FILED
Oct 02 2018, 8:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Keffer Barnhart LLP Caroline G. Templeton
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jimmy Joe Small, October 2, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-773
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David Kiely, Judge
Appellee-Plaintiff. The Honorable Kelli Fink,
Magistrate
Trial Court Cause No.
82C01-1708-F4-5078
Robb, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-773 | October 2, 2018 Page 1 of 16
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
Court of Appeals of Indiana | Opinion 18A-CR-773 | October 2, 2018 Page 2 of 16
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
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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
Court of Appeals of Indiana | Opinion 18A-CR-773 | October 2, 2018 Page 4 of 16
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,”
Court of Appeals of Indiana | Opinion 18A-CR-773 | October 2, 2018 Page 5 of 16
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
Court of Appeals of Indiana | Opinion 18A-CR-773 | October 2, 2018 Page 6 of 16
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
1
As our supreme court noted in Austin, however, Criminal Rule 4(B) challenges are “separate and distinct
from reviewing claimed violations of those constitutional provisions.” Id. at 1037 n.7.
Court of Appeals of Indiana | Opinion 18A-CR-773 | October 2, 2018 Page 7 of 16
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 34-47-4-5. Accordingly, the State had
the burden to prove Small was a serious violent felon who “knowingly or
intentionally” possessed a firearm. Ind. Code § 34-47-4-5(c). By the time of the
State’s request for Small’s DNA standards, the State already possessed both
circumstantial and direct evidence of Small’s guilt as the firearm was discovered
in plain view on a table in his hotel room and Small “admitted that he had
handled the gun in some way.” Tr., Vol. III at 127. Nevertheless, the State
claimed in its motion for a continuance pursuant to Criminal Rule 4(D) that the
DNA evidence was “critical” to its case. Appellant’s App., Vol. 2 at 33, ¶ 15.
The only DNA evidence the State presented at trial, however, was testimony
that the firearm contained a mixture of DNA and that testing was unable to
Court of Appeals of Indiana | Opinion 18A-CR-773 | October 2, 2018 Page 8 of 16
produce a conclusive result of whether Small’s DNA was present on the
firearm.
[17] On appeal, Small argues the State’s inability to present conclusive DNA
evidence at trial and, by inference, the fact that the jury reached a guilty verdict
in its absence, demonstrates the DNA evidence was not critical to its case and
the trial court therefore erred in granting the State’s continuance to pursue such
evidence. In Miller, the trial court granted the State a continuance pursuant to
Criminal Rule 4(D) to allow an expert witness additional time to review
medical records and prepare a report about the defendant, despite the
defendant’s previous examination by two court-appointed experts and one
expert hired by the defense. 72 N.E.3d at 512. On appeal, the defendant
argued, inter alia, that the trial court erred by granting the State a continuance to
pursue evidence it later declined to present at trial. In holding the trial court
acted within its discretion, the Miller court explained:
we place little emphasis on the fact that the State ended up not
calling Dr. Crane at trial or utilizing any of his reports or
opinions. It may indeed be the case that Dr. Crane’s opinion
regarding [the defendant’s] sanity largely paralleled those of the
other experts who examined him. However, we reiterate, “Rule
4(D) does not mandate the evidence be essential or unique, only
that it be unavailable and that the State be entitled to present it.”
[Wilhelmus v. State, 824 N.E.2d 405, 413 (Ind. Ct. App. 2005)].
At the time the State requested an evaluation of [the defendant]
by Dr. Crane, it was unknown what Dr. Crane ultimately would
conclude. Regardless, the State was entitled to pursue that
evaluation in preparing to rebut [the defendant’s] insanity
defense. We evaluate the reasonableness of the State’s request
Court of Appeals of Indiana | Opinion 18A-CR-773 | October 2, 2018 Page 9 of 16
for a trial delay in light of the information known or available to
it at the time of the request.
Id.
[18] Similarly here, the State was not required to demonstrate the DNA evidence
was “essential or unique,” or in other words, critical to its case. Wilhelmus, 824
N.E.2d at 413. Rather, the State was only required to prove the evidence was
“unavailable and that the State be entitled to present it.” Id. Furthermore, we
evaluate the reasonableness of the State’s request “in light of the information
known or available to it at the time of the request.” Miller, 72 N.E.3d at 512.
At the time of the State’s request for DNA testing, like the evaluation in Miller,
it remained unknown what the testing would ultimately reveal. And, certainly,
the presence of Small’s DNA was pertinent to whether Small had possessed the
firearm. Therefore, although the issue of whether the DNA evidence was truly
“unavailable” is a question we discuss further below, we conclude the State’s
inability to present conclusive DNA evidence at trial was irrelevant for the
purposes of the State’s continuance.
B. Reasonable Effort to Procure Evidence
[19] Next, Small argues the State failed to demonstrate it made a reasonable effort to
procure the evidence it alleged it could not obtain in time for the speedy trial
date.
[20] The onus is on the State, not the defendant, to expedite prosecution and a
defendant “has no duty to bring himself to trial; the State has that duty as well
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as the duty of insuring that the trial is consistent with due process.” Jackson v.
State, 663 N.E.2d 766, 769 (Ind. 1996). “The defendant does not have an
obligation to remind the State of this duty or to remind the trial court of the
State’s duty.” Staples v. State, 553 N.E.2d 141, 143 (Ind. Ct. App. 1990)
(referring to one-year limit of Criminal Rule 4(C)), trans. denied. Furthermore,
we judge the reasonableness of the delay in the context of each case. Smith v.
State, 802 N.E.2d 948, 951 (Ind. Ct. App. 2004).
[21] Here, the trial court orally granted the State’s request for Small’s DNA
standards on October 24. The State took no further action to collect Small’s
DNA standards until December 1, when it realized it had not received the trial
court’s written order because of a “glitch in the Odyssey system.” Tr., Vol. II at
20. Thereafter, the State notified the trial court, received the trial court’s
written order on December 5, and then filed a motion for a continuance
pursuant to Criminal Rule 4(D) on December 7.
[22] We view the facts presented here as similar to those of Chambers, 848 N.E.2d at
298. There, as here, the trial court granted the defendant’s motion for speedy
trial pursuant to Criminal Rule 4(B), thus giving the State seventy days to bring
the defendant to trial. As soon as the defendant’s motion was granted, the State
submitted three items for testing to the Indiana State Police Laboratory and
requested the process be extradited. At a pre-trial hearing fourteen days prior to
the defendant’s trial date, the State moved for a continuance pursuant to
Criminal Rule 4(D), citing the fact that it had yet to receive the results of one of
the three tests. The trial court granted the State’s motion and set a trial date
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outside the seventy-day period at which the defendant was subsequently
convicted as charged. The defendant appealed, arguing the trial court erred in
denying his motion to dismiss pursuant to Criminal Rule 4(B).
[23] On appeal, we explained:
Initially, the State made reasonable efforts to insure [sic] that the
lab test results would be in its possession prior to [the
defendant’s] October 25, 2004, trial. Upon learning of [the
defendant’s] motion for a speedy trial, the State immediately sent
the confiscated drugs to be tested, and was able to convince the
Indiana State Police Laboratory to expedite the testing of the
drugs even though the lab was running a nine-month backlog.
That, however, does not resolve the issue. After this point, the
State did not make reasonable efforts to procure the missing lab
test results. By October 11, 2004, the three lab tests conducted on
the confiscated drugs were completed, and the State was in
possession of two sets of the test results. Although the State
knew who was conducting the tests on the confiscated drugs and
had communicated with them in the past, there is no evidence
that the State made any effort to contact the Indiana State Police
Laboratory to find out when it would receive the results of the
last test. Absent some evidence that the State made an effort to
contact the Indiana State Police Laboratory, we cannot say that
the State made a reasonable effort to procure the missing
evidence.
Id. at 304-05.
[24] Similarly here, we conclude avoidable delay rendered the State’s efforts
unreasonable. Although the “glitch in the Odyssey system,” Tr., Vol. II at 20,
may have justified a modest delay, the State took thirty-eight days to notice this
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rather glaring error, despite its knowledge of Small’s speedy trial date and its
presence in court when its motion for a continuance was orally granted.
[25] The State argues it acted reasonably in waiting for the trial court’s order before
collecting Small’s DNA standards because the trial court “expressed a
preference for a written order, and in light of Small’s objection to the process[.]”
Brief of Appellee at 12. But, in so arguing, the State fails to cite precedent or
provide a cogent argument as to why it required a written order to proceed.
The Chronological Case Summary (“CCS”) reflects that on October 24 the trial
court “orally grant[ed] state’s Motion for DNA[,]” Appellant’s App., Vol. 2 at
6, and the CCS is “an official record of the trial court[,]” Ind. Trial Rule 77(B).
Although Small objected to the State’s motion, Small was present for—and
aware of—the trial court’s order. Nevertheless, we acknowledge the prudence
in what is apparently the State’s pattern and practice to obtain a written order
before attempting to obtain a defendant’s DNA standards. However, if, as its
argument suggests, the State was consciously awaiting the trial court’s written
order, it would have promptly noticed the error and brought it to the trial
court’s attention within a few days.
[26] Moreover, whereas the Chambers court concluded the State’s efforts were at
least “initially” reasonable, we cannot say the same here. 848 N.E.2d at 304.
In Chambers, the State promptly contacted the Indiana State Police Laboratory,
secured an expedited testing process, and immediately submitted the items for
testing. Here, there is no evidence the State secured, or even requested, an
expedited testing process. In fact, there is no evidence the State so much as
Court of Appeals of Indiana | Opinion 18A-CR-773 | October 2, 2018 Page 13 of 16
contacted the Indiana State Police Laboratory to determine how long DNA
testing would take before moving for a continuance pursuant to Criminal Rule
4(D).
[27] At the hearing on its motion, the State opined that it would take forty-five days
for preliminary testing with the possibility of an additional thirty to forty days
to finalize DNA testing, based on the State’s conversations with
“representatives from the Evansville Police Crime Scene [sic].” Tr., Vol. II at
19. But the DNA evidence was later submitted for testing to the Indiana State
Police, not the Evansville Police Department, and Hoffman’s trial testimony
established the testing could take as little as two days for a “rush job.” Tr., Vol.
III at 187.2 Even following standard procedure, Hoffman testified that she
finished testing and concluded her report within twenty-four days—twenty-one
days less than the base estimate provided by the State in support of its motion.
“We evaluate the reasonableness of the State’s request for a trial delay in light
of the information known or available to it at the time of the request.” Miller, 72
N.E.3d at 512 (emphasis added). Certainly, this more accurate time frame was
available to the State had it done its due diligence and contacted the Indiana
State Police Laboratory prior to moving for a continuance. Thus, as we
2
Hoffman testified the three possible outcomes of testing a sample for the presence of a subject’s DNA are
(1) a sample is consistent with a subject; (2) a subject may be excluded as being a contributor to the sample;
or, (3) a sample is “inconclusive for various reasons.” Id. at 180. Although it is unclear from the record
whether the results from a “rush job,” Id. at 187, would have been admissible at trial, even if further testing
was required, the State would then have been in a more appropriate position to request a continuance
pursuant to Criminal Rule 4(D).
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concluded in Chambers, “we cannot say that the State made a reasonable effort
to procure the missing evidence.” 848 N.E.2d at 305.
[28] On the facts presented here, therefore, we believe the State’s actions suggest
inattentiveness, rather than prudence, and we conclude the State failed in its
duty to closely monitor the progress of a speedy trial case. See State v. Jackson,
857 N.E.2d 378, 382 (Ind. Ct. App. 2006) (holding the trial court did not abuse
its discretion when it granted the defendant’s motion for discharge because a
delay was caused “by the trial court’s candidly admitted inattention to its
docket and case files and the State’s failure to track the case more closely”)
(footnote omitted). Because the State failed to show it had made a reasonable
effort to procure the evidence when it moved for a continuance, the trial court
abused its discretion when it granted the State a continuance pursuant to
Criminal Rule 4(D). See Chambers, 848 N.E.2d at 305. Accordingly, the trial
court also abused its discretion in denying Small’s subsequent motion for
discharge because the State did not bring him to trial within seventy days after
he filed his motion for speedy trial. Id.
Conclusion
[29] For the reasons set forth above, we conclude the trial court abused its discretion
when it granted the State a continuance pursuant to Criminal Rule 4(D) and
denied Small’s motion for discharge. Small’s conviction is therefore reversed,
and we remand the case to the trial court to discharge in accordance with this
opinion.
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[30] Reversed and remanded.
Baker, J., and May, J., concur.
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Jimmy Joe Small v. State of Indiana
Combined Opinion