MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Feb 12 2019, 9:02 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




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

Keith Franklin Cleveland, Jr.,                           February 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1196
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G04-1711-F3-49



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019              Page 1 of 13
[1]   Keith Franklin Cleveland, Jr., appeals his convictions of Level 3 felony armed

      robbery 1 and two counts of Level 6 felony pointing a firearm. 2 He presents two

      issues, which we restate as:


                 1. Whether the trial court abused its discretion in admitting
                    testimony; and


                 2. Whether the trial court erred when it denied Cleveland’s
                    request for a new attorney on the day of trial.


      We affirm.



                                Facts and Procedural History
[2]   On November 22, 2017, Latisha Cattan, Jordan Arredondo, and Arikka Perez

      were working at the Burger King in East Chicago, Indiana. A man dressed all

      in black with only his eyes showing entered the restaurant, brandishing a

      handgun. The man, later identified as Cleveland, ordered Perez to open the

      cash registers. Cleveland pointed the gun at both Perez and Cattan. He took

      several hundred dollars, including several one-dollar coins. When Cleveland

      fled the restaurant, Cattan called 911.


[3]   Just after the robbery but prior to dispatch alerting officers of the robbery at

      Burger King, East Chicago Police Department Officer Phillip Fabian was




      1
          Ind. Code § 35-42-5-1 (2017).
      2
          Ind. Code § 35-47-4-3 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 2 of 13
      patrolling the area and saw a man in black running through the drive-thru of the

      same Burger King. Officer Fabian thought this was suspicious, so he followed

      the running man, but then he lost him in the vicinity of Tod Avenue near

      “Strack and Van Til’s” grocery store. (Tr. Vol. 2 at 158.) As Officer Fabian

      was trying to locate the man in black, dispatch notified officers of the robbery at

      Burger King. Officer Fabian ceased his location efforts and proceeded to

      Burger King. There, Officer Fabian took statements from the three employees

      and received a description of the man who robbed the restaurant. Officer

      Fabian relayed that information to other officers.


[4]   Officer Korey Dumas located a man meeting the robber’s description in the

      vicinity of Tod Avenue. The man ran when ordered to stop, but Officer Dumas

      was able to detain him. When searched, the man, identified as Cleveland, had

      “large sums of U.S. currency and gold and silver Sacagawea dollar coins[.]”

      (Id. at 164.) Cleveland was dressed in a “lighter-colored sweater[,]” (id. at 165),

      and “his clothes were disheveled.” (Id.)


[5]   Officer Fabian, noticing the grocery store had outside surveillance, contacted

      management for the grocery store in order to review the video. Officer Fabian

      investigated the area around where he had lost track of the man in black earlier

      in the evening and found a pile of clothes, including “a black hooded

      sweatshirt, blue sweatpants, a black mesh do-rag and a gray athletic bag,

      shoulder bag.” (Id. at 166.)




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 3 of 13
[6]   On November 24, 2017, the State charged Cleveland with armed robbery and

      two counts of pointing a firearm. On February 26, 2018, with the jury pool

      present for voir dire, Cleveland’s attorney notified the trial court that Cleveland

      “wish[ed] to hire another lawyer to represent him[.]” (Id. at 8.) Cleveland’s

      attorney explained he “went over in great detail the fact that if it [was

      Cleveland’s] wish to hire a lawyer, it needed to be done sooner, rather than the

      day of trial [but that] that’s what Mr. Cleveland ha[d] told [him] his wish is this

      morning.” (Id. at 8.) The trial court told Cleveland, “It’s too late.” (Id.)

      Cleveland stated, “I am ready to go.” (Id. at 9.)


[7]   After the jury was sworn, defense counsel informed the trial court that

      Cleveland’s mother was at his office and telling his staff that Cleveland was

      being forced to proceed with trial. Defense counsel reiterated that Cleveland

      had requested a speedy trial and that he had also reminded Cleveland of this

      request. The trial court spoke to Cleveland.


              THE COURT: Mr. Cleveland, did you hear what your attorney
              just said?


              THE DEFENDANT: Yes.


              THE COURT: Do you agree with it?


              THE DEFENDANT: Yes.


              THE COURT: You requested a speedy trial back in December of
              2017. Yes?


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 4 of 13
              THE DEFENDANT: Yeah.


              THE COURT: You told your attorney to file that on your behalf?


              THE DEFENDANT: Yeah.


              THE COURT: That would be an indication that you wanted to
              go to trial; correct?


              THE DEFENDANT: Yeah.


              THE COURT: Earlier this morning, you said you were ready go
              [sic] to go to trial; didn’t you?


              THE DEFENDANT: Yes.


              THE COURT: Okay. Okay.


      (Id. at 30.) The jury trial commenced.


[8]   When Officer Fabian was discussing what he had observed on the video tape

      from the grocery store surveillance, Cleveland objected to his testimony, stating,

      “The video speaks for itself.” (Id. at 194.) The objection was overruled.

      Officer Fabian testified the video showed “what appears to be a male running

      down the alley and then proceed to run inside the rear of 4724 [Tod Avenue].

      You could see the dark-colored clothing with the hood up.” (Id.) Later, during

      testimony of the loss prevention officer from the grocery store, the video was

      introduced into evidence and played for the jury.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 5 of 13
[9]    The jury found Cleveland guilty as charged. The trial court entered the three

       convictions and sentenced Cleveland to a nineteen-year aggregate sentence.



                                  Discussion and Decision
                                    Officer Fabian’s Testimony
[10]   Cleveland argues the trial court abused its discretion when it admitted Officer

       Fabian’s testimony “as to his opinion of what the surveillance video showed[.]”

       (Br. of Appellant at 9.) He argues Indiana Evidence Rule 1002 (“best evidence

       rule”) required the trial court to exclude Officer Fabian’s testimony regarding

       the contents of the video tape. Cleveland asserts the video tape spoke best as to

       its contents and Officer Fabian’s opinion testimony precluded the jury from

       making its own conclusions.


[11]   We review evidentiary rulings for an abuse of discretion. Pavlovich v. State, 6

       N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion

       occurs if the trial court misinterpreted the law or if its decision was clearly

       against the logic and effect of the facts and circumstances before it. Id. Error in

       the admission of evidence is to be disregarded as harmless unless it affects the

       substantial rights of a party. Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App.

       2008). In determining whether an evidentiary ruling has affected an appellant’s

       substantial rights, we assess the probable impact of the evidence on the jury.

       Montgomery v. State, 694 N.E.2d 1137, 1140 (Ind. 1998).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 6 of 13
[12]   The best evidence rule states: “An original writing, recording, or photograph is

       required in order to prove its content unless these rules or a statute provides

       otherwise.” Evid. R. 1002.


               The purpose of [the best evidence] rule is to assure that the trier
               of the facts had submitted to it the evidence upon any issue that
               will best enable it to arrive at the truth. . . . [I]t excludes all
               testimony of the contents of such instruments when the
               instrument itself is available and could be examined by the jury.


       Pinkerton v. State, 258 Ind. 610, 620-21, 283 N.E.2d 376, 382 (1972).


[13]   Officer Fabian testified the video showed “what appears to be a male running

       down the alley and then proceed to run inside the rear of 4724 [Tod Avenue].

       You could see the dark-colored clothing with the hood up.” (Tr. Vol. 2 at 194.)

       Cleveland does not contend Officer Fabian’s testimony contradicted anything

       seen on the video.


[14]   Notably, although Cleveland asserts Officer Fabian was offering an opinion of

       what he saw on the video, Officer Fabian does not say he saw Cleveland or even

       “the suspect” running down the alley. Arguably, although Officer Fabian’s

       testimony gives his opinion as to what he saw on the video, i.e., a dark-clothed

       male running, these statements are not opinions that affect whether Cleveland

       was found guilty or not.


[15]   In Jackson v. State, 411 N.E.2d 609 (Ind. 1980), our Indiana Supreme Court

       clarified the relevance of the best evidence rule to testimony about a video.

       Therein, an officer was testifying about hand motions made by a defendant as

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 7 of 13
       he gave his confession because a transcription of the video, rather than the

       video itself, was admitted into evidence. Id. at 611. The Court noted that,

       unlike many best evidence objections, the witness therein was not testifying to

       the contents of a writing. Id. Rather, the witness was testifying as to what “he

       had personally seen and heard.” Id. Therefore, “the ‘best evidence’ rule [was]

       not applicable.” Id. Testimony of what a witness has personally seen or heard

       is “primary evidence,” id. at n.1, and not subject to the “‘best evidence’ rule[.]”

       Id. at 611. Additionally, the Court noted the best evidence rule does not

       exclude oral testimony that does not dispute the evidence presented in the

       picture, video, or written instrument. Id. at 612. At worst, the Court held an

       admission of such evidence was harmless. Id.


[16]   Officer Fabian testified to what he had personally seen and heard on the video.

       He did not give an exhaustive recitation of each movement on the video that

       could be construed as similar to reading the contents of a document. Cleveland

       does not argue Officer Fabian’s testimony contravenes what was on the video.

       Therefore, the best evidence rule is not applicable, and the trial court did not

       abuse its discretion when it admitted Officer Fabian’s testimony. See id.


                                            Right to Counsel
[17]   Cleveland argues the trial court violated his “constitutional rights by denying

       him a continuance so that he could retain counsel of his choice to represent him

       at trial.” (Br. of Appellant at 11.) Cleveland asserts he “informed the court that

       he wanted to be represented by a different lawyer at the trial.” (Id.)


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 8 of 13
[18]   The Sixth Amendment to the United States Constitution, applied to the States

       through the Fourteenth Amendment, guarantees the accused, in a criminal

       prosecution, shall “have the Assistance of Counsel for his defence.” U.S.

       Const. Amendment VI. Such a right to counsel of choice “has been described

       as an ‘essential component’ of the Sixth Amendment right to counsel[.]”

       Barham v. State, 641 N.E.2d 79, 82 (Ind. Ct. App. 1994). A denial of this right is

       reviewed to determine if the trial court acted unreasonably and arbitrarily. Id.

       However, this right is not absolute and the right must be exercised at the

       appropriate stage. Lewis v. State, 730 N.E.2d 686, 689 (Ind. 2000).

       “Continuances sought shortly before trial to hire a new attorney are disfavored

       because they cause substantial loss of time for jurors, lawyers and the court.”

       Perry v. State, 638 N.E.2d 1236, 1241 (Ind. 1994).


[19]   Cleveland’s sole citation to the record to support his assertion he requested a

       continuance and time to hire different counsel consists of a portion of the

       transcript wherein defense counsel spoke to the trial court on the morning of

       Cleveland’s trial:


               Judge, I guess, briefly, before we get started, I sat with Mr.
               Cleveland most of Thursday evening and some of Friday
               afternoon. I had conversations with the family. When I left,
               everything to start preparing, it was – [Cleveland]’s wishes [sic]
               was to go to trial. He wanted me to go forward, and I have
               prepared as such. [Cleveland] just told me a minute ago that his
               wish now is to hire another lawyer to represent him in these
               cases. I told him at this late hour, I don’t think that’s very likely
               to happen due to the fact that the jury has already been pooled. I
               went over in great detail the fact that if it is his wish to hire a

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 9 of 13
               lawyer, it needed to be done sooner, rather than the day of trial,
               which is what I feel would happen and has happened. So I just
               wanted to put on the record that that’s what Mr. Cleveland has
               told me his wish is this morning.


       (Tr. Vol. 2 at 8.) However, that was followed by a colloquy between the trial

       court and Cleveland, which Cleveland does not acknowledge on appeal:


               THE COURT: Okay. Well, thank you. The matter is set for
               trial. We’re ready to go. There’s no other lawyer here. You
               didn’t hire anybody. It’s too late. So we’ll start with – we’ll
               proceed to trial. If you were to do that, you should have done
               that far before today’s date. And sometimes I have seen that –
               I’m not saying it’s happening with you -- as a tactic to stall the
               trial. It’s not happening here today. I have had --


               THE DEFENDANT: I am ready to go.


       (Id. at 8-9.)


[20]   Later, after the jury had been sworn, Cleveland’s counsel brought to the

       attention of the trial court the fact that Cleveland’s mother had been to defense

       counsel’s office and advised them Cleveland wished to hire different counsel.

       (Id. at 29.) Additionally, Cleveland’s mother had told office personnel that

       defense counsel “was, essentially, forcing” Cleveland to proceed to trial on that

       day. (Id.) Defense counsel advised the trial court about Cleveland’s request for

       a speedy trial and informed the court that he had reminded Cleveland of that

       request, along with advisements about the deadlines to hire different counsel.

       The trial court again engaged in a conversation with Cleveland:


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 10 of 13
        THE COURT: Mr. Cleveland, did you hear what your attorney
        just said?


        THE DEFENDANT: Yes.


        THE COURT: Do you agree with it?


        THE DEFENDANT: Yes.


        THE COURT: You requested a speedy trial back in December of
        2017. Yes?


        THE DEFENDANT: Yeah.


        THE COURT: You told your attorney to file that on your behalf?


        THE DEFENDANT: Yeah.


        THE COURT: That would be an indication that you wanted to
        go to trial; correct?


        THE DEFENDANT: Yeah.


        THE COURT: Earlier this morning, you said you were ready go
        [sic] to go to trial; didn’t you?


        THE DEFENDANT: Yes.


        THE COURT: Okay. Okay.


(Id. at 30.)


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 11 of 13
[21]   Although defense counsel informed the trial court of his belief Cleveland

       wished to hire different counsel, when addressed by the trial court, Cleveland

       indicated he was ready to proceed to trial. When the issue was broached again,

       Cleveland did not request a new attorney, did not complain about his current

       counsel, and did not request a continuance. Instead, he affirmed his earlier

       assertion that he was ready to proceed. Therefore, this issue is waived. See

       Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000) (failure to seek a continuance

       constitutes waiver of a claim of error).


[22]   Waiver notwithstanding, even if the colloquy between the trial court and

       Cleveland could, in any fashion, be construed as a request for a continuance to

       have time to procure different counsel, “a trial judge faced with an accused in

       such a circumstance should be permitted to exercise his discretion[.]” Moreno v.

       State, 760 N.E.2d 240, 242 (Ind. Ct. App. 2001). Cleveland’s right to counsel of

       his choice must be exercised “at the appropriate stage of the proceedings[.]”

       Washington v. State, 902 N.E.2d 280, 287 (Ind. Ct. App. 2009), trans. denied. If

       not done in a timely fashion, the trial court “did not interfere unreasonably or

       arbitrarily with [defendant’s] right to hire counsel of choice.” Id. As Cleveland

       waited until the morning of the trial to request different counsel, Cleveland’s

       constitutional right to counsel was not violated. See, e.g., Lewis, 730 N.E.2d at

       690 (rejecting defendant’s assertion of Sixth Amendment violation when

       request to change counsel came on the morning of trial).



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 12 of 13
[23]   Officer Fabian’s testimony was not precluded by the best evidence rule; thus,

       the trial court did not abuse its discretion by admitting it. Cleveland has failed

       to show he requested different counsel or a continuance for time to obtain

       different counsel, and he thus has waived our review of that issue. Waiver

       notwithstanding, any such request was not made at the appropriate stage of

       proceedings; therefore, Cleveland’s constitutional right to counsel was not

       violated. Accordingly, we affirm.


[24]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1196 | February 12, 2019   Page 13 of 13
