from the Vanderburgh Circuit Court The Honorable David Kiely,
Judge The Honorable Kelli Fink, Magistrate Trial Court Cause
Attorneys for Appellant Scott L. Barnhart Brooke Smith Keffer
Barnhart LLP Indianapolis, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana, Caroline G. Templeton Deputy Attorney General
Summary and Issue
Following a jury trial, Jimmy Joe Small was convicted of
unlawful possession of a firearm by a serious violent felon,
a Level 4 felony. Small now appeals his conviction raising
two issues for review, which we consolidate and restate as
whether the trial court abused its discretion by granting the
State's motion for a continuance. Concluding the trial
court abused its discretion, we reverse.
and Procedural History
Following a tip that Small possessed a firearm, several
detectives of the Evansville Police Department's drug
task force conducted a "knock and talk" on
Small's motel room. Small, who was joined in the room by
Brittany Harper, answered the door and stepped outside. Small
left the door open behind him and officers observed drug
paraphernalia on a bedside table. After officers entered the
room to secure the evidence, they also observed a firearm on
a bedside table. Small admitted to having handled the firearm
and it was collected as evidence and swabbed for DNA. A
subsequent search of the motel room revealed a magazine for
the firearm inside a purse.
Small was arrested and the State charged Small with unlawful
possession of a firearm by a serious violent felon, a Level 4
felony, two counts of possession of methamphetamine, a Level
5 felony and a Level 6 felony, maintaining a common nuisance,
a Level 5 felony, and unlawful possession of a syringe, a
Level 6 felony. An initial hearing was conducted two days
later and Small was appointed counsel. On September 21, the
State made its initial request for Small's DNA standards
and the court granted the State's request, without a
hearing, on September 26.
A pretrial hearing was conducted on October 4. Small orally
moved for a speedy trial pursuant to Criminal Rule 4, which
requires the State to bring a defendant held in jail to trial
within seventy days of the motion, and a trial date was set
for seventy days later on December 13. Small also objected to
the trial court granting the State's request for his DNA
standards in his absence and indicated that he planned to
file a motion asking the trial court to rescind its September
26 order. Following a hearing on the motion on October 12,
the trial court rescinded its order for Small's DNA
The State filed a renewed request for Small's DNA
standards. On October 24, the trial court conducted a hearing
at which all parties were present. The State indicated that
the firearm had been swabbed for DNA but could not be
submitted to the Indiana State Police Laboratory without
sending Small's DNA standards with it. Over Small's
objection, the court orally granted the State's request
and instructed the State to file a proposed order for the
court to sign.
On December 7, forty-four days later, and just six days
before trial, the State filed a motion for a continuance
pursuant to Criminal Rule 4(D), which allows for a ninety-day
extension of the speedy trial period under certain
circumstances. The State contended it was unable to proceed
to trial "due to forensic testing needing to be
conducted upon the evidence in this Cause."
Appellant's Appendix, Volume 2 at 32. In its motion, the
11. The State discovered on December 1, 2017 that we had not
received the October 25, 2017 signed Order from the Court.
The State contacted Court staff on the same day to bring this
to their attention.
12. Court staff indicated that they had inexplicably never
received the October 25, 2017 Order, and the State was
instructed to file the Order again. The State did so on the
same day, December 1, 2017. . . .
13. The State received a signed Order to Obtain the
Defendant's DNA standards on December 5, 2017 at 6:15 AM
by email. . . .
Id. at 33. At a hearing on the State's motion,
the magistrate judge acknowledged:
the Court has been advised by Judge Kiely and the court staff
that it was a glitch in the Odyssey system the reason why
this Order didn't get signed, so that is a fact ...