Judges affirm co-defendants’ robbery convictions

February 4, 2016

Two men convicted of robbing a West Lafayette money lending store could not persuade the Indiana Court of Appeals to reverse their convictions.

Landon T. Harbert and Malcolm Smith were convicted based on circumstantial evidence of various offenses, including Class B felony robbery, stemming from the store robbery in 2012. The car that witnesses saw the two perpetrators enter after the robbery belonged to Harbert’s wife and sweatpants found discarded along the side of the road near the robbery contained DNA that matched Smith’s as well as his wallet. Harbert’s wife and her friend, Megan Simpson, initially lied to police about their whereabouts that day and deleted text messages from that day, some of which were to and from Harbert and Smith.

The two men claimed on appeal that the trial court erred by denying their motion to dismiss the charges after a mistrial. The defendants were tried three times and eventually convicted; the first two trials ended in mistrial. In the first trial, a police officer’s testimony included a mention of Harbert’s criminal history, which was barred at the trial. The court immediately granted a mistrial.

The Court of Appeals found double jeopardy principles don’t apply because there is no evidence the prosecutor intended to cause a mistrial, that the prosecutor colluded with the officer or that the officer knew that his comments would cause a mistrial, Judge John Baker wrote in Landon T. Harbert and Malcolm M. Smith v. State of Indiana, 79A02-1412-CR-874.

There was sufficient circumstantial evidence linking the two to the crime, the judges held.

Harbert and Smith raised additional, separate arguments on appeal. Harbert claimed the trial court committed fundamental error by admitting evidence of a statement made by Smith to police officers that Harbert insisted implicated him in the underlying crimes, and that his 20-year sentence is inappropriate. But the statement made by Smith to police about his wallet allegedly being stolen weeks before the crime did not facially implicate Harbert in the crime, Baker wrote. And, given his extensive criminal history, including a conviction for murder, the 20-year sentence for the robbery conviction is not inappropriate, the appeals court held.

Smith maintained his due process right was violated when he was not able to be present at certain pretrial hearings involving Harbert, that the court erred in denying his request for a continuance, and it erred in denying his post-trial motion to correct error based on newly discovered evidence.

The judges rejected all of his claims, noting his presence at hearings on Harbert’s motions did not hamper his ability to defend himself. In addition, Smith was responsible for the trial delays because he did not pay his private attorney and thus needed a court-appointed attorney shortly before his trial was scheduled to begin.


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