A. # 38
OFF DEATH ROW SINCE 04-21-95
DOC#: 853860 White Male
Marion County Superior Court
Judge Thomas E. Alsip
Prosecutor: Robert Thomas, David
Defense: Craig Wellnitz, Eugene
Date of Murder: June 5, 1984
Victim(s): Kerry Golden W/M/29 (Acquaintance
of Huffman, met on night of murder)
Method of Murder: beating with
tire iron; stomping; manual strangulation
Kerry Golden was
introduced to Huffman while at the 50 Yard Line Bar in Indianapolis.
They sat together and Golden displayed a large amount of money and
marijuana on his person. They met Huffman's longtime friends, Herb
Underwood and Rick Asbury and closed down the bar.
They smoked some marijuana in the parking lot
together and left in a car with Huffman driving, Underwood in the
front, and Asbury and Golden in the back.
The car was stopped in a remote area. Underwood
got out and pulled Golden from the car. Huffman and Underwood told
Golden to "give up the pot," then attacked him, both punching and
kicking him. They stripped off his clothing and Underwood grabbed
his penis and lifted him off the ground as Golden screamed.
Underwood then took money from Golden's pants. Asbury got out and
kicked Golden and gave his knife to Huffman when he asked. Huffman
threatened to kill Golden if he told.
Underwood stated that he had to kill him because
he did not want to be identified and go to prison. Huffman got a
tire iron from the trunk and both he and Underwood beat Golden.
Underwood then told Asbury he had to hit Golden.
Asbury "tapped" Golden twice with the tire iron. Asbury testified as
the State's star witness at trial.
Conspiracy to Commit Murder (A Felony), Robbery (A Felony),
Conspiracy to Commit Robbery (A Felony)
August 23, 1985 (Death
Sentence, 50 years, 50 years, 50 years; Murder and Felony-Murder
After retrial, on 08-30-96 the jury found Huffman
Not Guilty of Felony-Murder, Robbery, and Conspiracy to Robbery, and
hung on charges of Murder and Conspiracy to Commit Murder. Due to
the Not Guilty verdict for Robbery, which supported the death
sentence, the State withdrew its request for a death sentence. At a
second retrial, Huffman was convicted of Robbery and Conspiracy to
Commit Robbery, and on 02-21-97 Marion Superior Court Special Judge
Paula E. Lopossa sentenced Huffman to 60 years imprisonment for
Murder. (Conspiracy to Murder vacated)
IN THE INDIANA SUPREME COURT
HERBERT UNDERWOOD, Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff
Supreme Court No. 49S00-9707-CR-419
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Paula E. Lopossa, Special Judge
Cause No. CR-84-106C
ON DIRECT APPEAL
Defendant Herbert Underwood was sentenced to death for murder
and related crimes but granted a new trial. After a retrial resulted
in acquittal on some counts and a hung jury on murder, he was
convicted at a third trial and sentenced to 60 years. He now appeals,
claiming a speedy trial right violation and improper use of certain
evidence. We affirm, finding no speedy trial right violation and any
error in admitting the evidence to be harmless.
This Court has jurisdiction over this direct
appeal because the sentence exceeds 50 years. Ind. Const. art. VII,
§ 4; Ind. Appellate Rule 4(A)(7).
The facts most favorable to the verdict are
as follows. On the evening of June 4, 1984, Defendant Herbert
Underwood, Rick Asbury, Rick Huffman, and Kerry Golden were riding
in Huffman's car after a night at a local bar.
Earlier that night, Golden was
seen carrying a roll of money and marijuana. The group had traveled
for awhile when Huffman stopped the car and Defendant ordered
everyone to get out. Huffman testified that Defendant said that he
wanted to “slap [Golden] around a little bit and take his money and
dope.” Defendant grabbed Golden's leg and dragged him out of the
After Defendant and Huffman
severely kicked and bludgeoned Golden, Defendant told Golden to give
up the “pot.” Defendant then removed Golden's clothes and took
Golden's marijuana and money roll from Golden's pockets. All the
while, Asbury and Huffman stood nearby. At one point, Defendant
grabbed Golden's penis and lifted him off the ground.
Shortly thereafter, Huffman removed a tire
iron from the trunk of his car, and Asbury watched as Defendant and
Huffman beat Golden with the iron. Asbury also hit Golden with the
iron, but he testified that Golden was already dead at that time.
The three got inside the car and drove away. Golden died from blunt-force
injuries to the head, chest, and abdomen.
On July 17, 1985, Defendant was tried for the
murder of Golden. The jury convicted Defendant of Robbery,See
Conspiracy to Commit Robbery,See
Conspiracy to Commit Murder,See
and Felony Murder.See footnote
The trial court followed the jury's recommendation and sentenced Defendant
to death. On March 10, 1989, this Court affirmed the trial court
judgment as to Defendant's convictions and sentence of death. See
Underwood v. State, 535 N.E.2d 507 (Ind.), cert. denied., 493 U.S.
On April 21, 1995, a post-conviction
court granted Defendant's motion for summary judgment for post-conviction
relief, vacated Defendant's convictions, and ordered a new trial. On
June 20, 1995, Defendant, acting pro se, filed a “motion for a fast
and speedy trial.” (R. at 25-26.) On July 5, 1995, the trial court
appointed new counsel to represent
Defendant and set a retrial
date for August 14, 1995 (a date within the prescribed 70 days of
Ind. Crim. Rule 4(B)). On July 28, 1995, defense counsel explained
at a pre-hearing conference, over what Defendant claims was his
that he would not be adequately prepared for trial on August 14, 1995. The
court stated that Defendant's right to counsel was more fundamental
than the right to a speedy trial and rescheduled Defendant's retrial
for March 18, 1996.
On February 23, 1996, Defendant, again acting
pro se but still represented by counsel, filed a “motion to dismiss
all charges” on grounds that his right to speedy trial had been
violated. On February 28, 1996, defense counsel filed a motion for
continuance on grounds that he had to prepare and try other capital
cases. The court granted counsel's request.
On March 1, 1996, Defendant
submitted a written letter to the court, reiterating his right to a
speedy trial. On April 19, 1996, defense counsel filed a memorandum
of law requesting a continuance of retrial on grounds that it was
necessary for effective assistance of counsel.
On April 26, 1996, the court
denied Defendant's February 23 motion to dismiss. On
June 13, 1996, Defendant, by defense counsel, filed another motion
to continue retrial, or in the alternative, a motion to exclude the
testimony of Huffman, the co-defendant in Defendant's first trial.
On June 14, 1996, the court rescheduled the trial for a second time,
setting the retrial date for August 19, 1996.
On August 19, 1996, Defendant was retried and
acquitted on the charges of Robbery, Conspiracy to Commit Robbery,
and Felony Murder. However, the jury was unable to reach a verdict
on the Murder and Conspiracy to Commit Murder charges. After the end
of the first retrial, the State withdrew the death penalty charge.
On February 7, 1997, a second retrial began and a jury found
Defendant guilty of Murder and Conspiracy to Commit Murder.
On February 22, 1997, at Defendant's
sentencing hearing, the trial court vacated Defendant's Conspiracy
to Commit Murder conviction. The trial court then sentenced
Defendant to 60 years in prison for the murder of Golden.
Defendant's murder conviction and sentence are the sole basis for
this direct appeal.
Defendant contends that the trial court
violated his statutory right to a speedy trial under Indiana
Criminal Rule 4(B) when it failed to retry him within 70 days of
June 20, 1995, the date that Defendant filed a pro se motion for a
Indiana Rule of Criminal Procedure 4(B) provides that “[i]f any
defendant held in jail on an indictment or an affidavit shall move
for an early trial, he shall be discharged if not brought to trial
within seventy (70) calendar days from the date of such motion . . .
Ind. Crim. Rule 4(B) contains two exceptions whereby a defendant is
not entitled to discharge even though the prosecutor or the court
fails to bring the defendant to trial within 70 days: (1) the
court's calendar is too congested to adjudicate the defendant's case
during that time; or (2) the defendant causes the delay.
Poore v. State, 685 N.E.2d 36, 41 (Ind. 1997).
This Court has held that Crim.
R. 4(B)(1) applies to retrials so long as the defendant asserts a
speedy trial request after the retrial has been ordered. See James
v. State, 716 N.E.2d 935, 938 (Ind. 1999) (citing Poore, 685 N.E.2d
at 41; Young v. State, 482 N.E.2d 246, 249 (Ind. 1995)).
Neither the parties nor the recordSee
indicate that the “court congestion”
exception to Crim. R. 4(B)
explained the delay of the retrial.
With regard to the other exception, the crucial question is whether
Defendant caused the delay preventing him from discharge.
Defendant concedes that
defense counsel moved for a continuance resulting in the court
rescheduling the retrial from August 14, 1995, to March 18, 1996.
However, Defendant maintains that because defense counsel moved for
continuance “despite [his] objection,” he is still entitled to
discharge under Crim. R. 4(B).
In response, the State argues, and we agree, that Defendant moved
for several continuances resulting in delays, and therefore,
Defendant is not entitled to discharge.
In the present case, the trial court was
required to appoint new counsel for Defendant after he was granted
post-conviction relief. It may be that Defendant sought a speedy
trial on a pro se basis prior to counsel's appointment and objected
to counsel's request for a continuance. But once counsel was
appointed, Defendant spoke to the court through counsel. The trial
court was not required to respond to Defendant's request or
objection. See Broome v. State, 687 N.E.2d 590, 594 (Ind. Ct. App.
1997) (citing Kindred v. State, 521 N.E.2d 320, 325 (Ind. 1988);
Bradberry v. State, 266 Ind. 530, 537, 364 N.E.2d 1183, 1187
(1977)), summarily affirmed in relevant part, 694 N.E.2d 280 (Ind.
To require the trial court to
respond to both Defendant and counsel would effectively create a
hybrid representation to which Defendant is not entitled. Id.; cf.
Sherwood v. State, 717 N.E.2d 131, 134-37 (Ind. 1999) (holding that
the trial court may not require hybrid representation where a
defendant makes a proper request to proceed pro se).See
To the extent that Defendant claims that
counsel's motion for continuance should have been denied, we find no
error. Newly-assigned counsel explained to the court that he needed
more time to prepare adequately for a murder trial in which the
State sought the death penalty. See Ind. Crim. Rule 24(B).See
To represent Defendant effectively, defense counsel had to
familiarize himself with the complexities of this case _ a capital
murder case in which Defendant had already once been sentenced to
death _ and develop a trial strategy.
The trial court has the
prerogative, particularly in a murder case, to assess the
complexities of the situation and evaluate the necessity to delay
the trial. See Roseborough v. State, 625 N.E.2d 1223, 1225 (Ind.
1993) (holding no violation of Crim. R. 4(B) where the trial judge
extended the trial date after newly-appointed counsel explained that
he needed further time to prepare a murder case); see also McGowan
v. State, 599 N.E.2d 589, 592 (Ind. 1992) (ruling that no violation
of Crim. R. 4(B) occurred even though the defendant personally
objected to a trial continuance because it was within the trial
judge's discretion to decide that newly-appointed counsel required
more time to adequately prepare). There was no error in the exercise
of that prerogative here.
Defendant claims that the trial court
erroneously denied his motion in limine to exclude evidence of the
robbery of which Defendant had been acquitted. Specifically,
Defendant argues that because the jury acquitted him of robbery in
his first retrial, use of this evidence in his second retrial was
precluded by the collateral estoppel principle embodied in the
Double Jeopardy Clause. U.S. Const. amend. V. Defendant therefore
asks us to reverse his murder conviction.
At the first retrial in the
present case, the State offered evidence that Defendant lead Golden
into a secluded area, forcibly robbed him of his money and marijuana,
and then shared the proceeds with Asbury and Huffman. Based on these
facts, the State charged Defendant with Robbery and Conspiracy to
A jury trial resulted in
acquittal of both robbery charges; however, a mistrial was declared
for the charges of Murder and Conspiracy to Commit Murder. Before
the second retrial, defense counsel filed a motion in limine to
suppress the evidence relating to the alleged robbery. The court
denied the motion. At the second retrial, the jury found Defendant
guilty of Murder and Conspiracy to Commit Murder.
In Little v. State, this Court adopted the
doctrine of collateral estoppel as an analytical basis for
determining the admissibility of evidence of former offenses for
which a defendant has been acquitted. 501 N.E.2d 412, 415 (Ind.
1986). The concept of collateral estoppel “means simply that when an
issue of material fact has once been determined by a valid and final
judgment, that issue cannot again be litigated between the same
parties in any future lawsuit.” Id. at 414 (quoting Ashe v. Swenson,
397 U.S. 436, 443 (1970)).
To determine whether evidence
relating to an acquitted offense should be admitted, the trial court
must (1) determine what facts were necessarily decided in the first
trial by examining prior proceedings and considering the pleadings,
evidence, the charge and other relevant matters; and (2) decide
whether the government in a subsequent trial attempted to relitigate
facts necessarily established against it in the first trial. If so,
evidence of the former offense must be suppressed. Little, 501 N.E.2d
We hold that if the use of the facts
presented in the first retrial in which Defendant was acquitted was
error at all, the error was harmless. To find an error harmless when
a violation of a constitutional right is claimed, this Court must be
sufficiently confident to declare the error harmless beyond a
reasonable doubt. See Harden v. State, 576 N.E.2d 590, 593 (Ind.
1991); see also Williams v. State, 715 N.E.2d 843, 847 (Ind. 1999) (recognizing
that some constitutional errors do not require a new trial if the
error was “'harmless beyond a reasonable doubt'” (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)).
Without considering the references made
regarding the robbery of Golden, the evidence presented to the jury
in this case was overwhelming. Two State witnesses, Huffman and
Asbury, testified that they saw Defendant severely kick and beat the
victim to death with an iron tool. In fact, Huffman's testimony
revealed that “[Defendant] had picked [Golden] up by his penis and
was trying to carry him [and] drag him back towards the car . . . .”
(R. at 904.) Asbury testified that Defendant said that the three of
them had to kill Golden because Golden could identify them as the
perpetrators who beat him.
Asbury further testified that after they
killed Golden, the three stopped at a gas station to fix the muffler
on Huffman's car and Defendant washed his bloody T-Shirt in the
restroom. The gas station attendant testified that on the night of
the murder, he observed a car with a loose muffler pull into the gas
station. The attendant further testified that shortly after he and
Defendant exchanged a few words, he went to the restroom and
discovered bloody water and towels. The attendant made an in-court
identification that Defendant was the person who he spoke to at the
In light of this overwhelming
evidence of guilt, we are confident that, to the extent that the
trial court improperly denied the motion in limine, any claimed
error was harmless beyond a reasonable doubt. See, e.g., Kuchel v.
State, 570 N.E.2d 910, 915-17 (Ind. 1991) (holding that although the
trial court erroneously admitted evidence of other crimes for which
the defendant had been acquitted, admission of such evidence
constituted harmless error).
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ.,
1 Ind. Code § 35-42-5-1 (Supp. 1984).
2 Id. §§ 35-42-5-1 (1983) and 35-41-5-2.
3 Id. §§ 35-42-1-1(1) and 35-41-5-2.
4 Id. § 35-42-1-1(1).
5 Id. § 35-42-1-1(2).
6 Defendant states in his brief that defense
counsel moved for continuance “despite [Defendant's] objection.”
Appellant Br. at 13. However, Defendant directs us to the record
which does not appear to contain any such objection.
7 The pre-trial hearing regarding the extension
of Defendant's trial was not included in the record.
8 Defendant made no proper request to defend
himself pro se in this case.
9 Quality representation by appointed counsel
is mandatory under Crim. R. 24 which provides in pertinent part:
(B)(3) Workload of Appointed Counsel. In
the appointment of counsel, the nature and volume of the workload of
appointed counsel must be considered to assure that counsel can
direct sufficient attention to the defense of a capital case.
(a) Attorneys accepting appointments pursuant to this rule
shall provide each client with quality representation in accordance
with constitutional and professional standards. Appointed counsel
shall not accept workloads which, by reason of their excessive size,
interfere with the rendering of quality representation or lead to
the breach of professional obligations.
Herbert A. Underwood