                                                                                FILED
                                                                           May 07 2018, 9:50 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Darren Bedwell                                            Curtis T. Hill, Jr.
Marion County Public Defender                             Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                     Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Glenn Dillard,                                            May 7, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1708-CR-1905
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Annie Christ-
Appellee-Plaintiff.                                       Garcia, Judge

                                                          The Honorable Ronnie Huerta,
                                                          Commissioner
                                                          Trial Court Cause No.
                                                          49G24-1702-F6-7133



Bradford, Judge.




Court of Appeals of Indiana | Opinion 49A02-1708-CR-1905 | May 7, 2018                        Page 1 of 8
                                           Case Summary
[1]   Glenn Dillard requested a speedy trial pursuant to Indiana Trial Rule 4(B) after

      he was charged with two counts of Level 6 felony theft and Class B

      misdemeanor battery. He filed a motion to dismiss after he was not brought to

      trial in accordance with his speedy trial request. Although the trial court found

      that the delay in bringing Dillard to trial was attributed to the State, it denied

      Dillard’s motion. Because we conclude that the trial court erred in denying

      Dillard’s motion to dismiss, we reverse the judgment of the trial court.



                             Facts and Procedural History
[2]   On February 22, 2017, Dillard was charged with two counts of Level 6 felony

      theft and Class B misdemeanor battery. At some point prior to trial, his

      original counsel was replaced by other counsel. On April 24, 2017, the trial

      court ordered that the “State [s]hall put into writing any prior convictions & or

      statements they intend to use at trial[.]” Appellant’s App. Vol. II, p. 10. On

      May 2, 2017, Dillard requested a speedy trial pursuant to Indiana Trial Rule

      4(B). The trial court noted that the seventy-day deadline for a speedy trial was

      July 11, 2017, and scheduled trial for that day.


[3]   On the morning of trial, the State attempted to introduce certain incriminating

      and threatening statements allegedly made by Dillard. These statements

      included: (1) “I will get away quicker than the police will get here[;]” (2)

      “[B****] I know where you work and what time you work[;]” (3) “I will be long


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1905 | May 7, 2018      Page 2 of 8
      gone by the time police come and get me[;]” (4) “[B****] I will come back and

      kill you. I know when you work, I know when you close[;]” (5) “Your store is

      easy[;]” and (6) “You get a kick out of seeing another black man down.” Supp.

      Tr. Vol. II, pp. 13–14. Dillard argued that the statements had “never been

      disclosed to the Defense, so by Local Rule [the statements] shouldn’t be

      allowed.” Supp. Tr. Vol. II, p. 5. The State asserted that the statements “were

      disclosed to the previous defense attorney[.]” Supp. Tr. Vol. II, p. 5. The trial

      court ruled that “anything that has to do with threats or perceived threats is

      going to be excluded … but the others that don’t have to do with, you know it’s

      easy to steal, things like that has nothing to do with threats or perceived threats

      so you can use those.” Supp. Tr. Vol. II, p. 14. At Dillard’s request, the trial

      court granted a continuance until it could determine whether the State had

      disclosed the non-excluded statements.


[4]   On July 18, 2017, the trial court conducted a hearing during which Dillard’s

      prior counsel testified about the parties’ discovery dispute. Both prior to and

      during this hearing, the deputy prosecutor represented that the challenged

      statements were disclosed to Dillard’s prior counsel. Dillard’s prior counsel,

      however, testified that the State did not disclose the challenged statements.

      While the parties presented differing accounts as to exactly what was disclosed

      by the deputy prosecutor, it was uncontested that the challenged statements

      were not disclosed in writing as required by the trial court order and the local

      rules. At the conclusion of the hearing, the trial court stated “I’m going to

      charge [the delay] to the State[.]” Tr. Vol. II, p. 7.


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1905 | May 7, 2018     Page 3 of 8
[5]   On July 19, 2017, Dillard filed a motion to dismiss in which he argued that the

      charges against him should be dismissed because the State’s actions, not his

      own, caused the failure to bring him to trial within the seventy-day time limit

      set forth in Indiana Trial Rule 4(B). Following a hearing, the trial court denied

      Dillard’s motion. Dillard sought and was granted permission to bring the

      instant interlocutory appeal.



                                 Discussion and Decision
[6]   As an initial matter, we note that the facts and circumstances presented in this

      case exemplify the importance of making a written record in all criminal cases

      and underscore the need for compliance with court orders, the trial rules, and

      any applicable local rules. The State was specifically ordered to disclose any

      statements made by Dillard that it intended to use at trial in writing. In

      addition, Marion County Local Rule LR49-CR00-107(2)(a) provides that “The

      State shall disclose the following material and information within its possession

      or control … (2) Any written, oral or recorded statements made by the accused

      or by a codefendant, and a list of witnesses to the making and

      acknowledgement of such statements.” Noncompliance with court orders, the

      trial rules, and applicable local rules negatively impacts fairness to the parties

      and, in the name of just results, should be avoided. This is not to suggest that

      all failures to comply with court orders, trial rules, and local rules relating to

      discovery should automatically result in reversal. Reversal is only warranted

      where a failure to comply with discovery rules results in prejudice. Stated


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1905 | May 7, 2018       Page 4 of 8
      differently, court orders and local rules relating to discovery are not designed to

      be “gotcha technicalities” used to manipulate the proceedings, but instead aim

      to insure fairness and order during the exchange of discovery.


[7]   Dillard contends that the trial court erred in denying his motion to dismiss.

      Specifically, he argues that because the delay in bringing him to trial was

      attributed to the State, the charges against him should have been dismissed due

      to the violation of his speedy trial request. Indiana Trial Rule 4(B)(1) provides,

      in relevant part, as follows:


              If any defendant held in jail on an indictment or an affidavit shall
              move more 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….


      (Emphasis added). “The determination of whether a particular delay in

      bringing a defendant to trial violates the speedy trial guarantee largely depends

      on the specific circumstances of the case.” Wheeler v. State, 662 N.E.2d 192, 193

      (Ind. Ct. App. 1996).


[8]   “The objective of pretrial discovery is to promote justice and to prevent surprise

      by allowing the defense adequate time to prepare its case.” Campbell v. State,

      500 N.E.2d 174, 182 (Ind. 1986). We have concluded that “[a] defendant is

      responsible for any delay caused by his action including seeking or acquiescing

      in any continuance.” Wheeler, 662 N.E.2d 192, 193 (Ind. Ct. App. 1996).

      However, “[t]o put the defendants in a position whereby they must either go to


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1905 | May 7, 2018         Page 5 of 8
       trial unprepared due to the State’s failure to respond to discovery requests or be

       prepared to waive their rights to a speedy trial, is to put the defendants in an

       untenable situation.” Biggs v. State, 546 N.E.2d 1271, 1275 (Ind. Ct. App.

       1989). Thus, “we will not charge the defendants with any delay that may

       appear to have resulted from” the State’s failure to respond to discovery

       requests. Id.


[9]    In Marshall v. State, the defendant requested a continuance because of the State’s

       alleged failure to comply with his discovery requests. 759 N.E.2d 665, 667

       (Ind. Ct. App. 2001). Marshall appealed the denial of his motion for discharge

       that he filed after the State failed to bring him to trial in accordance with Trial

       Rule 4. Id. at 668. On appeal, we acknowledged that a defendant is generally

       responsible for any delay caused by his seeking a continuance. Id. at 669 (citing

       Wheeler, 662 N.E.2d at 193). However, relying on Biggs, we concluded that “a

       defendant cannot be charged with the delay if the defendant made his motion

       because the State failed to comply with a discovery request.” Id. We further

       concluded that the trial court erred in denying Marshall’s motion for discharge.


[10]   Likewise, in State v. Black, we noted that “in an effort to hold the State

       accountable for the [discovery delay], and consistent with the [reasoning set

       forth in Biggs and Marshall], the trial court granted Black’s request for a

       continuance and charged the delay to the State. As such, Black was not

       charged with any of the trial delays.” 947 N.E.2d 503, 508 (Ind. Ct. App. 2011)

       (internal record citation omitted). We concluded that if our analysis relating to

       the discovery delay was “the end of our analysis” and the only issue before the

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1905 | May 7, 2018        Page 6 of 8
       court, “we would affirm the trial court’s discharge of [the charges filed against]

       Black.”1


[11]   On the morning of trial, Dillard was placed in the untenable situation of having

       to go to trial unprepared or waive his request for a speedy trial after the State

       attempted to introduce previously undisclosed statements in violation of the

       trial court’s written discovery order. These statements were prejudicial and, if

       admitted without prior disclosure, would have negatively impacted Dillard’s

       right to a fair trial. Thus, at Dillard’s request, the trial court granted a

       continuance until such a time that it could question Dillard’s prior counsel

       about whether the State had disclosed the statements at issue. Upon

       determining that the State had not, the trial court ordered that the delay would

       be charged to the State. It is clear that if not for the State’s failure to disclose

       these statements in accordance with the trial court’s April 24, 2017 order and

       the applicable local rules, the matter would have proceeded to trial as scheduled

       and Dillard’s request for a speedy trial under Trial Rule 4(B) would have been

       honored. As such, in light of our prior opinions in Biggs, Marshall, and Black,

       we conclude that the trial court erred in denying Dillard’s motion.


[12]   In reaching this conclusion, however, we note that another, arguably better,

       option that would have been available to the trial court would have been for it

       to have excluded all of the statements at issue, as the State did not have proof



       1
        We ultimately reversed the trial court’s order on grounds not related to the discovery question. Black, 947
       N.E.2d at 508–09.

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1905 | May 7, 2018                            Page 7 of 8
       that it had provided those statements in writing to the defense. Then, having

       excluded the statements, the trial could have proceeded as scheduled, within the

       seventy-day period.


[13]   The judgment of the trial court is reversed and the matter remanded with the

       instruction to grant Dillard’s motion to dismiss.


       Baker, J., concurs.


       Kirsch, J., dissents.




       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1905 | May 7, 2018   Page 8 of 8
