                                                                     FILED
                                                                Aug 30 2017, 9:15 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jennifer G. Schlegelmilch                                 Curtis T. Hill, Jr.
Deputy Public Defender                                    Attorney General of Indiana
Lawrence County Public Defender
                                                          Ian McLean
Agency
                                                          Supervising Deputy Attorney General
Bedford, Indiana
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Lincoln R. Pickett,                                       August 30, 2017

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          47A01-1612-CR-2900
        v.                                                Appeal from the Lawrence Superior
                                                          Court.
                                                          The Honorable Michael A. Robbins,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Trial Court Cause Nos.
                                                          47D01-1601-F6-105
                                                          47D01-1602-MR-129




Sharpnack, Senior Judge




Court of Appeals of Indiana | Opinion 47A01-1612-CR-2900 | August 30, 2017               Page 1 of 7
                                             Statement of the Case
[1]   Charged under one cause number with a count of Level 6 felony obstruction of
                  1                                                           2
      justice, one count of Level 6 felony abuse of a corpse, two counts of Class A
                                                  3
      misdemeanor false informing, and one count of Class A misdemeanor failure
                                       4
      to report a dead body, Lincoln Pickett was additionally charged, under a

      separate cause number, with one count of Level 4 felony unlawful possession of
                                                      5                            6
      a firearm by a serious violent felon, and one count of murder.


[2]   In this interlocutory appeal under both cause numbers, Pickett challenges the

      trial court’s denial of his motion to bifurcate the proceedings to prevent the jury

      from hearing evidence of his prior conviction–Class C felony escape–potentially

      qualifying him as a serious violent felon (“SVF”) if he was in possession of a

      firearm. We reverse and remand.


                                                          Issue
[3]   The dispositive issue in this appeal is whether the trial court erred by denying

      Pickett’s motion to bifurcate the proceedings.




      1
          Ind. Code § 35-44.1-2-2(a)(3) (2014).
      2
          Ind. Code § 35-45-11-2(1) (2014).
      3
          Ind. Code § 35-44.1-2-3(d)(1) (2014).
      4
          Ind. Code § 35-45-19-3 (2008).
      5
          Ind. Code § 35-47-4-5 (2014).
      6
          Ind. Code § 35-42-1-1(1) (2014).


      Court of Appeals of Indiana | Opinion 47A01-1612-CR-2900 | August 30, 2017       Page 2 of 7
                                Facts and Procedural History
[4]   On January 24, 2016, Kathy Riggle reported to the Mitchell Police Department

      that her daughter, Kamie Ratcliff, also known as Kamie Brashear, was missing.

      Mitchell Police Officer Matt England received information that Kamie might be

      staying with Pickett and Jasmine Pickett at their home in Mitchell, Indiana, and

      followed up on that information. Eventually the State filed charges against

      Pickett under the two cause numbers which the court later consolidated for

      trial. Citing both cause numbers, Pickett moved to bifurcate the trial, with

      Phase I addressing all charges save for the SVF allegation, with Phase II

      addressing the SVF charge, alleging his prior conviction of escape.


[5]   The State opposed Pickett’s motion, successfully gaining permission to amend

      the information to allege that Picket was charged with unlawful possession of a

      firearm in violation of Indiana Code section 35-47-4-6. The State also proposed

      an instruction based on Indiana Pattern Jury Instruction (Criminal) 7.2740.

      The proposed instruction, rather than use the term “possession of firearm by

      serious violent felon”, designates the offense as “possession of firearm in

      violation of I.C. 35-47-4-5” and indicates that Escape is the prior conviction in

      question in this case. Citing Spearman v. State, 744 N.E.2d 545 (Ind. Ct. App.

      2001), the State argued that the amendment to the information and the

      proposed instruction, deleting any reference to the term “serious violent felon,”

      would sufficiently reduce any prejudice to Pickett’s defense that might be

      caused by the jury hearing about a prior, qualifying conviction. The trial court

      denied Pickett’s motion, and this interlocutory appeal ensued.

      Court of Appeals of Indiana | Opinion 47A01-1612-CR-2900 | August 30, 2017   Page 3 of 7
                                    Discussion and Decision
[6]   Both parties agree that our review of the trial court’s decision on the issue of

      bifurcation is for an abuse of discretion. See Hines v. State, 794 N.E.2d 469, 470-

      71 (Ind. Ct. App. 2003), adopted by Hines v. State, 801 N.E.2d 634 (Ind. 2004).

      An abuse of discretion occurs when the trial court’s decision is clearly against

      the logic and effect of the facts and circumstances before it. Id.


[7]   In addition to the SVF charge, Pickett faces charges of obstruction of justice,

      abuse of a corpse, false informing, failure to report a dead body, and murder.

      To examine whether it is an abuse of discretion to allow evidence of Pickett’s

      prior escape conviction–which could establish his SVF status if he were found

      to have been in possession of a firearm as part of the present offenses–we look

      to the elements necessary to prove the present offenses. We do so, because

      while analyzing the issue of bifurcation in the context of habitual offender

      determinations, we acknowledged that “evidence of prior convictions is

      generally inadmissible because such evidence ‘has no tendency to establish the

      guilt or innocence of the accused’ during the phase to determine whether the

      defendant is guilty of the underlying felony.” Spearman, 744 N.E.2d at 547

      (citing Shelton v. State, 602 N.E.2d 1017, 1019 (Ind. 1992), quoting Lawrence v.

      State, 259 Ind. 306, 310, 286 N.E.2d 830, 832 (1972)).


[8]   Here, the underlying charges require the State to establish beyond a reasonable

      doubt that Pickett committed the offense of obstruction of justice (altering,

      damaging, or removing any thing with the intent to prevent the thing from


      Court of Appeals of Indiana | Opinion 47A01-1612-CR-2900 | August 30, 2017   Page 4 of 7
       being used as evidence in any official proceeding or investigation); abuse of a

       corpse (Pickett knowingly mutilated Kamie’s corpse); false informing (on two

       occasions Pickett knowingly gave false information in a criminal investigation

       hindering the law enforcement process); failure to report a dead body (Pickett

       knowingly failed to report the body of a deceased person to a public safety

       officer, coroner or physician, or 911); and, murder (Pickett knowingly killed

       another human being [Kamie]).


[9]    In Spearman, though charged with one count of pointing a firearm at another

       person and an SVF charge based on a previous conviction for criminal

       confinement, the only charge that proceeded to trial was the SVF count. The

       trial court denied Spearman’s motion to bifurcate proceedings and a jury found

       Spearman guilty. He appealed, challenging the trial court’s denial of his motion

       to bifurcate.


[10]   On review, the following analysis was used:

               [T]he rationale for inadmissibility of prior convictions breaks
               down when the evidence of the prior conviction not only has the
               “tendency” to establish guilt or innocence but also is essential to
               such determination. Our supreme court has stated:
               The admission or rejection of evidence is not a matter of judicial
               grace. It is a legal right. To be admissible, evidence must
               logically tend to prove a material fact. Accordingly, evidence of
               prior crimes is generally inadmissible in a criminal case, because
               it has no tendency to establish the guilt or innocence of the
               accused. . . . Evidence of prior crimes is admissible, however, if
               it is relevant to some issue in the case, such as intent, motive,
               knowledge, plan, identity, or credibility. . . . The admissibility of

       Court of Appeals of Indiana | Opinion 47A01-1612-CR-2900 | August 30, 2017      Page 5 of 7
               prior convictions in such cases is justified only by their relevance
               to the issues. The undesirable tendency to prejudice remains, but
               the overriding interests of the State in arriving at the truth
               prevails.
       744 N.E.2d at 547-48 (quoting Lawrence, 259 Ind. at 309-10, 286 N.E.2d at 832-

       33 (citations omitted)).


[11]   In Hines, a panel of this court determined that it was an abuse of discretion for

       the trial court to refuse the defendant’s motion to bifurcate the proceedings on a

       robbery charge from a charge that the defendant unlawfully possessed a firearm

       as a serious violent felon. 794 N.E.2d at 474. Although there was evidence the

       defendant flashed a gun in the commission of the robbery, evidence of the

       defendant’s prior conviction, the nature of which is not disclosed, qualifying

       him for the SVF charge, was not necessary to establish the conviction for the

       underlying robbery offense. Our Supreme Court agreed. Hines, 801 N.E.2d at

       635.


[12]   Later, in Talley v. State, 51 N.E.3d 300 (Ind. Ct. App. 2016), trans. denied, on

       review of a petition for post-conviction relief, a panel of this court held that trial

       counsel did not render ineffective assistance by failing to file a motion to

       bifurcate proceedings. Talley was charged with two counts of resisting law

       enforcement, and one count of possession of a firearm by a SVF based on a

       2001 conviction of armed robbery. When arrested by police, Talley asked the

       police officer to release him because he was a convicted felon. Talley had fled

       from police and when cornered drew a handgun, which the officer was able to

       force from Talley’s hand. Trial counsel considered, but decided against,

       Court of Appeals of Indiana | Opinion 47A01-1612-CR-2900 | August 30, 2017     Page 6 of 7
       requesting bifurcation of the charges, concluding, as a strategic decision, that

       the possession of the handgun was connected to the instant charges, likely

       providing a motive for the charges of resisting law enforcement.


[13]   In the present case, Pickett’s prior conviction for escape has no relevance to the

       charges he presently faces; i.e., it did not tend to establish intent, motive,

       knowledge, plan, identity, or credibility. See Spearman, 744 N.E.2d at 547-48.

       The proposed instruction would be appropriate were the only charge against

       Pickett the SVF charge. The instruction avoids the use of the term “serious

       violent felon” by naming the prior qualifying felony and citing the statute. It

       would do nothing to ameliorate the prejudicial irrelevance in this case.

       Therefore, we conclude that the trial court erred by denying Pickett’s motion to

       bifurcate the proceedings.


                                                 Conclusion
[14]   In light of the foregoing, we reverse the trial court’s decision and remand this

       matter for proceedings consistent with this opinion.


[15]   Reversed and remanded.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 47A01-1612-CR-2900 | August 30, 2017   Page 7 of 7
