Small v. State

112 N.E.3d 738

Jimmy Joe SMALL, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-773

Court of Appeals of Indiana.

Filed October 2, 2018

Attorneys for Appellant: Scott L. Barnhart, Brooke Smith, Keffer Barnhart LLP, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana

Robb, Judge.

Case Summary and Issue

[1] Following a jury trial, Jimmy Joe Small was convicted of unlawful possession of a firearm by a serious violent felon, a Level 4 felony. Small now appeals his conviction raising two issues for review, which we consolidate and restate as whether the trial court abused its discretion by granting the State's motion for a continuance. Concluding the trial court abused its discretion, we reverse.

Facts and Procedural History

[2] Following a tip that Small possessed a firearm, several detectives of the Evansville Police Department's drug task force conducted a "knock and talk" on Small's motel room. Small, who was joined in the room by Brittany Harper, answered the door and stepped outside. Small left the door open behind him and officers observed drug paraphernalia on a bedside table. After officers entered the room to secure the evidence, they also observed a firearm on a bedside table. Small admitted to having handled the firearm and it was collected as evidence and swabbed for DNA. A subsequent search of the motel room revealed a magazine for the firearm inside a purse.

[3] Small was arrested and the State charged Small with unlawful possession of a firearm by a serious violent felon, a Level 4 felony, two counts of possession of methamphetamine, a Level 5 felony and a Level 6 felony, maintaining a common nuisance, a Level 5 felony, and unlawful possession of a syringe, a Level 6 felony. An initial hearing was conducted two days later and Small was appointed counsel. On September 21, the State made its initial request for Small's DNA standards and the court granted the State's request, without a hearing, on September 26.

[4] A pretrial hearing was conducted on October 4. Small orally moved for a speedy trial pursuant to Criminal Rule 4, which requires the State to bring a defendant held in jail to trial within seventy days of the motion, and a trial date was set for seventy days later on December 13. Small also objected to the trial court granting the State's request for his DNA standards in his absence and indicated that he planned to file a motion asking the trial court to rescind its September 26 order. Following a hearing on the motion on October 12, the trial court rescinded its order for Small's DNA standards.

[5] The State filed a renewed request for Small's DNA standards. On October 24, the trial court conducted a hearing at which all parties were present. The State indicated that the firearm had been swabbed for DNA but could not be submitted to the Indiana State Police Laboratory without sending Small's DNA standards with it. Over Small's objection, the court orally granted the State's request and instructed the State to file a proposed order for the court to sign.

[6] On December 7, forty-four days later, and just six days before trial, the State filed a motion for a continuance pursuant to Criminal Rule 4(D), which allows for a ninety-day extension of the speedy trial period under certain circumstances. The State contended it was unable to proceed to trial "due to forensic testing needing to be conducted upon the evidence in this Cause." Appellant's Appendix, Volume 2 at 32. In its motion, the State asserted:

11. The State discovered on December 1, 2017 that we had not received the October 25, 2017 signed Order from the Court. The State contacted Court staff on the same day to bring this to their attention.

12. Court staff indicated that they had inexplicably never received the October 25, 2017 Order, and the State was instructed to file the Order again. The State did so on the same day, December 1, 2017....

13. The State received a signed Order to Obtain the Defendant's DNA standards on December 5, 2017 at 6:15 AM by email....

Id. at 33. At a hearing on the State's motion, the magistrate judge acknowledged:

the Court has been advised by Judge Kiely and the court staff that it was a glitch in the Odyssey system the reason why this Order didn't get signed, so that is a fact that the Court takes notice of ....

Transcript, Volume II at 20.

[7] The State explained that based on its "understanding after speaking with representatives from the Evansville Police Crime Scene [sic]," a preliminary result could be obtained within forty-five days after securing Small's DNA standards of whether Small's DNA was found on the firearm. Id. at 19. If so, a conclusive result would take an additional thirty to forty days. Therefore, the State argued, the evidence could be obtained within the ninety-day extension period provided by Criminal Rule 4(D). Over Small's objection, the court granted the State's motion for a continuance:

I'm going to find that the evidence is relevant and a reasonable effort has been made to precure [sic] the same, there is just cause to believe that the evidence can be had within 90 days and so I'm going to continue the trial date, but I'm going to set it in 70 days. If you could have tried it initially within 70 days, then you're going to have to try it now within 70 days. If you can't do that then we'll do something else or you won't have the evidence.

Id. at 23.

[8] The two-day jury trial began on February 12. The State moved to dismiss all counts except for Count 1, unlawful possession of a firearm by a serious violent felon, a Level 4 felony, and the court granted the State's motion. Small moved for discharge pursuant to Criminal Rule 4 prior to both days of the jury trial; both motions were denied by the trial court.

[9] During the trial, the State presented the testimony of Nicole Hoffman, a forensic DNA analyst with the Indiana State Police laboratory. Hoffman testified that the lab received items for testing in this case on December 12, 2017. Hoffman began testing on December 20 and concluded her report on January 5, 2018. Hoffman testified the firearm contained a mixture of DNA and she was unable to arrive at a conclusive result. When asked by defense counsel how quickly such results could be obtained if asked to do a "rush job," Hoffman opined that a rush job could be complete in as little as two days. Tr., Vol. III at 187.

[10] The jury found Small guilty of knowingly or intentionally possessing a firearm and Small subsequently admitted that he was a serious violent felon. The trial court entered judgment of conviction and sentenced Small to ten years executed at the Indiana Department of Correction. Small now appeals.

Discussion and Decision

I. Standard of Review

[11] We review issues concerning Indiana Criminal Rule 4(B) and 4(D) for abuse of discretion. Miller v. State , 72 N.E.3d 502, 513 (Ind. Ct. App. 2017), aff'd in relevant part , 77 N.E.3d 1196, 1197 (Ind. 2017). An abuse of discretion occurs if the decision of the trial court is clearly against the logic and effect of the facts and circumstances before the trial court. Id.

II. Criminal Rule 4(D) Motion for Continuance

[12] Small argues the trial court abused its discretion when it granted the State's motion for a continuance pursuant to Criminal Rule 4(D). Both the Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution guarantee an accused the right to a speedy trial. Cundiff v. State , 967 N.E.2d 1026, 1027 (Ind. 2012). Indiana Criminal Rule 4 provides functionality to that doubly protected constitutional right. Austin v. State , 997 N.E.2d 1027, 1037 (Ind. 2013).¹

[13] Criminal Rule 4(B)(1) states, in relevant part:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

However, Criminal Rule 4(D) provides for a ninety-day extension under certain circumstances:

If when application is made for discharge of a defendant under this rule, the court be satisfied that there is evidence for the state, which cannot then be had, that reasonable effort has been made to procure the same and there is just ground to believe that such evidence can be had within ninety (90) days, the cause may be continued, and the prisoner remanded or admitted to bail; and if he be not brought to trial by the state within such additional ninety (90) days, he shall then be discharged.

[14] Thus, Criminal Rule 4(D) provides that a trial court may grant the State a continuance when it is satisfied "(1) that there is evidence for the State that cannot then be had; (2) that reasonable effort has been made by the State to procure the evidence; and (3) that there is just ground to believe that such evidence can be had within ninety days."Chambers v. State , 848 N.E.2d 298, 303-04 (Ind. Ct. App. 2006), trans. denied. Here, we conclude the State failed to demonstrate that it made a reasonable effort to procure the evidence.

A. Necessity of the Evidence

[15] We begin by addressing Small's contention that the trial court erred by granting the State's continuance pursuant to Criminal Rule 4(D) because, despite the State's claim in its motion that the DNA evidence was "critical" to its case, Appellant's App., Vol. 2 at 33, ¶ 15, the State failed to present "substantive or significant DNA evidence" at trial. Brief of Appellant at 8.

[16] Small was charged with unlawful possession of a firearm by a serious violent felon pursuant to Indiana Code section 35-47-4-5. Accordingly, the State had the...