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.




Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018             Page 1 of 12
                                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.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 2 of 12
[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



      Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 3 of 12
      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).

      Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 4 of 12
[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.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 5 of 12
[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

       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 6 of 12
               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
       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 7 of 12
       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).




       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 8 of 12
[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

       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 9 of 12
               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.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 10 of 12
[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.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 11 of 12
                                             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




       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1461 | March 20, 2018   Page 12 of 12
