                                                                       FILED
                                                                  Aug 18 2017, 8:59 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Marietto V. Massillamany                                  Curtis T. Hill, Jr.
Massillamany & Jeter LLP                                  Attorney General of Indiana
Fishers, Indiana                                          Lyubov Gore
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rodriques Lamar Johnson,                                  August 18, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          48A02-1611-CR-2580
        v.                                                Appeal from the Madison Circuit
                                                          Court
State of Indiana,                                         The Honorable Thomas Newman
Appellee-Plaintiff.                                       Jr., Judge
                                                          Trial Court Cause No.
                                                          48C03-1205-FD-946



Robb, Judge.




Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017                 Page 1 of 12
                                Case Summary and Issue
[1]   Following a jury trial, Rodriques Johnson was convicted of arson, a Class B

      felony, and sentenced to ten years in the Indiana Department of Correction.

      Johnson appeals his conviction, raising one issue for our review: whether his

      constitutional right to a speedy trial was violated. Concluding his right to a

      speedy trial was not violated, we affirm.



                            Facts and Procedural History
[2]   Johnson lived with his mother in a house belonging to the Anderson Housing

      Authority until they moved out sometime in April or early May of 2012. On

      May 21, 2012, Johnson threw a brick through the kitchen window of the house.

      He then lit pieces of paper on fire and threw them through the window.


[3]   Two Anderson Housing Authority employees, Nathan Ballinger and Willie

      Beasley, were inside the house at the time. Johnson told them to “get the f***

      out.” Transcript, Volume I at 235. William Hofer, another Anderson Housing

      Authority employee, tried to enter the house to extinguish the fire, but Johnson

      blocked him. Johnson then sat in a nearby lot until the police and fire

      departments arrived a short time later. Ballinger, Beasley, and Hofer provided

      statements to the officers and Johnson was arrested at the scene. The Anderson

      Housing Authority spent $5,300.41 repairing the house.




      Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017   Page 2 of 12
[4]   On May 22, 2012, Johnson was charged with arson, a Class D felony, and

      criminal mischief, a Class A misdemeanor.1 A jury trial was initially scheduled

      for September 18, 2012, but was delayed numerous times. The trial date was

      first moved to February 26, 2013, because of court congestion. Johnson then

      requested a competency evaluation and the trial court set a competency hearing

      for May 6, 2013. At the hearing, Johnson was deemed competent to stand trial.

      Meanwhile, the trial date was moved to June 26, 2013, because of court

      congestion. The trial date was later moved to September 17, 2013, also because

      of court congestion.


[5]   A month before his September 2013 trial date, Johnson filed a motion for

      continuance, which the trial court granted, and the trial was rescheduled for

      December 10, 2013. Then, a month before his December 2013 trial date,

      Johnson filed another motion for continuance, which the trial court granted,

      pushing the trial date to February 18, 2014. Johnson’s counsel then withdrew

      from Johnson’s case and Johnson was appointed new counsel sometime after

      the second motion for continuance. Court congestion caused another delay and

      the trial date was moved to June 3, 2014. One month before that trial date,

      Johnson filed a motion to vacate the trial date and set the case for a

      dispositional hearing. The trial court scheduled a dispositional hearing for June




      1
       The State later filed an amended information charging Johnson with arson as a Class B felony, and
      dismissed the criminal mischief charge during the trial.

      Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017                    Page 3 of 12
      16, 2014, but the parties failed to reach a plea agreement and a new trial date

      was set for September 23, 2014.


[6]   Less than one month before the September trial date, Johnson filed a motion for

      another competency evaluation. The State objected, Johnson responded, and

      the trial court took the matter under advisement. Johnson then filed a motion

      to be allowed to present the defense of mental disease or defect. Following a

      hearing, the trial court granted Johnson’s competency evaluation request and

      appointed doctors to evaluate Johnson. After a competency hearing on July 22,

      2015, Johnson was deemed competent to stand trial and a trial date was

      scheduled for December 1, 2015. The trial was later rescheduled to December

      14, 2015, but the record is unclear as to why it was changed.


[7]   On December 14, 2015, Johnson’s counsel requested to withdraw from the

      case. The trial court granted the request and appointed Johnson new counsel.

      On May 2, 2016, the trial court set a new trial date for September 27, 2016.

      Four days before the trial date, Johnson filed a motion for a third competency

      evaluation, as well as another motion for continuance. The State objected to

      both motions and the trial court denied both motions. At trial, Johnson orally

      requested the trial court reconsider the competency determination and made

      another motion for continuance. The trial court denied the requests.


[8]   The jury found Johnson guilty of arson and the trial court sentenced Johnson to

      ten years in the Indiana Department of Correction. This appeal followed.




      Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017   Page 4 of 12
                                  Discussion and Decision
                                       I. Standard of Review
[9]    “The Sixth Amendment to the United States Constitution and Article 1, section

       12 of the Indiana Constitution guarantee the right to a speedy trial.” Wilkins v.

       State, 901 N.E.2d 535, 537 (Ind. Ct. App. 2009), trans. denied. The standard of

       review for a speedy trial issue, which is a pure question of law, is de novo.

       Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012).


                            II. Johnson’s Speedy Trial Rights
[10]   Johnson claims the 1,579 day delay between his arrest and trial violated his

       right to a speedy trial under the United States and Indiana Constitutions. The

       analysis of a claim involving a speedy trial right is the same under both the state

       and federal constitutions. Sweeney v. State, 704 N.E.2d 86, 102 (Ind. 1998), cert.

       denied, 527 U.S. 1035 (1999). The inquiry into whether there was a speedy trial

       violation involves “a balancing test, in which the conduct of both the

       prosecution and the defendant are weighed.” Barker v. Wingo, 407 U.S. 514,

       530 (1972). Barker dictates the factors to be considered are: 1) the length of the

       delay; 2) the reason for the delay; 3) the defendant’s assertion of the right to a

       speedy trial; and 4) prejudice to the defendant. Id.


                                          A. Length of Delay
[11]   The length of the delay acts as a triggering mechanism; a delay of more than a

       year post-accusation is “presumptively prejudicial” and triggers the Barker


       Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017   Page 5 of 12
       analysis. Vermillion v. State, 719 N.E.2d 1201, 1206 (Ind. 1999) (citing Doggett v.

       United States, 505 U.S. 647, 652 n.1 (1992)). If the length of the delay meets this

       threshold, “the court must then consider, as one factor among several, the

       extent to which the delay stretches beyond the bare minimum needed to trigger

       judicial examination of the claim.” Doggett, 505 U.S. at 652.


[12]   As the State concedes, there is no doubt the delay in bringing Johnson’s case to

       trial exceeded one year. Johnson was arrested and charged on May 22, 2012.

       Johnson’s trial occurred on September 27, 2016. The delay is therefore

       presumptively prejudicial. Moreover, the delay was more than four times

       longer than the threshold requirement of one year. As a result, this factor

       weighs against the State, but the other Barker factors must also be considered.


                                          B. Reason for Delay
[13]   When considering the reason for delays, we look at “whether the government

       or the criminal defendant is more to blame for that delay.” Doggett, 505 U.S. at

       651 (1992). In Barker, the Court determined that


               different weights should be assigned to different reasons. A
               deliberate attempt to delay the trial in order to hamper the
               defense should be weighted heavily against the government. A
               more neutral reason such as negligence or overcrowded courts
               should be weighted less heavily but nevertheless should be
               considered since the ultimate responsibility for such
               circumstances must rest with the government rather than with the
               defendant.


       407 U.S. at 531.

       Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017   Page 6 of 12
[14]   Johnson concedes the State did not delay the trial in order to hamper the

       defense. See Appellant’s Brief at 14. Johnson also concedes his two changes of

       counsel contributed to the delays. Id. However, Johnson argues the State

       acquiesced in many of the delays. As a result, Johnson contends this factor

       weighs in his favor. We disagree.


[15]   The following chart shows the relevant delays in this case, along with the

       reason, and whether the defendant is responsible, for each delay following the

       initial trial date of September 18, 2012:


        Delayed until:                         Reason:                              Attributed to

                                                                                    Defendant:


        February 26, 2013                      Court congestion


        June 26, 2013                          Johnson’s competency                 Yes
                                               hearing on May 6, 2013
                                               Court congestion


        September 17, 2013                     Court congestion


        December 10, 2013                      Johnson’s continuance                Yes


        February 18, 2014                      Johnson’s continuance                Yes


        June 3, 2014                           Court congestion


        September 23, 2014                     Johnson’s motion to set              Yes
                                               case for disposition (no
                                               agreement was reached)

       Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017             Page 7 of 12
        December 1, 2015                       Johnson’s second                     Yes
                                               psychiatric evaluation
        December 14, 2015                      Changed by request                   Unclear


        September 27, 2016                     Johnson’s change of                  Yes
                                               counsel



[16]   Court congestion resulted in delays totaling slightly less than thirteen months.

       As Barker provides, these delays must be considered against the State, but are

       weighed less heavily than deliberate attempts to delay the trial. Meanwhile,

       every other delay in this case, which lasted over four years, is attributable to

       Johnson: Johnson requested, and was granted, two psychiatric evaluations;

       Johnson filed, and was granted, two motions for continuance; Johnson

       requested a dispositional hearing although no agreement was reached; and

       Johnson’s counsel withdrew from the case immediately before trial. Johnson’s

       own actions delayed the case for more than three years.


[17]   Further, the State objected to some of the delays caused by Johnson. The State

       objected to Johnson’s motion for a second psychiatric evaluation, specifically

       noting the previous delays in the case. Appellant’s Appendix, Volume II at 48.

       The State also objected to Johnson’s motions for a third continuance and a

       third competency hearing, which Johnson made just days before trial. Both

       motions were denied.


[18]   In sum, while the delays due to court congestion are considered against the

       State, Johnson caused over three additional years of delay and attempted to

       Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017             Page 8 of 12
       delay trial even further while the State objected to further delays. As a result,

       this factor weighs against Johnson.


                                        C. Assertion of Right
[19]   “In order to claim a constitutional violation of the right to a speedy trial,

       defendant must assert such right.” Lee v. State, 684 N.E.2d 1143, 1146 (Ind.

       1997). Johnson concedes he never “formally asserted” his right to a speedy

       trial. Appellant’s Br. at 15. Instead, Johnson argues it was clear he was

       unhappy about the delays. Johnson points to a competency report filed with

       the court by Dr. Frank Krause. In the report, Dr. Krause described Johnson as

       “quite agitated and uncooperative, as he began to express anger about his

       charges and how long he had been incarcerated.” Appellant’s App., Vol. II at

       178. Johnson also points to a comment made by his counsel at a competency

       hearing on May 6, 2013. Johnson’s counsel stated Johnson “indicated to me in

       conversations here today that he wants to go to trial.” Tr., Vol. I at 6. Johnson

       contends these comments show his displeasure with the delay of his case. As a

       result, Johnson argues this factor is a “toss-up” between favoring him or the

       State. Appellant’s Br. at 15. We disagree.


[20]   Dr. Krause noted in his report that Johnson was displeased with his

       incarceration, and Johnson’s counsel mentioned he wanted to go to trial.

       Johnson never articulated his displeasure with his incarceration, or his desire to

       go to trial, as an assertion of his right to a speedy trial. Johnson also did not

       object on constitutional grounds to the setting of any trial date and never

       asserted his right to a speedy trial until this appeal.
       Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017   Page 9 of 12
[21]   Further, Johnson’s actions throughout this case show he did not desire a speedy

       trial. Dr. Krause explained to Johnson that cooperating with him would help

       the case progress faster, but Johnson refused to answer Dr. Krause’s questions.

       Appellant’s App., Vol. II at 178. As noted above, Johnson delayed the case

       himself by requesting numerous psychiatric evaluations, continuances, and a

       dispositional hearing. After more than four years, Johnson attempted to delay

       this case even longer by filing another motion for continuance and another

       motion for a competency hearing just four days before his trial date.


[22]   In sum, not only did Johnson fail to assert his right to a speedy trial until after

       his trial, he took active steps to avoid one. As a result, this factor weighs

       heavily against Johnson.


                                      D. Prejudice to Johnson
[23]   “The final factor in the Barker test, prejudice, is assessed in light of the three

       interests which the right to a speedy trial was designed to protect: (i) to prevent

       oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the

       accused; and (iii) to limit the possibility that the defense will be impaired.”

       Sweeney, 704 N.E.2d at 103 (citing Barker, 407 U.S. at 532). The most

       important of the three is limiting the possibility of defense impairment. Barker,

       407 U.S. at 532. The burden is on the defendant to show actual prejudice to

       prove a speedy trial deprivation. Sturgeon v. State, 683 N.E.2d 612, 617 (Ind. Ct.

       App. 1997), trans. denied.




       Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017   Page 10 of 12
[24]   Johnson concedes there is no indication the delay in this case “directly

       undermined or impaired the defense.” Appellant’s Br. at 15. In fact, Johnson

       concedes the evidence against him was “overwhelming” and this case was a

       “slam dunk” for the prosecution from the start. Id. at 12. Rather, Johnson’s

       only claim of prejudice is that his comments to Dr. Krause show he suffered

       anxiety and stress because of the delays. See supra ¶ 19. As a result, he argues

       this factor weighs in his favor. We disagree.


[25]   Although Johnson waited a considerable amount of time for trial and may have

       suffered anxiety in awaiting trial, the majority of the delays were caused by his

       own actions. See supra ¶ 16. Further, as noted above, Johnson has conceded

       the most important factor that his defense was not impaired and makes no

       allegation concerning oppressive pretrial incarceration. Accordingly, we find

       this factor weighs against Johnson.


[26]   In sum, considering Johnson caused the majority of the delays, never asserted

       his right to a speedy trial before this appeal, and failed to show he was

       prejudiced by the delays, we hold his constitutional right to a speedy trial was

       not violated.



                                               Conclusion
[27]   Johnson’s constitutional right to a speedy trial was not violated. Accordingly,

       we affirm.


[28]   Affirmed.

       Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017   Page 11 of 12
Vaidik, C.J., and Bailey, J., concur.




Court of Appeals of Indiana | Opinion 48A02-1611-CR-2580 | August 18, 2017   Page 12 of 12
