Levern Nicole Howard v. State of Indiana , 122 N.E.3d 1007 ( 2019 )

FILED
Apr 30 2019, 9:32 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew Bernlohr Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Levern Nicole Howard, April 30, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1830
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G21-1609-F2-38048
Najam, Judge.
Statement of the Case
[1] Under Indiana Code Section 35-34-1-5(b)(2) (2018), a trial court may permit the
State to amend a charging information in matters of substance “at any
time . . . before the commencement of trial[] if the amendment does not
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 1 of 24
prejudice the substantial rights of the defendant.” Here, two business days
before the commencement of Levern Howard’s trial on thirteen counts relating
to dealing in and possession of illicit substances, the State moved to add four
new counts of neglect of a dependent based on the manner in which Howard
had stored firearms at her residence. Over Howard’s objection at the beginning
of her trial, the court permitted the State to amend the information and to
immediately present its evidence on all counts. The court informed Howard
that she could recall the State’s witnesses for cross-examination on the four new
counts on the second day of her trial, which had been set for eleven calendar
days after the first day.
[2] We hold that the trial court abused its discretion when it permitted the State to
amend the information without giving Howard a reasonable opportunity to
prepare for and defend against the new counts. Accordingly, we reverse her
convictions on those counts. As to Howard’s additional argument on appeal
that the trial court abused its discretion when it admitted into evidence certain
photographs that the State had failed to produce to her during discovery, we
hold that any error in the court’s admission of those photographs was harmless
as they were merely cumulative of other evidence. Thus, we affirm in part,
reverse in part, and remand with instructions.
Facts and Procedural History
[3] In September of 2016, Indianapolis Metropolitan Police Department (“IMPD”)
officers obtained a search warrant for 1208 King Avenue in Indianapolis. As
officers were preparing to execute that warrant on September 23, they observed
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 2 of 24
Howard’s husband leave the house in a vehicle with a child in the front
passenger seat. Officers attempted to initiate a traffic stop of that vehicle shortly
thereafter, but Howard’s husband drove away at a high rate of speed, and
officers chose not to pursue so as to not further endanger the child.
[4] Shortly after Howard’s husband had sped away, officers at the residence
observed Howard hurriedly exit the front door while talking on a phone.
Howard placed some items in the trunk of a vehicle, entered the vehicle, and
drove away from the residence. The officers initiated a traffic stop of Howard’s
vehicle and asked her to exit the vehicle several times. Howard refused to exit
the vehicle. Officers then pulled her out of the vehicle. Howard forcefully tried
to pull away from the officers and refused to let go of a purse she was holding.
[5] Once officers subdued Howard, they searched her purse and vehicle. In her
purse, the officers discovered heroin, cocaine, and $3,440 in cash, mostly in
fives, tens, and twenties. In the trunk of the car, they discovered a digital scale,
a bag of “green leafy vegetation,” 1 two loaded handguns, and a loaded rifle. Tr.
Vol. II at 55.
[6] Officers then executed the search warrant for the residence. There, they found
three unattended children between the ages of five and nine in the family room
on the first floor of the home. From that room, the officers observed in plain
view green plastic baggies containing a synthetic cannabinoid, which appeared
1
The actual identity of this substance was never clearly established at trial. See Tr. Vol. II at 58, 213.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 3 of 24
to be packaged for individual sale. Next to the baggies was a digital scale. In
the upstairs master bedroom, officers found a baggie of cocaine in a closet along
with multiple large trash bags of synthetic cannabinoid.
[7] Officers seized five firearms from the residence while executing the warrant. In
particular, officers seized a loaded handgun from between the mattress and box
spring of a king-sized bed in the upstairs master bedroom; a loaded handgun
that was inside a red plastic bag and behind the headboard of the bed in the
master bedroom; an unloaded handgun and an unloaded rifle that were on top
of a kitchen cabinet; and a handgun 2 that was on top of a different kitchen
cabinet. During the searches of Howard’s car and house, officers photographed
all seized items near the locations the officers had found them prior to their
seizure.
[8] On September 27, the State charged Howard with the following thirteen counts 3
(“the original counts”):
1. dealing in cocaine, as a Level 2 felony;
2. possession of cocaine, as a Level 4 felony;
3. dealing in a narcotic drug (heroin), as a Level 3 felony;
4. possession of a narcotic drug (heroin), as a Level 5 felony;
5. neglect of a dependent (Child 1 4), as a Level 5 felony;
6. neglect of a dependent (Child 2), as a Level 5 felony;
2
It is not clear if this handgun was found loaded or unloaded. See id. at 102.
3
The State’s original and amended charging informations used Roman numerals to enumerate the charges.
For ease of readability, we use Arabic numerals to refer to the same-numbered charges.
4
The children named in Counts 5 and 6 share the same initials, as do the children named in Counts 7 and 8.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 4 of 24
7. neglect of a dependent (Child 3), as a Level 5 felony;
8. neglect of a dependent (Child 4 5), as a Level 5 felony;
9. maintaining a common nuisance, as a Level 6 felony;
10. dealing in a synthetic drug lookalike substance, as a Level 6 felony;
11. possession of a synthetic drug lookalike substance, as a Class A
misdemeanor;
12. carrying a handgun without a license, as a Class A misdemeanor; and
13. resisting law enforcement, as a Class A misdemeanor.
Counts 1 through 4 each alleged that, in the commission of those offenses,
Howard “was in possession of a firearm.” Appellant’s App. Vol. II at 27-28.
And Counts 5 through 8 were premised on Howard “dealing out of the house,”
Tr. Vol. II at 215, and thus having “left [illicit substances] where [they] could be
accessed by” the child specified in each count, Appellant’s App. Vol. II at 28-
29.
[9] On Wednesday, May 2, 2018, more than nineteen months after it had filed the
original counts, more than sixteen months after the omnibus date, 6 and just two
business days before the commencement of Howard’s bench trial, the State
moved to amend the charging information to allege the following four new
counts (“the amended counts”):
14. neglect of a dependent (Child 1), as a Level 6 felony;
15. neglect of a dependent (Child 2), as a Level 6 felony;
16. neglect of a dependent (Child 3), as a Level 6 felony; and
17. neglect of a dependent (Child 4), as a Level 6 felony.
5
At closing argument, the State identified this child as the child in the vehicle with Howard’s husband. Id.
at 215.
6
The trial court had set the omnibus date for November 28, 2016.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 5 of 24
Each of the amended counts was premised on Howard having allegedly
“endangered the dependent’s life or health” by having “left firearms unsecured
that could be accessed by” the child named in each count. Id. at 113. The next
day, the trial court took the State’s motion to amend under advisement and
informed the parties that it would hear argument on the State’s motion at the
commencement of Howard’s trial.
[10] At the commencement of Howard’s trial on Monday, May 7, the court asked
the State to support its motion to amend. The State responded that the
amended counts “do[] not add any new evidence” or “any new witnesses[;] the
guns are in the [probable cause affidavit and] they’ve been known since the
beginning.” Tr. Vol. II at 4. Based on that, the State asserted that Howard
would not be “prejudice[d] in anyway” by the amendment. Id.
[11] Howard responded that the “theory” of the amended counts was “completely
different” from the original counts and that having just “two business days
before a court trial doesn’t give [the] defense ample time to prepare.” Id. at 5.
Howard added:
the probable cause affidavit says . . . that several firearms were
located at the scene . . . and were recovered. That doesn’t tell us
anything—where they [were] recovered, whe[ther] they . . . were
improperly stored . . . , and that hardly puts us on notice that
there’s a neglect charge especially under the fact that[,] as
opposed to drugs[,] firearms in the home . . . are legal.
Id. at 5-6.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 6 of 24
[12] The trial court granted the State’s motion to amend. In granting the motion,
the court informed Howard that, “to be courteous” to her, it would “bifurcate”
the proceedings. Id. at 13-14. In particular, the court stated that it would allow
the State to present its evidence in support of both the original counts and the
amended counts immediately and that it would allow Howard to recall and
cross-examine the State’s witnesses on the amended counts on the second day
of trial, which the court had scheduled to begin on May 18, eleven calendar
days after the first day of trial. 7 Id. at 13-14, 203-05. The court had previously
determined that a second day of trial would be necessary anyway due to the
unavailability of a forensic expert for the State.
[13] Howard objected to the trial court’s proposed procedure as “not sufficient to
allow a fair trial.” Id. at 14. In particular, she stated:
it’s not fair for [the State] to put on [its] case and then make me
come back weeks later after the [evidence] has been set in the
court’s mind and [then] do my cross examination. So, that
whole issue . . . about the guns ha[s] to be separated out because
you cannot . . . unbuckle the possession of guns, the location of
the guns from the issue of the new charge[s] . . . .
Id. at 13. The trial court overruled Howard’s objection.
7
On appeal, the State parrots the trial court’s use of the term “bifurcate” and refers to the two different days
of trial as two different “phases” of trial. Appellee’s Br. at 11-12. We reject those characterizations. The
trial court did not hold one distinct fact-finding phase of trial followed by a separate and distinct fact-finding
phase, such as when a jury finds a defendant guilty of an offense and the court, thereafter, finds the defendant
to be a habitual offender. Rather, the court here simply held one trial over two days.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 7 of 24
[14] During the ensuing two-day trial, the State substantially relied on the testimony
of the various IMPD officers involved in the search of Howard’s vehicle and
residence and the seizure of the evidence from those locations. The State’s
“physical” evidence consisted almost exclusively of photographs of the illicit
substances and firearms taken at the two scenes. Howard objected to the State’s
admission of some of those photographs on the ground that the State had not
produced them during discovery, and at the start of the second day of trial she
also renewed her objection to the amended counts. The court overruled those
objections.
[15] Howard’s apparent defense strategy at trial was to hold the State to its burden
of proof, especially through cross-examination of the State’s witnesses. As to
the amended counts, on the second day of trial Howard cross-examined
IMPD’s lead investigator 8 as follows:
Q So you found some firearms in the kitchen . . . ?
A Yes.
Q Okay. And you found a firearm . . . in an adult’s
bedroom?
A I believe so, yes.
8
Howard did not cross-examine any other witnesses on the amended counts.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 8 of 24
Q And one firearm was in a plastic bag hidden behind a
headboard of the king size bed?
A That’s possible. I don’t recall that one, but, yes.
Q And the other firearm you found inside the home was
underneath the mattress of the king size bed?
A I believe there was one found there as well.
Q So you didn’t find any guns that were sitting out in the
open, correct?
A I don’t recall. I don’t recall where each firearm . . . [was]
located, sir.
Q You didn’t find any firearms where those children were
located, right?
A I don’t recall finding one in their immediate vicinity, no.
Q So as best to your recollection there w[ere] no firearms
within the reach of those children?
A To the best of my recollection, no.
Q There were no firearms around open, anywhere in the
house, to the best of your recollection?
A . . . I don’t recall where each firearm was located, sir . . . .
Q And you [have] served other search warrants?
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 9 of 24
A Yes.
Q And you’ve gone into other homes and located firearms?
A Yes.
Q And is that unusual . . . to find . . . a firearm out in the
open . . . ?
A No.
Q That’s not unusual, right?
A No, it’s not.
***
Q There is no requirement . . . to keep [a] gun in a gun safe,
right?
A No.
Q And you have a constitutional right to self-defense,
including the right to have a weapon in your home unless you’re
excluded by law, right?
A Yes.
Q Okay. And you’re also allowed, as a constitutional right,
to defend yourself, to have ready access to a weapon, right?
A Yes.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 10 of 24
Id. at 207-11.
[16] Following the bench trial, the court found Howard guilty on all counts except
Count 3. The court then entered judgment of conviction against Howard on all
counts except Count 2 and Count 11. The court sentenced Howard to an
aggregate term of twenty years, with twelve years executed and eight years
suspended. This appeal ensued.
Discussion and Decision
Issue One: Motion to Amend the Charging Information
[17] Howard first appeals the trial court’s decision to permit the State to amend the
charging information. We generally review the trial court’s decision on
whether the permit an amendment to a charging information for an abuse of
discretion. Ramon v. State, 888 N.E.2d 244, 252 (Ind. Ct. App. 2008); see also
State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017) (reviewing the trial court’s order
to dismiss an information for an abuse of discretion). An abuse of discretion
occurs when the trial court’s judgment is “clearly against the logic and effect of
the facts and circumstances before it or is contrary to law.” Waterfield v.
Waterfield, 61 N.E.3d 314, 323 (Ind. Ct. App. 2016), trans. denied. But, insofar
as Howard’s argument on appeal is that the amendment to the charging
information violated her constitutional rights to due process, that argument
presents a question of law that we review de novo. E.g., Thomas v. State, 81
N.E.3d 621, 624 (Ind. 2017).
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 11 of 24
[18] Under Indiana Code Section 35-34-1-5(b)(1), the default timeframe for the State
to seek to amend a charging information in a matter of substance is up to
“thirty (30) days . . . before the omnibus date” 9 if “the defendant is charged with
a felony.” The State properly does not suggest on appeal that the amended
counts here were anything other than amendments of substance. See, e.g., Mays
v. State, ___ N.E.3d ___, No. 18A-PC-2071, 2019 WL 1217757, at *7 (Ind. Ct.
App. Mar. 15, 2019) (stating that adding “an entirely new charge to the
charging information . . . is patently [an amendment] of substance”), not yet
certified. While the original neglect counts and the amended neglect counts
were derived from the same statute, that does not mean that the amended
counts were merely amendments in form to the original counts. 10 Rather, the
amended counts added four wholly new offenses based on facts and evidence
other than that underlying the original counts.
[19] In any event, as the State’s motion to amend the information here was nowhere
close to the omnibus date, the State moved to amend the information not under
Indiana Code Section 35-34-1-5(b)(1) but instead under Indiana Code Section
35-34-1-5(b)(2). Under that provision, the trial court may permit the State,
following the State’s written notice to the defendant, to make a late amendment
9
For felony criminal cases with no speedy-trial issues, the trial court, at the initial hearing, must set an
“omnibus date” that is “no earlier than forty-five (45) days and no later than seventy-five (75) days after the
completion of the initial hearing,” unless the parties agree to a different date. I.C. § 35-36-8-1(a). “The
purpose of the omnibus date is to establish a point in time from which various deadlines . . . are established.”
I.C. § 35-36-8-1(b). “Once the omnibus date is set,” it generally “remains the omnibus date . . . until final
disposition . . . .” I.C. § 35-36-8-1(d).
10
Indeed, had the State thought this an even viable argument in the trial court, it would have moved to
amend the information under Indiana Code Section 35-34-1-5(c), not Indiana Code Section 35-34-1-5(b).
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 12 of 24
to an information in a matter of substance “at any time . . . before the
commencement of trial[] if the amendment does not prejudice the substantial
rights of the defendant. . . .” I.C. § 35-34-1-5(b)(2).
[20] As the Indiana Supreme Court has explained:
A defendant’s substantial rights include a right to sufficient notice
and an opportunity to be heard regarding the charge; and, if the
amendment does not affect any particular defense or change the
positions of either of the parties, it does not violate these rights.
Ultimately, the question is whether the defendant had a reasonable
opportunity to prepare for and defend against the charges.
Erkins v. State, 13 N.E.3d 400, 405-06 (Ind. 2014) (emphasis added; citations
and quotation marks omitted). The right to a reasonable opportunity to prepare
for and defend against the charges is a hallmark of “[t]he right of an
accused . . . to due process.” Saylor v. State, 559 N.E.2d 332, 335 (Ind. Ct. App.
1990) (citing Chambers v. Mississippi, 410 U.S. 284, 295 (1973)), trans. denied.
And that right implicates a criminal defendant’s Sixth Amendment right to
effective assistance of counsel—a counsel who is not provided with sufficient
time to give “effective aid in the preparation and trial of the case” is
constructively no counsel at all. 11 Powell v. Alabama, 287 U.S. 45, 71-72 (1932).
[21] That said, there is no fixed “minimum period of time which must be allowed by
the court in every case” for the preparation of the defense. Lloyd v. State, 241
11
The actual or constructive denial of counsel is structural error. See Leach v. State, 699 N.E.2d 641, 643 n.2
(Ind. 1998) (citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)).
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 13 of 24
Ind. 192, 199, 170 N.E.2d 904, 907 (1960); see also Avery v. Alabama, 308 U.S.
444, 446 (1940). Rather, “[t]he adequacy of time allowed for preparation must
be determined on a case by case basis[] considering the totality of the
circumstances, including the complexity of the issues, the necessity for pre-trial
motions, the necessity to interview witnesses[,] and whether the defendant is
available to assist in the preparation of [the] defense.” Jones v. State, 175 Ind.
App. 343, 346, 371 N.E.2d 1314, 1316 (1978). “The spirit of these
constitutional provisions requires that an accused must have something more
than a perfunctory representation.” Wilson v. State, 222 Ind. 63, 80, 51 N.E.2d
848, 855 (1943).
[22] Recent examples from our Court provide representative circumstances in which
we have affirmed pretrial, but post-omnibus-date, amendments of substance to
an information. In particular, we have held such amendments permissible in
the following contexts:
• where the State’s notice of the proposed amendment was given to the
defendant nearly four months prior to trial and the anticipated defense
was an equally available alibi defense, Mays, ___ N.E.3d ___, 2019 WL
1217757, at *8-9;
• where the amendment to the information was “two months before the
commencement of the trial and three months before the defense
presented its case in chief”; the State added to a count of battery a count
of burglary and a count of intimidation, which additional counts arose
from the same “time [and] place” as the original count; and the defense
strategy was to argue that the victim, which was the same for all counts,
had invited the defendant into her residence and sustained her injuries
when she tripped over a dog, which argument “was equally applicable”
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 14 of 24
to the original and the amended counts, Barnett v. State, 83 N.E.3d 93,
102 (Ind. Ct. App. 2017), trans. denied;
• where the amendment elevated an aggravated battery offense to murder
following the victim’s death, the trial did not begin until more than two
months after the amendment, and the defendant’s defense that “he was
not at the scene and did not participate in [the] beating” would “not
change,” Shaw v. State, 82 N.E.3d 886, 897 (Ind. Ct. App. 2017), trans.
denied;
• where the State filed its motion to amend more than eight months before
the beginning of the trial, which we recognized as “a significant amount
of time to prepare a defense,” Mannix v. State, 54 N.E.3d 1002, 1010 (Ind.
Ct. App. 2016); and
• where the State moved to amend the charging information one week
before trial to correct an error in the date of an alleged molestation
offense, which “did not deprive [the defendant] of” his defense of
challenging the victim’s recollection of the alleged event, Gaby v. State,
949 N.E.2d 870, 875 (Ind. Ct. App. 2011).
[23] Nothing about the instant case is analogous to cases in which we have affirmed
the trial court’s decision to allow a post-omnibus-date amendment of substance
to an information. Counting from the day of the State’s notice to Howard’s
first opportunity to cross-examine the State’s witnesses on the amended counts,
the totality of time Howard had to prepare for and then execute her defense on
the amended counts was a total of sixteen calendar days. That is well short of
the more common scenario of two or more months; it certainly is not long
enough to presume, as we did in Mannix and other cases, that the defendant had
ample time to prepare her defense to the amended counts. And the sixteen days
here are one day more than half the time Indiana Code Section 35-34-1-5(b)(1)
requires the State to provide to the defendant prior to the omnibus date, which
of course often results in far more time before trial.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 15 of 24
[24] Further, while the amended counts arose out of the same time and place as the
original counts, we are not persuaded that the amended counts were premised
on the same underlying facts as the original counts. Rather, the original counts
nearly all related to Howard’s alleged dealing in and possession of illicit
substances, 12 and the firearms were only relevant to the original counts as either
enhancing facts (under Counts 1 through 4) or to her alleged carrying without a
license (under Count 12). At no point prior to the State’s motion to amend the
information did Howard have any reason to think that the State would seek to
use the firearms in any other way or in support of any other possible offenses.
That is, nothing about the facts underlying the original counts would have
impelled a reasonable defense attorney to investigate further the facts on which
the amended counts were premised. Indeed, the explicitly limited use of the
firearms in the original counts may well have led Howard to conclude that the
State had decided not to pursue any other firearm-related offenses and, thus,
that there was no further preparation or defense to be had for any such
hypothetical offenses.
[25] Significantly, Howard’s apparent defense strategy was not, as in some cases
where we have affirmed late amendments to an information, a defense that had
its own factual basis, such as an alibi defense or a claim of self-defense. Neither
was her defense strategy to make a specific challenge to a specific witness’s
12
Indeed, and again, the original neglect counts were explicitly premised on Howard having “left [illicit
substances] where [they] could be accessed by” the child specified in each count. Appellant’s App. Vol. II at
28-29.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 16 of 24
testimony, such as the victim’s recollection, which defense would have been
equally applicable to both the original counts and the amended counts. Rather,
her apparent defense strategy was to hold the State to its burden of proof,
especially through cross-examination of the State’s witnesses.
[26] As the amended counts were not based on the same underlying facts as the
original counts, the late amendment substantially affected her defense in that
she had no reasonable time to engage in pretrial investigation of the amended
counts in order to effectively prepare for cross-examining the State’s witnesses
on them. We recognize that, on the second day of her trial, Howard asked
IMPD’s lead investigator the basic and obvious questions of whether the
firearms were “within the reach of th[e] children” during the search and
whether the investigator knew of a requirement to keep lawfully held firearms
in a gun safe. Tr. Vol. II at 208. But that limited inquiry alone does not
demonstrate that Howard received all the representation and process that she
was due. See Wilson, 51 N.E.2d at 855.
[27] Indeed, as Howard argued to the trial court, the timing of the State’s motion to
amend prevented her from investigating prior to trial any number of possible
lines of inquiry that might have been relevant to her defense against the
amended counts, such as: whether the children knew of any firearms in the
residence; whether the children were ever in the master bedroom, where the
only known loaded firearms were found; whether the children were capable of
lifting a king-sized mattress to access one of those loaded firearms or either
moving or getting behind the headboard of that bed to access the other; whether
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 17 of 24
any of the children had a propensity or history of climbing on the kitchen
cabinets, where the other firearms were found; whether the children had any
training or instruction in the safe handling of firearms; whether the children
knew how to load an unloaded firearm; whether the firearms had any safety
features and whether those features were engaged at the time of their seizure;
whether the firearms inside the house were even operable; or where the firearms
inside the house were located at the time Child 4 had left the residence.
Howard also had no reasonable opportunity to investigate whether state or
federal legal authority might support her opposition to the amended counts.
[28] Nonetheless, both the State and the dissent contend that Howard should have
seen the amended counts coming because she knew from the beginning that the
firearms were in the residence with the children. We reject that argument. 13
The mere fact that firearms were present in her residence did not put Howard
on permanent notice of any possible firearms-related offenses the State might
have charged. To the contrary, again, the State’s explicitly limited
identification of the firearms to unrelated offenses under the original counts
likely dispelled any concern Howard would have had of disparate, other
charges that the State might have brought based on the firearms. And insofar as
the State argues on appeal that sixteen (or fewer) days was enough by itself to
presume that Howard would have sufficient time to prepare her defense to the
13
The State’s argument that Howard should have seen the amended counts coming cuts both ways—the
State too had the probable cause affidavit from the beginning of the case yet waited until two business days
before the commencement of Howard’s trial to include the amended counts in the information.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 18 of 24
amended counts, as explained above that argument is not at all consistent with
our case law.
[29] Finally, although not required of the State under Indiana Code Section 35-34-1-
5(b)(2), we nonetheless note that the State had no good cause for having waited
until nearly the last minute to move to amend the information. There were no
ongoing plea negotiations; there was no pending investigation; and there was
no newly discovered evidence. Indiana Code Section 35-34-1-5(b) contemplates
that amendments to an information will be thirty days prior to the omnibus
date, but the statute permits late deviations when they do not prejudice the
substantial rights of the defendant. Such late deviations are the exception, not
the rule. And here, again, the information had been pending for sixteen months
after the omnibus date before the State moved to amend the information two
business days before the start of Howard’s trial. The State’s inability to identify
a good cause for its late amendment request reeks of surprise and
gamesmanship, which tactics our Supreme Court has emphasized “no longer
have any place in our system of justice.” Wright v. Miller, 989 N.E.2d 324, 327
(Ind. 2013) (quoting Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012)).
[30] The default deadline that amendments to an information be made no later than
thirty days prior to the omnibus date is there for a reason, which is illustrated by
this case: to assure that a defendant’s rights to a fair trial are not impaired. The
defendant’s rights include adequate time to prepare a defense. An exception to
the statutory deadline is permissible only where the State, which bears the
burden of proof on its motion to amend, can demonstrate that a late
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 19 of 24
amendment does not compromise the defendant’s rights. Here, however, the
facts stand in stark contrast to those cases in which we have allowed the State to
proceed with an amendment of substance to a charging information after the
statutory deadline. The State’s motion to amend sought to add counts that
were factually distinct from the original counts and gave Howard only sixteen
calendar days to fully investigate and to prepare her defense against the
amended counts. And Howard’s apparent defense strategy of holding the State
to its burden of proof, especially through cross-examination, was substantially
impaired by the timing of the State’s amendment. We hold that the trial court
abused its discretion when it permitted the State to amend the charging
information, and we reverse Howard’s convictions under the amended counts.
Issue Two: Discovery of Photographs
[31] Howard also contends on appeal that her convictions on the original counts
must be reversed because the trial court abused its discretion when it admitted
certain photographs into evidence that the State had failed to produce to
Howard during discovery. We review the trial court’s decision to admit or
exclude evidence for an abuse of discretion. Hall v. State, 36 N.E.3d 459, 466
(Ind. 2015). However, the erroneous admission of evidence that is merely
cumulative of other evidence is harmless error. Pierce v. State, 29 N.E.3d 1258,
1268 (Ind. 2015).
[32] As an initial matter, Howard frames this issue around Brady v. Maryland, 373
U.S. 83, 87 (1963), in which the Supreme Court of the United States held that
“the suppression by the prosecution of evidence favorable to the accused upon
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 20 of 24
request violates due process where the evidence is material either to guilt or to
punishment . . . .” (Emphasis added.) Thus, in order to prevail on a Brady
claim, the defendant must establish, among other things, that the evidence “was
favorable to the defense.” Stephenson v. State, 864 N.E.2d 1022, 1056-57 (Ind.
2007). The photographs Howard complains of were not favorable to her.
Thus, there is no Brady issue in this appeal.
[33] In any event, the complained-of photographs were merely cumulative of other
evidence presented by the State. Indeed, the State established its case through
the testimony of several officers and their personal observations at the scenes of
Howard’s vehicle and the house. The photographs were merely cumulative of
those personal observations. Accordingly, any error in their admission was
harmless, and we affirm Howard’s convictions on the original counts.
Conclusion
[34] In sum, while we affirm Howard’s convictions on the original counts, we hold
that the trial court abused its discretion when it permitted the State to add
entirely new and unrelated offenses to the information at the commencement of
Howard’s trial. Thus, we reverse her convictions on the amended counts,
Counts 14 through 17, and we remand with instructions for the trial court to
vacate those convictions and the corresponding sentences. 14
14
As Howard’s sentences on the amended counts were ordered to run concurrently with her other sentences,
her aggregate sentence is not affected by our disposition.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 21 of 24
[35] Affirmed in part, reversed in part, and remanded with instructions.
Pyle, J., concurs.
Altice, J., concurs in part and dissents in part with separate opinion.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 22 of 24
IN THE
COURT OF APPEALS OF INDIANA
Levern Nicole Howard, Court of Appeals Case No.
18A-CR-1830
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Altice, Judge, concurring in part and dissenting in part.
[36] I agree with the majority that admission of the photographs was cumulative of
other evidence, and therefore harmless. I respectfully dissent, however, from
the majority’s determination that the trial court abused its discretion in
permitting the State to amend the charging information. The amended
charging information added four new charges of neglect of a dependent that
mirrored the four original neglect charges except for the fact that the new
charges alleged the presence and accessibility of unsecured firearms, as opposed
to illicit drugs. Given the other charges Howard faced—especially the fact that
the presence of firearms was used to enhance certain offenses—she cannot now
claim she was surprised by the new charges or the evidence giving rise thereto.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 23 of 24
[37] Moreover, as the majority notes, Howard’s “apparent defense strategy was to
hold the State to its burden of proof, especially through cross-examination of
the State’s witnesses.” Id. at 17. Under these circumstances, I think sixteen
days was more than sufficient time for counsel to prepare a defense to the new
charges. Indeed, Howard’s defense to the separate groups of neglect charges
was essentially the same. There was no new evidence required and no need for
additional witnesses to support or defend against the new charges. To that end,
I am not persuaded that the late amendment substantially affected Howard’s
defense. See Gaby v. State, 949 N.E.2d 870, 875 (Ind. Ct. App. 2011) (holding
that trial court did not abuse its discretion in permitting the State to amend the
charging information one week before trial to correct an error in the date of an
alleged molestation offense because such “did not deprive [the] defendant of”
his defense of challenging the victim’s recollection of the alleged offense). I
would affirm Howard’s convictions in their entirety.
Court of Appeals of Indiana | Opinion 18A-CR-1830 | April 30, 2019 Page 24 of 24