Smith v. State

982 N.E.2d 393

Terry SMITH, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A05–1202–CR–88.

Court of Appeals of Indiana.

Feb. 7, 2013.

Matthew D. Anglemeyer, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Terry Smith (“Smith”) was convicted in Marion Superior Court of Class B felony robbery, Class B felony possession of a firearm by a serious violent felon, Class D felony auto theft, and Class D felony resisting law enforcement. Smith appeals and presents five issues, which we reorder and restate as:

I. Whether the trial court abused its discretion in granting the State's motion to continue the trial in order to obtain certain evidence;

II. Whether the trial court abused its discretion in admitting evidence and testimony regarding shell casings collected in the area where Smith had fled from the police;

III. Whether the trial court abused its discretion in admitting into evidence items seized from Smith's home pursuant to a search warrant;

IV. Whether the trial court abused its discretion in admitting DNA evidence obtained from a buccal swab taken from Smith; and V. Whether the State presented evidence sufficient to support a finding that Smith was an habitual offender.

We affirm.

Facts and Procedural History

Shortly after midnight on the morning of February 12, 2009, Jessie Dulaney (“Dulaney”) looked where he had parked his vehicle, a red Chevrolet Lumina minivan, and saw a man, later identified as Smith, driving away in the van. Dulaney, who lived near 30th Street and Post Road in Indianapolis, had not given Smith, or anyone else for that matter, permission to use his van, and telephoned the police to report that his van had been stolen.

Later that morning, at approximately 8:50 a.m., Ken Rozelle (“Rozelle”) went to the Chase Bank branch located on 42nd Street and Franklin Road in Indianapolis. The bank opened at 9:00 a.m., and Rozelle wanted to be one of the first customers so he could conduct his business quickly. Rozelle noticed a red Chevrolet Lumina minivan parked in the bank's parking lot. The van was parked close to the bank's door, and a light-skinned African–American man with a beard was sitting in the driver's seat talking on his mobile phone. Rozelle went into the bank when it opened, deposited a check, and went back to his car within a few minutes. When he went back to his car, he noticed that the man in the van, later identified as Smith, was still in his car and had not yet gone into the bank. This struck Rozelle as odd, because most customers enter the bank quickly once the bank opens. When Rozelle drove away, Smith was still in the van.

Shortly thereafter, Smith went into the bank and fired one shot from a black semiautomatic handgun. Smith was wearing a black knit cap, gray sweatpants, a sweatshirt, and had a white bandana covering most of his face. Still, the bank employees could observe that the gunman appeared to be a light-skinned African–American man who was approximately 5' 7? tall. Smith yelled at the bank employees to get on the floor. Bank employee Jennifer Aasen (“Aasen”) realized that a robbery was in progress and pressed a button that sounded a silent alarm to the police. The bank tellers were situated behind bulletproof glass, and the only way to approach them was through a door next to the desk of customer-service representative Julie Carson (“Carson”). Smith, seeming to know this, headed straight for Carson, pointed his gun at her, and instructed her to unlock the door to the teller area and hold the door open for him. Carson complied. Pointing his handgun, Smith then went to each of the three tellers and demanded that they put money in a black pillowcase Smith had. He demanded money from both of the drawers each teller had access to and instructed them not to put any dye packs in with the money.

After collecting $27,659 in cash, Smith ran out of the bank. After Smith left, branch manager Tonya Bruce (“Bruce”) locked the front door to the bank. She then directed all the employees to fill out questionnaires regarding the robbery and their descriptions of the robber. Lt. Jack Bailey (“Lt. Bailey”) of the Lawrence Police Department heard a dispatch of a suspected robbery at the Chase Bank at 42nd Street and Franklin Road. Lt. Bailey was only a short distance from the bank and could actually see the bank from where he was when he heard the dispatch. He drove straight to the bank and pulled in the parking lot. As he did, he saw Smith run from the bank, throw something into his van, and drive away. Lt. Bailey pursued Smith. When he checked the license plate on the van, Lt. Bailey was informed that the van had been stolen the night before. This heightened Lt. Bailey's suspicionsthat Smith had just robbed the bank.

Even though Lt. Bailey had activated his emergency lights and siren, Smith refused to pull over. Lt. Bailey continued to pursue Smith until Smith pulled the van into a residential neighborhood and to the yard of a home on Dubarry Road. Behind this home was a fence that separated the home's yard from Pinnacle Square Apartments. The fence behind the home had been broken down. In Lt. Bailey's experience, people at the apartment complex used the hole in the fence to enter the apartment complex, and those fleeing from the police would use the hole in the fence to escape from the police. Smith left the van and ran toward the corner of the home on Dubarry Road. As Lt. Bailey parked his car and got out to follow Smith, Smith fired a shot from his handgun that struck the front passenger-side door of Lt. Bailey's patrol car. Lt. Bailey fired two shots in return and sought cover behind a large tree. Smith fired two more shots at Lt. Bailey, who could see Smith run back behind the house. Lt. Bailey waited for backup officers to arrive. Approximately fifty other police vehicles responded and set up perimeters around the apartment complex where they believed Smith had fled. However, the police were unable to locate Smith that day.

Detective Michelle Stewart (“Detective Stewart”) went to the Chase Bank and spoke with the employees regarding the robbery and viewed the video captured by the bank's security cameras. Based on what she learned from the employees and the video, she gave a description of the robber to the other police officers, describing the perpetrator as a “younger black male of medium build, medium height, not too tall, not super short,” and further described him as a “lighter-skinned black male” or Hispanic male wearing a gray jogging suit. Tr. pp. 627, 655. Crime Scene Specialist Donald Toth (“Toth”) collected ten bullet fragments from the Chase Bank, and collected two .40 caliber Winchester shell casings at the home on Dubarry Road. He also found a bullet in the door of Lt. Bailey's car and a .45 caliber shell casing in the van Smith had been driving. Toth also found two .45 caliber shell casings in the back yard area of the home. Later testing determined that all three .45 caliber shells had been fired by the same gun, a High Point brand weapon. Inside the van, the police found the black pillowcase Smith had used in the robbery along with all of the money stolen from the bank.

A few days later, the police received information from a confidential informant that indicated that Smith was involved in the robbery. The informant gave the police information indicating that he did in fact know Smith and also knew information about Smith that had not been released to the public. Using this information, the police obtained a warrant to search Smith's apartment at the Pinnacle Square Apartment complex. Inside, the police found a black knit hat and a pair of gray sweatpants. Although Smith matched the description of the robber, the police did not arrest him at the time of the search. Subsequent testing found DNA on the pillowcase found inside the van and used in the robbery. The police then got a warrant to obtain Smith's DNA from a buccal swab of his cheek. Smith's DNA was a “major contributor” to two of the DNA samples found on the pillowcase. The police then interrogated Smith, who waived his Miranda rights. Smith denied that he was the robber and denied ever having been to the Chase branch that had been robbed. But he later admitted that he had been to that branch before.

On March 8, 2010, the State charged Smith with Class A felony attempted murder, Class B felony armed robbery, Class B felony criminal confinement, Class B felony unlawful possession of a firearm by a serious violent felon, Class D felony auto theft, and Class D felony resisting law enforcement. The State subsequently amended the charges to add an allegation that Smith was an habitual offender. A jury trial was held on May 31 through June 3, 2011. At the conclusion of this trial, the jury found Smith not guilty of attempted murder and criminal confinement, but was unable to reach a verdict on the remaining counts. The trial court declared a mistrial as to the counts on which the jury was unable to reach verdict, and a second jury trial on those counts was set for August 22, 2011.

Smith then moved for a speedy trial on July 22, 2011, and the trial court set October 1, 2011, as the “deadline” for the trial. On August 2, 2011, the State moved to continue the trial. Smith indicated that he had no objection so long as the trial was still held within the speedy trial deadline. The trial court granted the State's motion to continue and moved the trial to September 19, 2011. At a pre-trial conference held on September 15, 2011, the State orally moved to continue the trial again. Over Smith's objection, the trial court reset the trial for December 19, 2011. Smith filed a motion for discharge and dismissal on October 28, 2011, alleging that the speedy trial deadline had passed. The trial court...