MEMORANDUM DECISION                                                               FILED
                                                                             Nov 29 2017, 9:11 am
Pursuant to Ind. Appellate Rule 65(D),                                            CLERK
this Memorandum Decision shall not be                                         Indiana Supreme Court
                                                                                 Court of Appeals
regarded as precedent or cited before any                                          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
David W. Stone, IV                                      Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana

                                                        Ian McLean
                                                        Deputy Attorney of Indiana
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mark Alan Shock,                                        November 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1702-CR-439
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Angela Warner
Appellee-Plaintiff.                                     Sims, Judge
                                                        Trial Court Cause No.
                                                        48C01-1512-F5-2118



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1702-CR-439| November 29, 2017         Page 1 of 10
                                            Case Summary
[1]   Mark Alan Shock appeals his convictions for Level 5 battery and Class A

      misdemeanor resisting law enforcement. We affirm.


                                                    Issue
[2]   The sole issue before us is whether the trial court erred in denying Shock’s

      motion for a mistrial due to the State’s alleged discovery violation.


                                                    Facts
[3]   On December 2, 2015, Officer Garrett Creason of the Madison County Sheriff’s

      Department was dispatched to Shock’s Chesterfield address. Officer Creason

      confirmed that Shock had outstanding warrants for his arrest. Subsequently,

      Officers Gregory Adams and Jason Thomas arrived at the scene and told Shock

      that he was going to jail. When the officers attempted to arrest him, Shock

      refused their order to stand and place his hands behind him. Instead, he leaned

      back in his chair. The officers placed Shock into handcuffs, forcibly removed

      him from the residence, and placed him into Officer Creason’s car.


[4]   As Officer Creason pulled away from the residence, Shock became belligerent,

      repeatedly slamming his head into a laptop, activating the emergency lights,

      and ramming his head and body against the front passenger door and window

      so forcefully that the other officers could see the impact from their cars. When

      Officer Creason stopped the car and opened the passenger door, Shock placed

      his feet outside the car and prepared to spit on him. Officer Creason warned

      that he would tase him. Shock replied, “F*** it! Tase me.” Tr. Vol. I p. 76.
      Court of Appeals of Indiana | Memorandum Decision 48A02-1702-CR-439| November 29, 2017   Page 2 of 10
      Officer Adams, who had stopped to assist, pushed Shock’s legs back into the

      squad car, and Shock kicked Officer Adams. Officer Adams tased him. Shock

      kicked Officer Adams a second time, and Officer Adams tased him again.


[5]   The State initially charged Shock with various offenses, most of which were

      subsequently dismissed; he was ultimately tried for Level 5 felony battery

      resulting in bodily injury and Class A misdemeanor resisting law enforcement. 1


[6]   On December 11, 2015, the trial court entered a standing discovery order,

      requiring the State to disclose “[a]ny report . . . made in connection” with the

      case and any “documents, photographs or tangible objects which the

      prosecuting attorney intends to use in the hearing or trial, or which were

      obtained from or belong to the defendant.” App. Vol. II p. 28. The standing

      discovery order also stated:


              (b)      No written motion is required, except to compel discovery,
                       for a protective order, or for an extension of time. . . .


              (c)      Failure of either side to comply with this [standing
                       discovery] Order may result in exclusion of evidence at
                       trial or other appropriate sanctions. However, discovery




      1
        On January 4, 2017, the State moved to dismiss Counts I (Level 5 felony intimidation), II (Class B
      misdemeanor battery by bodily waste), IV (Level 6 felony criminal confinement, VI (Class A misdemeanor
      invasion of privacy), and VII (Level 6 felony invasion of privacy), and the motion was granted on January 5,
      2017.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1702-CR-439| November 29, 2017          Page 3 of 10
                      violations or disputes not raised at pre-trial will be
                      considered waived.


      Id. On September 9, 2016, Shock notified the trial court that he had requested

      but had not received certain information. See id. at 65 (“I was told “there is

      none.”). At a trial readiness hearing on October 18, 2016, on Shock’s oral

      motion, the trial court ordered the following:


              . . . [T]he State is going to check with law enforcement regarding
              whether or not, uh, there’s any type of, uh, memory component
              to the, the tasers. And whether or not any photographs were
              taken of Mr. Shock on that evening. And I expect, uh, if either of
              those exist, that those be turned over to the Defense.


      Supp. Tr. p. 29. At a subsequent hearing on December 20, 2016, Shock

      indicated that no further issues required the trial court’s attention.


[7]   Shock was tried by a jury on January 5-6, 2017. Before voir dire, defense

      counsel notified the trial court that the State had failed to produce taser data

      relevant to the defense’s theory that Shock had kicked Officer Adams

      involuntarily due to misuse or overuse of the taser. Counsel for the State did

      not know if the tasers stored such data. During a recess, Officer Thomas

      informed the State that tasers did, in fact, record such data. The State notified

      defense counsel, who called Officer Thomas as a preliminary witness. Officer

      Thomas, a former taser instructor, testified that tasers record the “length of

      trigger pull time, . . . time and date [of use]”; and that typically after a taser is

      used on a suspect, the police department’s taser instructor downloads the data.

      Tr. Vol. I. p. 116.
      Court of Appeals of Indiana | Memorandum Decision 48A02-1702-CR-439| November 29, 2017   Page 4 of 10
[8]   Shock moved for a mistrial, stating “[W]e made a specific discovery request . . .

      for any type of recording device that is on those tasers, and we are finding out

      while the trial’s going on, that such a recording device exits [sic], but we haven’t

      been given it.” Id. at 120. The State countered that Shock had initially sought

      the taser data via an oral motion, but failed to follow up with a written request;

      that the discovery violation was unintentional; and that a mistrial was

      inappropriate where the State could still produce the taser data in advance of

      trial. The trial court ordered the State to produce the taser data the next day.


[9]   On the second day of trial, after the State produced the taser data, defense

      counsel renewed his motion for mistrial stating,


              Our defense is . . . centered around how aggressively Mr. Shock
              was tasered that night, and how many times he was tasered, and
              where he was tased on his body. And this evidence is literally the
              key component of our argument. And we are given it on the
              night of the first day of trial after the Jury’s been impaneled and
              three (3) witnesses have been, um, examined on the stand, Judge.


      Id. at 180. Defense counsel argued that he lacked sufficient time to review and

      analyze the data. The State again argued that less stringent remedies were

      available, including a motion to exclude the taser data and the State’s

      agreement not to introduce the taser data into evidence. In denying the motion

      for a mistrial, the trial court reasoned:


              THE COURT: Um, certainly this isn’t the most ideal situation
              that we find ourselves in midstream, um, in a trial after a jury’s
              already been impaneled and we are well underway into, um, the
              evidentiary portion of the trial. Uh, the Court starts by, um, it’s

      Court of Appeals of Indiana | Memorandum Decision 48A02-1702-CR-439| November 29, 2017   Page 5 of 10
        — going through its analysis by, uh, a mistrial is an extreme
        remedy, um, and... it’s generally not favored unless, unless, uh,
        circumstances clearly, um, warrant that. . . .


                                             *****


        I mean, certainly I think there’s some ownership, uh, to be spread
        around. Uh, the Court, um, is not of the opinion that is entirely
        the State’s obligation to, uh, provide anything and everything,
        uh, that Defense wants in order to either develop a defense, or to
        develop a strategy of defense, or to potentially investigate or
        explore other issues that, um, maybe, um, pertinent to a
        particular defense that would wanna be presented. Uh, certainly
        the State is incumbent upon a certain amount of duty to provide,
        um, evidence to the Defense, and there is a standing order of
        discovery that is issued by this Court as well. . . . .


        Uh, what I hear the State saying, . . . [is] that this particular
        information that the Defense was seeking, um, from the State’s
        perspective, was not ever a part of its case, and never was
        intended to be introduced as a part of their case, which would at
        least trigger that initial threshold of anything that’s within their
        file and anything that they intend to use or proffer to the Court or
        a jury during trial certainly would be subject to, um, I guess what
        a court would deem of have an automatic disclosure.


        Now, to shift that a little bit, certainly as Mr. Newman indicates,
        um, but this wasn’t something that the State was completely
        blinded to . . . . Um, Mr. Newman did bring up that issue [at the
        December 20, 2016, hearing]. Um, the State did, did
        acknowledge, um, that they would look into that further. Uh,
        certainly, the Court can understand, . . . . that, you know, things
        can get overlooked and, and things, um, can, can, can get lost in
        the shuffle with a lot of case. Um, certainly the best practice this
        Court can always indicates to counsel on both sides, uh, when
        oral requests are made, that it’s always best practice to follow up
        with written motions. I think, certainly, that is, uh, a better
        practice . . . .



Court of Appeals of Indiana | Memorandum Decision 48A02-1702-CR-439| November 29, 2017   Page 6 of 10
                                                ****


            And so, when the Court looks to the trial rules as the
            guidance as to how discovery is to be conducted, um, several
            things were not followed here. Um, one (1), there wasn’t the
            written motion, although that’s not, uh, the really the most
            defective part of this. . . . But at no point does the Defense
            alert the Court to the fact that the State has not complied or . .
            . honored the specific request that was made. And more
            pointed to that is when we appear [at the December 20, 2016,
            hearing], . . . the Court specifically asked . . . , “Is there
            anything else the Court needs to be aware of?” At no point
            does the Defense, during that hearing, indicate to the Court, .
            . . I specifically asked the State for this information, they have
            not even responded to me. They’ve not indicated whether it
            exists or whether it doesn’t exist.” Um . . . certainly there
            were other remedies available to the Defense at that point, a
            motion to compel, um, another hearing on that issue, and
            none of that was alerted to the Court to assist.


            . . . I don’t think it’s, uh, fair to the opposing party for a party
            just in open court to say, “I want this,” and then sit on their
            hands and do nothing about until we are mid-course through
            the middle of the trial. Again, given this isn’t evidence that
            would have been required to be turned over by the State
            absent a request, the Court has to believe that the Defense
            also has some duty to investigate its own case . . . . My
            understanding, at least, um, based on the record that’s been
            made, there was no affirmative steps taken by Defense to
            inquire of the Sheriff’s Department whether they, they retain
            this information or potentially to make contact with other
            officers over there as to whether or not, uh, there was such
            information.


                                               *****


            . . . [T]he Court is denying the motion for mistrial, . . . , I
            believe that Defense Counsel, um, has, has waived that issue
            to the extent that it was never brought before the Court again,
            um, after the request was made and that there was an issue.

Court of Appeals of Indiana | Memorandum Decision 48A02-1702-CR-439| November 29, 2017   Page 7 of 10
                   And certainly, the Court would have been, um, more than
                   willing to attempt to intervene, issue other orders, um,
                   respond to a motion to compel, and, and hold the State
                   further accountable. . . .


       Id. at 189-194. Shock moved to exclude the taser data report, and the trial court

       granted the motion. The jury found Shock guilty as charged; he now appeals.


                                                  Analysis
[10]   Shock argues that the trial court erred in denying his motion for a mistrial due

       to the State’s discovery violations because “[n]o remedy by a mistrial could

       rectify the harm to [him caused] by the late production of the discovery.”

       Appellant’s Br. at p. 19. The trial court has broad discretion in dealing with

       discovery violations and may be reversed only for an abuse of that discretion

       involving clear error and resulting prejudice. Berry v. State, 715 N.E.2d 864, 866

       (Ind. 1999). We have previously held that granting a mistrial for discovery

       violations is an extreme remedy that should not be routinely granted. Hatcher v.

       State, 762 N.E.2d 170, 174 (Ind. Ct. App. 2002).


[11]   The denial of a motion for a mistrial lies within the sound discretion of the trial

       court. Gill v. State, 730 N.E.2d 709, 712 (Ind. 2000). In deciding whether a

       mistrial is appropriate, the trial court is in the best position to gauge the

       surrounding circumstances and the potential impact on the jury. Mack v. State,

       736 N.E.2d 801, 803 (Ind. Ct. App. 2000). The overriding concern is whether

       the defendant “was so prejudiced that he was placed in a position of grave

       peril” to which he or she should not have been subjected. Coleman v. State, 750


       Court of Appeals of Indiana | Memorandum Decision 48A02-1702-CR-439| November 29, 2017   Page 8 of 10
       N.E.2d 370, 374 (Ind. 2001). The “gravity of peril” is measured by the

       “probable persuasive effect of the misconduct on the jury’s decision, not on the

       degree of impropriety of the conduct.” Id.


[12]   It is well settled that the proper remedy for a discovery violation is usually a

       continuance. Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000). Had Shock

       informed the trial court, at the December 20, 2016 hearing, that the State—in

       violation of two court orders—had still not disclosed taser data relevant to

       Shock’s anticipated defense, he could have obtained a continuance of the

       approaching jury trial. As the trial court explained in denying the mistrial, it

       could also have granted a motion to compel or ordered further hearing on the

       matter. As the standing discovery order states, “[D]iscovery violations or

       disputes not raised at pre-trial will be considered waived.” App. Vol. II p. 29.

       By Shock’s inaction and failure to timely enlist the trial court’s intervention on

       his behalf, he waived the issue of the discovery violation. See Warren, 725

       N.E.2d at 832 (holding that failure to object and request a continuance or

       exclusion of the evidence is grounds for waiver of a discovery violation).


[13]   Nor do we find that the State’s conduct in belatedly producing the taser data

       was so prejudicial that Shock was placed in a position of grave peril to which he

       should not have been subjected, where: (1) Shock presented no evidence that

       the State deliberately withheld the taser data; (2) the taser data was disclosed

       before the close of trial; (3) Shock could have confirmed the existence of the

       taser data independently in advance of trial; (4) he failed to avail himself of the

       various remedies available before the trial; and (5) he presented no evidence

       Court of Appeals of Indiana | Memorandum Decision 48A02-1702-CR-439| November 29, 2017   Page 9 of 10
       that the taser data constituted freestanding evidence of his innocence. Shock

       makes no argument that the State’s failure to provide the taser data violated

       Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). At best, the taser data

       would have raised an issue of witness credibility for jurors, who would have

       been tasked with resolving conflicts between Shock’s testimony and that of the

       officers. 2 For the foregoing reasons, the trial court did not commit an abuse of

       discretion involving clear error and resulting prejudice in denying Shock’s

       motion for a mistrial.


                                                   Conclusion
[14]   We find no abuse of discretion in the denial of Shock’s motion for a mistrial.

       We affirm.


       Affirmed.


       May, J., and Bradford, J., concur.




       2
[1]      As to the charge of resisting law enforcement, the record contains independent evidence that Shock resisted
       law enforcement well before he was tased.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1702-CR-439| November 29, 2017          Page 10 of 10
