FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

WILLIAM VAN DER POL, JR.                    GREGORY F. ZOELLER
Martinsville, Indiana                       Attorney General of Indiana

                                            JODI KATHRYN STEIN
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                                                                     Jun 06 2013, 9:14 am


                            IN THE
                  COURT OF APPEALS OF INDIANA

SCOTT SPEERS,                               )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 55A01-1208-CR-391
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE MORGAN SUPERIOR COURT
                     The Honorable Christopher L. Burnham, Judge
                           Cause No. 55D02-1202-FC-290


                                   June 6, 2013


                            OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
        Scott Speers appeals his conviction for Burglary, 1 as a class C felony, and Theft,2 as a

class D felony. He presents the following restated issues on appeal:

        1.      Was Speers entitled to discharge under Indiana Criminal Rule 4(C)?

        2.      Did the trial court err in admitting DNA evidence in violation of the
                Confrontation Clause of the Sixth Amendment of the United States
                Constitution?

        3.      Did an evidentiary harpoon occur during the State’s direct examination
                of the lead detective?

        We affirm. 3

        After hours on October 25, 2010, Scroggins Gun Shop in Martinsville was

burglarized. The burglar forced open the front door of the business, broke a glass display

case, and took eight guns. The crime took less than a minute, and surveillance video did not

capture the face or other identifying characteristics of the perpetrator.

        Officers from the Martinsville Police Department promptly responded to the scene.

Officer Jim Barley, an evidence technician, processed the scene, discovering what appeared

to be blood spots the size of an eraser head on two pieces of broken glass from the display

case. Officer Barley placed each piece of glass into a separate box and sealed the boxes with

evidence tape and his initials. He later took this evidence to the Indiana State Police Lab for

testing.



1
  Ind. Code Ann. § 35-43-2-1 (West, Westlaw current through P.L. 171 with effective dates through May 7,
2013).
2
  I.C. § 35-43-4-2 (West, Westlaw current through P.L. 171 with effective dates through May 7, 2013).
3
   We held oral argument in this matter at Martin University as part of the university’s annual Law Day
observance on April 26, 2013. We thank Martin University and its staff and students for their professionalism
and hospitality, and we commend both advocates for their skilled presentations.

                                                     2
       Shortly after the crime, police had a suspect, Kevin Faucett, who had been found in

the area with cuts on his arms and a makeshift bandage. Police questioned Faucett and

swabbed his cheek for DNA. This sample was submitted to the lab for DNA comparison

with the substance found at the crime scene. At some point prior to DNA testing, Nicole

Stickle, a laboratory technician at the State Police Lab, transferred the suspected blood from

the pieces of glass to white cloths. Thereafter, Indiana State Police forensic DNA analyst

Lori James processed the substance obtained from the glass for DNA and the suspect’s DNA.

There was no DNA match, and Faucett was excluded as a suspect.

       Shortly thereafter, Scott Speers was identified as a suspect based on a CODIS

database search. Police then obtained a search warrant to swab Speers’s cheek for DNA, and

this sample was submitted for DNA analysis. Analyst James determined that Speers’s DNA

matched the DNA obtained from the pieces of glass.

       On February 22, 2011, the State charged Speers with class C felony burglary and class

D felony theft. Police arrested him for these charges on March 11, 2011. Following a

number of delays, Speers’s jury trial commenced on July 17, 2011. The jury found him

guilty as charged, and the trial court later sentenced him to eight years for the class C felony

and a concurrent three years for the class D felony. Speers now appeals. Additional facts

will be presented below as needed.

                                              1.

       Speers argues that he was entitled to discharge because he was not brought to trial

within the one-year limit set out in Crim. R. 4(C). Our Supreme Court has summarized Crim.


                                               3
R. 4(C) as providing that “a defendant may not be held to answer a criminal charge for

greater than one year unless the delay is caused by the defendant, emergency, or court

congestion.” Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011). Our review of a trial

court’s ruling on a Crim. R. 4(C) motion is for abuse of discretion. Curtis v. State, 948

N.E.2d 1143.

       Speers was arrested on the instant charges on March 11, 2011, which started the

running of the one-year clock. At the initial hearing on May 9, the trial date was set for

August 24, 2011. On August 8, the date of the final pretrial hearing, Speers filed a motion to

continue the scheduled jury trial. In his motion, Speers indicated that the continuance was

sought “because counsel will be out of town from August 20, 2011 through September 6,

2011.” Appendix at 221. At the pretrial hearing, the trial court granted Speers’s requested

continuance, noting that Speers was due to be released from prison on an unrelated matter on

September 3 and then defense counsel could “better prepare.” Id. at 10. The court reset the

trial for October 26, 2011.

       At the final pretrial hearing on October 3, Speers indicated his intent to plead guilty to

the burglary charge. As a result, the court ordered a “preplea investigation” and scheduled a

guilty plea/sentencing hearing for December 5. Id. at 11. Due to an arrest in another county

earlier that morning, Speers failed to appear in person at the scheduled hearing on December

5. The court, at defense counsel’s request, reset the guilty plea hearing for December 22. At

this same time, bond was revoked and a warrant was issued for Speers’s arrest.

       After arriving late for the December 22 hearing, Speers initially did not want to enter


                                               4
an open plea. When the State stated that it was prepared to file a habitual offender allegation,

Speers asked to continue with the guilty plea. The court directed Speers to discuss the matter

with defense counsel off the record. Upon leaving the courtroom to consult with counsel,

Speers fled. The court indicated that the case would be reset upon Speers’s capture.

        Speers was arrested on December 26, and the court reset the matter for another final

pretrial hearing on January 30, 2012. On January 19, defense counsel moved to withdraw

due to a conflict with the new escape case, for which counsel was a witness. The court

granted the motion the following day and then appointed Speers’s current counsel. At

defense counsel’s urging, the trial court recused on February 13, due to a similar conflict with

the escape case. The cause was subsequently reassigned on February 23 from Morgan

Superior Court 3 to Morgan Superior Court 2.

        The new court set the cause for pretrial hearing on March 1, 2012. Thereafter, the

court set a trial date of June 5, 2012. At the final pretrial hearing on May 21, the State made

an oral motion for continuance. Speers objected to the continuance based upon Crim. R.

4(C). The court took the matter under advisement and issued an order on May 29, 2012,

concluding that the Crim. R. 4 deadline was July 28, 2012. Accordingly, the court granted

the State’s request for a continuance and rescheduled the trial for July 17, 2012. The jury

trial was held on July 17-18, 2012, at which Speers sought discharge based upon Crim. R.

4(C).

        Some 478 days elapsed between Speers’s arrest and trial. Working backward,

therefore, at least 113 days of delay must be attributable to Speers in order to uphold the trial


                                               5
court’s denial of the motion for discharge. At oral argument, Speers conceded that he was

responsible for the delays caused by his indication that he was going to plead guilty and his

ensuing escape during the guilty plea hearing. Thus, the 84 days between October 3 and

December 26 count against Speers.

        Speers narrowed the issue, at oral argument, down to the delay caused by his motion

for continuance filed on August 8 at the final pretrial hearing before the scheduled August

24, 2011 trial date.         Speers’s appellate counsel argued that the State agreed to the

continuance, which was sought as a matter of expediency because Speers was to be released

from the Department of Correction in an unrelated cause shortly after the scheduled trial date.

Regardless, the record indicates that Speers requested the continuance, which resulted in the

trial date being reset for October 26, 2011. This delay is attributable to Speers. See Cole v.

State, 780 N.E.2d 394 (Ind. Ct. App. 2002) (observing that it does not matter why the

defendant sought the continuance), trans. denied. This delay easily gets the State the rest of

the way over the 113-day hurdle. 4 Accordingly, we conclude that the trial court properly

denied the motion for discharge.

                                                      2.

        Speers contends that the trial court erroneously admitted results of DNA testing in

violation of the Confrontation Clause of the Sixth Amendment of the United States

Constitution. Despite the fact that the DNA analyst (Lori James) testified at trial regarding

4
  The State argues that Speers caused additional delay as a result of his escape because it necessitated defense
counsel’s withdrawal from the case and the recusal of the original trial court. We find this argument
persuasive, but we need not address it because the delays we have already attributed to Speers establish there
was no Crim. R. 4(C) violation.

                                                       6
the DNA analysis and results, Speers contends that his confrontation rights were violated

because the lab technician (Nichole Stickle), who transferred the suspected blood from the

glass to white cloths for testing by James, did not testify. He claims that Stickle’s transfer of

the blood to the swabs amounted to a crucial step in the process and that, therefore, Stickle

was an important witness that was required to be called. Without Stickle’s testimony, Speers

argues “there is no assurance that the sample tested and allegedly matched to the defendant

was in fact even relevant to the instant case.” Appellant’s Brief at 14. In other words,

according to Speers, there was “no evidence tying the sample to the crime scene”. Id.

       The Sixth Amendment, made applicable to the states through the Fourteenth

Amendment, states in relevant part: “In all criminal prosecutions, the accused shall enjoy the

right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. “A

witness’s testimony against a defendant is thus inadmissible unless the witness appears at

trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-

examination.” Pendergrass v. State, 913 N.E.2d 703, 705 (Ind. 2009) (citing Crawford v.

Washington, 541 U.S. 36, (2004)). The Confrontation Clause applies, however, only to

testimonial statements, that is, “[a] solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” Crawford v. Washington, 541 U.S. at 51 (quoting 2 N.

Webster, An American Dictionary of the English Language (1828)).

       In Pendergrass v. State, our Supreme Court held that a Certificate of Analysis

regarding DNA evidence was testimonial evidence, requiring the opportunity for cross-

examination of a witness. The Court further held that the defendant’s confrontation rights


                                               7
were satisfied by the testimony of the laboratory supervisor, who had a “direct part in the

process by personally checking [the laboratory processor’s] test results.” Pendergrass v.

State, 913 N.E.2d at 708. The Court noted, “she could testify as to the accuracy of the tests

as well as standard operating procedure of the laboratory and whether [the processor]

diverged from these procedures.” Id. at 707-08. In response to Pendergrass’s argument that

the State “did not call the right – or enough – witnesses”, the Court indicated that not

“everyone who laid hands on the evidence must be called.” Id. at 708 (quoting Melendez-

Diaz v. Massachusetts, 557 U.S. 305, 311 n.1 (2009)). 5 The State’s decision to call the

laboratory supervisor “with direct involvement” in the technical processes “sufficed for Sixth

Amendment purposes.” Id.

        Pendergrass is directly applicable to the instant case. Here, the DNA analyst who

performed – not just supervised – the DNA testing and analysis testified at trial and was

subject to cross-examination. As a result of her direct involvement, James was able to testify

regarding procedures of the lab, potential tampering, specifics and accuracy of the testing and

analysis, and the Certificate of Analysis and other related documents admitted into evidence.

Speers’s claim that the State should have called the laboratory technician who performed the

preliminary step of swabbing the blood from the glass 6 amounts to a chain of custody



5
   In Melendez-Diaz, a majority of the United States Supreme Court indicated that it was not the case that
“anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or
accuracy of the testing device, must appear in person as part of the prosecution’s case.” Melendez-Diaz v.
Massachusetts, 557 U.S. at 311 n.1.
6
   There is no indication that the technician’s role in the DNA testing involved a material exercise of judgment
or analysis. On the contrary, it is evident that this preliminary stage required the technician to perform a
largely mechanical task. “[A]bsent some reason to believe there was error or falsification, the need to call such

                                                       8
argument and does not rise to the level of a confrontation issue. Analyst James had direct

involvement in the testing and analysis of the DNA at issue, and her testimony regarding the

DNA evidence sufficed for Sixth Amendment purposes. See Pendergrass v. State, 913

N.E.2d 703.

        Understanding the clear implications of Pendergrass, Speers argues that the case is no

longer good law in light of United States Supreme Court’s plurality opinion in Williams v.

Illinois, 132 S.Ct. 2221 (2012). We cannot agree. Speers’s argument in this regard is

fundamentally flawed because it is based on the premise that the Court in Pendergrass

“found that the Confrontation Clause was not implicated.” Appellant’s Brief at 11. On the

contrary, the Court found it implicated but satisfied. See Pendergrass v. State, 913 N.E.2d at

707 (“we will treat the Certificate of Analysis in the present case as testimonial”). 7

        Further, the facts of the instant case and Williams are not on par. In Williams, vaginal

swabs taken from a rape victim were submitted to an independent, private laboratory –

Cellmark. In turn, Cellmark produced a report transmitting a DNA profile that its analysts

had purportedly developed from the swabs. Using the DNA profile obtained from Cellmark,

Sandra Lambatos, a forensic specialist at the Illinois State Police Lab, searched the state’s

database and found a matching profile, that of Williams.                    At trial, over Williams’s

Confrontation Clause objection, Lambatos was permitted to testify that the DNA profile of

Williams’s blood in the state database matched a male DNA profile Cellmark had created




a technician as a witness may not become a constitutional necessity.” United States v. Boyd, 686 F. Supp. 2d
382, 384 (S.D.N.Y. 2010), aff’d by summary order, 401 F. App’x 565 (2d. Cir. 2010), cert. denied.

                                                     9
from semen in the victim’s vaginal swabs. Although Cellmark’s written report was not

introduced into evidence, Lambatos was allowed to rely upon it during her expert testimony.

No witness having personal knowledge of Cellmark’s development of the putative offender’s

DNA profile testified at trial.

        On these facts, five justices concluded that the Confrontation Clause was not violated

by Lambatos’s testimony because the information in Cellmark’s report was not testimonial.

Justice Thomas provided the swing vote, disagreeing with the rationale of the lead opinion

authored by Justice Alito but concurring in the judgment. In Justice Thomas’s view, the

Cellmark report was not testimonial because it “lacks the solemnity of an affidavit or

deposition, for it is neither a sworn nor a certified declaration of fact.” Williams v. Illinois,

132 S.Ct. at 2260.

        In the case at hand, analyst James’s testimony was not based on a certified declaration

of fact from another analyst or lab. In fact, no outside lab was involved in this case, and the

DNA profile and Certificate of Analysis at issue were produced by James, who testified at

trial and was subject to cross-examination. Accordingly, we find Williams inapposite and

Pendergrass controlling.

                                                    3.

        Finally, Speers contends that during direct examination of the lead detective the State

“presented evidence in such a way as to create an evidentiary harpoon.” Appellant’s Brief at


7
  Justice Thomas, who provided the swing vote in Williams, would have likewise treated the Certificate of
Analysis in Pendergrass as a testimonial statement. His concurring opinion, however, does not contradict the
holding in Pendergrass regarding satisfaction of the constitutional demands.

                                                    10
19. The following testimony occurred after the detective explained that the initial suspect

was excluded based on DNA results:

        [STATE:]        Okay. Did there come a point where you developed a second
                        suspect?

        [WITNESS:] Yes.

        [STATE:]        And having developed a suspect, what did you then do[?]

Transcript at 314. Speers objected and moved for a mistrial on the basis that the State was

leaving the jury to speculate as to how he was developed as a suspect. 8 The State responded

that the reason a defendant is developed as a suspect is often kept from the jury and that,

here, the State was carefully trying to avoid informing the jury of the CODIS match, which

would have indicated Speers had a prior criminal history. The trial court denied the motion

for mistrial.

        On appeal, Speers claims that the testimony set out above amounted to an evidentiary

harpoon. “An evidentiary harpoon is the placing of inadmissible evidence before the jury

with the deliberate purpose of prejudicing the jurors against the defendant.” Kirby v. State,

774 N.E.2d 523, 535 (Ind. Ct. App. 2002), trans. denied. To prevail on such a claim, the

defendant must show that: (1) the prosecution acted deliberately to prejudice the jury; and (2)

the evidence was inadmissible. Id. The defendant must show further that he was “placed in


8
  Speers directs us to a number of juror questions, submitted but not answered, regarding what led police to
develop him as a suspect. During final instructions, the trial court instructed the jury:
        During the trial, the Court may rule that certain questions may not be answered and/or that
        certain exhibits may not be allowed into evidence. You must not concern yourselves with the
        reasons for the rulings…. Your verdict should be based only on the evidence admitted and the
        instructions on the law.”
Transcript at 353-54.

                                                    11
a position of grave peril to which he should not have been subjected.” Jewell v. State, 672

N.E.2d 417, 424 (Ind. Ct. App. 1996), trans. denied.

       We agree with the State that Speers has mischaracterized this situation as an

evidentiary harpoon. The brief question and answer set out above did not inject any

inadmissible evidence into the trial and was used by the State as a simple transition from

testimony regarding the initial suspect to the detective’s subsequent investigation of Speers.

In fact, it is clear that the State deliberately sought to avoid introducing any evidence

regarding the CODIS match. While the jury may have been left to speculate as to how

Speers became a suspect, this would have been true regardless of whether the above

exchange occurred. Under the circumstances, we find neither the insertion of an evidentiary

harpoon nor a situation of grave peril.

       Judgment affirmed.

ROBB, C.J., and CRONE, J., concur.




                                             12
