While the Indiana Court of Appeals found the state’s reasons “tenuous at best” for a 36-year delay in charges against a Lake County man accused of the murder of a Hammond police officer, the appellate court on Wednesday ordered the trial to proceed.
James Hill was arrested in November 1980 on an unrelated charge a few days after Hammond Police Officer Larry Pucalik was murdered during an attempted robbery at a Holiday Inn. Hill told police when he was arrested, “I know you guys think I shot that Hammond cop.” A probable cause affidavit that led to murder and other charges against Hill in 2016 says he admitted driving the vehicle used in the attempted robbery and murder, and that two accomplices went inside to the hotel where Pucalik was slain.
But other witnesses had given police information that led to Hill and others being charged with murder in 2012 — charges that later were dropped. Hill was charged with murder, Class A felony attempted robbery and murder in perpetration of robbery in the instant case Sept. 1, 2016.
In his appeal, Hill claims that the delay in charging him deprives him of his rights because, among other things, key witnesses have died. But, the trial court rejected his motion to dismiss the charges on this basis. The court ruled that despite this, new evidence including the re-interviews of a witness ties three suspects, including Hill, together in November 1980.
The COA affirmed the trial court’s denial of Hill’s motion to dismiss and remanded the matter to proceed to trial. Under United States v. Spears, 159 F.3d 1081, 1085-6 (7th Cir. 1998), reh’g and suggestion for reh’g en banc denied, cert denied 528 U.S. 896 (1999), and Schiro v. State, 888 N.E.2d 828, 834 (Ind. Ct. App. 2008), Hill must show not just that witnesses are no longer available, but that they would have credibly helped his case.
“We conclude Hill has not met the bar set by Spears and adopted by this court in Schiro: he has not shown (his unavailable alibi witnesses) ‘would have testified and withstood cross-examination,’ Spears, 159 F.3d at 1085, and that the jury would have found them credible,” Judge Melissa May wrote for the panel. “Thus, he has not demonstrated he suffered actual and substantial prejudice to his right to a fair trial. Accordingly, we affirm the decision of the trial court and remand.”
The case is James Hill v. State of Indiana, 45A04-1702-CR-325.