Jermaine Davis v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 12 2017, 9:08 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristin A. Mulholland Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jermaine Carl Davis, April 12, 2017
Appellant-Defendant, Court of Appeals Case No.
45A03-1606-CR-1636
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G04-1308-FA-27
Barnes, Judge.
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Case Summary
[1] Jermaine Davis appeals his conviction for Class A felony attempted murder.
We affirm.
Issues
[2] Davis raises two issues, which we restate as:
I. whether the trial court properly denied his
motion for a continuance following the State’s
late disclosure of evidence; and
II. whether the trial court violated his
constitutional right to counsel when it denied
his motion for a continuance to hire a different
attorney.
Facts
[3] On August 21, 2013, Willie Bailey was at a gas station in Gary when Davis
approached him. Davis was the ex-boyfriend of Bailey’s sister, Erica. Davis
told Bailey that his sister was a “wh***” and threatened to hurt Bailey. Tr. Vol.
I p. 65. Outside the gas station, Davis again approached Bailey, called his sister
names, and threatened to hurt Bailey. Bailey thought Davis was going to hit
him, so Bailey punched Davis, knocking him out. Davis later called Erica and
said that he was “going to shoot [their] house up.” Id. at 134. Davis also called
Erica and Bailey’s aunt, Glynda Randolph, and told her that he was going to
kill Bailey.
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[4] The next day, the Bailey family went to a funeral. Bailey rode home that
evening with Erica and her friend. As Bailey unlocked the front door of his
home, Davis approached him from behind and shot Bailey repeatedly. Erica
was sitting in the car with her friend and saw Davis shoot Bailey. Bailey was
shot five times and is now paralyzed from the waist down. Immediately after
the shooting, Bailey’s brother opened the front door, and Bailey told his brother
and aunt that Davis shot him. Bailey’s brother saw Davis running away.
When officers arrived at the scene, Bailey told them that Davis shot him.
While in the hospital, Bailey also identified Davis as the shooter in a photo
array. The next day, Erica also gave a statement to officers and identified Davis
as the shooter. Four cartridge casings and three spent bullets were recovered at
the scene. Melissa Oberg of the Indiana State Police Laboratory determined
that the four cartridge casings were fired from the same weapon and that the
three bullets were fired from the same weapon.
[5] The State charged Davis with Class A felony attempted murder, Class B felony
aggravated battery, Class C felony battery by means of a deadly weapon, Class
C felony battery resulting in bodily injury, and Class D felony pointing a
firearm. On the Saturday before the trial, the deputy prosecutor informed
Davis’s counsel that he had just discovered Oberg’s lab report. The deputy
prosecutor immediately provided the report to Davis’s counsel. Prior to the
start of the trial, the parties discussed the State’s late disclosure of the lab
reports. Davis noted that a “big theory of [the] defense was that no analysis of
any evidence collected was done . . . .” Id. at 10. In response to the trial court’s
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questioning, Davis’s attorney noted that the defenses were “alibi and lack of
investigation.” Id. at 11. The trial court noted that the “paperwork saying that
the casings came from the same or similar firearm does not inhibit your ability
to present an alibi defense” and denied Davis’s motion for a continuance. Id.
[6] On the first day of the trial, Davis’s counsel informed the trial court:
Judge, we have an issue. When meeting with my client,
yesterday, he advised me that he does not have confidence in my
abilities to represent him with respect to the trial this week and I
believe there is a break-down of communication and he, on his
behalf, he wants me to request either a continuance of the trial or
he said he wants a new lawyer.
Id. at 3. The trial court informed Davis that he was entitled to a public defender
but not the public defender of his choosing. The trial court then asked Davis if
he had the money to hire an attorney, and Davis responded that he did not.
After a discussion of preparation done by his attorney and prior attorneys, the
trial court denied the motion for a continuance. Later, immediately before jury
selection began, Davis told the trial court that his family was going to hire an
attorney. The trial court informed Davis that he had two and one-half years
since he was charged to secure a private attorney and that the trial would
proceed as planned. The trial court then told Davis that if he hired a private
attorney and had the attorney in court the next morning, he would “consider
it.” Id. at 36. The next morning, Davis had not hired a private attorney, and
the trial continued as planned.
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[7] The jury found Davis guilty of the charges except for the pointing a firearm
charge. The trial court merged the remaining counts into the attempted murder
conviction and sentenced Davis to forty-five years in the Department of
Correction.
Analysis
I. Disclosure of Evidence
[8] Davis argues that the trial court abused its discretion by denying his motion for
a continuance because of the State’s failure to timely disclose the evidence of
the lab report. The trial court has broad discretion in dealing with discovery
violations. Berry v. State, 715 N.E.2d 864, 866 (Ind. 1999). We will reverse
only for an abuse of that discretion involving clear error and resulting prejudice.
Id. Generally, the proper remedy for a discovery violation is a continuance. Id.
The exclusion of the evidence is an extreme remedy and is to be used only if the
State’s actions were deliberate and the conduct prevented a fair trial. Id. A
defendant must object at trial to the admission of discovery not timely
disclosed, and if his objection is overruled, he must seek a continuance. Childress
v. State, 938 N.E.2d 1265, 1268 (Ind. Ct. App. 2010), trans. denied. If he is
denied a continuance, we will review whether the failure to exclude evidence
resulted in clear error and prejudice. Id.
[9] Davis has failed to demonstrate that he was prejudiced by the denial of the
motion for a continuance. At the trial, Davis’s main defenses were that he had
an alibi and that the investigation was shoddy. The admission of the lab report
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did not harm either defense. The lab report merely noted that the four cartridge
casings were fired from the same weapon and that the three bullets were fired
from the same weapon. The lab report did not indicate who fired the weapon
and did not affect Davis’s alibi defense. As for the shoddy investigation
defense, Davis was still able to argue that no physical evidence tied Davis to the
crime, that the investigation was a “complete rush to judgment and a travesty,”
that no fingerprint testing was performed, that relevant witnesses were not
interviewed, and that the lighting would not have allowed the witnesses to see
the shooter. Tr. Vol. II p. 110. We conclude that the trial court did not abuse
its discretion by denying Davis’s motion for a continuance.
[10] Furthermore, even if the trial court did abuse its discretion, any error was
harmless. Several witnesses testified that, on the day before the incident, Davis
threatened to kill Bailey. Several eyewitnesses to the shooting identified Davis
as the shooter. Indiana Trial Rule 61 requires that we disregard any trial court
error that “does not affect the substantial rights of the parties.” Given the
overwhelming evidence against Davis, the denial of the motion for a
continuance did not affect his substantial rights.
II. Right to Counsel
[11] Next, Davis argues that the trial court erred by denying his motion to continue
so that he could obtain new counsel. According to Davis, his constitutional
right to retain the counsel of his choice was violated by the denial. We review
the denial of a motion for a continuance for an abuse of discretion. Lewis v.
State, 730 N.E.2d 686, 690 (Ind. 2000). The denial of the right to counsel of
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choice is reviewed to determine whether the trial court acted unreasonably and
arbitrarily. Id. The Sixth Amendment guarantees a criminal defendant’s right
“to have the assistance of counsel for his defense.” Id. at 688. “A corollary of
this right is the right to choose counsel when a defendant is financially able to
do so.” Id. at 688-89. Our supreme court has noted, however, that the right to
counsel of choice is not absolute. Id. at 689. The right to counsel of choice
must be exercised “‘at the appropriate stage of the proceeding.’” Id. (quoting
Parr v. State, 504 N.E.2d 1014, 1016 (Ind. 1987)). Our supreme court has held
that “‘[c]ontinuances sought shortly before trial to hire a new attorney are
disfavored because they cause substantial loss of time for jurors, lawyers, and
the court.’” Id. (quoting Perry v. State, 638 N.E.2d 1236, 1241 (Ind. 1994)). In
Lewis, our supreme court noted:
Indeed, this Court has held a number of times that it is within a
trial court’s discretion to deny a last-minute continuance to hire
new counsel. See [Perry, 638 N.E.2d at 1241] (one day before
trial); Beadin v. State, 533 N.E.2d 144, 145-46 (Ind. 1989) (two
days before trial); Dickson v. State, 520 N.E.2d 101, 105 (Ind.
1988) (one day before trial); Vacendak v. State, 431 N.E.2d 100,
104-05 (Ind. 1982) (morning of trial); Collins [v. State, 274 Ind.
619, 622-23, 413 N.E.2d 264, 267 (1980)] (morning of trial).
Id.
[12] Here, Davis requested different counsel on the morning of the first day of his
jury trial because he did not believe that his current counsel was adequately
prepared. Davis’s counsel at the time of trial had entered his appearance in
March 2015, and the jury trial was not held until February 2016. Davis
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complained that his counsel had only spoken to him one time. However, Davis
was not incarcerated during this time period. David did not express his
dissatisfaction with counsel until the first day of the jury trial. Under these
circumstances, the trial court did not abuse its discretion by denying Davis’s
motion for a continuance, and the trial court did not violate Davis’s right to
counsel.
Conclusion
[13] The trial court did not abuse its discretion by denying Davis’s motion for a
continuance as a result of a delay in the State producing discovery, and the trial
court did not abuse its discretion by denying Davis’s motion for a continuance
to secure new counsel. We affirm.
[14] Affirmed.
Kirsch, J., and Robb, J., concur.
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