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Small v. State

Court of Appeals of Indiana

October 2, 2018

Jimmy Joe Small, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Vanderburgh Circuit Court The Honorable David Kiely, Judge The Honorable Kelli Fink, Magistrate Trial Court Cause No. 82C01-1708-F4-5078

          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 Indianapolis, Indiana

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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 standards.

         [¶5] 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.

         [¶6] 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 State asserted:

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 ...

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