Landon T. Harbert and Malcolm M. Smith v. State of Indiana , 2016 Ind. App. LEXIS 29 ( 2016 )

Feb 04 2016, 6:14 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
LANDON T. HARBERT Gregory F. Zoeller
Steven Knecht Attorney General of Indiana
Vonderheide & Knecht, P.C. Justin F. Roebel
Lafayette, Indiana Deputy Attorney General
ATTORNEY FOR APPELLANT Indianapolis, Indiana
MALCOLM M. SMITH
Caroline B. Briggs
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Landon T. Harbert and February 4, 2016
Malcolm M. Smith, Court of Appeals Case No.
Appellants-Defendants, 79A02-1412-CR-874
Appeal from the Tippecanoe
v. Superior Court
The Honorable Thomas H. Busch,
State of Indiana, Judge
Appellee-Plaintiff Trial Court Cause Nos.
79D02-1302-FB-6
79D02-1302-FB-5
Baker, Judge.
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[1] Landon Harbert appeals his conviction for Robbery,1 a class B felony, and the
twenty-year sentence imposed by the trial court. Malcolm Smith, Harbert’s co-
defendant, appeals his convictions for two counts of Robbery,2 a class B felony.
[2] Harbert and Smith both raise the following arguments:
(1) the trial court erred by denying the co-defendants’ motion to
dismiss the charges after a mistrial; and
(2) there is insufficient evidence supporting the respective robbery
convictions.
Harbert raises the following additional arguments:
(1) the trial court committed fundamental error by admitting
evidence of a statement made by Smith to police officers that
Harbert insists implicated him in the underlying crimes; and
(2) the twenty-year sentence is inappropriate in light of the nature
of the offense and his character.
Finally, Smith argues as follows:
(1) his right to due process was violated when he was not able to
be present at certain pretrial hearings;
1
Ind. Code § 35-42-5-1.
2
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(2) the trial court erred by denying his request for a continuance
of the trial; and
(3) the trial court erred by denying his post-trial motion to correct
error based on newly discovered evidence.
Finding no error, we affirm.
Facts
[3] On October 23, 2012, two men robbed a money lending store located in a strip
mall in West Lafayette. The first man, wearing dark or black clothing, a ball
cap, and gloves, entered the store and stated he wanted to cash a check. As the
store clerk began explaining the cash checking process, the second man,
wearing dark, baggy clothing or a gray sweatsuit, entered the store and pulled a
ski mask over his face. The first man, who was holding a small silver handgun,
instructed the employee to do as the second man asked. The second man
ordered the clerk to open her cash drawer and give him the money inside of it.
She complied, giving the two men approximately $1500 in cash.
[4] During this altercation, a second clerk entered the store from the back and a
customer entered from the front door. The man with the gun took a cell phone
from the customer. The men ordered the two clerks and the customer into the
store’s back room. Eventually, the two men left and one of the clerks called
911.
[5] Outside, employees of an adjacent business observed two men enter a gray
Dodge Durango with a breast cancer awareness license plate. The vehicle then
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drove away at a high rate of speed. One of these witnesses described the men as
wearing gray and black hooded sweatshirts.
[6] Responding police officers recovered the following items in nearby roadways
within approximately a half of a mile of the robbery: a pair of high top
sneakers, sweatpants, a hat, and a South Pole brand 5XL sweatshirt. The
sneakers matched a description of the suspects’ sneakers provided by one of the
clerks. Inside the sweatpants was a wallet containing Smith’s social security
card and an Indiana Works identification card. A hair recovered from the pants
contained Smith’s DNA.
[7] Police were able to identify the Dodge Durango as a vehicle belonging to
Kristin Harbert, who is Harbert’s wife. When questioned by police about their
whereabouts that day, Kristin and her friend, Megan Simpson, initially lied.
Both women deleted their text messages from that day, and records show that
some of those messages were to and from Harbert and Smith. When officers
described the sweatshirt they had recovered, Simpson stated that Harbert
owned that sweatshirt and that Kristin usually kept it in her vehicle.
Eventually, Kristin and Simpson told police officers that they had gotten a call
from Harbert’s brother, Shawn, that day, indicating that the keys to Kristin’s
vehicle were in Indianapolis. Kristin and Simpson later retrieved the keys from
a bush at a Steak ‘n Shake restaurant. The Dodge Durango was later recovered
in an impound lot near Smith’s residence in Indianapolis and appeared to have
been burned. One witness testified that she had seen Harbert driving a dark-
colored Dodge Durango a few days before the robbery.
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[8] Phone records for October 23, 2012, showed that Harbert’s phone was near
Lafayette in the morning, travelled to the east side of Indianapolis, returned to
near Lafayette, and then returned to the east side of Indianapolis that afternoon.
Smith’s phone remained in Indianapolis during the time of the robbery, but
records show calls between Smith and Harbert on the morning of the robbery
and after the robbery. Also, records show calls between Smith and Harbert’s
brother, Shawn, on the night of the robbery. Additionally, phone records show
calls and text messages between Smith and Simpson during the afternoon and
evening after the robbery.
[9] Approximately one week after the robbery, West Lafayette Police Officer Troy
Harris contacted Smith about the recovered wallet. Smith denied any
involvement in the robbery. He told Officer Harris that he and Harbert had
grown up together. Smith said that someone had stolen his wallet three or four
weeks earlier around the same time he had last seen Harbert, Harbert’s brother,
and a group of other people who they had been with that day. Smith did not
report the theft to the police. When Officer Harris stated that Smith’s wallet
was found at the scene of the robbery, Smith replied, “Well, that just told me
something right there . . . Who the hell stole my wallet.” Ex. 76RT at 5.
[10] On February 14, 2013, the State charged Harbert and Smith each with two
counts of class B felony robbery and two counts of class C felony theft. In April
2013, the State added charges of class B felony conspiracy to commit robbery to
each defendant and alleged that Smith was a habitual offender.
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[11] Before the first trial, the trial court granted a motion in limine barring evidence
regarding the co-defendants’ prior arrests. At the trial, which commenced in
September 2013, Officer Harris testified regarding the way in which he
identified the Dodge Durango:
Harris: . . . we started looking for a suspect vehicle that I
thought I might be familiar with.
State: And you had the description of that vehicle?
Harris: I did, yes.
State: Okay. And had you recognized that vehicle?
Harris: I did recognize that vehicle.
State: As belonging to whom?
Harris: Krist[i]n Young [Harbert].
State: Okay. And did you acquire any information to
verify that?
Harris: The reason I knew or had a suspicion that it
belonged to Krist[i]n . . . is that the defendant
Malcolm Landon [sic] had actually been arrested
out of that vehicle . . . .
Tr. p. 287-88. Both defendants moved for a mistrial. In response, the
prosecutor explained that he was attempting to elicit information about the
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Durango’s BMV records. The deputy prosecutor acknowledged that he had not
specifically instructed Officer Harris to avoid mentioning the arrest, but
explained that he did not believe such a warning was required due to “the
nature of the case and the . . . [officer’s] experience.” Id. at 290. The trial court
granted the mistrial.
[12] Before the second trial, both defendants moved to dismiss all charges on the
basis of double jeopardy. The trial court denied the motion to dismiss. The
second trial ended in another mistrial after the jury deadlocked.
[13] At a January 2014 status hearing, when the State confirmed its intentions to
proceed with a third trial, the trial court informed Smith that he has a right to
an appointed attorney if he could not afford to hire his own attorney. Smith
indicated that he planned to hire an attorney. The trial court warned Smith that
it would not allow the matter to “just linger on very long” and set another
hearing in two weeks. Id. at 1186. At the next hearing, Smith stated that he
had already selected an attorney, who would be in place by the end of
February. Based on that representation, the trial court scheduled trial for June
2, 2014. On April 4, 2014, Smith told the court that his attorney would soon be
appearing and that the attorney was aware of the trial date. The court warned
Smith that the trial would go forward whether counsel had appeared or not. In
early May 2014, the attorney had still not filed an appearance but Smith
indicated that he had the money together to pay the retainer, so the trial court
granted a trial continuance until August 4, 2014. On May 28, 2014, the private
attorney told the court that he would not be representing Smith because Smith
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had failed to pay him. At that time, the trial court appointed an attorney to
represent Smith, leaving in place the August 2014 trial date. At some point
following his appointment, Smith’s attorney requested a continuance, which the
trial court denied.
[14] On May 4, 2014, Harbert filed a pro se motion to sever the joint prosecutions.3
The trial court denied the motion.
[15] The third jury trial took place on August 4-7, 2014. Following the trial, the jury
found both defendants guilty as charged. On September 16, 2014, the trial
court sentenced Smith to concurrent terms of twenty years imprisonment for
each of the two counts of class B felony robbery. 4 The trial court also adjudged
Smith to be a habitual offender and enhanced the sentence by ten years as a
result, for an aggregate term of thirty years imprisonment. On November 25,
2014, the trial court sentenced Harbert to twenty years imprisonment for one
count of class B felony robbery.5 Both defendants now appeal.
3
Eventually, the trial court appointed an attorney for Harbert and denied the remainder of Harbert’s pro se
motions as moot.
4
The trial court vacated the convictions for theft and conspiracy to commit robbery.
5
The trial court vacated Harbert’s other convictions.
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Discussion and Decision
I. Arguments Raised By Both Appellants
A. Double Jeopardy
[16] Smith and Harbert argue that principles of double jeopardy required dismissal
after the first mistrial. Both the United States and Indiana Constitutions forbid
the State from placing a person twice in jeopardy. U.S. Const. amend. V; Ind.
Const. Art. I, § 14. Retrial following a defendant’s successful mistrial motion is
only barred where the government’s conduct is responsible for the defendant’s
mistrial motion. Butler v. State, 724 N.E.2d 600, 603 (Ind. 2000). The essential
inquiry is whether the prosecutor brought about the mistrial motion; that is,
whether the prosecutor acted with the intent to cause termination of the trial by
provoking or goading the defendant into moving for a mistrial. Willoughby v.
State, 660 N.E.2d 570, 576 (Ind. 1996). If the prosecutor acted with the
requisite intent, then double jeopardy bars a retrial. Wilson v. State, 697 N.E.2d
466, 472 (Ind. 1998). These rules have been codified at Indiana Code section
35-41-4-3, which provides as follows:
(a) A prosecution is barred if there was a former prosecution
of the defendant based on the same facts and for
commission of the same offense and if:
***
(2) the former prosecution was terminated after the jury
was impaneled and sworn or, in a trial by the court
without a jury, after the first witness was sworn,
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unless (i) the defendant consented to the
termination or waived, by motion to dismiss or
otherwise, his right to object to the termination . . . .
(b) If the prosecuting authority brought about any of the
circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of
this section, with intent to cause termination of the trial,
another prosecution is barred.
Here, because the defendants moved for mistrial, they are not entitled to relief
under subsection (a). But they argue that they are entitled to relief under
subsection (b) because the prosecutor, in eliciting the complained-of testimony
from Officer Harris, acted with intent to cause termination of the trial.
[17] We find our Supreme Court’s opinion in Willoughby to be controlling. In
Willoughby, the defendant requested and received a mistrial when a police
officer made an improper reference to a polygraph examination when testifying.
660 N.E.2d at 575-76. The trial court permitted retrial and our Supreme Court
affirmed, observing that there was no evidence that the prosecutor intended to
cause the mistrial, that the prosecutor colluded with the officer to cause the
mistrial, or that the officer knew his comments would likely cause a mistrial.
Id. at 576.6
6
To the extent that Smith argues that retrial should be prevented where a police officer testifies in a manner
that goads a defendant to request a mistrial, we note that both Willoughby and Indiana Code section 35-41-4-3
refer only to the prosecutor. Moreover, there is no evidence in the record that, in fact, Officer Harris
intended to goad the defendants into requesting a mistrial.
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[18] In this case, as in Willoughby, there is no evidence that the prosecutor intended
to cause a mistrial, that the prosecutor colluded with Officer Harris, or that
Officer Harris knew that his comments would cause a mistrial. The prosecutor
had not advised Officer Harris to refrain from testifying about the prior arrests,
but did not believe that an advisement was necessary given the officer’s
professional experience. Moreover, the prosecutor was trying to elicit
testimony regarding the vehicle’s BMV records, rather than the prior arrests, in
questioning Officer Harris. Under these circumstances, we find that the trial
court did not err by denying the motion to dismiss the charges following the
first mistrial.
[19] Harbert argues that he should be afforded greater protections by virtue of the
Indiana Constitution. In support of this argument, he cites to Oregon’s
interpretation of an identical constitutional provision that bars retrial in cases
where the prosecutor demonstrated indifference to mistrial or reversal. State v.
Kennedy, 666 P.2d 1316, 1326 (Or. 1983). We decline to adopt the Oregon
interpretation, but note that even if we did, it would not aid the defendants
here. There is no evidence in the record that the prosecutor demonstrated
indifference to mistrial or reversal. Consequently, this argument is unavailing,
and we decline to reverse on this basis.
B. Sufficiency
[20] Both appellants argue that the evidence is insufficient to support their
convictions for class B felony robbery. When reviewing the sufficiency of the
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evidence supporting a conviction, we will neither reweigh the evidence nor
assess witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
We will consider only the evidence supporting the judgment and any
reasonable inferences that may be drawn therefrom, and we will affirm if a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Id.[21] To convict Harbert and Smith of class B felony robbery, the State was required
to prove beyond a reasonable doubt that they knowingly or intentionally took
property from another person by using or threatening the use of force on any
person, or by putting any person in fear, while armed with a deadly weapon.
I.C. § 35-42-5-1.7 Both Harbert and Smith contend that the State failed to prove
beyond a reasonable doubt that they were the individuals who committed the
robbery. It is well established that circumstantial evidence alone may be
sufficient to sustain a conviction. E.g., Green v. State, 808 N.E.2d 137, 138 (Ind.
Ct. App. 2004). When the evidence of identity is not entirely conclusive, the
weight to be given to the identification evidence is left to the determination of
the jury, as determining identity is a question of fact. Whitt v. State, 499 N.E.2d
748, 750 (Ind. 1986).
[22] At the most general level, the appellants generally fit the physical descriptions
provided by the eye witnesses: they are both Black men who are over six feet
7
We cite to and apply the version of the robbery statute that was in effect at the time the alleged offenses
were committed.
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tall. The perpetrators were seen leaving the scene of the crime in a Dodge
Durango that belonged to Harbert’s wife. Harbert had been seen driving that
vehicle a few days before the robbery. That same vehicle was found later that
day, burned, a few miles from Smith’s residence. Harbert and Smith are
childhood friends, who have remained in touch through their adulthood.
[23] On streets within the vicinity of the robbery, law enforcement officers found
“fresh” clothing that appeared to be recently discarded. Tr. p. 1333-35. The
sweatpants found by the officers contained a hair with Smith’s DNA as well as
Smith’s wallet containing his identification cards. The best friend of Harbert’s
wife identified the grey South Pole sweatshirt as belonging to Harbert; she
further testified that the sweatshirt was usually kept in Kristin’s Dodge
Durango.
[24] Phone records established that Harbert’s movements were consistent with the
opportunity for both men to complete the robbery. Specifically, the phone
moved as follows on October 23, 2013, the day of the robbery:
 In the early morning hours, the phone was in Lafayette.
 Around 9:50 a.m., the phone traveled to the north side of Indianapolis
around 9:50 a.m., and ended up near Smith’s house on the east side of
Indianapolis at 10:19 a.m.
 The phone returned to Lafayette by 11:37 a.m. The timestamp on the
surveillance video of the robbery indicates that the robbery occurred
around 12:47 p.m.
 The cell phone returned to the east side of Indianapolis near Smith’s
home by 2:16 p.m.
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The records for Smith’s phone indicate no outgoing activity between 10:21 a.m.
and 2:28 p.m. on that day, which would be consistent with Smith leaving his
phone in Indianapolis while committing the robbery. Additionally, phone
records show the following:
 Phone calls between Harbert and Smith before and after the robbery.
 Phone calls between Smith and Harbert’s brother, Shawn, in the evening
after the robbery.
 Phone calls and text messages between Smith and Kristin’s friend,
Simpson (who went with Kristin to retrieve Kristin’s keys in
Indianapolis) during the afternoon and evening after the robbery.
Simpson testified that she had never met Smith and was not familiar with his
phone number. The evidence of the calls between Smith and Simpson supports
the State’s theory that Harbert was using Smith’s phone to communicate with
Kristin regarding retrieval of her keys after the robbery.
[25] Furthermore, the record reveals that Harbert had been regularly attending
college classes through October 22, 2013, but he quit attending classes
altogether the same day as the robbery. Although Smith stated that he had lost
his wallet a few weeks before the robbery, he did not report his social security
card or Indiana Works card as missing until after the robbery. Finally, Kristin
and Simpson initially lied to police about their whereabouts on October 23,
2012, and both deleted text messages from their phones, which included text
messages from Harbert and Smith. The jury could have reasonably inferred
that the false statements and deleted texts were meant to protect Harbert.
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[26] Harbert argues that there is insufficient evidence supporting a conclusion that
the Dodge Durango driven by the perpetrators was the same vehicle that
belonged to his wife. We disagree, inasmuch as Officer Harris testified
unequivocally that they were, in fact, the same vehicle. Moreover, the
circumstances of Kristin’s Dodge Durango going missing the same day as the
robbery and ending up burned near Smith’s house in Indianapolis readily
support an inference that it was the same vehicle.
[27] Smith argues that the State’s evidence did not overcome his alibi defense. His
alibi witness, however, did not testify unequivocally. The witness testified that
he was unsure whether Smith was at his house on October 23, 2012, instead
merely testifying that Smith was at his house most mornings. We find that the
State’s evidence did, in fact, overcome this alibi evidence. Smith also argues
that the State failed to establish the time of the robbery, meaning that it could
not have overcome his alibi evidence. We disagree. The surveillance video
timestamp reveals that the robbery occurred at 12:47 p.m. on October 23, 2012.
And in any event, Smith failed to support his alibi defense with any evidence
showing his location at any time on October 23, 2012, meaning that the State
needed to introduce only a modicum of evidence to refute the defense. We do
not find Smith’s alibi defense to be a compelling reason to overturn this verdict.
[28] While all of the above evidence is circumstantial, as noted above,
circumstantial evidence alone may sustain a conviction. And in this case, there
is a wealth of circumstantial evidence indicating that Harbert and Smith were
the individuals who committed the robbery. We find that as a whole, the jury
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could have reasonably inferred from the above circumstantial evidence that
Harbert and Smith committed the robbery, and decline to reverse on this basis.
II. Harbert’s Arguments
A. Admission of Smith’s Statement to Police
[29] Harbert argues that the trial court committed fundamental error when it
admitted into evidence a statement made by Smith to police officers. Because
Harbert did not object to the admission of this evidence, he must establish
fundamental error to prevail, meaning that he must show that the trial court
erred by not sua sponte raising the issue because the alleged error was a blatant
violation of due process and presented an undeniable and substantial potential
for harm. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). Fundamental error will
be found only in egregious circumstances. Id.[30] Initially, we note that not only did Harbert’s counsel not object to the admission
of this evidence, she explicitly requested a limiting instruction—before the
evidence was introduced—that Smith’s statement could not be considered as
evidence against Harbert.8 The trial court agreed and provided the requested
admonishment. Tr. p. 1463-64. At most, therefore, any error in the admission
of this evidence was invited error, not fundamental error. See Witte v. Mundy ex
8
Harbert argues that this was not invited error because counsel was merely trying to make the best of a bad
situation by requesting the limiting instruction. But inasmuch as counsel had the opportunity to request a
limiting instruction before the evidence was introduced, she also had an opportunity to object to its admission
altogether. She did not do so. Therefore, any error in its admission was invited.
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rel. Mundy, 820 N.E.2d 128, 133 (Ind. 2005) (holding that a party may not take
advantage of an error that she invites).
[31] Waiver and invited error notwithstanding, we observe that the complained-of
evidence consisted of a statement made by Smith to a police officer that
someone had stolen his wallet three or four weeks earlier, around the last time
he had seen Harbert, Harbert’s brother, and “all the fellows that was with us
that day.” Ex. 75RT at 9-10. Smith later stated that if his wallet was found at
the scene of the robbery, then the person who stole his wallet may be
implicated. Ex. 76RT at 5.
[32] The United States Supreme Court has held that, in a joint trial, admission of
one defendant’s confession that implicates a co-defendant is a violation of the
second defendant’s Sixth Amendment right to confront witnesses. Fayson v.
State, 726 N.E.2d 292, 294 (Ind. 2000). A statement implicates this rule if it
“facially incriminates” another defendant. Id.[33] Here, Smith’s statement to the police does not facially implicate Harbert in the
robbery. Indeed, it does not even suggest that Smith had any knowledge of the
robbery. Instead, Smith reported that a few weeks before, his wallet had been
stolen around the time he had spent time with Harbert, Harbert’s brother, and
some other individuals. He then suggested that whoever stole his wallet may be
implicated in the robbery. Smith never, however, accused Harbert of stealing
the wallet or of being involved in the robbery. We do not find that the
admission of this evidence implicates the rule applied in Fayson, and we
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certainly do not find that its admission constituted fundamental error.
Therefore, we decline to reverse on this basis.
B. Appropriateness
[34] Next, Harbert argues that the twenty-year sentence imposed by the trial court is
inappropriate in light of the nature of the offense and his character. Indiana
Appellate Rule 7(B) provides that this Court may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. We must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court’s decision—since the ‘principal role of
[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
[35] Harbert was convicted of a class B felony, meaning that he faced a sentence of
six to twenty years, with an advisory term of ten years. Ind. Code § 35-50-2-
5(a). The trial court imposed a maximum twenty-year term.
[36] As for the nature of the offense, Harbert victimized the owners of the store, the
store employees, and the unlucky customer who walked in on the robbery. He
held them at gunpoint, greatly frightening them, and took the customer’s cell
phone. After the robbery, he attempted to hide the crime from law enforcement
by discarding his clothing and burning the vehicle. We acknowledge that the
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nature of the offense is not the worst of the worst, but must also consider
Harbert’s character in evaluating the sentence.
[37] Harbert has a significant criminal history. As a juvenile, he was twice
adjudicated delinquent, and one of the adjudications was for child molestation.
During his juvenile placements, he violated both probation and house arrest.
As an adult, he has amassed a significant—and serious—criminal history,
including a prior conviction for murder and, during the pendency of the
litigation of the instant offenses, he was convicted of domestic battery, criminal
mischief, false informing, and driving while suspended. Harbert admits to a
history of drug use, including daily marijuana use at the time he committed the
robbery. He also admits to many years of membership in the Gangster
Disciples gang.
[38] While the nature of the offense may not be the worst of the worst, Harbert’s
character very nearly is. Harbert has been breaking the law since he was a
minor. He even took another human life, and was released from incarceration
with another chance to live his life in a way that refrained from hurting others
and breaking the law. But despite the many opportunities he has been afforded
to live a law-abiding life, he has continued to show a disrespect for the rule of
law and his fellow citizens. Under these circumstances, we do not find the
twenty-year sentence to be inappropriate in light of the nature of the offense and
his character.
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III. Smith’s Arguments
A. Presence at Hearings
[39] First, Smith argues that he had a right to be present at Harbert’s pretrial
hearings. Specifically, Smith seems to focus on hearings related to a motion to
sever the two defendants that had been filed by Harbert.
[40] Initially, we note that Smith raises this claim for the first time on appeal,
meaning that he has waived it. Washington v. State, 808 N.E.2d 617, 625 (Ind.
2004). Moreover, the basis of Smith’s argument appears to be that he would
have joined in Harbert’s motion to sever. But Smith, who was eventually
represented by counsel, did not ever file his own motion to sever. Furthermore,
there is no evidence that, had Smith been present at the hearings, the trial court
would have granted severance.
[41] Waiver notwithstanding, we note that Smith has cited to no authority standing
for the propositions that (1) he is entitled to appear in person at every hearing;
and (2) he is entitled to appear in person at every hearing for a co-defendant.
Instead, “a defendant is guaranteed the right to be present at any stage of the
criminal proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730,
745 (1987). Here, Smith has failed to establish that his presence would have
contributed to the fairness of the hearings regarding Harbert’s motion to sever.
We also again emphasize that, in any event, Smith never even filed a motion to
sever. We see no reason to conclude that Smith’s presence at the hearings on
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Harbert’s motion was necessary to ensure the fairness of the process, nor that
his absence hampered his ability to defend against the charges or hindered a fair
and accurate determination of the issues at trial. We decline to reverse on this
basis.
B. Motion to Continue
[42] Next, Smith argues that the trial court erred by denying his motion to continue
the trial. The denial of a non-statutory request for a continuance is committed
to the trial court’s discretion, and we will reverse only for an abuse of that
discretion. Maxey v. State, 730 N.E.2d 158, 160 (Ind. 2000). Requests for
continuances are not generally favored and will be granted only in the
furtherance of justice on a showing of good cause. Clark v. State, 539 N.E.2d 9,
11 (Ind. 1989).
[43] Here, the timeline leading up to trial was as follows:
 At a January 2014 status hearing, the trial court informed Smith that he
had a right to an appointed attorney. Smith indicated he planned to hire
one, and the trial court warned Smith that it would not allow the matter
to “just linger on very long.” Tr. p. 1186.
 At the next hearing, Smith represented that he had selected an attorney,
who would be in place by the end of February. The trial court scheduled
trial for June 2, 2014.
 On April 4, 2014, Smith told the trial court that his attorney would soon
be filing his appearance. The trial court warned Smith that trial would
proceed whether counsel had appeared or not.
 In early May 2014, the attorney had still not filed an appearance. Smith
told the court that he had raised the money to pay the attorney’s retainer.
The trial court granted a continuance of the trial until August 4, 2014.
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 On May 28, 2014, the attorney told the trial court that he would not be
representing Smith because Smith had not paid him. At that time, the
trial court appointed an attorney to represent Smith.
 The appointed attorney requested a continuance, which the trial court
denied, and trial took place as scheduled beginning August 4.
For months, Smith delayed, despite the trial court’s caution that trial would
proceed as scheduled and the trial court’s statement that an attorney would be
appointed for Smith if he could not afford to hire one. And even though the
trial court was reluctant to continue the matter, it granted one continuance
based upon Smith’s representation that he had finally raised the money to retain
an attorney.
[44] Had Smith not delayed for so long, his appointed attorney would have had
much more time to prepare for trial. But even at the late date of the
appointment, trial counsel still had two months to prepare. Smith provided no
compelling examples of how additional time would have benefited his defense.
See Clark, 539 N.E.2d at 11 (holding that a defendant must make a specific
showing that additional time requested would have aided him in order to show
that the trial court abused its discretion in denying motion to continue). Smith
directs our attention to a defense that was not raised at trial, but does not
explain why this defense could not have been prepared in the two months
provided. Given Smith’s own delays and the lack of a showing that additional
time would have benefited his defense, we do not find that the trial court
abused its discretion in denying his motion to continue the trial.
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C. Motion to Correct Error
[45] Finally, Smith argues that the trial court erred by denying his post-trial motion
to correct error based upon newly-discovered evidence. A trial court is vested
with the discretion to deny a motion to correct error alleging newly-discovered
evidence, and we will reverse only for an abuse of that discretion. Bradford v.
State, 675 N.E.2d 296, 302 (Ind. 1996); see also Ind. Trial Rule 59 (governing
motions to correct error).
[46] Motions for a new trial based on newly-discovered evidence are generally
disfavored. Denney v. State, 695 N.E.2d 90, 93 (Ind. 1998). To succeed, the
defendant must satisfy a nine-part test, submitting proof that establishes:
(1) that the evidence has been discovered since the trial; (2) that it
is material and relevant; (3) that it is not cumulative; (4) that it is
not merely impeaching; (5) that it is not privileged or
incompetent; (6) that due diligence was used to discover it in
time for trial; (7) that the evidence is worthy of credit; (8) that it
can be produced upon a retrial of the case; and (9) that it will
probably produce a different result.
Id. The defendant bears the burden of showing that the newly discovered
evidence meets all nine requirements. Godby v. State, 736 N.E.2d 252, 258 (Ind.
2000).
[47] Here, the newly discovered evidence consisted of media reports of three
robberies occurring at Lafayette gas stations and a Lafayette check cashing
business in October and November 2014. We do not find that this is
“evidence” that is “worthy of credit” or that it could be produced on retrial.
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Instead, these unsubstantiated media reports constitute an attempt by Smith to
seek aid from the court to conduct discovery in the hope that he would
eventually find exculpatory evidence. But the motion to correct error standard
requires that, to be entitled to a new trial, the defendant must already have the
creditable, producible evidence on hand. Smith does not meet this test.
[48] Furthermore, we note that the unsubstantiated media reports indicate that the
suspect identified in the gas station robberies is not the same ethnicity as either
appellant, nor does it match the description of the perpetrators provided at trial.
And the check cashing robber was reported to be significantly shorter than
Smith. Therefore, even if we were to find that this evidence is worthy of credit
and producible, we would not find that it would probably produce a different
result on retrial. In sum, we do not find that the trial court abused its discretion
by denying Smith’s motion to correct error.
[49] The judgment of the trial court is affirmed.
Bradford, J., and Pyle, J., concur.
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