Appendix — Hill v. Wilson (No. 08-42)
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APPENDIX A— OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT
DECIDED MARCH 10, 2008
In the
UNITED STATES COURT OF APPEALS
for the Seventh Circuit
No. 06-2777
ASHER B. HILL,
Petitioner-Appellant,
v.
BILL WILSON, Superintendent,
Westville Correctional Facility,
Respondent-Appellee.
Argued February 22, 2008—Decided March 10, 2008
Before EASTERBROOK, Chief Judge, and BAUER
and POSNER, Circuit Judges.
EASTERBROOK, Chief Judge. Asher Hill
entered a liquor store in Indianapolis, shot the clerk,
and stole the contents of the cash register. For this
conduct he has been convicted of several offenses and
sentenced to life imprisonment without possibility of
parole, because his many cvunvictions make him a
habitual offender under Indiana law. The clerk survived
and was prepared to testify against Hill but suffered a
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heart attack just before trial. The judge postponed the
trial for two months; Hill contends, in this proceeding
under 28 U.S.C. § 2254, that by doing this the judge
violated two of his constitutional rights. The state
judiciary rejected these arguments, Hill v. State, 773
N.E.2d 336 (Ind.App.2002), 777 N.E.2d 795 (Ind.App.
2002), as did a federal district judge, Hill u. McBride,
2006 U.S. Dist. LEXIS 39599 (N.D.Ind. Mar. 30, 2006).
Hill invokes the speedy trial clause and the right to
choose between counsel and self-representation. The
state judge violated both rights at once, he maintains,
by deferring the trial until the clerk had recovered. Hill,
who was representing himself in the state proceedings,
opposed the delay on the basis of the state’s speedy-
trial statute, which provides that a trial may not be
postponed on account of a missing witness when the
defendant agrees that the prosecutor may use, as
evidence, the prosecutor’s version of what the witness
would say if available to testify. Ind.Code § 35-36-7-
2(b)(1). Hill agreed that the prosecution could introduce
a narrative summarizing the clerk’s likely testimony.
Evidently he thought that such an antiseptic
presentation would resonate less with the jury than the
appearance in court of a victim who would identify Hill
as the assailant and add details that might be omitted
from a summary. The trial judge refused to proceed,
however, stating that he thought it inappropriate to
conduct a proceeding that could end in life imprisonment
without the principal victim and witness. The state’s
appellate court held this decision a mistake, given
§ 35-36-7-2(b)(1), but affirmed the conviction because
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Hill received a fair trial that satisfied all constitutional
requirements.
Hill insists that the violation of state law also offends
the federal Constitution. The speedy-trial clause allows
a trial to be postponed for a good reason, he allows, but
this postponement (which lasted 56 days) was for a bad
reason—at least as Indiana classifies reasons for delay.
Moreover, he maintains, by rejecting his willingness to
proceed on a written summary of the clerk’s evidence
the judge violated his right to self-representation.
See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,
45 L.Ed.2d 562 (1975).
A federal court may afford relief to a state prisoner
if the state court’s decision was “contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States”. 28 U.S.C. § 2254(d)(1). Hill does not
identify any decision of the Supreme Court holding that
even remotely comparable events violate the
Constitution. Instead he invokes principles of very high
generality—such as Faretta’s holding that there is a
right of self-representation—and argues that these
principles cover the waterfront. That’s not sound; he
might as well point to the Bill of Rights itself. The
Supreme Court has held that a right becomes “clearly
established” only when a course of decisions has
established how the Constitution’s grand generalities
apply to a class of situations. See, e.g., Wright v. Van
Patten, U.S. ,128S.Ct. 743, 169 L.Ed.2d 583 (2008);
Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166
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L.Ed.2d 482 (2006). Indiana did not transgress any right
“clearly established” by this standard; indeed, the state
court did not commit a constitutional error by any
standard.
We start with self-representation. A court cannot
interpose an unwanted lawyer between the defendant
and the tribunal or refuse to accept from the defendant
motions that it would entertain if made by counsel.
See McKaskle v. Wiggins, 465 U.S. 168, 178-79, 1048.Ct.
944, 79 L.Ed.2d 122 (1984). The state judge did not do
either of these things. Hill can prevail only if the sixth
amendment creates a rule that motions made pro se
must be granted (or, perhaps, that no state court may
err in ruling on a proposal made by a defendant who
represents himself). No decision of the Supreme Court
clearly establishes such a right.
The state judge said enough to show that he would
have postponed the trial whether or not Hill was
representing himself. A request that would be denied,
if presented by counsel, may be denied if presented by
the accused personally. Hill’s argument entails the
proposition that, if he had chosen to be represented by
counsel, who (like Hill) had consented to the use of a
proffer in lieu of testimony, and the judge had postponed
the trial nonetheless, then the state would have violated
Hill’s right to have the assistance of counsel for his
defense. The problem that occurred in this proceeding
is unrelated to the right to have or abjure counsel’s aid.
The judge did not refuse to allow Hill to dispense with
counsel, or establish a category of arguments that only
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a lawyer can present, but simply made an error of state
law when deferring the trial. And errors of state law do
not justify collateral relief under § 2254. See, e.g.,
Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 124
L.Ed.2d 306 (1993); Estelle v. McGuire, 502 U.S. 62, 112
S.Ct. 475, 116 L.Ed.2d 385 (1991).
As for the right to a speedy trial: Hill enjoyed one.
The trial occurred almost exactly one year after Hill’s
arrest and less than two months after the hearing at
which he proposed to dispense with the clerk’s
testimony. The Supreme Court has never suggested that
so brief an interval between arrest and trial violates the
Constitution—though it has held that much longer
delays do not. See, e.g., Barker v. Wingo, 407 U.S. 514,
92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (five years and
three months); United States v. Loud Hawk, 474 U.S.
302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (more than
seven years). Hill tries to bootstrap an error of state
law into a violation of the Constitution by arguing that
the state law shows that the reason for delay was
impermissibie. What reasons for delay count as good
and bad for constitutional purposes depends, however,
on the Constitution rather than state law.
The reason that Hill wants to label a bad one-waiting
for the restoration to health of a major witness—is one
that the Supreme Court has included in the category of
good reasons for delay. See Barker, 407 U.S. at 531, 92
S.Ct. 2182 (“a valid reason, such as a missing witness,
should serve to justify appropriate delay”). Live
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testimony has value even when the defense prefers a
paper substitute:
iT ]he prosecution is entitled to prove its case
by evidence of its own choice, or, more exactly,
...acriminal defendant may not stipulate or
admit his way out of the full evidentiary force
of the case as the Government chooses to
present it. The authority usually cited for this
rule is Parr v. United States, 255 F.2d 86
(CA5), cert. denied, 358 U.S. 824, 79 S.Ct. 40,
3 L.Ed.2d 64 (1958), in which the Fifth Circuit
explained that the “reason for the rule is to
permit a party ‘to present to the jury a picture
of the events relied upon. To substitute for
such a picture a naked admission might have
the effect to rob the evidence of much of its
fair and legitimate weight.’ ” 255 F.2d, at 88
(quoting Dunning v. Maine Central R. Co.,
91 Me. 87, 39 A. 352, 356 (1897)).... Unlike an
abstract premise, whose force depends on
going precisely to a particular step in a course
of reasoning, a piece of evidence may address
any number of separate elements, striking
hard just because it shows so much at once;
the account of a shooting that establishes
capacity and causation may tell just as much
about the triggerman’s motive and intent.
Evidence thus has force beyond any linear
scheme of reasoning, and as its pieces come
together a narrative gains momentum, with
power not only to support conclusions but to
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Appendix A
sustain the willingness of jurors to draw the
inferences, whatever they may be, necessary
to reach an honest verdict. This persuasive
power of the concrete and particular is often
essential to the capacity of jurors to satisfy
the obligations that the law places on them.
Old Chief v. United States, 519 U.S. 172, 186-87, 117
S.Ct. 644, 1386 L.Ed.2d 574 (1997). States are free to take
a different view, but they do so as a matter of their own
law. The Constitution’s meaning does not change from
state to state, and year to year, according to the majority
vote of a local legislature.
The best way to conduct analysis under § 2254 is to
assume that the state wants to act exactly as its officers
(including its judges) have done, and then ask whether
the federal Constitution countermands that decision.
See, e.g., Gordon v. Degelmann, 29 F.3d 295, 300-01 (7th
Cir.1994); United States v. Martin, 399 F.3d 879 (7th
Cir.2005). The Constitution does not prevent a state from
waiting two months for the principal witness (and victim)
to recover and testify in person. See Barker, 407 U.S. at
521-22, 92 S.Ct. 2182 (“If, for example, the State moves
for a 60-day continuance, granting that continuance is
not a violation of the right to speedy trial unless the
circumstances of the case are such that further delay
would endanger the values the right protects.”).
It follows that Indiana has not contravened any clearly
established rule of federal law.
AFFIRMED
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APPENDIX B — OPINION AND ORDER OF THE
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF INDIANA, HAMMOND
DIVISION ENTERED MARCH 30, 2006
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
NO. 2:04-CV-506 PS
ASHER HILL,
Petitioner,
V.
DAN MCBRIDE,
Respondent.
IPINION AND ORDER
On December 7, 2004, pro se Petitioner Asher Hill,
an inmate at the Maximum Control Facility in Westville,
Indiana, filed a Petition pursuant to 28 U.S.C. § 2254.
The Response to the order to show cause filed by the
Attorney General of Indiana demonstrates the
necessary compliance with Lewis v. Faulkner, 689 F.2d
100 (7th Cir.1982). For the following reasons, Hill’s
Petition is denied.
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Appendix B
I. FACTS
The facts as detailed below-come from the Indiana
Court of Appeals opinion from the direct appeal in this
matter. See Hill v.. State, 773 N.E.2d 336 (Ind.Ct.App.
2002). In summary, on May 9, 2000, a robber entered a
liquor store in Indianapolis and shot the cashier. The
robber insisted that a patron open the cash register.
The patron was unable to do so, and therefore
unplugged the register and gave it to the robber. The
robber then ordered the patron to the floor. While on
the floor, the patron got a good view of the robber’s
legs and feet. The robber then threw the cash register
to the ground, kicked it open and took money out. The
robber was described as an African-American male, five
feet, eleven inches tall, who was wearing jean shorts,
white tube socks, tennis shoes and a long sleeve, hooded
white jacket. After the robber left the store, the patron
got up from the floor and called the police. The call came
in to police dispatch at 9:43 p.m.
Two minutes later at 9:45 p.m., a witness saw a gray
Mazda run into a tree approximately one-half mile north
of the liquor store that had been robbed. He then called
the police to report the accident. Before the police could
arrive, however, Park Ranger Jerald Knuckles
happened upon the scene and saw the Mazda up against
the tree with the engine running and the windshield
wipers on. He went up to the car to investigate, but it
was empty. Knuckles opened the car door and saw a gun
on the passenger seat, which he recovered. Money was
also found strewn about : 2ar and in the car. Also found
abandoned in the area was a beige-colored jacket.
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Appendix B
Ballistics tests later confirmed that the gun
recovered from the Mazda was the same weapon that
was used to shoot the cashier at the liquor store. Hill’s
fingerprints were found on the driver’s side window of
the Mazda, and it was proved that the Mazda belonged
to Hill’s ex-girlfriend. There was further evidence
linking Hill to the Mazda. Approximately a month before
the robbery, he had been pulled over in that car during
a routine traffic stop.
At around 9:45 p.m. on the night of the robbery, Hill
knocked on the door of a home in the area of the robbery.
He told the owner of the home that he had just been
carjacked, and the homeowner described Hill as out of
breath. Hill was wearing jean shorts, tennis shoes and
white socks. Because she thought it unusual that Hill
did not report the carjacking to the police, the owner of
the home called 9-1-1. The police arrived on the scene
within minutes of the homeowner’s call. Hill had $392 in
cash on him mostly in fives and tens. The police then
brought the witness from the liquor store to the location
to see if he could identify Hill as the robber. The witness
identified Hill’s shoes and jeans as consistent with the
clothing that the robber was wearing.
II. PROCEDURAL HISTORY
At a trial by jury, Hill was convicted of robbery,
criminal confinement and carrying a handgun without a
license in May of 2001. See Hill, 773 N.E.2d at 340.
Because he was found to be a habitual offender, Hill was
sentenced to life without parole. /d. Hill filed a direct
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Appendix B
appeal of his conviction, arguing that: (1) his right to a
speedy trial was violated; (2) the trial court violated his
right to self representation when it granted the state a
continuance over his objection; (3) the combined effect
of the trial court’s rulings denied him complete and
freely administered justice under the Indiana
Constitution; and (4) his convictions were not supported
by sufficient evidence. (Resp.Ex.D.) The Indiana Court
of Appeals affirmed Hill’s conviction on direct appeal.
See Hill, 773 N.E.2d at 339. As the opinion issued by
the court of appeals did not address certain speedy trial
issues raised in Hill’s brief, Hill filed a petition for
rehearing. The court of appeals granted the petition,
but ultimately affirmed Hill’s conviction. See Hill uv. State,
777 N.E.2d 795, 799 (Ind.Ct.App.2002).
Hill then filed a petition to transfer to the Indiana
Supreme Court. In his petition, Hill first argued that
the Indiana Court of Appeals erroneously determined
that Hill waived any speedy trial objections when he did
not renew his objection and move for discharge after
the trial court specifically stated that it was granting a
continuance over his objection. (Resp. Ex. H at 5.) Hill
further argued that the court of appeals erred in holding
that Hill’s speedy trial and self-representation rights
were not prejudiced when the trial cort erroneously
continued his trial. (/d. at 7.) Hill also included a catch-
all paragraph, attempting to preserve his other
arguments raised in his direct appeal to the Indiana
Court of Appeals. (/d. at 9.) The petition to transfer was
denied. See Hill v. State, 792 N.E.2d 35 (Ind.2003).
}2a
Appendix B
Hill then filed a petition for post conviction relief
(PCR), alleging ineffective assistance of both trial and
appellate counsel. (Resp. Ex. J at 14, 30, 34.) He also
continued to argue that his conviction was not supported
by sufficient evidence as well as several other claims not
raised on direct appeal. (/d. at 34-75 .) The Indiana Court
of Appeals affirmed the post conviction court’s finding
that Hill had not demonstrated that either of his counsel
was ineffective and held that he had waived the right to
raise the freestanding claims. (Hill v. State, No. 49A02-
0401-PC-82 (Ind.Ct.App. Aug. 30, 2004), Resp. Ex. L.)
Hill filed a petition to transfer to the Indiana Supreme
Court in September 2004, alleging that the Indiana
Court of Appeals erroneously concluded on direct appeal
that his counsel had waived Hill’s right to a speedy trial.
(Resp.Ex.M.) In his amended petition to transfer to the
Indiana Supreme Court in October 2004, Hill alleged
that the state failed to produce sufficient evidence to
support his Class A felony conviction and that his
appellate counsel was ineffective for failing to present
these evidentiary issues on direct appeal. (Resp.Ex. N.)
These petitions to transfer were also denied. See Hill v.
State, 822 N.E.2d 980 (Ind.2004); (Pet.’s Am. Traverse,
Ex. D [Doc. 38].)
In the Petition before this Court, Hill’s claims are
(1) that the state failed to produce sufficient evidence
of every element of robbery as a Class A felony; (2) that
the Indiana Court of Appeals erred when it held that
Hill could not personally object to vacating the February
12, 2001 trial date because he was represented by
counsel; (8) that the Indiana Court of Appeals
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Appendix B
erroneously determined that trial counsel was not
ineffective; (4) that the Indiana Court of Appeals
erroneously determined that appellate counsel was not
ineffective; (5) that the Indiana Court of Appeals
erroneously determined that Hill waived any speedy
trial objections to postponement of the trial date during
the March 16, 2001 pretrial conference; and (6) that the
Indiana Court of Appeals erroneously determined that
the trial court’s postponement of the trial date during
the March 16, 2001 pretrial conference did not unduly
interfere with Hill’s Sixth Amendment right to self
representation.
III. DISCUSSION
A. Petitioner’s first, second and fifth claims are
barred by procedural default.
“The procedural default doctrine . . . normally will
preclude a federal court from reaching the merits of a
habeas claim when either (1) that claim was presented
to the state courts and the state-court ruling against
the petitioner rests on adequate and independent state-
law procedural grounds, or (2) the claim was not
presented to the state courts and it is clear that those
courts would now hold the claim procedurally barred.”
Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir.2004). The
first type of procedural default prevents a federal court
from “review[ing] a question of federal law if it
determines that the state decision rests on a state
procedural ground that is independent of the federal
question and adequate to support the judgment.”
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Appendix B
Page v. Frank, 343 F.3d 901, 905 (7th Cir.2003). Or, in
other words, “the independent and adequate state
ground doctrine bars federal habeas when a state court
has declined to address a prisoner’s federal claims
because the prisoner has failed to meet a state
procedural requirement.” /d. (citations and alterations
omitted).
For this doctrine to apply, the last state court ruling
on the claim must clearly and plainly state that the
judgment rests on a state procedural bar. See Harris v.
Reed, 489 U.S. 255, 260-61 (1989). Furthermore, the
procedural rule must be applied in a “ ‘consistent and
principled way.’ ” Page, 343 F.3d at 908-09 (citation
omitted). Essentially, the state procedural rule must be
firmly established and regularly followed. /d. at 909. A
state decision that rests on a rule applied infrequently,
unexpectedly, or inconsistently may be inadequate
grounds for procedural default, as it suggests that the
state is discriminating against the federal right asserted.
Id. (citation omitted).
The procedural default doctrine also precludes
federal courts from reaching the merits of a habeas
petition if the petitioner did not fairly present his federal
claims to the appropriate state courts, and those state
courts would now hold the claims procedurally barred.
Perruquet, 390 F.3d at 514. To fairly present his claims
to the state court, the petitioner must articulate both
the operative facts and the controlling legal principles
on which his federal claim is based. See id. at 519. These
operative facts and law must appear in the text of the
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Appendix B
petition and accompanying briefs, as the state court is
not required to look to lower court opinions to find the
federal nature of the claim. Baldwin v. Reese, 541 U.S.
27, 32 (2004); Perruquet, 390 F.3d at 521.
This doctrine “is designed to give the state courts a
full and fair opportunity to resolve federal constitutional
claims before those claims are presented to the federal
courts[.]” O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). This means that the petitioner must “invok[e]
one complete round of the State’s established appellate
review process.” /d. This does not mean that the
petitioner must necessarily file a state habeas petition
after completing his one full round on direct appeal in
the state courts. Castzlle v. Peoples, 489 U.S. 346, 349-
50 (1989) (noting that “once the state courts have ruled
upon a claim, it is not necessary for a petitioner ‘to ask
the state for collateral relief, based upon the same
evidence and issues already decided by direct review’ ”)
(citation omitted).
Factors to consider in determining if the operative
facts and law of a federal claim were fairly presented
include: “ ‘(1) whether the petitioner relied on federal
cases that engage in constitutional analysis; (2) whether
the petitioner relied on state cases which apply a
constitutional analysis to similar facts; (3) whether the
petitioner framed the claims in terms so particular as
to call to mind a specific constitutional right; and
(4) whether the petitioner alleged a pattern of facts that
is well within the mainstream of constitutional
litigation.’” Perruquet, 390 F.3d at 519-20 (citations
l6a
Appendix B
omitted). The petitioner is not required to demonstrate
that the state appellate court actually addressed the
federal claim; he need only show that the issue was fairly
presented in the appropriate petition and briefs.
See Dye v. Hofbauer, 126 S.Ct. 5, 6-7 (2005).
If a claim has been procedurally defaulted in either
way, a federal court is barred from granting relief on a
habeas claim “unless the petitioner demonstrates cause
for the default and prejudice resulting therefrom, or
alternatively, he convinces the court that a miscarriage
of justice would result if his claim were not entertained
on the merits.” Perruquet, 390 F.3d at 514 (emphasis
and citations omitted). Cause is generally “established
by showing that some type of external impediment
prevented the petitioner from presenting his federal
claim to the state courts.” Lewis v. Sternes, 390 F.3d
1019, 1026 (7th Cir.2004). Prejudice is generally
“established by showing that the violation of the
petitioner’s federal rights ‘worked to his actual and
substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.’ ” /d. (quoting United
States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis
omitted). To show that a denial of a habeas claim will
result in a miscarriage of justice, the petitioner must
establish “that he is actually innocent of the offense for
which he was convicted, 7.e., that no reasonable juror
would have found him guilty of the crime but for the
error(s) he attributes to the state court.” /d. (citing
Schlup v. Delo, 513 U.S. 298, 327-29 (1995)).
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Appendix B
1. Petitioner’s first claim is barred because the
Petitioner did not fairly present this claim
to the state court and because the state court
rulings rested on independent and adequate
state procedural grounds.
Hill’s first claim asserts that the state failed to prove
every element of robbery as a Class A felony. Hill first
raised the sufficiency of the evidence in his direct appeal
wherein the Indiana Court of Appeals characterized it
as follows: “The main thrust of Hill’s sufficietcy
argument is that the evidence must be insufficient to
support his convictions because no one ever positively
identified him as the person who was at the liquor store
on May 9, 2000.” Hill, 773 N.E.2d at 347. The Court
then held that, notwithstanding the lack of eye-witness
testimony, there was an abundance of circumstantial
evidence upon which the jury could have convicted the
defendant. See id. at 347-48. His conviction was therefore
affirmed. See id. at 348. On his direct appeal to the
Indiana Supreme Court via a petition to transfer, Hill
made only a passing reference to his sufficiency of
evidence argument. He merely stated: “Mr. Hill also
raised questions regarding the sufficiency of the
evidence.” (Resp. Ex. H at 9.) Because Hill did not
adequately present this issue to the Indiana Supreme
Court, Hill has procedurally defaulted on this aspect of
his sufficiency of evidence argument and the Court
therefore will not entertain this claim. See Perruquet,
390 F.3d at 514. He has also failed to show cause for the
default and any resulting prejudice, or a miscarriage of
justice. Jd. (citations omitted).
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Appendix B
In his appeal from the denial of his post-conviction
relief petition, Hill also raised the sufficiency of the
evidence argument but with a new twist and only in the
most general of ways. In a 75-page petition, the
sufficiency argument is raised on page 74 where Hill
stated simply that “the state did not present evidence
of injury.” (See Resp. Ex. J at 74.') This was a different
argument than the one raised on his direct appeal
wherein Hill argued that the evidence was insufficient
because there was no eye-witness testimony. In essence,
Hill was now claiming that the State failed to prove that
the victim had been “injured” (he was, in fact, shot), and
therefore the evidence was insufficient for this reason.
The Indiana Court of Appeals rejected this sufficiency
of evidence argument, along with all the free-standing
claims, and affirmed Hill’s conviction, holding that Hill
had waived the right to assert any issues that were
available, but not raised, on direct appeal. (See Resp.
Ex. L at 12-13.) Hill presented the sufficiency of evidence
claim to the Indiana Supreme Court in his October 2004
amended petition to transfer, which was denied.”
1. In addition to arguing that the circumstantial evidence
was not sufficient to prove that the robbery victim suffered a
serious bodily injury, Hill raised multiple other free-standing
issues not raised in his direct appeal. (See Resp. Ex. J at 34-75.)
2. According to Pet.’s Amended Traverse [Doc. 38], Ex. D,
the Indiana Supreme Court did not grant Hill’s motion to
amend his petition to transfer to include the sufficiency of
evidence argument. Nevertheless, as a precaution, this Court
shall still review this claim as if the issue was properly
presented to the Indiana Supreme Court.
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Appendix B
As the last state court to review Hill’s sufficiency
claim, the decision of the Indiana Court of Appeals was
based solely on state post-conviction rules of procedure.
As required by Harris, the court of appeals clearly
expressed that its holding rested on these independent
state procedural grounds. See Harris, 489 U.S. at 260-
61. It is also plain that the Indiana Court of Appeals
applied this rule in a principled way because the holding
is consistent with established Indiana state law. See Ind.
PC. 1 § 1(b) (“This remedy [of post-conviction relief] is
not a substitute for a direct appeal from the conviction.
... ); Corcoran v. State, 820 N.E .2d 655, 663 (Ind.2005)
(stating that contentions that constitute free-standing
claims of error are not generally available for post-
conviction review), aff’d on reh’g, 827 N.E.2d 542
(Ind.2005); Tr:mberlake v. State, 753 N.E.2d 591, 597
(Ind.2001) (“If an issue was known and available, but
not raised on direct appeal, it is waived.”) (citation
omitted).
Because the Indiana Court of Appeals’ ruling on this
claim was based on the consistent application of clearly
expressed state procedural law, it is barred by
procedural default unless Hill can demonstrate cause
and resulting prejudice, or that denial of the claim will
result in a miscarriage of justice. See Perruquet, 390
F.3d at 614. Hill has not provided “some type of external
impediment” as a reason for the state procedural
default, nor has he made any claim that the violation of
his federal rights “worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.” Lewis, 390 F.3d at 1026
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Appendix B
(emphasis and citation omitted). Therefore, Hill has not
shown cause for the procedural default or any resulting
prejudice. Moreover, there was no fundamental
miscarriage of justice in this case. /d. (citation omitted).
Given the overwhelming evidence of Hill’s guilt—his
fingerprints on the window of the getaway car, the gun
used in the robbery found in that same car, the fact that
his clothes matched the robber’s, and all the other
circumstantial evidence—a reasonable juror would have
found him guilty despite the errors Hill attributes to
the state court. Accordingty, Hill’s first claim is barred
by procedural default.*
2. Petitioner’s second claim is barred because
Petitioner did not fairly present this claim
to the state court.
Hill’s second claim asserts that the appellate court
erred when it held that because Hill was represented
by counsel at the time, he could not personally object
when the trial court vacated the February 12, 2001 trial
date. Hill properly presented this claim to the Indiana
Court of Appeals, where his claim was denied. See Hill,
773 N.E.2d at 342. Hill filed a petition to transfer to the
Indiana Supreme Court on December 4, 2002, but he
made only a general reference to this claim, stating that
“Mr. Hill preserves his other arguments raised in his
direct appeal.” (Resp. Ex. H at 9 .) This vague language
was not sufficient to alert the Indiana Supreme Court
3. Even if this Court were to reach the merits on Hill’s
first claim, there is plainly sufficient evidence to uphold the
guilty verdict.
2la
Appendix B
to any sort of federal claim. Although the claim was
addressed in the court of appeals opinion, the Indiana
Supreme Court was not required to look any further
than Hill’s petition and accompanying briefs. See
Baldwin, 541 U.S. at 32; Perruquet, 390 F.3d at 521.
Therefore, the Court finds that Hill’s second claim was
not fairly presented to the state courts, and that Hill
therefore procedurally defaulted on his second claim.
Because Hill has not shown any cause for the default,
resulting prejudice, or a miscarriage of justice, this claim
is barred from the Court’s review.
3. Petitioner’s fifth claim is barred because the
state court rulings rested on independent and
adequate state procedural grounds.
Hill’s fifth claim asserts that the Indiana Court of
Appeals erred when it held that Hill waived any speedy
trial objections when he failed to renew his objection to
postponement of the trial date during the March 16,
2001 pretrial conference. Essentially, he argues that the
court of appeals placed form over substance, as the trial
court knew Hill objected to the continuance, and would
not have required a licensed attorney to renew his
objection. Hill properly presented this issue on direct
appeal, and in his December 4, 2002 petition to transfer.
(See Resp. Ex. D at 11; Resp. Ex. H at 5.) The Indiana
Court of Appeals rejected this claim on rehearing, and
the Indiana Supreme Court denied transfer. Hill, 777
N.E.2d at 798-99; Hill, 792 N.E.2d at 35.
22a
Appendix B
The decision of the Indiana Court of Appeals was
grounded solely on Indiana Criminal Procedure Rule
4—-an independent and adequate state procedural
ground. The court concluded that pursuant to Criminal
Rule 4, if a trial is postponed, the defendant waives any
speedy trial objections unless he objects and moves for
discharge. Hill, 777 N.E.2d at 798-99. Since Hill did not
object after the trial was postponed, the court reasoned
that he waived any speedy trial objections. Jd. at 799.
This holding is consistent with Indiana Criminal
Procedure Rule 4 jurisprudence. See Vermillion v. State,
719 N.E.2d 1201, 1204 (Ind.1999) (holding that under
Criminal Rule 4, if a defendant fails to timely object toa
new trial date, he acquiesces to the delay); Sweeney w..
State, 704 N.E.2d 86, 102 (Ind.1998) (holding that once
a trial is set beyond the limits provided in Criminal Rule
4, the defendant must timely object, or he waives his
right to a speedy trial) (citation omitted); Bell v. State,
622 N.E.2d 450, 454 (Ind.1993) (holding that a motion
for discharge filed prematurely is properly denied
pursuant to Criminal Rule 4), overruled on other
grounds by Jaramillo v. State, 823 N.E.2d 1187, 1190
(Ind.2005).
Because the Indiana Court of Appeals’ ruling on
Hill’s fifth claim was based on the consistent application
of clearly expressed state procedural law, these claims
are barred by procedural default unless Hill can
demonstrate cause and resulting prejudice, or that
denial of these claims will result in a miscarriage of
justice. See Perruquet, 390 F.3d at 514. Hill has not
provided “some type of external impediment” as a reason
23a
Appendix B
for the state procedural default, nor has he made any
claim that the violation of his federal rights “worked to
his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.”
Lewis, 390 F.3d at 1026 (emphasis and citation omitted).
Therefore, Hill has not shown cause for this procedural
default or any resulting prejudice. As stated previously,
there was also no fundamental miscarriage of justice in
this case. Accordingly, Hill’s fifth claim is barred by
procedural default.
B. Hill’s Third and Fourth Claims Were Properly
Decided.
Hill’s third and fourth claims—ineffective assistance
of trial and appellate counsel—were correctly decided
by the Indiana Court of Appeals. As provided by the
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AE DPA”), a federal court may not grant a petition for
habeas corpus based on any claim adjudicated in state
court proceedings “unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). “ ‘Contrary to’ means
that a federal court may grant the writ only if the state
court arrives at a conclusion opposite that reached by
the Supreme Court on a question of law, or if the state
court decides a case differently than the Supreme Court
24a
Appendix B
on a set of materially indistinguishable facts.” Woods v.
McBride, 430 F.3d 813, 816 (7th Cir.2005) (citing
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
In Strickland v. Washington, the Supreme Court
determined that a party claiming ineffective assistance
of counsel must demonstrate that the alleged acts or
omissions of counsel were not the product of “reasonable
professional judgment.” 466 U.S. 668, 690 (1984). This
standard is deferential; counsel is presumed to have
acted in a reasonable and professional manner. See 7d.
In this case, Hill argues that the trial counsel failed to
object to the postponement of the February trial date,
improperly withdrew Hill’s alibi defense, and requested
an extension of the omnibus date that allowed the state
time to file additional charges against Hill. He claims
that these actions constituted ineffective assistance of
counsel. To decide this issue, the Indiana Court of
Appeals applied the familiar two-part test of Strickland.
As the court noted, “petitioner must show both deficient
performance and resulting prejudice.” (Resp. Ex. L at
7-8, citing Strickland.) The court explained that
“[djeficient performance is that which falls below an
objective standard of reasonableness[,]” and that
“[p]rejudice exists when a defendant shows there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. (/d. at 8.) The Indiana Court
of Appeals then correctly noted that the reasonable
strategic decisions of trial counsel cannot form the basis
of an ineffective assistance of counsel claim. (/d. (citing
Azania v. State, 738 N.E.2d 248, 251 (Ind.2000)).)
25a
Appendix B
Finally, the court noted that to prove ineffective
assistance of counsel because of the failure to object, “a
defendant must prove that an objection would have been
sustained if made and that he was prejudiced by the
failure.” (/d. (citing Wrinkles v. State, 749 N.E.2d 1179,
1192 (Ind.2001)).)
Using these standards, the Indiana appeals court
held that Hill did not show that any of the claims
constituted ineffective assistance of counsel. First, Hill
failed to demonstrate that had his trial counsel objected
to the delay in the trial, such an objection would have
been sustained. In fact, the appeals court specifically
stated that such an objection would have been
overruled. (See Resp. Ex. L at 8.) The court reasoned
that the delay in the trial was granted so Hill’s own alibi
witness could be located and deposed. (/d.) Thus, he was
not prejudiced by the delay. (/d. at 9.) Accordingly, the
Indiana Court of Appeals determined that Hill’s trial
counsel was not ineffective regarding this issue. (/d.)
Second, Hill later decided that he would rather have a
speedy trial than have more delay in tracking down his
alibi witness. Accordingly, his attorney withdrew the alibi
defense. The court found that Hill cannot then claim
that his trial counsel was ineffective on that basis. (/d.)
Finally, Hill’s trial counsel requested an extension of the
omnibus date as a strategic decision to investigate the
possibility of an alibi defense. The court noted “that even
though the extended omnibus date permitted the State
to file additional charges, Hill has failed to show that
the State would not have otherwise been able to file the
additional charges.” (/d.) Therefore, the court found
26a
Appendix B
that Hill did not prove deficient performance or resulting
prejudice on that claim. (/d. at 9-10.)
Based on the standard presented in Strickland, the
Indiana Court of Appeals held that Hill received effective
assistance of counsel on all his claims. This decision was
not contrary to, or an unreasonable application of,
federal law. The Indiana Court of Appeals gave the
appropriate level of deference to the decisions made by
Hill’s trial counsel. Therefore, the claim of ineffective
assistance of trial counsel does not present an
appropriate grounds for habeas relief.
The same goes for Hill’s fourth claim—ineffective
assistance of appellate counsel.‘ Even if he fairly
presented the issue to the Indiana Supreme Court in
his petition to transfer, the Indiana Court of Appeals
4. The State has argued that Hill’s claim of ineffective
assistance of appellate counsel is procedurally defaulted
because he did not fairly present the issue to the Indiana
Supreme Court in his petition to transfer from the denial of his
post-conviction relief. While it is true that Hill mentioned
ineffective assistance of appellate counsel in his petition to
transfer, he did not present sufficient facts and law to support
the claim. The petition to transfer did not state the claim in any
uniquely constitutional terms, or even mention the Sixth
Amendment. Nor did Hill cite any federal or state cases.
See Pierson v. O’Leary, 959 F-2d 1385, 1392-93 (7th Cir.1992).
Nevertheless, because Hill does not prevail on his ineffective
assistance of counsel claim, the Court need not decide the
procedural! default issue. See Davis v. Vannatta, 438 F.3d 707,
711 (7th Cir.2006) (“We need not reach the issue of procedural
default, however, since [petitioner’s] claim fails on the merits.”).
27a
Appendix B
correctly decided the matter anyway. To determine
whether appellate counsel’s failure to raise certain
issues was a product of “reasonable professional
judgment,” the Indiana Court of Appeals applied a two-
part test, examining (1) whether any unraised issues
were apparent from the face of the record; and
(2) whether the unraised issues were “clearly stronger”
than the raised issues. (Resp. Ex. L at 10-11 (citing
Timberlake v. State, 753 N.E.2d 591, 605-06 (Ind.2001)
and Gray v. Greer, 800 F-:2d 644, 646 (7th Cir.1986)).)
Using this test, the court found Hill failed to show
that any of his alleged claims of free-standing error were
“clearly stronger” than the claims actually raised by Hill’s
appellate counsel. Accordingly, the Indiana Court of
Appeals determined that Hill’s appellate counsel was
not ineffective, as she exercised reasonable professional
judgment in her decision not to present any of Hill’s
freestanding error claims. (See Resp. Ex. L at 12.) The
court also held that the appellate counsel “ably raised
and presented the speedy trial issue[ ]” and that Hill
therefore failed to show that his counsel was ineffective
on that basis. (See zd. at 11.)
Based on the standard presented in Strickland, the
Indiana Court of Appeals’ decision was not contrary to,
or an unreasonable application of, federal law. The court
acknowledged and applied the “reasonable professional
judgment” standard set by the United States Supreme
Court, and gave the appropriate level of deference to
the decisions made by Hill’s appellate counsel. Therefore,
Hiil’s fourth claim also does not present an appropriate
ground for habeas relief.
28a
Appendix B
C. Petitioner’s sixth claim is rejected because the
ruling of the Indiana Court of Appeals was not
an unreasonable application of clearly
established federal law.
Hill’s sixth claim alleges that the trial court’s
erroneous postponement of Hill’s trial date at the March
16, 2001 pretrial conference interfered with Hill’s trial
strategy and thereby violated his Sixth Amendment
right to self representation. The trial was postponed
because a key state witness had suffered a heart attack.
See Hill, 773 N.E.2d at 348. Hill objected to the delay,
and agreed to stipulate to the testimony of the absent
witness pursuant to Indiana Code § 35-36-7-2. See id.
at 343-44. The trial court erroneously rejected Hill’s
offer to stipulate and granted the state’s motion for
continuance. See id. at 344-45. Essentially, Hill now claim
that this continuance interfered with his strategy to
proceed to trial without the state witness. Hiil properly
presented this claim to the state courts on direct appeal
and in his December 4, 2002 petition to transfer.
(See Resp. Ex. D at 23; Resp. Ex. H at 7.) The Indiana
Court of Appeals ultimately rejected his claim and the
Indiana Supreme Court denied transfer. See Hill, 773
N.E.2d at 345-46; Hill, 792 N.E.2d 35.
The Indiana Court of Appeals’ ruling on this issue
rested on federal jurisprudence- See Hill, 773 N.E.2d
at 345-46. As stated previously, the AEDPA prohibits
the grant of habeas relief unless state court adjudication
of the federal claim “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
29a
Appendix B
clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
2254(d).
The Supreme Court has established two core
components to the right to self representation: the right
to preserve actual control over the case presented to
the jury, and the right to have the jury perceive and
understand that the defendant is representing himself.
McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). The right
to control the case presented to the jury includes the
right “to control the organization and content of his own
defense, to make motions, to argue points of law, to
participate in voir dire, to question witnesses, and to
address the court and the jury at appropriate points in
the trial.” /d. at 174. However, a pro se defendant is not
entitled to absolute control, and “must generally accept
any unsolicited help or hindrance that may come from
the judge who chooses to call and question witnesses,
[or] from the prosecutor who faithfully exercises his duty
to present evidence favorable to the defense. .. .” Jd. at
177, % 7.
In evaluating Hill’s sixth claim, the Indiana Court
of Appeals correctly applied the analysis in McKaskle
to determine that Hill was not deprived of his right to
represent himself. While the court recognized that Hill’s
decision to proceed without the state witness could be
considered a tactical decision, it was not central to Hill’s
30a
Appendix B
defense. Hill, 773 N.E.2d at 345. This Court agrees. Hill
was still allowed to question witnesses, argue points of
law, and to address the court and jury. /d. He also was
allowed to place his objection to the continuance on the
record. /d. at 345-46. Yet as noted in McKaskle, Hill was
also obligated to accept the help of a judge who felt that
the presence of the witness was important. The fact that
the trial court overruled his objection was not in itself a
violation of Hill’s right to represent himself. The decision
of the Indiana Court of Appeals was not an unreasonable
application of federal law, nor was the decision
unreasonable in light of the evidence presented.
Therefore, Hill’s sixth claim is rejected as an
appropriate ground for habeas relief.
3la
Appendix B
IV. CONCLUSION
For the foregoing reasons, the Petition for Writ of
Habeas Corpus is DENIED. The Motions for
Appointment of Counsel [Doc. 18 and Doc. 45] are
DENIED AS MOOT. The Motion to Order Respondent
to File State Court Record [Doc. 19] is DENIED AS
MOOT. The Motion for Partial Summary Judgment
(Doc. 20] is DENIED. The Motion to Amend Judgment
[Doc. 22] is DENIED AS MOOT. The Motion Objecting
to Magistrate Relieving Respondent from Filing State
Court Record [Doc. 24} is DENIED AS MOOT. The
Motion to Order Clerk to Provide Petitioner With File
Marked Copies of Pleadings [Doc. 25] is DENIED AS
MOOT. The Motion Requesting the Court to Provide
Petitioner with File Marked Copies of Pleadings [Doc.
36] is DENIED AS MOOT. The Amended Motion for
Partial Summary Judgment [Doc. 39] is DENIED. The
Motion to Compel Respondent to Produce Full and
Complete State Court Records [Doc. 42] is DENIED
AS MOOT.
5O ORDERED.
ENTERED: March 30, 2006
s/ Philip P Simon
PHILIP F SIMON, JUDGE
UNITED STATES DISTRICT COURT
32a
APPENDIX C — OPINION OF THE COURT OF
APPEALS OF INDIANA DATED AUGUST 16, 2002
IN THE
COURT OF APPEALS OF INDIANA
No. 49A02-0107-CR-440
ASHER HILL,
Appellant-Defendant,
v.
STATE OF INDIANA,
Appellee-Plaintiff.
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. 49G05-0005-C F-76761
August 16, 2002
OPINION
33a
Appendix C
SHARPNACK, Judge.
Asher Hill appeals his convictions for carrying a
handgun without a license, a class A misdemeanor,’
criminal confinement, a class B felony,” and robbery, a
class A felony.’ Hill raises four issues, which we restate
as:
I. Whether Hill’s right to a speedy trial
under Ind. Criminal Rule 4(B) was
violated;
II. Whether the trial court’s refusal to allow
Hill to proceed to trial in the absence of
witnesses denied him his Sixth
Amendment right to represent himself;
III. Whether the trial court’s actions, when
combined, denied Hill of his right to free
and complete justice under Article I,
section 12 of the Indiana Constitution;
and
IV. Whether the evidence is sufficient to
sustain Hill’s convictions.
We affirm.
1. Ind. Code § 35-47-2-1.
2. Ind. Code § 35-42-3-3.
3. Ind. Code § 35-42-5-1.
34a
Appendix C
The facts most favorable to the convictions follow.’
On May 9, 2000, Gary Barr was working as a cashier at
a liquor store on south Sherman Drive in Marion County.
Mike Wagner was in the store talking to Barr at the
counter. An African-American male (“the robber”), who
was five feet, eleven inches tall and was wearing jean
shorts, white tube socks, tennis shoes, and a long sleeve,
hooded, white shirt or jacket, entered the store.
Immediately upon entering the store, the robber shot
Barr in the abdomen and grabbed Wagner from behind.
The robber walked Wagner around to the back of the
counter and insisted that Wagner open the cash
register. However, Wagner did not know how to open
the register because he did not work at the liquor store.
After trying unsuccessfully to open the register, Wagner
unplugged it and gave it to the robber. The robber
ordered Wagner to get on the floor, a location from which
Wagner was able to observe the robber’s legs and
clothing. The robber threw the cash register to the
ground and began kicking it until it finally opened. When
the robber left the store, Wagner telephoned the police.
The police dispatch report indicated that Wagner’s call
came in at 9:43 p.m.
At 9:45 p.m. that same night, Earnest Rich was
driving on south Sherman Drive, when a mid-sized gray
4. The State also charged Hill with crimes that were
committed in the same liquor store on May 1, 2000. Hill was
tried on those charges simultaneously with the convictions
appealed herein. However, as Hill was not convicted of the
charges related to the May Ist crimes, we have chosen to not
provide the facts and procedural history relevant thereto.
3Sa
Appendix C
Mazda came speeding up behind him with its headlights
on bright. Rich saw the car leave the road and run into
trees on Pleasant Run Parkway. The intersection of
Sherman and Pleasant Run Parkway is approximately
one-half mile north of the liquor store on Sherman. Rich
circled around to the accident scene and found that
there was no one in the car. Rich telephoned the police.
Before the police dispatch for the accident occurred,
Indianapolis Parks Department Ranger Jerald Knuckles
noticed the Mazda against the trees as he was driving
by on patrol. When Ranger Knuckles arrived, he noticed
that the headlights and windshield wipers were on and
that the engine was running. Ranger Knuckles opened
the car door and saw a gun on the passenger seat.
Ranger Knuckles removed the bullets from the gun and
placed the gun and bullets in his patrol car until the
police arrived.
The police arrived at the accident scene with Rader,
a dog trained to track scents. Rader tracked a scent
from the car to Pleasant Run Creek. Because the creek
was high from recent rains, the officer took Rader
around to the other side of the creek, where Rader was
able to find the scent again. Rader tracked the scent
from the creek to Pleasant Run Drive near Gale Street.
Also around 9:45 that same night, Hill, who is African
American, knocked on the door at the Sterlings’ house,
which is on Gale Street near Pleasant Run Drive. When
Mrs. Sterling saw Hill, he was “out of breath, and sort
of frightened” and was wearing knee-length jean pants,
36a
Appendix C
tennis shoes and white socks. Transcript at 206. Hill told
her that he had been carjacked and needed to use their
phone. Because Hill had trouble using her phone,
Sterling made 2 phone call for Hill. Sterling thought it
was unusual that Hill was not calling the police to report
the carjacking, so she went to her bedroom and called
9-1-1. At some point, Hill took off his shoes and socks so
that he could wring the water out of his socks. The police
arrived at the Sterlings’ house within minutes of
Mrs. Sterling’s call.
The police brought Wagner to the Sterlings’ house
to see if Wagner recognized Hill as the man who
committed the robbery and shooting at the liquor store.
Wagner reported that Hill’s shoes and shorts appeared
to be the same as those worn by the robber. In addition,
Hil! had $392.23, mostly in five-dollar and ten-dollar bills.
Police found money in, and on the ground around,
the Mazda. A beige colored coat was found on the bank
of the creek. A crime technician found Hill’s fingerprint
on the driver’s side window of the Mazda. On April 9,
2000, the police had conducted a traffic stop of the
Mazda, at which time Hill was driving the car, which
belonged to his ex-girlfriend. Ballistics tests indicated
that the gun found in the Mazda was the gun used to
shoot Barr.
The State charged Hill with attempted murder as a
class A felony,® robbery as a class A felony, criminal
5. Ind. Code §§ 35-41-5-1, 35-42-1-1.
37a
Appendix C
confinement as a class B felony, unlawful possession of a
firearm by a serious violent felon as a class B feloay,®
carrying a handgun without a license as a class A
misdemeanor, and carrying a handgun without a license
as a class C felony.’ The State also filed informations
alleging that Hill was an habitual offender subject to
sentence enhancement pursuant to Ind.Code § 35-50-
2-8 and that Hill was an habitual offender subject to a
sentence of life imprisonment without parole pursuant
to Ind.Code § 35-50-2-8.5.
After delays that will be discussed in more detzil in
subsequent portions of this opinion, a jury tried Hill.
The jury found Hill guilty of robbery as a class A felony,
criminal confinement as a class B felony, and carrying a
handgun without a license as a class A misdemeanor.
The jury found that the State had proved that Hill was
an habitual offender subject to either an enhancement
of years or an enhancement to life without parole. The
trial court sentenced Hill to one year for carrying a
handgun without a license, which was to be served
concurrent with a ten-year sentence for criminal
confinement. The trial court ordered that the
confinement sentence be served consecutive to a thirty-
year sentence for robbery, which the trial court
enhanced to life imprisonment without parole?
6. Ind. Code § 35-47-4-5.
7. Ind. Code § 35-47-2-1.
8. Ind. Appellate Rule 4(A)(1)(a) gives the Indiana
Supreme Court exclusive jurisdiction over “Criminal Appeals
(Cont’d)
38a
Appendix C
I.
The first issue is whether Hill’s right to a speedy
trial under Ind. Criminal Rule 4(B) was violated. There
are no disputed facts regarding this issue; rather, the
dispute at issue is whether the delays that occurred are
chargeable to Hill or the State. We review this matter
de novo. See Vaughan v. State, 470 N.E.2d 374, 377
(Ind.Ct.App.1984) (implicitly reviewing an Ind. Criminal
Rule 4(B) question about which party was responsible
for a delay under a de novo standard), reh’g denied,
trans. denied.
Ind. Criminal Rule 4(B)(1) provides that if a
defendant requests a speedy trial, he shall either be
brought to trial within seventy days of his motion or be
discharged. See Underwood v. State, 722 N.E.2d 828,
831 (Ind.2000), reh’g denied. The rule also provides two
exceptions that may excuse the State from bringing the
defendant to trial within seventy days. Jd. The first
exception applies when the trial court’s calendar is too
congested to permit a trial for the defendant within
seventy days. /d.; Ind. Crim. Rule 4(B)(1). The second
exception applies when the delay in adjudicating the
(Cont’d)
in which a sentence of death or life imprisonment without parole
is imposed under Ind. Code § 35-50-2-9. . . .” Hill was sentenced
to life imprisonment without parole pursuant to an habitual
offender enhancement under Ind.Code § 35-50-2-8.5. Because
Ind. Appellate Rule 5(A) gives us jurisdiction over all appeals
not specifically assigned to the Indiana Supreme Court, we have
jurisdiction over Hill’s appeal. See Ind. Appellate Rule 5(A).
39a
Appendix C
defendant’s guilt is caused by the defendant.
Underwood, 722 N.E.2d at 831; Ind.Crim. Rule 4(B <1);
Ind. Crim. Rule 4(F). When we compute how many days
have passed since the defendant’s motion for a speedy
trial, we include Saturdays, Sundays, and legal holidays.
Ind. Crim. Rule 4(B)(2). However, if the seventieth day
falls on a Saturday, Sunday, or legal holiday, then the
defendant need not be discharged if the State brings
the defendant to trial on the first business day following
the seventieth day. /d.; see also Ind. Crim. Rule 4(E).
Hill requested a speedy trial on May 16, 2000. Hill
concedes that his trial was postponed a number of times
due to court congestion, and Hill does not question the
propriety of those continuances. Rather, Hill claims that
there are three continuances that are chargeable to the
State against the seventy day deadline. The first
continuance at issue is a twenty-eight day delay from
February 12, 2001 to March 12, 2001 that occurred
because the State needed more time to depose Hill’s
defense witnesses. The second continuance at issue is a
seven day delay from March 12, 2001 to March 19, 2001
that occurred because the State chose the later of two
trial dates offered by the trial court. The third
continuance at issue is a fifty-six day delay from March
19, 2001 until May 14, 2001 that occurred when the State
requested a continuance because Barr would be unable
to attend trial due to a health emergency.
The combined total days attributable to those three
continuances is ninety-one days. If, as Hill argues, all of
these days are chargeable to the State, then the State
40a
Appendix C
exceeded the seventy day deadline for bringing Hill to
trial, and Hill must be discharged. If, however, some of
these days are not chargeable to the State, then the
State may not have exceeded the seventy day deadline,
and Hill would not have to be discharged. We address
the continuances in chronological order.
The trial court granted the continuance from
February 12, 2001 until March 12, 2001 at a pre-trial
conference on February 7, 2001. The circumstances
surrounding that continuance were as follows. The State
had filed a motion to exclude evidence, specifically the
testimony of Hill’s alibi witnesses, because Hill’s
witnesses had failed to appear for their depositions.
At the conference, Hill was represented by counsel, who
had just been appointed to Hill’s case a couple of weeks
before the conference. The trial court announced that
it typically used a “three and out policy” for deciding
when a witness had missed too many scheduled
depositions and the trial court should grant a motion to
exclude. Transcript at 607-608. The trial court asked
Hill’s counsel to get the witnesses’ addresses from Hill
again, so that the prosecutor could try one more time
to subpoena the witnesses. In addition, the trial court
encouraged Hill to discuss with his witnesses the fact
that they needed to show up for the depositions.
The trial court announced that everyone would “come
back here in about a month and see if depositions are
still an issue.” Transcript at 611. Hill expressed to the
trial court his desire to go to trial as scheduled on
Monday, February 12th, with or without his witnesses.
Nevertheless, his trial was continued.
4la
Appendix C
A defendant’s right to the speedy trial that he
requested can be waived. Vermillion v. State, 719 N.E.2d
1201, 1204 (Ind.1999), reh’g denied. If a defendant fails
to object to a delay that results in a later trial date, then
the length of that delay extends the time limitations set
in Ind. Criminal Rule 4. Jd. Here, Hill’s counsel did not
object to the trial court sua sponte granting a
continuance of Hill’s trial so that the State could depose
Hill’s witnesses. Consequently, this twenty-eight day
delay may not be counted against the seventy day limit
that the State had to bring Hill to trial. See, e.g., id. at
1204-1205 (holding that a seven day delay caused by a
State’s motion for continuance was chargeable to the
defendant when the defendant did not object).
Nevertheless, Hill claims that he should not be
charged with this delay because, even though his
counsel did not object to the continuance, Hill personally
objected to the continuance and requested to go to trial
on Monday, February 12, 2001. Hill’s argument fails
because if a defendant has counsel, he speaks to the
court through his counsel. Underwood, 722 N.E.2d at
832. The court is not required to respond to the
defendant’s objections or motions. Jd. As our supreme
court has said: “To require the trial court to respond to
both Defendant and counsel would effectively create a
hybrid representation to which Defendant is not
entitled.” Jd. Because Hill was represented by counsel,
the trial court was not required to grant Hill’s request
to proceed with a speedy trial. See Broome v. State. 694
N.E.2d 280 (Ind.1998), trans. granted, 694 N.E.2d 280,
281 (Ind.1998) (summarily affirming the Court of Appeals
on this issue).
42a
Appendix C
Hill alleges that there are two other delays that are
chargeable to the State. However, we need not analyze
whether those delays are chargeable to the State or to
Hill because Hill’s claim fails regardless. The two
remaining delays were seven days and fifty-six days.
Their combined total is sixty-three days, which is seven
days short of the seventy-day limit provided by Ind.
Criminal Rule 4(B). Consequently, Hill cannot
demonstrate that the State failed to bring him to trial
within the time allotted pursuant to his request under
Ind. Criminal Rule 4(B). See, e.g., Vermillzon, 719 N.E.2d
at 1205 (holding that defendant’s right to a speedy trial
under Ind. Criminal Rule 4(C) had not been violated
because portions of the delay were attributable to the
defendant).
IT.
The second issue is whether the trial court’s refusal
to allow Hill to proceed to trial in the absence of
witnesses denied Hill his Sixth Amendment right to
represent himself. Whether the trial court’s actions
violated Hill’s constitutional right to self-representation
is a question 0° law that we review de novo. See generally
Sherwood v. State, 717 N.E.2d 131 (Ind.1999) (implicitly
undertaking a de novo review when determining whether
a defendant’s Sixth Amendment right to represent
himself was violated).
In Faretta, the Supreme Court held that a criminal
defendant has a Sixth Amendment right to conduct his
own defense if he “knowingly and intelligently forgoes
43a
Appendix C
his right to counsel” and he “is able and willing to abide
by rules of procedure and courtroom protocol.”
McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944,
948, 79 L.Ed.2d 122 (1984) (citing Faretta v. California,
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)), reh’g
denied. When a defendant demonstrates that he is
competent to proceed pro se, he “must be allowed to
control the organization and content of his own defense,
to make motions, to argue points of law, to participate
in voir dire, to question witnesses, and to address the
court and the jury at appropriate points in the trial.”
Id. at 174, 104 S.Ct. at 949. According to the Supreme
Court, the policy underlying the right to appear pro se
is that we want “to affirm the dignity and autonomy of
the accused and to allow the presentation of what may,
at least occasionally, be the accused’s best possible
defense.” Jd. at 176-177, 104 S.Ct. at 950.
To determine whether a defendant’s Sixth
Amendment right to represent himself has been violated,
“the primary focus must be on whether the defendant
had a fair chance to present his case in his own way.”
Id. at 177, 104 S.Ct. at 950. In the context of whether
standby counsel had interfered with a defendant’s right
to present his case in his own way, the Supreme Court
explained:
the pro se defendant is entitled to preserve
actual control over the case he chooses to
present to the jury. This is the core of the
Faretta right. If standby counsel’s
participation over the defendant’s objection
44a
Appendix C
effectively allows counsel to make or
substantially interfere with any significant
tactical decision, or to control the questioning
of witnesses, or to speak instead of the
defendant on any matter of importance, the
Faretta right is eroded.
Id. at 178, 104 S.Ct. at 951.
Here, Hill claims that, on two separate occasions,
the trial court interfered with Hill’s right to represent
himself by prohibiting him from proceeding to trial in
the absence of witnesses. The first situation about which
Hill complains is when, during the pretrial hearing on
February 7, 2001, the trial court granted a continuance
to allow the prosecutor to depose Hill’s witnesses despite
Hill’s willingness to go to trial without those witnesses.
As we discussed earlier in this opinion, at the time when
the trial court granted that continuance, Hill was
represented by counsel. See supra Part I. The trial
court’s failure to grant Hill’s request to proceed to trial
without those witnesses could not have denied Hill his
right to represent himself when Hill was not
representing himself at that point in time. Consequently,
this allegation of error fails.
The second situation about which Hill complains
occurred during a pretrial conference held on March
16, 2001. By the time of this hearing, the trial court had
granted Hill’s motion to proceed pro se, and Hill was
representing himself. During the March 16th hearing,
the State requested a continuance pursuant to
45a
Appendix C
Ind. Code § 35-36-7-2 because one of its witnesses, Barr,
had been hospitalized after having a heart attack. The
trial court told Hill that he had the option of going to
trial on Monday as scheduled if Hill agreed to stipulate
that Barr would testify to thirty-three facts and if Hill
agreed that the jury could be told Barr’s stipulated
testimony. Hill decided that he wanted to go ahead with
the trial. Nevertheless, the trial court granted the
State’s request for a continuance.
Hill claims that the trial court erred when it granted
the State’s request for a continuance pursuant to
Ind. Code § 35-36-7-2. That statute provides:
(a) A prosecuting attorney may move to
postpone the trial of a criminal cause because
of the absence of a witness whose name is
endorsed on the indictment or information, if
he makes an official statement:
(1) containing the requirements of
subsections (b)(1) and (b)(2) of
section 1 of this chapter;
showing that the absence of the
witness has not been procured
by the act of the prosecuting
attorney;
stating the facts to which he
believes the witness will testify,
46a
Appendix C
and include a statement that he
believes these facts to be true;
and
(4) stating that the prosecuting
attorney is unable to prove the
facts specified in accordance
with subdivision (3) through the
use of any other witness whose
testimony can be as readily
procured.
Upon request of the defendant the court shall
order that the prosecuting attorney’s motion
and official statement be made in writing.
(b) The trial may not be postponed if:
(1) after a motion by _ the
prosecuting attorney because of
the absence of a witness, the
defendant admits that the
absent witness would testify to
the facts as alleged by the
prosecuting attorney in his
official statement in accordance
with subsection (a)(3); or
(2) after a motion by _ the
prosecuting attorney’ to
postpone because of the
absence of written’ or
47a
Appendix C
documentary evidence, the
defendant admits that the
written or documentary
evidence exists.
Ind. Code § 35-36-7-2. Hill claims that because he agreed
to stipulate to the facts to which Barr would testify,
Ind.Code § 35-36-7-2(b)(1) prohibited the trial court from
granting the continuance. The State argues that the
trial court had discretion regarding whether or not to
grant the continuance.
It is true that a trial court has discretion over
whether or not to grant a nonstatutory motion for
continuance. Maxey v. State, 730 N.E.2d 158, 160
(Ind.2000). Accordingly, even though the State’s motion
for continuance does not meet the statutory
requirements of Ind. Code § 35-36-7-2, the trial court
still has discretion to determine whether to grant a
continuance. See Baxter v. Stute, 727 N.E.2d 429,
432 n. 3 (Ind.2000) (quoting Bates v. State, 520 N.E.2d
129, 131 (Ind.Ct.App.1988), reh’g denied, trans. denied),
reh'g denied. This is true because Ind.Code § 35-36-7-2
“merely compels the granting of a continuance under
certain clearly delineated circumstances” without
restricting the trial court’s discretion to grant a
continuance in other circumstances. See Bates, 520
N.E.2d at 131. Nevertheless, if the factual situation
meets the “clearly delineated circumstances” outlined
in the statute, then the statute compels the trial court
to take the action required by the statute. See id. To
hold otherwise would be to nullify the statute, which is
contrary to the standard of review under which we
48a
Appendix C
interpret statutes. See, e.g., Livingston v. Fast Cash
USA, Inc., 753 N.E.2d 572, 575 (Ind.2001) (“We are
required to determine and effect the legislative intent
underlying the statute and to construe the statute ...
to prevent absurdity. ... In so doing, we should consider
the objects and purposes of the statute as well as the
effects and repercussions of such an interpretation.”).
Consequently, when Hill agreed that the State could
present Barr’s stipulated testimony pursuant to
Ind.Code § 35-36-7-2(b)(1), the trial court did not have
discretion to postpone the trial. Consequently, the trial
court erred when it granted the State’s request for a
continuance.?
9. Although Hill does not argue that this error by the trial
court, in and of itself, constituted reversible error, we feel
compelled to point out that reversible error did not occur. The
State requested the continuance because Barr, the liquor store
clerk who was shot during the May 9th robbery, was in the
hospital due to a health emergency. The Record indicates that
Barr was going to testify that Hill robbed the liquor store on
May lst. However, the Record also indicates that Barr did not
see the robber who shot him on May 9th. Therefore, Barr’s
presence at trial did not make Hill’s convictions for the May
9th crimes any more or less likely. In addition, despite Barr’s
presence at trial after it was postponed, Hill was acquitted of
the May Ist charges for which Barr identified Hill as the robber.
Consequently, Hill cannot demonstrate that he was prejudiced
by the trial court’s decision to postpone the trial over his
objection. Because Hill was not prejudiced, the trial court’s
error was not reversible error. See Akins v. State, 429 N.E.2d
232, 245 (Ind.1981) (holding that “[a]ssuming that it was error
for the trial court to grant the continuance, in view of the statute,
it does not necessarily follow that a reversal is required” when
the defendant was not prejudiced by the trial court’s error).
49a
Appendix C
Nevertheless, that error by the trial court did not
deny Hill of his Sixth Amendment right to represent
himself. Under McKaskle, there are two ways in which
a defendant’s right to represent himself can be violated.
McKaskle, 465 U.S. at 178, 104 S.Ct. at 951. First,
standby counsel could “destroy the jury’s perception
that the defendant is representing himself.” Jd. As the
State notes, this context is not at issue here because
there were no jurors present at the March 16th hearing.
Second, the defendant’s right to represent himself
is violated if the pro se defendant is not allowed
“to preserve actual control over the case he chooses to
present to the jury.” /d. Consequently, the pro se
defendant must be allowed to make his own tactical
decisions and to control the questioning of witnesses.
Id. For example, if a defendant has standby counsel and
they disagree about any matter left to the discretion of
counsel during proceedings outside the jury, those
disagreements must be resolved in the defendant’s favor.
Id. at 179, 104 S.Ct. at 951.
Here, while Hill’s decision to proceed to trial without
the presence of Barr could be considered a tactical
decision, it was not a tactical decision that was central
to the defense that Hill was mounting. See, e.g.,
McKaskle, 645 U.S. at 186-188, 104 S.Ct. at 954-956
(holding that standby counsel’s objections and request
for a mistrial did not amount to a denial of a defendant’s
Sixth Amendment right to represent himself when
defendant was permitted to conduct voir dire, question
and cross-examine witnesses, make objections, and make
50a
Appendix C
an opening statement). The trial court permitted Hill
to question all of the witnesses, to argue motions, to
object to evidence, and to present his theory of defense.
Despite the trial court’s error, Hill preserved actual
control over the case that he presented to the jury.
See, e.g., id.
In addition, the fact that the trial court granted the
State’s continuance over Hill’s objection did not deprive
Hill of the right to defend himself. A pro se litigant’s
right to control his defense cannot include a right to
control every aspect of the trial court’s conduct of a trial.
Rather, a pro se litigant should be treated similarly to
counsel representing a defendant; he should be allowed
to make objections and argue motions. Hill was
permitted to place his objection on the record. The fact
that the trial court did not do what Hill wanted does not
equate with Hill not being allowed to represent himself.
To hold otherwise would be tantamount to giving a pro
se litigant more control over a trial than a trial court
because every motion or objection by that litigant would
suddenly have constitutional significance. Hill was not
denied his Sixth Amendment right to represent himself.
Cf Sherwood, 717 N.E.2d at 137 (holding that defendant
was denied his Sixth Amendment right to represent
himself “because he was denied actual control of the case
presented to the jury” when standby counsel presented
a theory of defense that was inconsistent with the
defendant’s theory of defense).
Sla
Appendix C
ITT.
The third issue Hill raises is whether the trial court’s
actions, when combined, denied Hill of his right to free
and complete justice under Article I, section 12 of the
Indiana Constitution. Article I, section 12 of the Indiana
Constitution provides:
“All courts shall be open; and every person,
for injury done to him in his person, property,
or reputation, shall have remedy by due
course of law. Justice shall be administered
freely, and without purchase; completely, and
without denial; speedily, and without delay.”
The first sentence of that provision applies only to civil
proceedings. Sanchez v. State, 749 N.E.2d 509, 514
(Ind.2001). Consequently, only the second sentence of
that provision is at issue here. See id.
Hill’s argument is difficult to follow. Hill admits that
his argument “is not about traditional notions of
procedural or substantive due process.” Appelilant’s
Brief at 37. Rather, he claims “the trial court’s
decision[s], taken as a whole, denied Mr. Hill the free
and complete administration of justice.” Appellant’s
Brief at 30; see also Appellant’s Brief at 37. To support
his argument Hill .sserts “[s]ituations can occur where
an accused was denied a fair trial even though legal
technicalities were met.” Appellant’s Brief at 31.
However, Hill fails to explain how he was denied a fair
trial. He merely asserts that the “technicalities inherent
52a
Appendix C
in the speedy trial rules and the right to represent
himself operate to deny Mr. Hill . . . equity and a fair
trial.” Appellant’s Brief at 36. As we have held that Hill’s
trial comported with the speedy trial rules and Hill’s
Sixth Amendment right to self-representation, we do
not see how he was prejudiced and denied a fair trial by
those decisions.
In addition, Hill asserts that “[u]nder the
requirement that he only be convicted if he receives a
fundamentally just proceeding, there comes a time when
the court’s failure to intervene in the face of Mr. Hill’s
ignorance of procedural requirements violates the
Indiana Constitution.” Appellant’s Brief at 32. However,
“a litigant who proceeds pro se is held to the same
established rules of procedure that trained legal counsel
is bound to follow.” Terpstra v. State, 529 N.E.2d 8389,
842 (Ind.Ct.App.1988), rek’g denied. One of the risks
that a defendant takes when he decides to proceed pro
se is that he will not know how to accomplish all of the
things that an attorney would know how to accomplish.
See Carter v. State, 512 N.E.2d 158, 162 (Ind.1987)
(“A defendant who proceeds pro se, however, must accept
the burdens and hazards of self-representation.”)
Hill does not claim that the trial court failed to inform
him of the risks of proceeding pro se. As Hill knowingly
decided that he wanted to proceed pro se despite his
lack of legal training, he cannot claim on appeal that he
was prejudiced by his own lack of legal knowledge.
See id. (A defendant “may not assert a Sixth Amendment
claim of ineffective assistance of counsel because he, in
53a
Appendix C
effect, would be alleging himself ineffective.”). The trial
court was not required to step in to protect Hill from
himself.
To the extent that Hill is requesting that we
interpret Article I, section 12 to include a heretofore
unarticulated constitutional right, we refuse his request.
Given that Hill’s only explanations about how he was
prejudiced relate to the arguments that we have already
rejected, we need not read a new right into the Indiana
Constitution to protect a defendant who has not
demonstrated how he was prejudiced.
IV.
The final issue we address is whether the evidence
is sufficient to sustain Hill’s convictions. Our standard
of review for this issue is well settled. Alkhalzdz v. State,
753 N.E..2d 625, 627 (Ind.2001). We may not reweigh the
evidence or reassess the credibility of the witnesses
because those tasks lie within the exclusive province of
the jury. Jd. Rather, we view the evidence in the light
most favorable to the verdict and determine whether
the probative evidence and the reasonable inferences
therefrom could have allowed a reasonable jury to find
the defendant guilty beyond a reasonable doubt. Jd.
Based upon both the statute and the charging
information, to convict Hill of robbery as a class A felony,
the State had to prove: (1) Hill; (2) knowingly; (3) took
property; (4) from Barr or from Barr’s presence; (5) by
using or threatening the use of force on Barr, or by
54a
Appendix C
putting Barr in fear; and (6) Hill’s actions resulted in
serious bodily injury to Barr, which was specifically a
gunshot wound to the abdomen. See I.C. § 35-42-5-1;
Appellant’s Appendix at 143.
To convict Hill of criminal confinement as a class B
felony, the State had to prove: (1) Hill; (2) knowingly; (3)
while armed with a handgun, which is a deadly weapon;
(4) confined Wagner without Wagner’s consent by
forcing him to lie on the floor. See I.C. 35-42-3-3;
Appellant’s Appendix at 143.
To convict Hill of carrying a handgun without a
license, the State had to prove: (1) Hill; (2) carried a
handgun on his person or in his vehicle while not at his
home, property, or fixed place of business; (3) without a
license. See I.C. 35-47-2-1; Appellant’s Appendix at 143.
The main thrust of Hill’s sufficiency argument is that
the evidence must be insufficient to support his
convictions because no one ever positively identified him
as the person who was at the liquor store on May 9,
2000. While Hill’s assertion that no one positively
identified him as the robber is correct, his assertion that
we must therefore hold that the evidence was
insufficient to sustain his conviction is incorrect.
“[A] criminal conviction may be based solely upon
circumstantial evidence.” Woodson v. State, 542 N.E.2d
1331, 1333 (Ind.1989). The question that we must ask
on review is whether “an inference may be drawn from
such evidence that supports the fact-finder’s
conclusion.” /d.
55a
Appendix C
Here, the evidence indicates that a man, armed with
a gun and wearing a white jacket, jean shorts, white
tube socks, and white tennis shoes, shot Barr in the
stomach, ordered Wagner to open the register and lie
on the floor, and stole money from the register at the
liquor store. After the robbery, the robber drove from
the liquor store and crashed into trees on Pleasant Run
Drive. The robber exited the car, leaving behind the gun
that he had used to shoot Barr, and then he ran through
the creek and toward the vicinity of Gale Street. Between
the creek and Gale Street, the police found a beige
jacket. Moments later, a winded Hill knocked on the
door at the Sterlings’ house on Gale Street asking to
use the phone. Hill claimed that he had been carjacked,
but he called a friend rather than calling the police. Hill
was wearing jean shorts, white socks, and white tennis
shoes, and he had to take his socks off to wring them
out because they were soaked with water. Hill’s
fingerprint was found on the outside of the window of
the driver’s side door of the car that the robber had
been driving, and Hill had over three hundred dollars
in small bills on his person when he was arrested. These
facts support an inference that Hill was the person who
committed these crimes. See, e.g., id. In addition, this
evidence is sufficient to support the other elements of
the three crimes of which Hill was convicted. See, e.g.,
Ortiz v. State, 716 N.E.2d 345, 352 (Ind.1999) (affirming
class A robbery conviction); Taylor v. State, 578 N.E.2d
664, 666 (Ind.1991) (affirming conviction for carrying a
handgun without a license); Chapman v. State, 556
N.E.2d 927, 931 (Ind.1990) (affirming criminal
confinement conviction).
56a
Appendix C
For the foregoing reasons, we affirm Hill’s
convictions for carrying a handgun without a license as
a class A misdemeanor, cr. minal confinement as a class
B felony, and robbery as a class A felony.
Affirmed.
FRIEDLANDER, J., and BROOK, C.J., concur.
57a
APPENDIX D— ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH
CIRCUIT DENYING PETITION FOR REHEARING
DATED APRIL 4, 2008
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604
April 4, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
RICHARD A. Posner, Circuit Judge
No. 2:04-CV-206 PS
Philip P Simon, Judge.
No. 06-2777
ASHER B. HILL,
Petitioner-Appellant,
V.
BILt WILSON, SUPERINTENDENT,
WESTVILLE CORRECTIONAL FACILITY,
Respondent-A ppellee.
58a
Appendix D
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
Order
Petitioner-appellant filed a petition for rehearing
and rehearing en banc on March 24, 2008. No judge in
regular active service has requested a vote on the
petition for rehearing en banc, and all of the judges on
the panel have voted to deny rehearing. The petition
for rehearing is therefore DENIED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.