ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
WILIAM C. MENGES, JR. KAREN M. FREEMAN-WILSON
Howard County Public Defender Attorney General of Indiana
Kokomo, Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
RICKEY OSBORNE, )
)
Appellant-Defendant, ) Supreme Court Cause Number
) 34S00-0009-CR-531
v. )
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT I
The Honorable Dennis H. Parry, Judge
Cause No. 34D01-9812-CF-313
ON DIRECT APPEAL
September 13, 2001
RUCKER, Justice
A jury convicted Rickey Osborne of attempted murder, burglary, and
robbery in connection with the iron bar and hammer beating of Dan Williams.
Osborne then pleaded guilty to being a habitual offender. The trial court
sentenced Osborne to a total term of 100 years. In this direct appeal, we
address the following rephrased issues: (1) did the trial court deny
Osborne his right of self-representation; (2) did the trial court err by
admitting into evidence Osborne’s confessions; (3) did the trial court
erroneously allow two testifying police officers to remain in the courtroom
throughout the trial despite ordering a separation of witnesses; (4) was
the evidence sufficient to support Osborne’s conviction for attempted
murder; and (5) did the trial court’s use of Osborne’s pre-trial conduct to
both convict him of criminal contempt and enhance his attempted murder
conviction violate the Double Jeopardy Clause of the United States
Constitution.
We affirm the trial court.
Facts
The facts most favorable to the verdict show that on the afternoon of
December 5, 1998, Osborne and his twenty-year-old nephew Charles Osborne
broke into the Kokomo home of Dan Williams because they knew he kept large
sums of money in his house. While Osborne and Charles were searching for
money, Mr. Williams came home. Osborne and Charles hid in the basement.
Osborne then instructed Charles to find something with which to hit Mr.
Williams. Charles decided on a hammer, and Osborne selected an iron bar.
When Osborne and Charles went back upstairs, Osborne struck Mr. Williams
approximately seven times in the head and face with the iron bar and
hammer, and then Charles struck him approximately twelve times with the
hammer. Osborne took Mr. Williams’ wallet from his pants pocket, which
contained $1,000 in cash. Osborne and Charles then fled the scene.
Despite his injuries, Mr. Williams was able to call 911.
Police apprehended Osborne and Charles near Mr. Williams’ house
shortly after the 911 call. Police returned them to the crime scene, but
Mr. Williams was unable to make a positive identification. Police then
released Osborne and Charles. However, Charles later confessed to the
crimes and implicated Osborne. A warrant was issued for Osborne’s arrest,
and police apprehended him two days later in Madison County.
The State initially charged Osborne with burglary and robbery.
Thereafter, the State filed an amended information adding the charge of
attempted murder and alleging that Osborne was a habitual offender. A jury
convicted Osborne of attempted murder, burglary, and robbery. He then
pleaded guilty to being a habitual offender. The trial court sentenced
Osborne to presumptive, concurrent sentences of thirty years for burglary
and ten years for robbery and also ordered an enhanced, consecutive forty-
year sentence for attempted murder, increased by thirty years for the
habitual offender status. Osborne now appeals. Additional facts are set
forth below where relevant.
Discussion
I.
Osborne first contends the trial court denied him his right to self-
representation. The basis of a defendant’s right to self-representation
under the Sixth Amendment of the United States Constitution was articulated
in Faretta v. California, 422 U.S. 806 (1975). In Faretta, the United
States Supreme Court held that a State may not “constitutionally hale a
person into its criminal courts and there force a lawyer upon him, even
when he insists that he wants to conduct his own defense.” Id. at 807.
The Court acknowledged that when a defendant manages his own defense, he
relinquishes many of the traditional benefits associated with the right to
counsel, such as an attorney’s training and experience, and may even
“conduct his own defense ultimately to his own detriment.” Id. at 834-35.
Therefore, the Court declared that in order for an accused to represent
himself, he must knowingly, intelligently, and voluntarily forgo these
relinquished benefits. Id. at 835.
However, before waiving these benefits, a trial court must make an
accused “aware of the dangers and disadvantages of self-representation, so
that the record will establish that ‘he knows what he is doing and his
choice is made with eyes open.’” Id. (quoting Adams v. United States ex
rel. McCann, 317 U.S. 269, 279 (1942)). “There are no prescribed ‘talking
points’ the court is required to include in its advisement to the
defendant; it need only come to a considered determination that the
defendant is making a voluntary, knowing, and intelligent waiver.” Poynter
v. State, 749 N.E.2d 1122, 1126 (Ind. 2001).
In addition, although a defendant need not have the skill and
experience of an attorney, he must be competent to stand trial. Godinez v.
Moran, 509 U.S. 389, 400 (1993). That is, he must have the mental capacity
to understand the proceedings. Id. at 401 n.12. Before claiming that his
right to self-representation has been denied, a defendant must timely,
clearly, and unequivocally assert that right. Dobbins v. State, 721 N.E.2d
867, 871 (Ind. 1999); Sherwood v. State, 717 N.E.2d 131, 135 (Ind. 1999).
If a defendant’s right to self-representation has been denied, a new trial
is warranted because this right is not subject to harmless error analysis.
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).
Osborne’s initial hearing took place on December 10, 1998. At that
time, the trial court advised him of the charges of burglary and robbery:
JUDGE PARRY: Now you understand, Mr. Osborne, you have the right to
be represented by counsel, someone you hire that you choose and pay
for or if you want an attorney but cannot afford to hire one, you can
ask for the appointment of the public defender to represent you at no
cost or you can represent yourself without counsel, you understand
those choices?
THE DEFENDANT: Sure do.
JUDGE PARRY: What do you intend to do about an attorney, sir?
THE DEFENDANT: I’ll represent myself.
JUDGE PARRY: Not by me. You’ll get the public defender. With a Class
A felony --
R. at 263-64. The State filed an amended information on January 14, 1999.
The trial court held a second initial hearing on the additional charges of
attempted murder and habitual offender status on January 21, 1999. At this
initial hearing, the following discussion took place:
JUDGE PARRY: Now as to these other two charges you have the same
rights as you had previously as to the original ones. In fact your
trial is already set. You have the right to counsel, which you have.
You have the right to a speedy trial, which you asked for, and you
have the right to confront witnesses. Those rights all remain again
for these, you understand that?
THE DEFENDANT: Yes, Your Honor.
R. at 272 (emphasis added). Osborne made no request for self-
representation at the second initial hearing.
We first observe that it would have been better practice for the
trial court to determine Osborne’s competency and advise him of the perils
of proceeding pro se before ruling on his request to represent himself.
See Dobbins, 721 N.E.2d at 872 (“Generally, a trial court should conduct a
pre-trial hearing to determine a defendant’s competency to proceed without
counsel and to establish a record of a defendant’s waiver of his right to
counsel.”). However, by not acting consistent with his earlier request to
represent himself when the trial court advised him during the second
initial hearing of his rights regarding counsel, Osborne acquiesced in the
presentation of his defense by appointed counsel. See Sherwood, 717 N.E.2d
at 136 (in arriving at the conclusion that the defendant’s right to self-
representation was violated, this Court found significant that
“[t]hroughout the entire trial, [the defendant] at no time acquiesced in
the presentation of a defense by appointed counsel.”); cf. Stone v. State,
531 N.E.2d 191, 194 (Ind. 1988) (declaring that when a defendant makes a
motion for a speedy trial, he is required to maintain a position which is
reasonably consistent with that request; otherwise, he is considered to
have abandoned the request, and the motion ceases to have legal viability).
We therefore conclude that the trial court did not violate Osborne’s
right to self-representation.
II.
Osborne gave two confessions to police: one on the way to the police
station and the other, which was tape-recorded, at the police station. The
trial court, over defense counsel’s timely objections, admitted both
statements into evidence. In this appeal, Osborne challenges their
admission on the ground that they occurred after he requested an attorney.
Once a suspect asserts the right to counsel, police must cease
interrogation until counsel is present or the suspect initiates further
communication with police. Minnick v. Mississippi, 498 U.S. 146, 156
(1990); Oregon v. Bradshaw, 462 U.S. 1039, 1043 (1983); Edwards v. Arizona,
451 U.S. 477, 484-85 (1981). However, the initiation of further
communication by an accused, standing alone, is not sufficient to establish
a waiver of the previously asserted right to counsel. Grimm v. State, 556
N.E.2d 1327, 1330 (Ind. 1990). If the accused is found to have initiated
further communication, then the subsequent inquiry is whether there is a
valid waiver of the right to counsel; that is, whether the purported waiver
was knowing and intelligent and found to be so under the totality of the
circumstances. Id.
The record shows police apprehended Osborne in Madison County two
days after the crimes occurred. When Detectives Donald Whitehead and Mike
Sanders from the Kokomo Police Department arrived at the Madison County
jail to transport Osborne back to Howard County, they advised Osborne of
his Miranda rights, and he signed a waiver of those rights. However,
Osborne then requested an attorney, at which point the detectives ceased
all questioning. En route to Howard County, Osborne began asking the
detectives how they had located him. Detective Whitehead responded that he
could not discuss the case because Osborne had invoked his right to
counsel. Osborne then attempted to discuss the case two more times with
Detective Whitehead, who twice responded that he could not discuss the case
because Osborne had invoked his right to counsel. Shortly thereafter,
Osborne exclaimed, “Oh, I’m going to represent myself; I don’t care; I want
to talk about it; I want to know how you found me.” R. at 855. Osborne
then admitted that he “beat that old man” and that he meant to kill him.
Id. Detective Whitehead asked Osborne if he would give a tape-recorded
statement when they arrived at the Kokomo Police Department, and Osborne
agreed. In his tape-recorded statement, the following exchange occurred
before Osborne gave a full confession to the crimes:
[Detective Whitehead]: Okay. Richard [Osborne], prior to this
discussion, myself and Detective Sanders picked you up at the Madison
County Jail where you had been transported after being arrested on a
warrant out of Howard County today. Is that correct?
[Osborne]: Yeah.
[Detective Whitehead]: And prior to speaking with you in Madison
County I read to you what was titled an “Interrogation: Advice of
Rights” form[]?
[Osborne]: Yeah.
[Detective Whitehead]: Did you understand all those rights as read to
you?
[Osborne]: Yeah.
[Detective Whitehead]: Did you affix your signature to the waiver of
those rights at that time in Madison County?
[Osborne]: Yeah.
[Detective Whitehead]: And during that initial conversation you
didn’t wish to speak to us, is that correct?
[Osborne]: Right.
[Detective Whitehead]: And later on the way back to Kokomo in the car
you initiated a conversation with myself and Detective Sanders
regarding this investigation, is that correct?
[Osborne]: Yeah.
[Detective Whitehead]: And you said at that time that you wanted to
tell us what happened?
[Osborne]: Yeah.
[Detective Whitehead]: And you in fact began that conversation [].
You began that conversation by telling us that you, you had in fact
broken into Dan Williams’ house Saturday and beaten him with a hammer
is that correct?
[Osborne]: Yeah.
R. at 41.
The totality of the circumstances shows that Osborne knowingly,
intelligently, and voluntarily waived his right to counsel. Osborne asked
Detective Whitehead on three separate occasions how they had located him.
Each time Detective Whitehead responded that he could not discuss the case
because Osborne had invoked his right to counsel. Undeterred by Detective
Whitehead’s warnings, Osborne then stated that he did not care about the
fact that he had invoked his right to counsel because he was going to
represent himself at trial. Osborne then confessed and agreed to give a
tape-recorded statement at the police station, which he did shortly
thereafter. At the beginning of the tape-recorded statement, Detective
Whitehead reminded Osborne of his Miranda rights as well as the waiver that
he had previously signed. Thus, the trial court did not err in admitting
Osborne’s confessions. See Owens v. State, 732 N.E.2d 161, 164 (Ind. 2000)
(holding that the trial court did not err in admitting the defendant’s
confession where the defendant requested an attorney, police ceased all
questioning, and the defendant initiated further communication, admitted to
the crime, and then gave a full tape-recorded confession after police read
him his Miranda rights).
III.
Osborne next contends the trial court erroneously allowed two Kokomo
police officers, both testifying witnesses, to remain in the courtroom
throughout the trial. Defense counsel requested, and the trial court
ordered, a separation of witnesses pursuant to Indiana Evidence Rule 615,
which provides:
At the request of a party, the court shall order witnesses excluded so
that they cannot hear the testimony of or discuss testimony with other
witnesses, and it may make the order on its own motion. This rule
does not authorize the exclusion of (1) a party who is a natural
person, or (2) an officer or employee of a party that is not a natural
person designated as its representative by its attorney, or (3) a
person whose presence is shown by a party to be essential to the
presentation of the party’s cause.
After the trial court ordered the separation of witnesses, the prosecutor
requested to keep two police officers at counsel table during
trial—presumably one as an officer of the State under clause (2) and the
other as a person essential to the presentation of the State’s case under
clause (3). The prosecutor gave the following reasoning: “[T]he complex
nature of this case and the fact that these officers supervised the
investigation on different shifts and therefore had responsibilities for
different parts of the investigation would require that I have them both in
the courtroom with me.” R. at 381. Over defense counsel’s objection, the
trial court permitted both police officers to remain in the courtroom
throughout the trial. Id.
Although the majority view on this issue is reflected in Justice
Boehm’s concurring opinion, we recently explained that the basic premise of
Rule 615 is that, upon request of any party, witnesses should be insulated
from the testimony of other witnesses. Long v. State, 743 N.E.2d 253, 256
(Ind. 2001). Therefore, Rule 615’s exemptions “should be narrowly
construed and cautiously granted.” Id. A party seeking to exempt a
witness from exclusion as “essential to the presentation of the party’s
cause” under clause (3) must convince the trial court that the “witness has
such specialized expertise or intimate knowledge of the facts of the case
that a party’s attorney would not effectively function without the presence
and aid of the witness.” Id. (quotation omitted). Exclusion under clause
(3) is thus inappropriate where a person excluded under clauses (1) and (2)
can provide the expertise and knowledge adequate to assist counsel. Id.
The determination of whether a witness qualifies for the exemption found in
clause (3) is within the trial court’s discretion and is subject to review
for an abuse of that discretion. Id. at 256-57.
Osborne does not challenge the prosecutor’s explanation that the
complex nature of this case and the police officers’ division of
responsibilities required them both to remain at counsel table during
trial. Nor does he allege or point to any evidence in the record that the
trial court abused its discretion. Further, our own review of the record
does not show an abuse of discretion. Osborne has failed to meet his
burden of showing that the trial court abused its discretion in permitting
the two police officers to remain in the courtroom throughout the trial.
IV.
Osborne next contends the evidence is insufficient to support his
attempted murder conviction. The standard for reviewing sufficiency of the
evidence claims is well settled. We do not reweigh the evidence or judge
the credibility of the witnesses. Albrecht v. State, 737 N.E.2d 719, 731
(Ind. 2000). We will affirm the trial court if the probative evidence and
reasonable inferences drawn from the evidence could have allowed a
reasonable jury to find the defendant guilty beyond a reasonable doubt.
Id.
To establish attempted murder, the State must prove beyond a
reasonable doubt that (1) the defendant acted with the specific intent to
kill; and (2) the defendant engaged in conduct constituting a substantial
step toward commission of the crime. Mitchem v. State, 685 N.E.2d 671, 676
(Ind. 1997). “Intent may be inferred from the use of a deadly weapon in a
manner likely to cause death or great bodily harm.” Id. (quotation
omitted).
Osborne claims that the State failed to meet its burden because his
intent was to knock out Mr. Williams, not to kill him. However, Osborne’s
confessions and actions show otherwise. Osborne told Detective Whitehead
on the way to the police station that he intended to kill Mr. Williams. R.
at 855. Osborne expanded on this in his tape-recorded confession:
[Detective Whitehead]: And what were you gonna do to [Mr. Williams
when you went back upstairs]?
[Osborne]: We was gonna kill him. Or try to anyways. That’s why we
hit him in the head.
[Detective Whitehead]: And why would you want to kill him to take his
money?
[Osborne]: So he couldn’t call you guys.
. . .
[Detective Whitehead]: So it was your intent Saturday when you went
in his house to, to kill him and take his money? Was that Charlie’s
plan too?
[Osborne]: He, he knew what I had in my mind. . . .
. . .
[Detective Whitehead]: [After you hit him] [d]id you think he was
dead?
[Osborne]: I knew there wasn’t no sense to keep hitting him cause he
wasn’t moving. The whole time we was hitting him he was fighting.
The last time we hit him he quit moving so—
[Detective Whitehead]: So you didn’t know whether he was dead or not?
[Osborne]: No.
[Detective Whitehead]: Would it have surprised you if he was? No?
[Osborne]: I thought we hit him enough times, you know what I mean?
[Detective Whitehead]: So your intent was to go in there and wait on
him and then kill him and you thought that you had possibly done that?
[Osborne]: Right.
R. at 44, 45, 50-51. Additionally, according to both Charles’ trial
testimony and Osborne’s tape-recorded confession, Osborne struck Mr.
Williams approximately seven times in the head and face with an iron bar
and hammer. R. at 46-49, 508-12. The evidence is sufficient to support
Osborne’s conviction for attempted murder.
V.
When the trial court denied Osborne’s request to represent himself at
the first initial hearing, Osborne erupted, calling the judge various
insulting names and threatening him. Even after warnings, Osborne
continued verbally attacking the judge. As a result, the judge found
Osborne in direct criminal contempt and sentenced him to 120 days
imprisonment with no good time credit. R. at 25, 265-66. At sentencing,
the trial court enhanced Osborne’s sentence for attempted murder by ten
years in part because of Osborne’s behavior during the first initial
hearing which landed him a criminal contempt conviction. R. at 980-81.
Osborne contends that the trial court’s use of his pre-trial conduct
to both convict him of criminal contempt and enhance his attempted murder
conviction violates the Double Jeopardy Clause of the United States
Constitution because he was punished twice for the same offense. However,
we have held that enhancements for earlier convictions “are not
punishments; they are merely tools enabling a trial court to impose an
appropriate sentence for the current conviction.” Elmore v. State, 657
N.E.2d 1216, 1220 (Ind. 1995). As such, Osborne was not punished twice for
the same offense.
Further, when enhancing Osborne’s attempted murder conviction, the
trial court found no mitigators and another aggravator: Osborne’s criminal
history. R. at 980. Only one aggravator is necessary for a trial court to
enhance a sentence. Georgopulos v. State, 735 N.E.2d 1138, 1146 (Ind.
2000). The trial court did not err in enhancing Osborne’s sentence for
attempted murder.
Conclusion
We affirm the judgment of the trial court.
SULLIVAN, J., concurs. SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur
in Parts I, II, IV and V.
BOEHM, J., concurs in result with separate opinion as to Part III, in which
SHEPARD, C.J., and DICKSON, J., join.
ATTORNEY FOR APPELLANT
William C. Menges, Jr.
Howard County Public Defender
Kokomo, Indiana
ATTORNEYS FOR APPELLEE
Karen Freeman-Wilson
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
RICKEY OSBORNE, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 34S00-0009-CR-531
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable Dennis H. Parry, Judge
Cause No. 34D01-9812-CF-313
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
September 13, 2001
BOEHM, Justice.
I concur in Parts I, II, IV, and V. I believe that the trial court
should not have allowed two police officers to remain in the courtroom
after granting a separation of witnesses order pursuant to Indiana Rule of
Evidence 615. I also believe that the burden of showing harmless error
falls on the State, but because that burden is satisfied in this case, I
concur in result in Part III.
Prior to the adoption of Indiana Rule of Evidence 615, when a motion
for separation of witnesses was granted, each party had a right to have one
person in the courtroom to assist counsel. Bell v. State, 610 N.E.2d 229,
233 (Ind. 1993). It was also the common law rule that the party
representative could be a police officer who was also a testifying witness.
Id. These rules were supplanted by Rule 615, which abolished the
automatic exemption for police officers and gave the trial court discretion
to allow witnesses to remain in the courtroom if they met any of the three
criteria specified in the rule. The second of these allows “an officer or
employee of a party that is not a natural person designated as its
representative by its attorney.” Several Indiana cases have held that a
police officer who has a supervisory role in the investigation of the
defendant meets this test as a representative of the State. Stafford v.
State, 736 N.E.2d 326, 330 (Ind. Ct. App. 2000); Heeter v. State, 661
N.E.2d 612, 614-15 (Ind. Ct. App. 1996); Fourthman v. State, 658 N.E.2d 88,
91 (Ind. Ct. App. 1995).
In this case, the State asked that two police officers remain at the
prosecutor’s table throughout the trial without reference to any of the
Rule 615 exemptions. The purpose of the party representative exemption is
to humanize those parties who are not natural persons. It allows only one
representative. Stafford, 736 N.E.2d at 329-30. One or more witnesses may
be permitted under the third exemption in Rule 615 for persons “essential
to the presentation of the party’s case.” To be present under this
provision the trial court must be persuaded that the “witness has such
specialized expertise or intimate knowledge of the facts of the case that a
party’s attorney could not effectively function without the presence and
aid of the witness.” Hernandez v. State, 716 N.E.2d 948, 950 (Ind. 1999).
As the Court points out, Rule 615’s exemptions “should be narrowly
construed and cautiously granted.” Osborne v. State, __ N.E.2d __, __
(Ind. 2001) (citing Long v. State, 743 N.E.2d 253, 256 (Ind. 2001)).
Accordingly, if an “essential witness” is an employee of the institutional
party, there is no reason to permit an additional investigative witness as
a representative of the party to avoid the problem of a human being versus
an empty chair. Therefore, if two are needed, both must be qualified as
essential.
The Advisory Committee Notes to Federal Rule of Evidence 615, the
federal counterpart to Indiana Rule of Evidence 615, state that the
essential witness “category contemplates such persons as an agent who
handled the transaction being litigated or an expert needed to advise
counsel in the management of the litigation.” This case does not turn on
scientific or other specialized knowledge, so only the need for mastery of
complex facts can be cited as a reason to exempt additional witnesses.
Earlier this year, this Court affirmed a trial court’s decision to allow an
FBI agent to sit with the prosecutor as an “essential” witness. Long, 743
N.E.2d at 256-57. In the course of the seven-day trial, forty-five non-
police, non-expert witnesses testified for the State and sixty-six exhibits
were offered into evidence by the State. In preparation for the trial, the
police conducted over 500 witness interviews and executed thirty searches
during three to four years of police work covering leads in Ohio, Illinois,
and Indiana. Id. In that case, the FBI agent was “essential” to the
prosecutor because he was familiar with the details of a complex and
lengthy investigation.
In this case, the prosecutor contended that the two officers were
“essential” because “the complex nature of this case and the fact that
these officers supervised the investigation on different shifts and
therefore had responsibilities for different parts of the investigation
would require that I have them both in the courtroom with me.” Osborne,
however, was apprehended immediately after the crime took place, was
arrested two days later, and gave two confessions to police, both of which
were admitted at trial. Unlike Long, this case did not involve complicated
facts, a plethora of witnesses, or an extensive investigation. There is no
showing that the presence of any witness was essential.
A number of police officers testified at Osborne’s trial, but the
record does not indicate which two officers were allowed to stay in the
courtroom despite the witness separation order. Osborne does not indicate
what prejudice he might have suffered as a result of the officers’ presence
in the courtroom and his failure to identify which officers were affected
makes it impossible for us to guess at what prejudice might exist. The
opinion of the Court concludes that Osborne has failed to meet his burden
of showing that the trial court abused its discretion. But as I observed
in dissent in Hernandez v. State, it is often difficult or impossible to
assess the effect on the testimony of a witness of having heard the
testimony of others. 716 N.E.2d at 954-55. For that reason, I would
follow the federal circuits that require the party supporting the erroneous
decision to show that the error was harmless. I think that Osborne is
entitled to a presumption of prejudice that the State must overcome to
prevail. Hernandez, 716 N.E.2d at 955.
All of the foregoing does not cause me to dissent from the result in
this case. The State presented overwhelming evidence supporting Osborne’s
conviction independent of the testimony of investigating officers. Osborne
confessed, DNA testing matched Osborne to a weapon used in the attack, and
Osborne’s accomplice testified against him. Under these circumstances,
even if we assume the testimony of the unsequestered witnesses was shaped
by their presence in the courtroom, I would find the error to be harmless.
Accordingly, I concur in result as to Part III of the majority
opinion.
SHEPARD, C.J., and DICKSON, JJ., concur.