MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Mar 20 2018, 10:57 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Curtis T. Hill, Jr.
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gerrod Pointer, March 20, 2018
Appellant-Defendant, Court of Appeals Case No.
82A01-1706-CR-1461
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff. Judge
The Honorable Kelli Fink,
Magistrate
Trial Court Cause No.
82C01-1602-MR-973
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Gerrod D. Pointer (Pointer), appeals his conviction for
murder, a felony, Ind. Code § 35-42-1-1(1).
[2] We affirm.
ISSUE
[3] Pointer raises one issue on appeal, which we restate as: Whether the trial court
abused its discretion by denying Pointer’s motion to exclude the testimony of a
witness who was omitted from the State’s witness list or, alternatively, by
denying Pointer’s request to continue the trial.
FACTS AND PROCEDURAL HISTORY
[4] On February 13, 2016, shortly before 2:00 a.m., Pointer and his uncle, Mark
Gulley (Gulley), arrived at the Lucky Lady, a strip club located in Evansville,
Vanderburgh County, Indiana. Pointer had driven the pair there in a late
model, white sedan. Approximately ten minutes later, Maurice Heyward
(Heyward) also arrived at the Lucky Lady. Although a frequent patron of the
Lucky Lady, Heyward, at the time, was employed as a bouncer at another
Evansville club, the Busy Body Lounge. At some point prior to this night,
Pointer and Heyward had been involved in an altercation that resulted in
Heyward ejecting Pointer from the Busy Body Lounge. However, there is no
indication that Pointer and Heyward had any interaction on this night while at
the Lucky Lady.
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[5] Within twenty minutes of arriving at the Lucky Lady, Gulley wanted to leave
because “the liquor cost too much” and he “didn’t like the company” or “the
place, it stinks.” (Tr. Vol. II, p. 124). Pointer and Gulley left the Lucky Lady
at 2:08 a.m., and as they walked down the sidewalk, Pointer waved at a passing
police vehicle. He subsequently drove Gulley home; Gulley went to bed and
assumed that Pointer also “went home.” (Tr. Vol. II, p. 115).
[6] Shortly before 3:00 a.m., two officers with the Evansville Police Department
were patrolling the area of the Lucky Lady when one observed “a subject that
had on a dark colored jacket, and maybe an orange sweatshirt underneath it”
loitering behind a dumpster in the Lucky Lady’s parking lot. (Tr. Vol. II, p.
37). However, by the time the officers circled back to disperse the loiterer, the
individual was gone.
[7] The Lucky Lady closed at 3:00 a.m. A few minutes later, Heyward and his
friend, Jae Post (Post), left the club and walked to the parking lot together. As
they stood conversing, Post observed a man emerge from the vicinity of the
dumpster and, initially, “didn’t think anything of it.” (Tr. Vol. II, p. 210).
However, as the man approached, Heyward stated, “[H]e’s got a gun,” and
then two gunshots rang out. Post, an Army veteran who is licensed to carry a
firearm, retrieved his handgun and, making eye contact with the shooter, fired
three shots in return. As the man fled, Heyward yelled out that he had been hit,
and Post briefly gave chase to the suspect. Although Post did not see the man
again, he observed “a dark blue colored SUV, GM Chevy product, maybe a
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Tahoe, Yukon, I’m not sure, I see the passenger door open, see the door shut,
and see the SUV pull out and speed off.” (Tr. Vol. II, p. 213).
[8] At the same time that Heyward and Post were talking in the parking lot, Marc
Berendes (Berendes), who provides security services at the Lucky Lady, was
escorting one of the dancers to her vehicle. As they approached the dumpster,
Berendes observed “a guy come[] walking out from behind it.” (Tr. Vol. II, p.
243). Because the man ignored them, Berendes did not perceive him to be a
threat to the dancer, and they continued walking down the sidewalk. Moments
later, when the gunshots were fired, Berendes and the dancer hunkered down in
front of a truck, at which point “a guy came running fast” past them and got
into a newer model “little white car.” (Tr. Vol. II, pp. 246-47). The little white
car drove off, and Berendes observed as a SUV pulled behind the white car and
followed it.
[9] Heyward stumbled toward the door of the Lucky Lady and collapsed on the
ground as bystanders attempted to assist him. At the time the shots were fired,
two Evansville police officers were in the immediate vicinity and arrived on the
scene within moments. Emergency medical personnel also arrived and
transported Heyward to the hospital, where he was pronounced dead a short
time later. An autopsy revealed that Heyward had been shot once in the left
shoulder; his cause of death “was hemopericardium, which is bleeding in the
sac around the heart, and hemothorax, which is blood in the chest cavity, and
that was due to lacerations of the lung, the left lung in this case, and laceration
of the right ventricle of the heart.” (Tr. Vol. II, pp. 130-31).
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[10] During the ensuing investigation, an Evansville Police Department detective
retrieved surveillance footage from four cameras posted on the exterior of the
Lucky Lady building. The shooting was captured by the cameras, and the
detective ultimately ascertained that the suspect was wearing a brightly-colored
red/orange hooded sweatshirt with a dark jacket and light-colored blue jeans,
along with distinct black and white shoes. By “work[ing] backwards” through
the footage, the detective observed that an individual dressed in the same
manner had been at the Lucky Lady earlier that morning, arriving at 1:49 a.m.
and departing at 2:08 a.m. (Tr. Vol. II, p. 49). Less than an hour later, at 2:52
a.m., surveillance footage depicted a man in the same attire suddenly emerge
from behind the dumpster in the parking lot of the Lucky Lady in order to get
into the passenger side of a dark blue Chevrolet SUV that was waiting in the
parking lot. Although the SUV was seen driving away, that individual again
reappeared from behind the dumpster at 3:04 a.m., at which time he shot
Heyward.
[11] Law enforcement officials subsequently released still shots from the surveillance
footage to various media outlets, requesting citizen assistance in identifying the
suspect. After seeing the photographs of himself and Pointer entering the
Lucky Lady circulating on Facebook, Gulley came forward and identified
Pointer as the man in the red/orange sweatshirt. In addition, police officers
later came across a dark blue Chevrolet SUV that appeared to be the same as
the one present in the surveillance video. The SUV was linked to an
acquaintance of Pointer.
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[12] On February 17, 2016, the State filed an Information, charging Pointer with
murder, a felony, I.C. § 35-42-1-1(1). However, Pointer had left the state.
Several months later, he was arrested in Kansas on a parole violation and was
extradited to Indiana in August of 2016.
[13] During a pre-trial hearing on Friday, May 12, 2017, Pointer orally moved to
continue the trial date, which was scheduled to begin the following Monday. In
support of a continuance, Pointer argued that
in the course of their preparation for this case, the State came
across a witness, . . . who they’ve identified, another individual
in the video, and they were recently able to talk to that
individual, they took a taped statement from him on Tuesday, I
believe, I received it Wednesday, and I was gone all day
yesterday. I’ve not reviewed it; however, it would be, based
upon a representation made by [the State], it’s pretty important
information, and I think she would acknowledge that, relative to
the case.
(Tr. Vol. II, pp. 4-5). The State, in objecting to a continuance, acknowledged
that the witness at issue, Berendes, had been initially unidentifiable in the
surveillance footage, but he had finally been identified earlier that week. The
State indicated that Berendes provided a taped statement on Tuesday (i.e., six
days prior to trial), and the same was provided to the defense the next day. The
State added that
[t]he majority of what this witness has indicated, we already
know from the video because his . . . what he witnessed is on
video. The only additional information that this witness provides
us is the type of vehicle that the runner, who he has not identified
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as . . . Pointer, he’s not identified the runner as the shooter, he
just simply saw someone running past him, and that that
individual got into a white car. That is the new information, so I
don’t know how fruitful or what we’re looking at as far as a
continuance when the majority, 90% of what this witness is going
to testify to is already on camera.
(Tr. Vol. II, p. 6). Because the defense had requested and received a
continuance a few months earlier, the trial court denied Pointer’s motion to
continue.
[14] On May 15 through 17, 2017, the trial court conducted a jury trial. According
to the Chronological Case Summary, during a meeting in the trial court’s
chambers prior to the start of the trial, Pointer moved to exclude the testimony
of Berendes as a result of late discovery and because the State omitted his name
from its witness list. Pointer also renewed his motion for a continuance. In
response, the State argued that Berendes’ name had been earlier included in the
case file. In fact, Berendes was listed as “[a]nother[] involved” on the
Incident/Investigation Report generated on February 13, 2016, by the
Evansville Police Department. (Appellant’s Conf. App. Vol. II, p. 91). The
trial court ordered the State to make Berendes available to the defense and
denied Pointer’s motions. Thereafter, the jury was sworn and evidence was
presented. In addition to the surveillance footage, the State’s evidence included
the testimony of Post, who identified Pointer in court as the same man he made
eye contact with on the night of the murder, as well as testimony from one of
the police officers, who recognized Pointer in court as the same man who
waved at the police vehicle while walking down the sidewalk and was wearing
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the same attire as the shooter. At the close of the evidence, the jury returned a
guilty verdict. On June 19, 2017, the trial court held a sentencing hearing and
ordered Pointer to execute sixty years in the Indiana Department of Correction.
[15] Pointer now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[16] Pointer claims that the trial court erred by denying his motions to either exclude
the testimony of Berendes or to grant a continuance because the State did not
identify Berendes as a witness until a few days prior to trial. In the exercise of
the right to present witnesses, both the State and the accused “must comply
with established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and innocence.” Barber v.
State, 911 N.E.2d 641, 646 (Ind. Ct. App. 2009) (quoting Roach v. State, 695
N.E.2d 934, 939 (Ind. 1998)). “Trial courts have wide discretion in deciding
whether to admit testimony from belatedly disclosed witnesses.” Griffith v.
State, 59 N.E.3d 947, 957 (Ind. 2016). “An abuse of discretion occurs only
when the belatedly disclosing party ‘engaged in deliberate or other
reprehensible conduct that prevents the defendant from receiving a fair trial.’”
Id. Our supreme court has also stated that “[e]xclusion of the witness’
testimony is necessary only where the failure to comply with the discovery
order is grossly misleading or demonstrates bad faith on the part of the
prosecutor.” Hovis v. State, 455 N.E.2d 577, 582 (Ind. 1983).
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[17] In this case, Pointer does not argue that the State deliberately sought to conceal
Berendes as being a potential witness. See Griffith, 59 N.E.3d at 957. Even
though Berendes was listed in the investigation report filed by the police, he was
not identifiable in the surveillance footage because his back faced the camera as
he escorted the dancer to her vehicle. Rather, it was only during a “witness
conference[] with one of the Motor Patrol” that the State received “a name of
who [the motor patrol officer] thought that might be, just because [the officers]
work that area on a regular basis.” (Tr. Vol. II, p. 5). Upon meeting with
Berendes and taking his statement, the State promptly provided the information
to Pointer’s counsel. We do note that based on the fact that Berendes’ name
was included in the initial investigative report, either the State or Pointer could
have reached out to him sooner than the week before trial, but both failed to do
so. With Berendes’ name at his disposal well before the commencement of
trial, Pointer can hardly claim that he was deprived of a fair trial. Furthermore,
absent any evidence of reprehensible conduct by the State, we find that the trial
court acted within its discretion by denying Pointer’s motion to exclude
Berendes as a witness.
[18] Nevertheless, Pointer contends that
[b]etween the Wednesday when he received the information and
the Monday the trial began, defense counsel had two business
days to prepare a defense after he learned of Berendes’ testimony.
This is simply not enough time. Particularly, because he was not
given access to Berendes until the day of trial. In order to
adequately prepare for the testimony of a key witness, counsel
needed time to research the witness to learn if he had any prior
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impeachable offenses, interview the witness, analyze his
testimony in relationship to the video, and learn whether or not
the witness would have a motive to lie. Counsel was not
afforded time to do any of these things.
(Appellant’s Br. p. 12). Therefore, Pointer alternatively argues that the trial
court abused its discretion by denying his request for a continuance.
[19] “We have frequently held that the usual remedy for failure to comply with a
discovery order, when the defendant is surprised by testimony from an
undisclosed witness or discovers undisclosed evidence relating to a witness’
testimony while that witness is on the witness stand, is to move for a
continuance.” Hovis, 455 N.E.2d at 582. “Rulings on non-statutory motions
for continuance lie within the discretion of the trial court and will be reversed
only for an abuse of that discretion and resultant prejudice.” Barber, 911
N.E.2d at 645-46. It is an abuse of discretion if the trial court’s “decision is
clearly against the logic and effect of the facts and circumstances before the trial
court.” Id. at 646. Our court has previously stated that while a continuance
should be granted to allow for adequate time to prepare and investigate a case,
“a continuance is not meant to be the only remedy available in every case
where the prosecution attempts to call a surprise witness. To require the trial
court to grant a continuance in every situation would remove necessary
flexibility.” Butler v. State, 372 N.E.2d 190, 193 (Ind. Ct. App. 1978). In the
present case, the trial court previously granted a continuance to Pointer in order
to allow him additional time to prepare for trial.
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[20] “In order to demonstrate an abuse of . . . discretion, the record must reveal that
the defendant was prejudiced by the failure to grant the continuance. Thus,
even with a showing of surprise, there must also be a showing that the
defendant would be harmed by a denial of the continuance.” Id. at 194
(citation omitted). As already discussed, Pointer could have sooner looked into
Berendes based on the fact that he was identified as “[a]nother[] involved” in
the Incident/Investigation Report generated on February 13, 2016, by the
Evansville Police Department. (Appellant’s Conf. App. Vol. II, p. 91).
Furthermore, the State promptly provided a copy of Berendes’ statement to
defense counsel and specified that the only new information the jury would
learn from Berendes was that, after hearing gunfire, he observed a man, whom
he could not identify, run past him and drive off in a white vehicle. In light of
the ample independent evidence of Pointer’s guilt—especially the fact that the
crime was captured by surveillance cameras, there is a very low probability that
Berendes’ testimony had an impact on the jury’s verdict. Moreover, Pointer
admittedly had several days between learning of the State’s intent to utilize
Berendes’ testimony and the trial; yet, the record is unclear as to why Pointer’s
counsel would not have had access to Berendes during that time as he now
claims. See Davis v. State, 714 N.E.2d 717, 723 (Ind. Ct. App. 1999) (finding no
error in the trial court’s denial of a continuance where the defendant “did not
take advantage of” a three-day recess to depose the belatedly disclosed witness),
trans. denied. Accordingly, we cannot say that the trial court abused its
discretion by denying Pointer’s request for a continuance.
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CONCLUSION
[21] Based on the foregoing, we conclude that the trial court did not abuse its
discretion in denying Pointer’s motion to exclude certain testimony or,
alternatively, in refusing to continue the trial.
[22] Affirmed.
[23] Baker, J. and Brown, J. concur
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