ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
WILIAM C. MENGES, JR. KAREN M. FREEMAN-WILSON
Howard County Public Defender Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
SUPREME COURT OF INDIANA
RICKEY OSBORNE, )
Appellant-Defendant, ) Supreme Court Cause Number
STATE OF INDIANA, )
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
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 Osbornes 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 Osbornes conviction for attempted
murder; and (5) did the trial courts use of Osbornes 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.
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 Osbornes 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
Osborne first contends the trial court denied him his right to self-representation.
The basis of a defendants 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 attorneys 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 defendants 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).
Osbornes 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: Ill represent myself.
JUDGE PARRY: Not by me. Youll 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. II.
We first observe that it would have been better practice for the trial
court to determine Osbornes 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 defendants competency to proceed without counsel and to establish a
record of a defendants 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 defendants
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 Osbornes right to self-representation.
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 counsels 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, Im going to represent myself; I dont 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?
[Detective Whitehead]: And prior to speaking with you in Madison County I
read to you what was titled an Interrogation: Advice of Rights form?
[Detective Whitehead]: Did you understand all those rights as read to you?
[Detective Whitehead]: Did you affix your signature to the waiver of those
rights at that time in Madison County?
[Detective Whitehead]: And during that initial conversation you didnt wish to speak
to us, is that correct?
[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?
[Detective Whitehead]: And you said at that time that you wanted to
tell us what happened?
[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
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 Whiteheads 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 Osbornes
confessions. See Owens v. State, 732 N.E.2d 161, 164 (Ind. 2000) (holding
that the trial court did not err in admitting the defendants 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).
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 partys cause.
After the trial court ordered the separation of witnesses, the prosecutor requested to
keep two police officers at counsel table during trialpresumably one as an officer
of the State under clause (2) and the other as a person essential
to the presentation of the States 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
counsels objection, the trial court permitted both police officers to remain in the
courtroom throughout the trial. Id.IV.
Although the majority view on this issue is reflected in Justice Boehms 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 615s 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 partys 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 partys 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 courts discretion and is subject to
review for an abuse of that discretion. Id. at 256-57.
Osborne does not challenge the prosecutors 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.
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, Osbornes
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.
Thats why we hit him in the head.
[Detective Whitehead]: And why would you want to kill him to take
[Osborne]: So he couldnt 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
Charlies 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 wasnt no sense to keep hitting him cause
he wasnt 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 didnt know whether he was dead or not?
[Detective Whitehead]: Would it have surprised you if he was? No?
[Osborne]: I thought we hit him enough times, you know what I
[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
R. at 44, 45, 50-51. Additionally, according to both Charles trial testimony
and Osbornes 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 Osbornes conviction for attempted murder.
When the trial court denied Osbornes 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 Osbornes sentence for attempted murder by
ten years in part because of Osbornes behavior during the first initial hearing
which landed him a criminal contempt conviction. R. at 980-81.
Osborne contends that the trial courts 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 Osbornes attempted murder conviction, the trial court found no mitigators
and another aggravator: Osbornes 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 Osbornes sentence for attempted murder.
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
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
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
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
prosecutors 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 partys 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 partys 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 615s 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 courts
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
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 Osbornes 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 Osbornes conviction independent
of the testimony of investigating officers. Osborne confessed, DNA testing matched Osborne
to a weapon used in the attack, and Osbornes 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.