Court of Appeals of Indiana | Memorandum Decision 49A04

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### MEMORANDUM DECISION 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.

A TTORNEY FOR A PPELLANT Denise L. Turner DTurner Legal LLC Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Xavier Heckstall , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff M arch 15, 2018 Court of Appeals Ca se No. 49A04

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- 1607

- F1

- 29330

Baker , Judge
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[1] Xavier Heckstall was convicted of Level 3 Felony Kidnapping, 1 Level 6 Felony Intimidation, 2 Level 6 Felony Criminal Recklessness, 3 Level 6 Felony Pointing a Firearm, 4 Level 6 Felony Strangulation, 5 and two counts of Level 1 Felony Rape. 6 He appeals, arguing that the trial court erred by denying his motion for a continuance. Finding no error, we affirm.


## Facts

[2] Heckstall, T.C., and T.C.’s t hree child ren lived together in a three

- bedroom apartment in Indianapolis . On July 26, 2016, Heckstall and T.C. began arguing. At some point, Heckstall took T.C. to an apartment next door, which belonged to Heckstall’s cousin. The couple continued arguing. Hecks tall slapped T.C. and grabbed her by the throat, slammed her against the wall, and
squeeze d her throat until she could not breathe. He then went to the kitchen to retrieve a knife. When he returned to T.C., h e held the knife against her body and acted li ke he was going to stab her in the stomach. Heckstall proceeded to put his hand up T.C.’s dress and touc h her vagina over her underwear, put his

1 Ind. Code § 35

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2 Ind. Code § 35

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- 1(a)(1).
3 I.C. § 35

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4 Ind. Code § 35

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5 I.C. § 35

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6 I.C. § 35

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fingers inside her vagina, and force her to perform and receive oral sex and sexual intercourse.

[3] After

wards , H eckstall and T.C. returned to their apartment

. T.C. wanted to leave and started to pack, but Heckstall became angry, went to the closet, and got a gun . He held the gun to her head and her back while he made her go back to his cousin’s apartment. Eventua lly, Heckstall calmed down and the two returned to their apartment. One of T.C.’s children called the police.

[4] Crime scene specialist Andrea Pierce investigated the crime scene
. She went to Heckstall’s cousin’s apartment, where she found a knife in the kitchen and a firearm in the furnace closet. The firearm had a round in the chamber and bullets in the magazine.

[5] On July 29, 2016 , the State charged Heckstall with seven felonies. Heckstall’s jury trial took place on July 13

- 14, 2017. At the beginning of the trial, Heckstall asked for a continuance to review a crime lab packet that he had received from the State at approximately 4:50 p.m. on July 12, the day before trial. The prosecutor expl ained that although she had requested the lab packet about a week before the trial , a crime lab employee had overlooked her request, so the prosecutor did no t receive it until around noon on July 12. The prosecutor was preparing witnesses at that time, an d said that as soon as that preparation was complete, she “went straight on over to [defense counsel] ’s office so that [defense counsel] could redepose” T.C. Tr. Vol. II p. 5. Another deposition of T.C. took place for about one and one

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[6] The pr osecutor then stated that she had gone through the new lab packet and that it contained no new information , b ut instead, it was an extension of a crime lab report that Pierce had prepa red and that had been provided to the defense earlier in the case. The prosecutor stated that the new lab packet contained crime scene diagrams and measurements, but that the State would not be introducing those documents into evidence at trial. The prosecutor acknowledged that the discovery was late, but noted that she rece ived it late,
too.

[7] The trial court noted that the new lab packet included a laboratory examination report, laboratory notes, and a chain of custody report. It also included a compact disc that contained the full crime lab report that had already been disc overed. Defense counsel asked for twenty

- four hours to evaluate the new packet so that she would not be ineffective on behalf of Heckstall. The trial court ordered a recess , during which Heckstall had the opportunity to examine the packet, including the compact disc.

[8] Following the recess, Heckstall stated that reviewing the lab packet was useful and that it included information that was in his favor and “particularly interesting, particularly about where things were found.” Id. at 13. The trial
court no ted that Pierce’s initial lab report and another lab report had been discovered in August 2016. The prosecutor stated that Pierce’s initial lab report detailed the location of where the knife and gun were recovered. The trial court then denied Heckstall’ s motion for a continuance and asked the State to makeCourt of Appeals of Indiana | Memorandum Decision 49A04

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Pierce available for the defense to talk to before Pierce testified. The prosecutor replied that Pierce would be present that afternoon.

[9] The case proceeded to trial, and the jury found Heckstall gui lty as charged. On August 25, 2017 , the trial court imposed an aggregate sentence of fifty years. Heckstall now appeals.



## Discussion and Decision

[10] Heckstall argues solely that the trial court erred by denying his motion for a continuance. Trial courts have broad discretion in dealing with discovery violations by the State in the alleged late disclosure of evidence to the defense. Alcantar v. State , 70 N.E.3d 353, 356 (Ind. Ct. App. 2016). We may reverse the trial court’s decision regarding an alleged violation only if the trial court’s decision involved clear error and resulted in prejudice. Id. When a party has failed to comply with discovery procedures, “ the trial court is usually in the best position to determine the dictates of fundamental fairness and whether any resulting harm can be eliminated or satisfactorily alleviated.” Wells v. State , 848 N.E.2d 1133, 1143 (Ind. Ct. App. 2006), opinion corrected on reh’g , 853 N.E.2d 143 (Ind. Ct . App. 2006). A continuance i s usually the proper remedy for a discovery violation

. Id. Although the withholding of material evidence by the prosecution may present grounds for reversal, an appellant must affirmatively show that there was error prejudic ial to his substantial rights before reversal is warranted. Id. at 92.Court of Appeals of Indiana | Memorandum Decision 49A04

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[11] Here, the prosecutor received the lab packet at approximately noon on the day before the trial

. She was preparing witnesses at that t ime, and as soon as that preparation was complete, she took the lab packet to Heckstall. In other words, she took the lab packet to Heckstall at her earliest convenience. No error occurs when the State provides a defendant evidence as soon as the State is in possession of requested evidence. Warren v. State , 725 N.E.2d 828, 832

- 33 (Ind. 2000). The lab packet contai ned no material new information, but rather was
an extens ion of Pierce’s crime lab report , which had already been discovered

. Although Heckstall argues that Pierce’s notes in the new packet “regarding the location of certain items of evidence could have played a significant role in questioning the credibility of T.C.,” appellant ’s br. p. 8, Pierce’s crime lab report that had already been provided included the lo ca tio n s where the knife and gun were recovered

. Heckstall does not specify what or how information in the l ate

- discovered packet could have helped his defense.

[12] Further, after Heckstall received the lab packet, he spent one and one

- half hours

re - deposing T.C. Before the presentation o f evidence at trial, the trial court ordered a recess during which Heckstall had the opportunity to examine the lab packet. The trial court asked the State to make Pierce available for the defense to talk to before she testified, and the State said that P ierce would be present that afternoon. The only new information in the packet was diagrams and measurements, and the State said that it did not plan to use that information during trial. Heckstall had all the relevant information before trial, including Pierce’s crime lab rep ort , and had been able to depose Pierce before trial. InCourt of Appeals of Indiana | Memorandum Decision 49A04

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short , the State did not withhold any material evidence from Heckstall, and Heckstall has not shown that he was prejudiced by the late discovery of the lab packet. The trial c ourt did not err by denying Heckstall’s motion for a continuance.

[13] The judgment of the trial court is affirmed.
Vaidik, C.J., and Altice, J., concur.