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.
-----------------------
[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.