                                                                                   FILED
                                                                             Jan 17 2018, 7:35 am

                                                                                   CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Scott King                                                Curtis T. Hill, Jr.
      Russell W. Brown, Jr.                                     Attorney General of Indiana
      Scott King Group
      Merrillville, Indiana                                     Justin F. Roebel
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      James Hill,                                               January 17, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                45A04-1702-CR-325
              v.                                                Appeal from the Lake Superior
                                                                Court
      State of Indiana,                                         The Honorable Salvador Vasquez,
      Appellee-Plaintiff                                        Judge.
                                                                Trial Court Cause No.
                                                                45G01-1609-MR-00004



      May, Judge.


[1]   In this interlocutory appeal, James Hill appeals the denial of his motion to

      dismiss the charges against him. He argues his due process rights were violated




      Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018                      Page 1 of 14
      by the thirty-six year delay in charging him with murder, 1 murder in

      perpetration of robbery, 2 and Class A felony attempted robbery. 3 He contends

      his defense was prejudiced because his alibi witnesses died in the intervening

      years. He also claims the State was not justified in its delay.


[2]   While we agree the State’s reason for delay was tenuous at best, we conclude

      Hill has not demonstrated prejudice. Thus, we affirm the trial court’s denial of

      Hill’s motion to dismiss and remand.



                                Facts and Procedural History
[3]   In the early morning of November 14, 1980, Hammond Police Officer Larry

      Pucalik was murdered during an attempted robbery at the Holiday Inn-

      Southeast located in Hammond, Indiana. Later that day, Hammond Police

      Detective Robert Seaman received an anonymous phone call from a person

      who stated, “Pierre Catlett killed your cop.” (App. Vol. III at 146.) 4


[4]   On November 18, 1980, police arrested Hill on an unrelated charge. 5 When he

      was arrested, Hill “made the spontaneous utterance ‘I know you guys think I



      1
          Ind. Code § 35-42-1-1(1) (1976).
      2
        Ind. Code § 35-42-1-1(2) (1976) (murder); Ind. Code § 35-42-5-1 (1977) (robbery); Ind. Code § 35-41-5-1
      (1977) (attempt).
      3
          Ind. Code § 35-42-5-1(1) (1977) (robbery); Ind. Code § 35-41-5-1 (1977) (attempt).
      4
       There are two transcripts in the record, one for the hearing regarding Hill’s motion to dismiss (“MTD Tr.”)
      and one for Hill’s request for habeas corpus (“Habeas Tr.”).
      5
        This arrest was related to a crime that occurred on October 5, 1980. Hill was subsequently convicted of
      rape, criminal deviate conduct, and robbery for the incident occurring October 5, 1980. In 2009, those

      Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018                       Page 2 of 14
      shot that Hammond cop.’” (Id. at 149.) On March 9, 1981, Hill asked jail staff

      if he could speak with a detective. According to the probable cause affidavit

      used in Hill’s 2016 indictment:


                Hill confessed to detectives that he drove the vehicle used in the
                attempted robbery and murder of Hammond Police Officer Larry
                Pucalik. Hill recalled that [sic] Lee Mayes and Michael LNU 6 as
                the subjects who went inside of the hotel. Detectives showed Hill
                a spread of photographs. Hill picked out the photograph of Larry
                Mayes, who [sic] Hill called Lee Mayes as one of the persons
                who went inside of the Holiday Inn-Southeast. Hill then picked
                out the photograph of Pierre Catlett, who [sic] Hill called
                Michael LNU as the other person who went inside of the
                Holiday Inn-Southeast.


      (Id.) (footnote added).


[5]   On October 3, 1983, Hammond Police Detective Michael Solan, Sr. spoke with

      Jimmy Dale Woods, who told Detective Solan:


                [Mayes] came over to Jimmy Dale’s house . . . and once Mayes
                entered the house, he was walking back and forth really nervous
                speaking out the window, so Jimmy asked him what’s wrong and
                he said the police are looking for me. Something went wrong in




      convictions were overturned as part of Hill’s petition for post-conviction relief. In that case, the trial court
      found the prosecution’s concealment of certain exculpatory evidence violated Brady v. Maryland, 373 U.S. 83
      (1963). Despite its ability to do so, the State declined to retry Hill after his convictions were overturned:
      “After consultation with the complaining witness and in consideration of the fact that multiple witnesses are
      now deceased and the defendant’s sentence has been completely served the State does not intend to re-try
      [Hill] on the original charges.” (App. Vol. III at 51.) Hill has filed a federal lawsuit against Hammond
      Police and certain officers involved in his 1980 conviction for civil rights violations, and that suit was pending
      when the State charged him with the murder at issue herein. (See MTD Tr. at 31-4.)
      6
          “LNU” presumably means “last name unknown.”


      Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018                           Page 3 of 14
              Hammond. A security guard was shot and eventually he asked
              for some money to get out of town which [sic] his mother gave
              him $160, I believe, to Mayes to get out of town and Mayes went
              to Indianapolis.


      (MTD Tr. at 55.) When asked about the original investigation from the 1980s,

      Detective Solan indicated:


              We had substantial evidence, but we did not have enough
              evidence -- we had substantial evidence, but my opinion, I was
              the one that would decide if we were going to charge. We had
              substantial evidence, but we weren’t going to charge, roll the dice
              because we had some problems with the investigation at that
              time so we continued on.


      (Id. at 56.) Detective Solan testified the investigation into Officer Pucalik’s

      murder stymied in 1992 or 1993, with no charges filed.


[6]   In 2009, Woods was being investigated for federal firearms and drug trafficking

      crimes. Special Agent Jason Gore submitted, as part of a probable cause

      affidavit, that Woods told Special Agent Gore:


              In 1980 [Woods] was living with his mother Betty Schular, now
              deceased, in Gary, Indiana. Woods recalled that one evening
              Larry Mayes came over to his house in a very excited manner.
              Woods recalled that Mayes told Schuler “I think I did something
              today, I think I killed somebody”. [sic] Woods stated that Mayes
              told him and Schuler that he was in trouble and needed some
              money to get out of town.


              Woods stated that Mayes went on to say that he, (Mayes), James
              HILL and Mike LNU were driving around looking to rob
              someone. Woods recalled that Mayes stated that they found a
      Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018   Page 4 of 14
              Holiday Inn that only had one female desk clerk. Woods
              remembered Mayes stating that they figured the desk clerk was
              alone and would be an easy target. Woods explained that Mayes
              told him that during the robbery, a security guard came out from
              the backroom, and went for his gun. Woods stated that Mayes
              told him he shot the security guard and fled the area without
              getting any money from the clerk. Woods recalled that Vincent
              Johnson was also at his house the night Mayes came over.


              Woods stated that he and Schuler gave Mayes some drugs to
              calm him down and some money to get out of town. Woods
              believed that Mayes went to Indianapolis to hide out. Woods
              recalled that the following Monday, Mayes returned back to
              Gary, Indiana and came over to Schuler’s house again. Woods
              stated that Mayes told him that the guy he shot was an ex-cop
              and a military hero.


      (App. Vol. III at 149-50.) Based on Woods’ statement, Special Agent Gore also

      interviewed Vincent Johnson, who corroborated portions of Woods’ version of

      events.


[7]   Further, Special Agent Gore testified Woods gave him additional information

      in 2009 “tying Mr. Hill and Mayes together.” (MTD Tr. at 44). He testified:


              Prior to that, there is -- had been a strong denial from both Mayes
              and Hill that they even knew each other. Mr. Woods put them
              together at his house. He even gave a specific story where Mr.
              Mayes who’s older than Mr. Hill came and was going to sell him
              a couch or brought him a couch, to his home in Gary. And
              along with him was James Hill and that was the first time that he
              had met James Hill. That information, your Honor, is brand
              new. It was -- it was showing an association that, in fact, Mr.
              Hill and Mayes did know each other prior to the events that
              occurred November 17, 1980, and it showed that they did know

      Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018   Page 5 of 14
              each other, that they did have a relationship. That was
              information that was never provided to Hammond [Police
              Department].


      (Id.)


[8]   In early 2011, the Northwest Indiana Major Crimes Taskforce reopened the

      investigation into Officer Pucalik’s murder. Special Agent Gore reviewed old

      files and re-interviewed witnesses. On June 22, 2012, the State charged Hill,

      Mayes, and Catlett with Officer Pucalik’s murder. The charge against Catlett

      was dismissed because he was serving another sentence in Illinois. The charge

      against Mayes was dismissed after he suffered a “cerebral vascular accident,”

      (id. at 23), and was deemed incompetent to stand trial. On March 27, 2014, the

      charge against Hill was dismissed. When asked why the charge was dismissed

      against Hill, Special Agent Gore testified:


              [T]his is my understanding coming from David Urbanski who
              was the Lake County prosecutor who was handling the case, and
              it was because the evidence that we had, the case that we had
              against Mr. Hill was tied to Mr. Mayes. The two cases were in
              part together. Mr. Catlett lives in Illinois. The case against him,
              some of the evidence is the same, but Mr. Hill and Mayes are
              tied together. And Mr. Urbanksi [sic] told me that the reason
              why he dropped the case against Mr. Hill was that we had to
              separate and -- we could only make sure we had the evidence that
              we could use against Mr. Hill because not all the same evidence,
              statements, et cetera, could be used against, you know, that was
              used against Mayes could be used against Hill. They were tied
              together.


      (Id. at 24.)

      Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018   Page 6 of 14
[9]    On September 1, 2016, the State again filed charges against Hill for the events

       leading to the death of Officer Pucalik, including murder, murder in

       perpetration of robbery, and Class A felony attempted robbery. On December

       2, 2016, Hill filed a motion to dismiss the charges against him, arguing the

       State’s delay in bringing charges against him denied him a defense. Hill stated

       his great-uncle, James Stokes, and his great-grandmother, Elnoria Stokes,

       would have testified that they lived with Hill at the time and “Mr. Hill was

       home the entire night and did not leave the residence.” (App. Vol. III at 198.)

       However, James died in 2008 and Elnoria died in 1996, and thus were

       unavailable as witnesses. The State stated in its memorandum in opposition of

       Hill’s motion to dismiss “other relatives of the Defendant, also residing with

       Elnoria Stokes at the time of the murder, are available to testify, and have made

       statements that Defendant often went out during the week[.]” (Id. at 217.)


[10]   The trial court held a hearing on Hill’s Motion to Dismiss on January 13, 2017,

       and denied his motion the same day. The trial court found:


               6. In this case, notwithstanding the prejudice proffered by the
               Defendant (the death of potential alibi witnesses), the State has
               presented information and new evidence to support the delay,
               such as, inter alia, the re-interview of Jimmy Dale Woods that
               ties the three suspects [Hill, Catlett, and Mayes] together during
               the time period of November 1980.


               7. Furthermore, the Court finds that the State has gained no
               tactical advantage in this delay since several potential witness
               [sic] are no longer available to it due to death.



       Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018   Page 7 of 14
       (App. Vol. IV at 50.)


[11]   On February 3, 2017, Hill requested the trial court certify its order for

       interlocutory appeal. The trial court granted his request the same day. On

       March 24, 2017, our court accepted jurisdiction over Hill’s interlocutory appeal

       of the denial of his motion to dismiss.



                                   Discussion and Decision                               7




[12]   Our standard of review in cases involving a criminal defendant’s motion to

       dismiss is well-settled:


                A defendant has the burden of proving, by a preponderance of
                the evidence, all facts necessary to support a motion to dismiss.
                Townsend v. State, 793 N.E.2d 1092, 1093 (Ind. Ct. App. 2003),
                trans. denied. When a party appeals from a negative judgment,
                we will reverse the trial court’s ruling only if the evidence is
                without conflict and leads inescapably to the conclusion that the
                party was entitled to dismissal. Id.


       Johnson v. State, 810 N.E.2d 772, 775 (Ind. Ct. App. 2004), trans. denied. When

       examining a motion to dismiss for pre-indictment delay, our analysis is guided

       by our Indiana Supreme Court’s opinion in Ackerman v. State, 51 N.E.3d 171

       (Ind. 2016), cert. denied 137 S. Ct. 475 (2016):




       7
        We held oral argument regarding this matter on December 18, 2017, at Mississinewa High School in Gas
       City, Indiana. We thank the students and staff for their hospitality and counsel for their able presentations.

       Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018                         Page 8 of 14
               Although the prosecution can exercise discretion on when to
               bring charges, that discretion is not unlimited. Schiro v. State, 888
               N.E.2d 828, 834 (Ind. Ct. App. 2008). The United States
               Supreme Court has recognized that a pre-indictment delay in
               prosecution can result in a Due Process Clause violation. United
               States v. Valenzuela-Bernal, 458 U.S. 858, 869, 102 S. Ct. 3440, 73
               L.Ed.2d 1193 (1982). Although statutes of limitations often
               operate to prevent too much delay before criminal charges are
               brought, “even where a charge is brought within the statute of
               limitations, the particulars of the case may reveal that undue
               delay and resultant prejudice constitute a violation of due
               process.” Patterson v. State, 495 N.E.2d 714, 718 (Ind. 1986).
               Despite this, the passage of time alone is not enough to establish
               prejudice. Id. If it were, then the Constitution would serve as a
               functional statute of limitation. Rather, the defendant has the
               burden of proving that he suffered “actual and substantial
               prejudice to his right to a fair trial,” and upon meeting that
               burden must then demonstrate that “the State had no justification
               for delay,” which may be demonstrated by showing that the State
               “delayed the indictment to gain a tactical advantage or for some
               other impermissible reason.” Schiro, 888 N.E.2d at 834.


       Id. at 189-90. Hill argues the trial court abused its discretion when it denied his

       motion to dismiss the charges against him because the passage of time had

       prejudiced his ability to bring forth witnesses in his own defense.


[13]   Hill relies on Barnett v. State, 867 N.E.2d 184 (Ind. Ct. App. 2007), trans. denied,

       in which our court held the State’s twelve-year delay in filing murder charges

       against Barnett violated Barnett’s due process rights. In that case, Barnett was

       involved in a physical confrontation with another inmate, Combs, in 1993.

       Combs died as a result of that altercation. The State charged Barnett with

       Combs’ murder on July 7, 2005.

       Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018   Page 9 of 14
[14]   Barnett argued the State’s unjust delay in bringing the charge against him

       prejudiced his defense because many witnesses were dead or unable to be

       located and, if they were able to testify, the passage of time had faded the

       witnesses’ memories. The record indicated Detective Michael Minnicus

       investigated the incident in 1993 and submitted the findings of his investigation

       and a potential witness list to the prosecutor’s office. However, the prosecutor’s

       office did not conduct a follow-up investigation in 1993. Detective Minnicus

       testified “that the case had been brought to his attention numerous times

       between 1993 and 2005,” id. at 187, and there was confusion regarding who

       was handling the case during that time. The State conceded “that the

       investigators and prosecutors on Barnett’s case made a mistake by waiting

       twelve years to prosecute him.” Id.


[15]   Our court examined whether Barnett was prejudiced by an “inability to conduct

       a proper investigation, to interview and depose eyewitnesses, and to prepare a

       proper defense.” Id. We determined Barnett had demonstrated prejudice in the

       State’s delay in filing charges because a significant number of witnesses to the

       incident with Combs were dead or could not be located. In addition, Barnett

       presented evidence those who were there and could be interviewed had limited

       memories of the event. We held “Barnett was clearly prejudiced by the State’s

       unexplained and unjustified delay - whether intentional or negligent - in

       bringing charges.” Id. at 188.


[16]   Hill argues his case is analogous to the facts in Barnett, as he was prejudiced by

       the State’s delay in filing charges because his great-uncle and great-grandmother

       Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018   Page 10 of 14
       would have testified “he was home the entire night and did not leave the

       residence.” (Br. of Appellant at 11.) We disagree.


[17]   “A defendant must do more than show that a particular witness is unavailable

       and that the witness’ testimony would have helped the defense. He must also

       show that the witness would have testified and withstood cross-examination,

       and that the jury would have found the witness credible.” United States v. Spears,

       159 F.3d 1081, 1085-6 (7th Cir. 1998), reh’g and suggestion for reh’g en banc denied,

       cert denied 528 U.S. 896 (1999). A panel of our court used the Seventh Circuit’s

       holding in Spears to support its holding in Schiro, a case with facts very similar

       to those before us here. See Schiro, 888 N.E.2d at 834 (citing Spears as

       authority).


[18]   In Schiro, the State delayed charging Schiro for twenty-five years for crimes

       associated with two incidents that allegedly occurred in 1980. Schiro argued he

       was prejudiced by the delay because his parents, whom he would have called as

       alibi witnesses were available due to death and infirmary. We rejected Schiro’s

       argument as speculative, as he “offered no testimony, affidavit, or depositions

       in support of this claim.” Id. at 835.


[19]   The same is true here. Hill argued, as part of his motion to dismiss:


               6. . . .Mr. Hill’s defense against these allegations is that he was
               not involved.


               7. Had the State not delayed in bringing these charges, Mr. Hill
               would have filed a Notice of Alibi and named his Great-uncle,

       Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018    Page 11 of 14
        James Stokes and Great-grandmother, Elnoria Stokes, as alibi
        witnesses.


        8. James Stokes would have testified that in November 1980 he
        lived with Mr. Hill and Elnoia [sic] Stokes at 2379 Fillmore St.,
        Gary, IN.


        9. James Stokes would have further testified that he was home
        the night of November 13 through the early morning hours of
        November 14, 1980 and Mr. Hill and Elnoria Stokes were also
        home.


        10. James Stokes would have further testified that Mr. Hill was
        home the entire night and did not leave the house.


        11. Similarly, Elnoria Stokes would have testified that both
        James Stokes and Mr. Hill lived with her at 2379 Fillmore St.,
        Gary, IN.


        12. Elnoria Stokes would have further testified that she was
        home the night of November 13 through the early morning hours
        of November 14, 1980 and James Stokes and Mr. Hill were also
        home that night.


        13. Elnoria Stokes would have further testified that Mr. Hill was
        home the entire night and did not leave the residence.


        14. This evidence would be crucial to Mr. Hill’s defense.


        15. Unfortunately, James Stokes died in 2008 and Elnoria Stokes
        died in 1996.




Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018   Page 12 of 14
               16. Due to the State’s delay in bringing charges, Mr. Hill has lost
               the ability to present a defense.


               17. The inability to call these witnesses to testify at trial in this
               matter caused an actual and substantial prejudice to Mr. Hill’s
               right to a fair trial.


       (App. Vol. III at 197-8.)


[20]   Unlike Schiro, Hill provided an affidavit wherein he indicated he was home the

       night of Officer Pucalik’s murder. However, we note, as the trial court did, that

       Hill did not present an alibi defense as part of his 2012 indictment for the same

       crime. (See MTD Tr. at 87) (“You offer alibi, but I can’t ignore the idea that in

       2013 [sic] when the case was submitted and later dismissed in 2015 that no alibi

       was submitted, yet there is one now.”). Additionally, the State indicated in its

       memorandum in opposition of Hill’s motion to dismiss “other relatives of the

       Defendant, also residing with Elnoria Stokes at the time of the murder, are

       available to testify, and have made statements that Defendant often went out

       during the week[.]” (App. Vol. III at 217.)



                                                Conclusion
[21]   We conclude Hill has not met the bar set by Spears and adopted by this court in

       Schiro: he has not shown Elnoria and James “would have testified and

       withstood cross-examination,” Spears, 159 F.3d at 1085, and that the jury would




       Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018      Page 13 of 14
       have found them credible. 8 Thus he has not demonstrated he suffered actual

       and substantial prejudice to his right to a fair trial. Accordingly, we affirm the

       decision of the trial court and remand.


[22]   Affirmed and remanded.


       Baker, J., and Altice, J., concur.




       8
         As we conclude Hill has not met his burden to demonstrate he suffered actual and substantial prejudice to
       his right to a fair trial, we need not consider the other prong of the test - whether the State’s delay was
       justified. See Ackerman, 51 N.E.3d at 189-90 (“the defendant has the burden of proving that he suffered
       ‘actual and substantial prejudice to his right to a fair trial,’ and upon meeting that burden must then demonstrate
       that ‘the State had no justification for delay[.]’”) (emphasis added) (internal citations omitted).

       Court of Appeals of Indiana | Opinion 45A04-1702-CR-325 | January 17, 2018                           Page 14 of 14
