MEMORANDUM DECISION                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),                                   Apr 12 2017, 9:08 am

this Memorandum Decision shall not be                                         CLERK
                                                                          Indiana Supreme Court
regarded as precedent or cited before any                                    Court of Appeals
                                                                               and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


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

Jermaine Carl Davis,                                     April 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1606-CR-1636
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G04-1308-FA-27



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017             Page 1 of 8
                                             Case Summary
[1]   Jermaine Davis appeals his conviction for Class A felony attempted murder.

      We affirm.


                                                     Issues
[2]   Davis raises two issues, which we restate as:


                      I.       whether the trial court properly denied his
                               motion for a continuance following the State’s
                               late disclosure of evidence; and

                     II.       whether the trial court violated his
                               constitutional right to counsel when it denied
                               his motion for a continuance to hire a different
                               attorney.


                                                     Facts
[3]   On August 21, 2013, Willie Bailey was at a gas station in Gary when Davis

      approached him. Davis was the ex-boyfriend of Bailey’s sister, Erica. Davis

      told Bailey that his sister was a “wh***” and threatened to hurt Bailey. Tr. Vol.

      I p. 65. Outside the gas station, Davis again approached Bailey, called his sister

      names, and threatened to hurt Bailey. Bailey thought Davis was going to hit

      him, so Bailey punched Davis, knocking him out. Davis later called Erica and

      said that he was “going to shoot [their] house up.” Id. at 134. Davis also called

      Erica and Bailey’s aunt, Glynda Randolph, and told her that he was going to

      kill Bailey.




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[4]   The next day, the Bailey family went to a funeral. Bailey rode home that

      evening with Erica and her friend. As Bailey unlocked the front door of his

      home, Davis approached him from behind and shot Bailey repeatedly. Erica

      was sitting in the car with her friend and saw Davis shoot Bailey. Bailey was

      shot five times and is now paralyzed from the waist down. Immediately after

      the shooting, Bailey’s brother opened the front door, and Bailey told his brother

      and aunt that Davis shot him. Bailey’s brother saw Davis running away.

      When officers arrived at the scene, Bailey told them that Davis shot him.

      While in the hospital, Bailey also identified Davis as the shooter in a photo

      array. The next day, Erica also gave a statement to officers and identified Davis

      as the shooter. Four cartridge casings and three spent bullets were recovered at

      the scene. Melissa Oberg of the Indiana State Police Laboratory determined

      that the four cartridge casings were fired from the same weapon and that the

      three bullets were fired from the same weapon.


[5]   The State charged Davis with Class A felony attempted murder, Class B felony

      aggravated battery, Class C felony battery by means of a deadly weapon, Class

      C felony battery resulting in bodily injury, and Class D felony pointing a

      firearm. On the Saturday before the trial, the deputy prosecutor informed

      Davis’s counsel that he had just discovered Oberg’s lab report. The deputy

      prosecutor immediately provided the report to Davis’s counsel. Prior to the

      start of the trial, the parties discussed the State’s late disclosure of the lab

      reports. Davis noted that a “big theory of [the] defense was that no analysis of

      any evidence collected was done . . . .” Id. at 10. In response to the trial court’s


      Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017   Page 3 of 8
      questioning, Davis’s attorney noted that the defenses were “alibi and lack of

      investigation.” Id. at 11. The trial court noted that the “paperwork saying that

      the casings came from the same or similar firearm does not inhibit your ability

      to present an alibi defense” and denied Davis’s motion for a continuance. Id.


[6]   On the first day of the trial, Davis’s counsel informed the trial court:

              Judge, we have an issue. When meeting with my client,
              yesterday, he advised me that he does not have confidence in my
              abilities to represent him with respect to the trial this week and I
              believe there is a break-down of communication and he, on his
              behalf, he wants me to request either a continuance of the trial or
              he said he wants a new lawyer.


      Id. at 3. The trial court informed Davis that he was entitled to a public defender

      but not the public defender of his choosing. The trial court then asked Davis if

      he had the money to hire an attorney, and Davis responded that he did not.

      After a discussion of preparation done by his attorney and prior attorneys, the

      trial court denied the motion for a continuance. Later, immediately before jury

      selection began, Davis told the trial court that his family was going to hire an

      attorney. The trial court informed Davis that he had two and one-half years

      since he was charged to secure a private attorney and that the trial would

      proceed as planned. The trial court then told Davis that if he hired a private

      attorney and had the attorney in court the next morning, he would “consider

      it.” Id. at 36. The next morning, Davis had not hired a private attorney, and

      the trial continued as planned.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017   Page 4 of 8
[7]   The jury found Davis guilty of the charges except for the pointing a firearm

      charge. The trial court merged the remaining counts into the attempted murder

      conviction and sentenced Davis to forty-five years in the Department of

      Correction.


                                                   Analysis
                                         I. Disclosure of Evidence

[8]   Davis argues that the trial court abused its discretion by denying his motion for

      a continuance because of the State’s failure to timely disclose the evidence of

      the lab report. The trial court has broad discretion in dealing with discovery

      violations. Berry v. State, 715 N.E.2d 864, 866 (Ind. 1999). We will reverse

      only for an abuse of that discretion involving clear error and resulting prejudice.

      Id. Generally, the proper remedy for a discovery violation is a continuance. Id.

      The exclusion of the evidence is an extreme remedy and is to be used only if the

      State’s actions were deliberate and the conduct prevented a fair trial. Id. A

      defendant must object at trial to the admission of discovery not timely

      disclosed, and if his objection is overruled, he must seek a continuance. Childress

      v. State, 938 N.E.2d 1265, 1268 (Ind. Ct. App. 2010), trans. denied. If he is

      denied a continuance, we will review whether the failure to exclude evidence

      resulted in clear error and prejudice. Id.


[9]   Davis has failed to demonstrate that he was prejudiced by the denial of the

      motion for a continuance. At the trial, Davis’s main defenses were that he had

      an alibi and that the investigation was shoddy. The admission of the lab report


      Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017   Page 5 of 8
       did not harm either defense. The lab report merely noted that the four cartridge

       casings were fired from the same weapon and that the three bullets were fired

       from the same weapon. The lab report did not indicate who fired the weapon

       and did not affect Davis’s alibi defense. As for the shoddy investigation

       defense, Davis was still able to argue that no physical evidence tied Davis to the

       crime, that the investigation was a “complete rush to judgment and a travesty,”

       that no fingerprint testing was performed, that relevant witnesses were not

       interviewed, and that the lighting would not have allowed the witnesses to see

       the shooter. Tr. Vol. II p. 110. We conclude that the trial court did not abuse

       its discretion by denying Davis’s motion for a continuance.


[10]   Furthermore, even if the trial court did abuse its discretion, any error was

       harmless. Several witnesses testified that, on the day before the incident, Davis

       threatened to kill Bailey. Several eyewitnesses to the shooting identified Davis

       as the shooter. Indiana Trial Rule 61 requires that we disregard any trial court

       error that “does not affect the substantial rights of the parties.” Given the

       overwhelming evidence against Davis, the denial of the motion for a

       continuance did not affect his substantial rights.


                                             II. Right to Counsel

[11]   Next, Davis argues that the trial court erred by denying his motion to continue

       so that he could obtain new counsel. According to Davis, his constitutional

       right to retain the counsel of his choice was violated by the denial. We review

       the denial of a motion for a continuance for an abuse of discretion. Lewis v.

       State, 730 N.E.2d 686, 690 (Ind. 2000). The denial of the right to counsel of
       Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017   Page 6 of 8
       choice is reviewed to determine whether the trial court acted unreasonably and

       arbitrarily. Id. The Sixth Amendment guarantees a criminal defendant’s right

       “to have the assistance of counsel for his defense.” Id. at 688. “A corollary of

       this right is the right to choose counsel when a defendant is financially able to

       do so.” Id. at 688-89. Our supreme court has noted, however, that the right to

       counsel of choice is not absolute. Id. at 689. The right to counsel of choice

       must be exercised “‘at the appropriate stage of the proceeding.’” Id. (quoting

       Parr v. State, 504 N.E.2d 1014, 1016 (Ind. 1987)). Our supreme court has held

       that “‘[c]ontinuances sought shortly before trial to hire a new attorney are

       disfavored because they cause substantial loss of time for jurors, lawyers, and

       the court.’” Id. (quoting Perry v. State, 638 N.E.2d 1236, 1241 (Ind. 1994)). In

       Lewis, our supreme court noted:


               Indeed, this Court has held a number of times that it is within a
               trial court’s discretion to deny a last-minute continuance to hire
               new counsel. See [Perry, 638 N.E.2d at 1241] (one day before
               trial); Beadin v. State, 533 N.E.2d 144, 145-46 (Ind. 1989) (two
               days before trial); Dickson v. State, 520 N.E.2d 101, 105 (Ind.
               1988) (one day before trial); Vacendak v. State, 431 N.E.2d 100,
               104-05 (Ind. 1982) (morning of trial); Collins [v. State, 274 Ind.
               619, 622-23, 413 N.E.2d 264, 267 (1980)] (morning of trial).


       Id.


[12]   Here, Davis requested different counsel on the morning of the first day of his

       jury trial because he did not believe that his current counsel was adequately

       prepared. Davis’s counsel at the time of trial had entered his appearance in

       March 2015, and the jury trial was not held until February 2016. Davis
       Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017   Page 7 of 8
       complained that his counsel had only spoken to him one time. However, Davis

       was not incarcerated during this time period. David did not express his

       dissatisfaction with counsel until the first day of the jury trial. Under these

       circumstances, the trial court did not abuse its discretion by denying Davis’s

       motion for a continuance, and the trial court did not violate Davis’s right to

       counsel.


                                                 Conclusion
[13]   The trial court did not abuse its discretion by denying Davis’s motion for a

       continuance as a result of a delay in the State producing discovery, and the trial

       court did not abuse its discretion by denying Davis’s motion for a continuance

       to secure new counsel. We affirm.


[14]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1636 | April 12, 2017   Page 8 of 8
