MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Apr 06 2017, 10:11 am

this Memorandum Decision shall not be                                       CLERK
                                                                        Indiana Supreme Court
regarded as precedent or cited before any                                  Court of Appeals
                                                                             and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General
Indianapolis, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

James Bates,                                             April 6, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1606-CR-1321
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G01-1407-MR-33883



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017            Page 1 of 12
                                             Case Summary
[1]   James Bates appeals his convictions for murder and class A misdemeanor

      carrying a handgun without a license. He asserts that the trial court erred in

      denying his pretrial motion to dismiss the charges against him. We affirm.


                                  Facts and Procedural History
[2]   The facts most favorable to the convictions indicate that shortly after midnight

      on December 28, 2007, Kenneth Beeler, Tawana Pannell, and their two

      teenaged sons were watching television in the family room of their home when

      Bates knocked on their front door. Kenneth Beeler called out “who is it?” and

      Bates responded, “James.” Tr. Vol. 1 at 34, 38, 180. Bates was friends with

      Beeler and had spent time at Beeler’s house with the family less than a week

      prior. Beeler and one of his sons, Kenneth, Jr., answered the door. When

      Beeler opened the door, Bates called Beeler a “mother f*cker” and started

      shooting. Id. at 40. As Beeler and Kenneth, Jr., turned and ran from the door

      into the house, Bates shot Beeler in the back. After he was shot, Beeler said to

      Pannell, “Call the police, James just shot me.” Id. at 42. Beeler later died at

      the hospital.


[3]   On December 31, 2007, the State charged Bates with murder, class D felony

      criminal recklessness, and class A misdemeanor carrying a handgun without a

      license. After multiple continuances requested by both parties and granted by

      the trial court, on May 15, 2009, Bates moved for a speedy trial. On May 29,




      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017   Page 2 of 12
      2009, the State arranged for Pannell to take a polygraph with examiner Michael

      Turk. Pannell answered “yes” to the following three questions:


              1. Regarding the shooting, do you know for sure it was James
              Bates[’s] voice at the door?

              2. Regarding the shooting, have you been completely truthful
              with the police?

              3. Did James Bates call you on your cell phone when the
              detectives were on the scene?


      Defendant’s Ex. G. In his report prepared contemporaneously with the

      polygraph, Turk stated that he observed “significant reactions” that “indicate[d]

      deceptive responses” to those three questions. Id. He noted that during the

      post-test interview when he informed Pannell of her reactions to those

      questions, she stated “that she wasn’t completely sure that it was James

      Bates[’s] voice at the door” and that “is what bothered her about that question”

      as well as “the question regarding the cell phone call.” Id. Accordingly, Turks

      recorded the results of the polygraph examination as “INCONCLUSIVE.” Id.

      Shortly thereafter, on June 2, 2009, the State dismissed the charges and Bates

      was subsequently released from jail.


[4]   In the summer of 2009, Bates told Summer Castillo that he had robbed a drug

      dealer with a man who would not give Bates his share of the money, so Bates

      knocked on the man’s door and shot him. Apparently, Castillo’s ex-boyfriend,

      Harold Buntin, was already aware of this information because he had talked to

      Bates the day after the shooting. Bates told Buntin that he and Beeler had

      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017   Page 3 of 12
      robbed someone and Beeler did not give Bates his share of the money, so Bates

      shot him. In the summer of 2010, Bates also told his friend Matthew Dickerson

      that he had shot a man.


[5]   In 2013 and 2014, Castillo had a welfare fraud case pending. She told her

      attorney about her conversation with Bates, who in turn reported it to

      authorities. Indianapolis Metropolitan Police Department Detective David

      Ellison of the cold case homicide unit began reviewing Beeler’s murder case

      and interviewed Pannell and Beeler’s two sons. He also interviewed Castillo,

      Buntin, and Dickerson.


[6]   On July 2, 2014, the State charged Bates with Beeler’s murder and class A

      misdemeanor carrying a handgun without a license based upon the same facts

      underlying the original charges. Again, multiple motions for continuances were

      filed by both parties and granted by the trial court. On November 24, 2015,

      Bates filed a motion to dismiss the charges against him asserting that the State’s

      delay in prosecuting him for his crimes violated his due process and speedy trial

      rights. Following an evidentiary hearing, the trial court denied the motion.

      Bates sought permission to seek an interlocutory appeal which was denied by

      the trial court.


[7]   A bench trial was held in April 2016. The trial court found Bates guilty as

      charged and sentenced him to an aggregate sentence of sixty years. This appeal

      ensued. We will provide additional facts in our discussion as necessary.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017   Page 4 of 12
                                      Discussion and Decision
[8]   Bates challenges the trial court’s denial of his pretrial motion to dismiss the

      charges against him. “A defendant has the burden of proving, by a

      preponderance of the evidence, all facts necessary to support a motion to

      dismiss.” Barnett v. State, 867 N.E.2d 184, 186 (Ind. Ct. App. 2007), trans.

      denied. Because Bates now appeals from a negative judgment, we will reverse

      only if the evidence is without conflict and leads inescapably to the conclusion

      that he is entitled to a dismissal. Id.


          Section 1 – Bates has not met his burden to establish that the
                      State violated his due process rights.
[9]   Bates first argues that the five-year delay between the State’s dismissal of his

      original charges and the refiling of those charges violated his due process rights,

      and that the trial court erred in denying his motion to dismiss on those

      grounds.1 Our supreme court recently explained,

              Although the prosecution can exercise discretion on when to
              bring charges, that discretion is not unlimited. The United States
              Supreme Court has recognized that a pre-indictment delay in
              prosecution can result in a Due Process Clause violation.
              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



      1
       The State initially charged Bates with Beeler’s murder, criminal recklessness, and carrying a handgun
      without a license on December 31, 2007, but dismissed those charges after 519 days, on June 2, 2009. The
      State refiled the murder and carrying a handgun charges on July 2, 2014.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017           Page 5 of 12
                 constitute a violation of due process.” Despite this, the passage of
                 time alone is not enough to establish prejudice. 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.”


       Ackerman v. State, 51 N.E.3d 171, 189-90 (Ind. 2016) (citations omitted), cert.

       denied.


[10]   Bates acknowledges that this Court has upheld a pre-indictment delay of

       twenty-two years, see Glenn v. State, 884 N.E.2d 347 (Ind. Ct. App. 2008), trans.

       denied, and that our supreme court has upheld a delay of thirty years, see

       Crawford v. State, 669 N.E.2d 141 (Ind. 1996), such that the five-year delay

       between the dismissal of the original murder charges here and the refiling of

       those charges “may not appear so prejudicial.” Appellant’s Br. at 13. Indeed,

       when an especially egregious offense, such as murder, carries no statute of

       limitation, “it is inevitable that at times lengthy delays will occur ….”

       Ackerman, 51 N.E.3d at 190. Moreover “[t]he mere passage of time is not

       presumed to be prejudicial, and to satisfy the threshold burden of prejudice, a

       defendant must make specific and concrete allegations of prejudice that are

       supported by the evidence.” Allen v. State, 813 N.E.2d 349, 366 (Ind. Ct. App.

       2004), trans. denied. Bates maintains that he suffered actual and substantial

       prejudice for multiple reasons including: (1) the memory of his alibi witness,

       Chloe Walker, had faded; (2) the recording of Pannell’s polygraph was not
       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017   Page 6 of 12
       preserved; (3) the crime scene had been destroyed so bullet trajectory testing

       could not occur.


[11]   Regarding the faded memory of his alibi witness, Bates claims that although

       when she was originally interviewed five days after the murder Walker stated

       that Bates was at her apartment the night of the shooting, by the time of trial,

       she could not remember the specific date. However, our review of the trial

       record reveals that Walker’s memory regarding the specific date was adequately

       refreshed by reference to her original statement, and that she stood by her prior

       statement such that we fail to see how Bates’s alibi defense was weakened in

       any way. Indeed, even during her original statement, Walker admitted that

       Bates was still awake when she went to sleep around 11:00 p.m. and that she

       could not account for his whereabouts at 1:00 a.m., the approximate time

       Beeler was shot. Thus, other than the specific date for which her memory was

       refreshed, Walker never provided a solid alibi for Bates at the actual time of the

       murder. Bates has not demonstrated that Walker’s faded memory caused him

       actual and substantial prejudice.


[12]   As to the absence of the recording of Pannell’s 2009 polygraph, again Bates has

       not established prejudice. Bates claims that, without the recording, he could

       not effectively impeach Pannell at trial when she denied admitting to polygraph

       examiner Turk that she “wasn’t completely sure that it was [Bates’s] voice at

       the door.” Tr. Vol. 1 at 56. He also points to the fact that, due to the passage

       of time, Turk testified that he no longer had independent recollection of the

       exact words used by Pannell when she made such admission. Be that as it may,

       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017   Page 7 of 12
       Turk’s contemporaneous report referencing Pannell’s admission was preserved

       and available during trial, see Defendant’s Ex. G, and Bates was permitted to

       and did challenge the credibility of Pannell’s trial testimony by referring to her

       statement in the report and its inconsistencies with her trial testimony. Tr. Vol.

       2 at 365. We note that this was a bench trial, and Bates has not explained (nor

       will we speculate) how he would have fared better before the court with the

       recording of Pannell’s exact words. Bates has not shown that he was actually

       and substantially prejudiced by the absence of the recording.


[13]   Bates’s final assertion that he was prejudiced by his inability to conduct bullet

       trajectory testing because the crime scene was destroyed is similarly unavailing

       because he fails to explain how that evidence would have benefitted him. As

       noted above, “a defendant must make specific and concrete allegations of

       prejudice that are supported by the evidence.” Allen, 813 N.E.2d at 366. 2 Bates

       has not met his burden to establish actual or substantial prejudice to his right to

       a fair trial.


[14]   Even assuming Bates could establish that the five-year delay in prosecution

       resulted in actual and substantial prejudice, he has failed to prove that the State

       had no justification for delay, or gained some tactical advantage due to the

       delay. The central contested issue in this case was the identity of the individual

       who shot Beeler. The State originally dismissed the charges against Bates



       2
         Bates makes brief reference to “other evidence” that was destroyed or cannot be located but he fails to
       identify any specific evidence or how he was prejudiced by the absence of such evidence. Appellant’s Br. at
       15. Accordingly, we decline to discuss it further.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017            Page 8 of 12
       simply because the credibility of its key identification witness, Pannell, was

       called into question by the results of her polygraph, which indicated that she

       was not confident in her identification of Bates as the person whose voice she

       heard at the door and who shot Beeler. The State determined that it did not

       have enough credible evidence identifying Bates as the shooter to proceed to

       trial. However, once Castillo came forward regarding her conversation with

       Bates, the State had reason to reopen its investigation, which led to Buntin and

       Dickerson, giving the prosecution three additional witnesses identifying Bates

       as the shooter.


[15]   In other words, because a witness possessing credible and corroborated

       information unexpectedly came forward five years after the original charges

       were dismissed, we cannot say that the State’s delay in prosecution lacked

       justification. Indeed, under the circumstances presented, “it does not appear

       that ‘the prosecution deliberately utilize[d] delay to strengthen its position by

       weakening that of the defense ….’” Ackerman, 51 N.E.3d at 193 (quoting Schiro

       v. State, 888 N.E.2d 828, 834 (Ind. Ct. App. 2008), trans. denied). Rather, new

       information came to light which gave the State additional evidence identifying

       Bates as the shooter. Bates has failed to establish that the State had no

       justification for delay, or gained some tactical advantage due to the delay. In

       sum, Bates has failed to establish that the prosecutorial delay rose to the level of

       a due process violation. The trial court properly denied his motion to dismiss

       on that basis.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017   Page 9 of 12
        Section 2 – Bates has not met his burden to establish that the
                  State violated his right to a speedy trial.
[16]   Bates next argues that he was entitled to dismissal of the charges against him

       because the State violated his right to a speedy trial under both the federal and

       state constitutions. The Sixth Amendment to the United States Constitution

       provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall

       enjoy the right to a speedy and public trial ....” Article 1, Section 12 of the

       Indiana Constitution states, in applicable part, that “[j]ustice shall be

       administered freely, and without purchase; completely, and without denial;

       speedily, and without delay.” The speedy trial right is “an important safeguard

       to prevent undue and oppressive incarceration prior to trial, to minimize

       anxiety and concern accompanying public accusation and to limit the

       possibilities that long delay will impair the ability of an accused to defend

       himself.” United States v. Ewell, 383 U.S. 116, 120 (1966).


[17]   Bates points to his “18 months in jail” before the State dismissed his original

       charges and the “five years” between the dismissal and refiling of charges as the

       relevant time for us to consider regarding whether he was denied his speedy

       trial right. Appellant’s Br. at 17. However, as noted by the State, the United

       States Supreme Court has observed that “[o]nce charges are dismissed, the

       speedy trial guarantee is no longer applicable” because ‘“a citizen suffers no

       restraints on his liberty and is [no longer] the subject of public accusation: his

       situation does not compare with that of a defendant who has been arrested and

       held to answer.’” United States v. MacDonald, 456 U.S. 1, 8-9 (quoting United


       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017   Page 10 of 12
       States v. Marion, 404 U.S. 307, 321 (1971)). Here, the State dismissed the

       original charges in 2009 and Bates was released from jail and was no longer the

       subject of public accusation until charges were again filed in 2014.

       Accordingly, Bates’s current speedy trial right did not attach until charges were

       filed in July 2014, see Crawford, 669 N.E.2d at 145,3 and contrary to Bates’s

       contention, the time before the State’s refiling of the charges is not relevant to

       his current speedy trial claim. See MacDonald, 456 U.S. at 8.4 Thus, the only

       relevant time here is the 649 days between when charges were refiled on July 2,

       2014, and his trial on April 11, 2016.


[18]   Our supreme court recently reiterated that “[i]n evaluating both federal and

       Indiana constitutional speedy trial claims, courts balance the same four factors:

       (1) the length of the delay; (2) the reason for delay; (3) the defendant’s assertion

       of the right to a speedy trial; and (4) any resulting prejudice to the defendant.”

       Griffith v. State, 59 N.E.3d 947, 955 (Ind. 2016) (citing Barker v. Wingo, 407 U.S.

       514, 530 (1972), and Sweeney v. State, 704 N.E.2d 86, 102 (Ind. 1998), cert denied

       (1999)). Turning to these factors, we note that while a delay of 649 days, even

       for a murder trial, is substantial, the record indicates that Bates was the primary

       reason for the delay. He requested five continuances in a row, causing a full

       year of delay. In contrast, the State moved for only one continuance after Bates



       3
         “It has long been the law that a defendant’s speedy trial rights do not attach until the filing of a formal
       indictment or information or until actual restraints are imposed by an arrest and holding to answer a criminal
       charge.” Crawford, 669 N.E.2d at 145.
       4
         “Any undue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized
       under the Due Process Clause, not the Speedy Trial Clause.” MacDonald, 456 U.S. at 8.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017            Page 11 of 12
       filed a belated notice of alibi. Bates also moved for a sixth continuance and

       sought an extension of time even after he had filed his motion to dismiss the

       charges. As for his assertion of his speedy trial right, although Bates did move

       for a speedy trial back in 2009, he did not make the same request when charges

       were filed in 2014. Indeed, he did not assert his speedy trial right until he filed

       the motion to dismiss on November 24, 2015, and, as we already noted, he

       moved for an additional continuance and sought an extension of time after that

       date. Finally, and most significantly, Bates fails to develop any argument that

       he was prejudiced by the 649-day delay.5 Under the circumstances, we

       conclude that Bates was not deprived of his right to a speedy trial and the trial

       court did not err in denying his motion to dismiss.


[19]   Affirmed.


       Riley, J., and Altice, J., concur.




       5
         Bates’s argument as to prejudice concentrates solely on the five-year delay between dismissal of the original
       charges and the current charges. Appellant’s Br. at 18. As we already determined, the time before the State
       refiled the charges is irrelevant to his speedy trial claim. See MacDonald, 456 U.S. at 8-9.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1606-CR-1321 | April 6, 2017              Page 12 of 12
