Preview:

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: JEFFREY D. STONEBRAKER Clark County Chief Public Defender Jeffersonville, Indiana

FILED
Oct 04 2012, 9:10 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DAVID ALLEN JONES, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 10A05-1201-CR-16

APPEAL FROM THE CLARK CIRCUIT COURT The Honorable Vicki L. Carmichael, Judge Cause No. 10D01-1104-FA-19

October 4, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issues Following a jury trial, David Jones was convicted of attempted murder, a Class A felony, and sentenced to forty years. Jones appeals his conviction, raising two issues for our review, which we restate as: 1) whether the trial court erred in denying his motion to continue the trial; and 2) whether there was sufficient evidence to support his conviction. Concluding that the trial court did not abuse its discretion in denying the late-filed motion to continue and that sufficient evidence supports the conviction of attempted murder, we affirm. Facts and Procedural History On March 28, 2011, Jones, Brandon Henson. and a third, masked man entered the home Joshua McLain shared with his mother, Sharon. Joshua and Sharon had seen a car arrive at their home via a security camera feed, and when Jones tapped on the window and asked to be let in, Joshua let him in through the kitchen door. Jones had rented a room at the McLain house prior to this date. After he moved out, Jones's step-daughter, Paschaline, and Henson, her boyfriend, had lived there for several weeks in early 2011, but had also moved out prior to this date. Jones left the door open and Henson and the third man also entered the house. Henson shot Joshua, and as Joshua lost consciousness, he observed Henson and Jones put on masks and walk down the hallway toward his mother's bedroom. rendered a quadriplegic as a result of the gunshot wound. Sharon, armed with a handgun, exited her bedroom when she heard what sounded like two shots. Sharon saw two masked men in the hallway, one of whom raised his gun and fired at her. Sharon believed the man who fired was Jones, based upon her previous
2

Joshua was

acquaintance with him in comparison with the physical size of the shooter. Sharon fired one shot in return and ran back into her bedroom to call 911. The shooting was apparently precipitated by an accusation that Joshua had molested Paschaline's son several weeks earlier. Other violent incidents between Joshua and Jones and Henson had occurred after the accusation and prior to the shooting. Jones was charged with the attempted murder of Sharon, a Class A felony. Henson was charged with the attempted murder of Joshua, and at the State's request, the cases were joined for trial.1 Jones filed a motion for speedy trial, and a jury trial was set for November 1, 2011. In addition, a final pre-trial conference was scheduled for

October 18, 2011, at which time the trial court set a motion to continue/plea deadline of October 21, 2011. On October 26, 2011, the trial court took judicial notice on the record of the fact the motion to continue/plea deadline had expired and a jury had been called to appear for selection on November 1. On October 31, 2011, Jones filed a motion to continue the jury trial, alleging that on October 27, 2011, counsel learned that Joshua had been deposed on October 21, 2011, and that she had not been invited to participate in the deposition: "[i]n reading the written transcript, counsel for . . . Jones determined that further investigation is necessary, to-wit: defense believes medical/hospital records of Joshua McLain would provide impeachment material." Appellant's Appendix at 58. Counsel also alleged that "in the last several days," she had learned that police interviewed the McLains' next-door neighbor but the neighbor was not included in the incident report as a witness. Id. Jones therefore requested a continuance of the jury trial

Henson has also appealed his conviction, and we issue an opinion in his case today, as well. See Henson v. State, Cause No. 10A01-1201-CR-13 (Ind. Ct. App., Oct. 4, 2012).

1

3

in order to investigate Joshua's medical records and the neighbor. At a final hearing on pre-trial motions on October 31, 2011, counsel reiterated the reasons for the motion: that "there appears to be some statements that were made in a transcript that was taken of Joshua McLain that I think [Jones] needs to be prepared to respond to that, those statements in some way" and that the McLains live in a duplex and "if" the neighbor on the other side had been interviewed by police, she "was not listed as a witness on the police incident report and I just would like the opportunity to follow up to see what, what, if anything, she could add to the information that we have . . . ." Addendum to Transcript at 5. The trial court denied the motion to continue. The jury trial began as scheduled on November 1, 2011, and on November 3, 2011, the jury found Jones guilty of attempted murder. Jones was sentenced to forty years at the Department of Correction with five years suspended to probation. Jones now appeals. Additional facts will be supplied as necessary. Discussion and Decision I. Motion to Continue A. Standard of Review Indiana Code section 35-36-7-1 provides the procedure to be followed in seeking a continuance because of the absence of evidence or of a witness. See Ind. Code

Download 10041202mgr.pdf

Indiana Law