at trial varied significantly from his

previous statements to the authorities. In particular, his testimony

bearing on Baxter’s knowledge of the events in the back seat as the car

pursued Knoebel varied from his earlier accounts. Williams initially gave

a statement in which he said that Woods had brandished the gun at College

Avenue, at least a mile before he finally shot at Knoebel. At trial,

however, he admitted only that Woods was “playing with his side,” tending

to indicate that Baxter would not have known there was a gun in the car.

The trial court found that the State had not knowingly used perjured

testimony. Although Williams’ testimony was contradictory, there is no

evidence that the State knew what actually transpired or knew that

Williams’ account on the stand was false. Indeed, the trial testimony was

more favorable to Baxter than the pretrial account. The use of Williams’

testimony is not reversible error.

IV. Jury Separation

At some point during deliberations, the bailiff allowed three jurors

to walk outside to smoke. Baxter maintains that this “separation” of

smokers from nonsmokers in the midst of deliberations requires reversal.

The jurors remained in the bailiff’s range of vision through a window, but

not within his hearing. At the hearing on the motion to correct error, the

trial court found that the separation was not improper, and noted that no

objection was raised when it occurred.

The rule regarding jury separation during deliberations is well

established and strict. Barring exigent circumstances, in a criminal trial

the jury is to remain together throughout deliberations and until a verdict

is returned. See Bradford v. State, 675 N.E.2d 296, 304-05 (Ind. 1996)

(citing Follrad v. State, 428 N.E.2d 1201, 1202 (Ind. 1981)). Ordinarily,

if the jury is allowed to separate, the State must prove beyond a

reasonable doubt that the verdict was not affected by the separation and

that the verdict is clearly supported by the evidence. Pruitt v. State,

622 N.E.2d 469, 471 (Ind. 1993). We have never been asked to consider

whether a “separation” is permissible to allow jurors who smoke to do so

without requiring the nonsmokers to be in the same room. This Court has

held, however, that unless there is an objection to the separation at the

time it occurs, it is not properly preserved for appellate review. See

Bradford, 675 N.E.2d at 305. Baxter did not object to the jury separation

until the filing of the motion to correct error and has therefore waived

this argument for review.

V. Bailiff’s Response to Juror’s Question

Baxter alleges that his conviction must be reversed because of an

alleged improper communication between the bailiff and jury. When an

improper communication takes place between the bailiff and the jury, “there

[is] a presumption of harm to the defendant that the State must rebut to

avoid reversal.” Alexander v. State, 449 N.E.2d 1068, 1074 (Ind. 1983).

Reversal may be avoided only if no harm or prejudice to the defendant

results. See Randall v. State, 474 N.E.2d 76, 79 (Ind. 1985) (“When an

irregularity such as this . . . occurs harm will be presumed, and if the

irregularity is not explained, a reversal of the judgment should follow.

However, if an explanation for the alleged misconduct is offered, and if

this Court is satisfied that no harm or prejudice resulted, then the

judgment of the trial court will not be disturbed.”) (citations omitted).

When the trial court has addressed the issue of improper communications, we

do not reweigh its determinations as to the credibility of the witnesses.

See Wilson v. State, 511 N.E.2d 1014, 1018 (Ind. 1987). Because this is a

factual determination, it is subject to a clearly erroneous standard of

review. See Butler v. State, 724 N.E.2d 600, 603-04 (Ind. 2000).

Baxter challenged this alleged error at his hearing on the motion to

correct error. In an affidavit, one juror alleged that, after the jury had

been deliberating six to seven hours, the bailiff was questioned regarding

what would happen if the jury “hung.” Allegedly, the bailiff told jurors

“that [they] had not been there long enough and to not even think about

that.” This juror further stated that “[t]he exchange did not affect the

verdict as far as I was concerned.” The bailiff testified at the hearing

on the motion to correct error that he had not made this statement at all.

The trial court found that the alleged comment was not made by the

bailiff, and also concluded that, even if it had been made, there was no

evidence that it had affected the verdict. The trial court’s finding that

no harm resulted to Baxter was not clearly erroneous.

VI. Sufficiency of the Evidence

Baxter contends that the evidence was insufficient to convict him of

murder. This Court will affirm the conviction if there is sufficient

probative evidence from which a reasonable jury could have found the

defendant guilty beyond a reasonable doubt. Garrett v. State, 714 N.E.2d

618, 621 (Ind. 1999). We do not reweigh the evidence or assess the

credibility of the witnesses, id., and we consider only the evidence that

supports the verdict and the reasonable inferences to be drawn therefrom,

Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999).

In order to be found guilty of murder based on accomplice liability,

a jury must find beyond a reasonable doubt that a defendant “knowingly or

intentionally aid[ed], induce[d], or cause[d] another person to commit an

offense.” Ind. Code § 35-41-2-4 (1998). A defendant’s mere presence at

the crime scene, or lack of opposition to a crime, standing alone, is

insufficient to establish accomplice liability. See Harris v. State, 425

N.E.2d 154, 156 (Ind. 1981). These factors, however, may be considered in

conjunction with a defendant’s course of conduct before, during, and after

the crime, and a defendant’s companionship with the one who commits the

crime. See id.

At trial, Williams testified that Woods was carrying a gun in his

pocket on the day of the crime, that Woods was fumbling with his side in

the back seat, and that Woods always carried a gun. Baxter reported that

he had grown up with Woods, knew Woods better than the other passengers

that night, and also knew that Woods had spent time in prison. Williams

also testified that, at one point, he expressed concern about injuring

another driver on the road, at which point everyone turned around. Woods

responded, urging that the chase continue. Despite Williams’ alleged

urging to abandon the chase, Baxter continued in pursuit of Knoebel for

seven to ten minutes. The jury was free to believe Williams’ testimony,

even if contradictory, tending to establish that Baxter was aware that

Woods had a gun and wanted to fire it at Knoebel’s van. The jury was also

free to infer from Baxter’s continued pursuit of the van that he was guilty

beyond a reasonable doubt of knowingly or intentionally aiding Williams in

committing murder. Thus, the evidence was sufficient to uphold the

verdict.

VII. The Sentence

Baxter alleges that his sentence is manifestly unreasonable.

Although this Court has the constitutional authority to revise and review

sentences, see Ind. Const. art. VII, § 4, it will do so only when the

sentence is “manifestly unreasonable in light of the nature of the offense

and the character of the offender.” Ind. Appellate Rule 17(B). This

Court’s review under Rule 17(B) is very deferential to the trial court:

“The issue is not whether in our judgment the sentence is unreasonable, but

whether it is clearly, plainly, and obviously so.” Bunch v. State, 697

N.E.2d 1255, 1258 (Ind. 1998) (quoting Prowell v. State, 687 N.E.2d 563,

568 (Ind. 1997)).

We conclude that this is one of those cases. The record before the

Court reveals that the nature of the offense, but more importantly, the

character of the offender is such that sentencing him to the maximum term

allowable is manifestly unreasonable. Throughout his adult life, Baxter

held steady employment with his father and elsewhere up until shortly after

the murder. Baxter’s former girlfriend testified that Baxter provided

economic and financial support to their son as well as played the role of

father to her sons by another man. The record also shows that Baxter

remained in close contact with his other child by his fiancée. Several

friends and family members testified at the sentencing hearing to his

“reputation for peacefulness,” and to the support he had provided them over

the years. Baxter also exhibited remorse for his role in Knoebel’s murder,

although he continued to maintain that he did not know Woods had a gun.

Moreover, unlike the more typical accomplice to a crime, Baxter had no

inkling at the outset of the evening that his association with Woods or

Williams would result in any crime, much less one with these tragic

consequences.

Finally, Baxter offered some explanation for his criminal history,

which was the sole statutory basis for aggravating his sentence. Baxter

had three arrests while he was a juvenile, one of which resulted in a

conviction, and three as an adult, two resulting in convictions. None

involved any violent offenses, and three of the arrests involved mistaken

identifications. According to Baxter, his only conviction as a juvenile,

for burglary and theft, consisted of entering an abandoned school through

an open window. Baxter stated that he remembered the burglary part of the

conviction, but not the theft, contending that nothing in the building was

worth taking. The other two arrests were for fighting, but Baxter was

released after it was determined that Baxter’s twin brother had been in the

fights.

As an adult, Baxter was first arrested and convicted for resisting law

enforcement. According to Baxter, he was arrested with a group of people,

believing he was rightfully where he was, when he kept walking after he was

told to freeze. Second, he was arrested for resisting arrest, but charges

were dismissed after it was determined the wrong person had been arrested.

Finally, his last arrest came after he was in a home in which cocaine was

found. He pleaded guilty to resisting law enforcement, a crime he claims

he did not know he had committed, in exchange for authorities’ dropping a

charge for possession of cocaine. Baxter successfully completed probation

for these misdemeanor convictions as an adult.

In view of Baxter’s uncertain criminal history, the evidence submitted

regarding Baxter’s character, and Baxter’s limited involvement in the

murder of Knoebel,[5] it was manifestly unreasonable to impose the maximum

sentence allowable. We therefore remand to the trial court with

instructions to reduce Baxter’s sentence to the presumptive term of fifty-

five years.[6]

Conclusion

Baxter’s conviction for murder is affirmed. This case is remanded to

the trial court with instructions to reduce the sentence to fifty-five

years.

SHEPARD, C.J., and RUCKER, J., concur.

SULLIVAN, J., concurs in parts I-VI and concurs in result in part

VII.

DICKSON, J., dissents from the sentence reduction but otherwise

concurs.

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[1] In Baxter’s statement to police, he placed Williams in the front seat

next to him, with Johnson and Woods in the back.

[2] Judge Reichard presided over Baxter’s trial and sentencing. She

recused herself before the hearing on Baxter’s motion to correct errors,

and the case was reassigned to Judge Bradford.

[3] Baxter also argues that, under Indiana Code § 35-36-7-2, the State

must show that the evidence is material and that it has not been able to

procure the evidence in the exercise of due diligence in order to be

entitled to a continuance. However, “[t]he statute does not restrict the

court’s discretionary powers. Instead it merely compels the granting of a

continuance under certain clearly delineated circumstances.” Bates v.

State, 520 N.E.2d 129, 131 (Ind. Ct. App. 1988).

[4] Baxter’s trial was originally set for December 15, 1997, then

rescheduled due to court congestion for January 5, 1998, and rescheduled

again for January 20, 1998 after the State was granted its motion for a

continuance. Johnson was charged on December 29, 1997, one week after the

State had moved for a continuance.

[5] Cf. Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995) (considering

defendant’s lack of involvement in planning and initiating a murder and

robbery, along with other factors, in reducing a sentence).

[6] Baxter also argues that the trial court abused its discretion in

failing to consider the mitigators presented in his sentencing submission.

Because reduction of the sentence to the presumptive is the relief Baxter

seeks on appeal, the conclusion that Baxter’s sentence was manifestly

unreasonable renders superfluous discussion of this issue.