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. Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017 Page 1 of 8

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.

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017 Page 2 of 8 [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

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017 Page 3 of 8

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.

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017 Page 4 of 8 [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

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017 Page 5 of 8

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 Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017 Page 6 of 8

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 Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017 Page 7 of 8

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.

Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017 Page 8 of 8