Deshawn Luckett v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 29, 2023
• Docket: 23A-CR-01166
• Status: Published

Opinion

FILED Nov 29 2023, 9:49 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. O’Connor Theodore E. Rokita O’Connor & Auersch Attorney General of Indiana Indianapolis, Indiana Tyler Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Deshawn Luckett, November 29, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-1166 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Shatrese Flowers, Appellee-Plaintiff. Judge Trial Court Cause No. 49D28-2210-F4-28899

Opinion by Judge Riley. Judges Crone and Mathias concur.

Riley, Judge.

Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 1 of 14 STATEMENT OF THE CASE [1] Appellant-Defendant, Deshawn Luckett (Luckett), appeals his convictions for

two Counts of unlawful possession of a firearm by a serious violent felon, Level

4 felonies, Ind. Code § 35-47-4-5(c); possession of a controlled substance, a

Level 6 felony, I.C. § 35-48-4-7(a); and resisting law enforcement, a Class A

misdemeanor, I.C. § 35-44.1-3-1(a)(3).

[2] We affirm.

ISSUES [3] Luckett presents this court with three issues, which we consolidate and restate

as the following two issues:

(1) Whether the trial court properly admitted text messages sent to Luckett by a person who did not appear at trial; and

(2) Whether the trial court abused its discretion when it denied his motion to exclude texts and photographs that were late in being disclosed to the defense.

FACTS AND PROCEDURAL HISTORY [4] On August 23, 2022, the Indianapolis Metropolitan Police Department’s

Violence Reduction Team was surveilling an apartment complex near 37th and

Central Streets in Indianapolis. Officers observed a man driving a white Toyota

Tundra pickup truck stop briefly at the complex, meet with someone, and then

drive away. The truck was subsequently observed running a stop sign, and

Officer Mollie Johanningsmeier (Officer Johanningsmeier) initiated a traffic Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 2 of 14 stop of the truck, which pulled over in the 3000 block of Ruckle Street. Officer

Johanningsmeier was wearing a body camera which recorded the traffic stop.

As Officer Johanningsmeier parked her cruiser behind the truck, the driver,

later identified as Luckett, opened the driver’s side door, exited, and

momentarily stood in the truck’s open doorway. Officer Johanningsmeier was

approximately one car length away from Luckett as she gave several loud

verbal commands to Luckett to get back into his truck. Luckett, who was

looking straight at the officer while she issued these commands, began to walk

and then to run away through the yard of a nearby home. Officer

Johanningsmeier and Officer Frank Gunn (Officer Gunn), who had arrived as

Officer Johanningsmeier was issuing her verbal commands to Luckett, gave

chase but lost sight of Luckett. As the other officer continued her search for

Luckett, Officer Gunn returned to the truck and observed in plain view a

handgun on the driver’s side seat, a Draco “banana clip” firearm on the rear

passenger side floorboard, and a baggie of what was later determined to be

ADB-BUTINACA, a controlled substance analog of ADB-PINACA, in the

doorhandle of the driver’s side door. (Transcript p. 136). The truck was towed

from the scene.

[5] Officer Robert Camphor (Officer Camphor), also with the Violence Reduction

Team, discovered that the truck was a rental and learned from the rental

company that it had been rented by Candyce Breedlove (Breedlove). Further

investigation revealed that Breedlove was associated with Luckett. On August

25, 2022, Officer Camphor procured Luckett’s photograph from the Bureau of

Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 3 of 14 Motor Vehicles (BMV) and showed it to Officer Johanningsmeier, who

recognized Luckett as the man who had exited the white Toyota Tundra and

fled from her two days prior. After making this identification, Officer

Johanningsmeier found Luckett’s Facebook account which had photographs of

him on it.

[6] On October 25, 2022, the State filed an Information, charging Luckett with two

Counts of Level 4 felony unlawful possession of a firearm by a serious violent

felon, Level 6 felony possession of a controlled substance, and Class A

misdemeanor resisting law enforcement. On October 26, 2022, Luckett’s initial

hearing took place at which time the trial court set his jury trial for January 11,

2023. On January 3, 2023, the trial court granted Luckett’s motion to continue

his jury trial, and his trial was reset for February 22, 2023.

[7] On January 5, 2023, investigators obtained a search warrant for the Toyota

Tundra. A search of the truck uncovered no additional firearms or drugs, but

two cellphones were recovered from the middle console area. Investigators did

not submit the cellphones to the digital forensics unit for a complete data

extraction, as there was an approximately six-month delay in obtaining results

from the unit. On February 3, 2023, the trial court granted Luckett’s motion for

a speedy trial. The trial court noted in the chronological case summary that

Luckett’s speedy trial deadline was April 25, 2023. Luckett’s previously

scheduled trial date of February 22, 2023, was not rescheduled after the trial

court granted his speedy trial motion.

Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 4 of 14 [8] On February 22, 2023, the trial court convened Luckett’s one-day jury trial.

Officer Johanningsmeier testified that she had a good view of Luckett’s face

before he fled, and she identified Luckett in open court as the man she had

encountered on August 23, 2022. Images from Luckett’s Facebook account of

Luckett’s face and body and an image of Luckett and Breedlove hugging were

admitted during Officer Johanningsmeier’s testimony, and the officer testified

that she recognized Breedlove in the image. The officer confirmed that the man

seen in the Facebook images was the same man who she had encountered on

August 23, 2022. Officer Gunn related that he had seen Luckett’s profile before

Luckett had fled the scene of the traffic stop, and Officer Gunn identified

Luckett in open court as the man he had seen flee.

[9] During trial, Luckett moved to exclude certain photographs and text messages.

The photographs were of the screens of the two cellphones recovered from the

Toyota Tundra which showed the identification screens for the two phones,

both of which exhibited “Deshawn Luckett” therein, a CashApp account

logged into “De Luck”, a Facebook account logged into under the name of

“Deshawn Luckett”, Instagram accounts on both cellphones logged into the

account “og_luck, with one login page displaying images of Luckett, and an

image of Luckett which had been taken twelve days before the traffic stop.

(Exh. Vol. pp. 37-43). Luckett also moved to exclude text messages from

Breedlove to Luckett arranging for Breedlove to rent Luckett a truck for August

23, 2022. Luckett objected to the admission of Breedlove’s texts, arguing that

because Breedlove was not a witness, the admission of her hearsay statements

Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 5 of 14 violated his right to confrontation. Luckett also objected to the admission of

both the photographs and the Breedlove/Luckett texts on the basis that the

photographs had only been discovered to the defense the day before trial and

that the texts had been discovered to the defense on the first day of trial after

lunch. Luckett’s counsel argued that there was no time to look through the

contents of the cellphones and that it was “unreasonable” for Luckett to request

a continuance, as the jury had been empaneled and the defense was prepared to

go forward with Luckett’s trial. (Tr. p. 151).

[10] In arguing for the admission of the photographs and the texts, the deputy

prosecutor cited the backlog at the digital forensics unit and represented to the

trial court that he had only learned the day before trial that investigators had

gained access to the two cellphones by correctly guessing Luckett’s password.

The deputy prosecutor further represented that the State had only discovered

the texts between Luckett and Breedlove arranging the rental of the truck while

looking through the cellphones at lunch on the first day of trial. As to Luckett’s

hearsay/confrontation objection, the prosecutor argued that the admission of

the texts was necessary to show the context of Luckett’s non-hearsay texts to

Breedlove arranging the rental of the truck.

[11] The trial court ruled that the photographs of the cellphones were admissible.

As to Breedlove’s texts, the trial court observed that, although they were late

disclosed, Luckett had requested a speedy trial and that exclusion was an

extreme remedy. The photographs and the texts were admitted over Luckett’s

objections.

Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 6 of 14 [12] At the close of the evidence, the jury found Luckett guilty, and Luckett

subsequently admitted to being a serious violent offender. On April 27, 2023,

the trial court held Luckett’s sentencing hearing. The trial court imposed an

aggregate nine-year sentence, with two years suspended.

[13] Luckett now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Standards of Review

[14] Luckett challenges the admission of the Breedlove/Luckett texts and the

cellphone photographs. We generally review the trial court’s admission of

evidence under an abuse of discretion standard. Speers v. State, 999 N.E.2d 850,

852 (Ind. 2013). However, inasmuch as Luckett’s claims of error in the

admission of evidence are based upon the violation of a constitutional right,

those are matters that we review de novo. See id.

II. Admission of the Texts and Photographs

A. Confrontation Clause and Hearsay

[15] Luckett first claims that the trial court abused its discretion in admitting

Breedlove’s texts into evidence, arguing that doing so violated his right under

Article 1, section 13 of the Indiana Constitution to confront the witnesses

against him. Luckett also argues that the admission of Breedlove’s texts

violated the prohibition against hearsay. We do not agree.

[16] Article 1, section 13 of our state constitution provides that “[i]n all criminal

prosecutions, the accused shall have the right . . . to meet the witnesses face to Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 7 of 14 face.” Our supreme court has long recognized this basic trial right as having

deep roots in the common law. Church v. State, 189 N.E.3d 580, 592 (Ind.

2022). Our state’s Confrontation Clause permits the admission of an absent

witness’s out-of-court statement only where the witness is unavailable and

where the defendant has had an opportunity to cross-examine the witness.

Galloway v. State, 188 N.E.3d 493, 498 (Ind. Ct. App. 2022), trans. denied. In

addition, hearsay, which is an out-of-court statement offered for the truth of the

matter asserted, is generally inadmissible. Indiana Evid. Rules 801(c), 802.

[17] However, Indiana courts have recognized that out-of-court statements by a non-

appearing witness are not hearsay if they are offered only to provide context for

other admissible statements. See Williams v. State, 930 N.E.2d 602, 608-09 (Ind.

Ct. App. 2010) (holding that the recorded statements of a confidential

informant arranging drug deals with Williams were not hearsay because they

only provided context for Williams’ own recorded statements), trans. denied; see

also Williams v. State, 669 N.E.2d 956, 958 (Ind. 1996) (holding that Article 1,

section 13 was not violated by the admission of the recorded statements of a

confidential informant conversing with Williams because the informant’s

statements were not admitted for the truth of the matters asserted and “[i]t was

the statements made by Williams that really constituted the evidentiary weight

of the conversation”).

[18] The trial court admitted into evidence the following text stream between

Luckett and Breedlove, which we present in toto and unaltered for spelling and

punctuation:

Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 8 of 14 Luckett: Grl go check on that truck

Breedlove: [Thumbs up emjoi] . . . What days are you tryna get it

Luckett: Ig tmrw morning till next Tuesday

Breedlove: Ok

Luckett: How much is it

Breedlove: Idk yet

Luckett: Pick up truck

Breedlove: Wat location

Luckett: Keystone

Breedlove: I have to clean at 11 . . . Tmrw

Luckett: Ok make Reservation for the morning see how much it is first

Breedlove: [Image of rental options]

Luckett: U put the code n

Breedlove: Yes . . . [Image of rental options]

Luckett: Get the truck

Breedlove: The pick up?

Luckett: Yes

Breedlove: [Image of reservation information]

Luckett: What was the total

Luckett: Plus the 200 deposit

Breedlove: [Shrugging shoulders emoji . . . I don’t rent cars idk lol

Luckett: Lol yea so wt time Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 9 of 14 Breedlove: 9:30

[19] (Exh. Vol. pp. 45-49). On appeal, Luckett does not contend that his own texts

were inadmissible hearsay or that Breedlove’s texts were irrelevant. Luckett’s

identity was the primary issue at trial, and the State offered this text stream to

show that he was the person driving the Toyota Tundra truck that Officer

Johanningsmeier stopped on August 23, 2022. In the text stream, Luckett

guides the rental of the truck through Breedlove, and therefore, his statements

truly “constituted the evidentiary weight of the conversation.” Williams, 669

N.E.2d at 958. Breedlove’s responses merely showed the context of Luckett’s

own statements arranging for the rental of the truck, and, therefore, we

conclude that her statements were admissible for a reason other than for the

truth of the matter asserted. See id.; Williams, 930 N.E.2d at 608-09. Luckett’s

argument that Breedlove’s texts were inadmissible as part of the abolished

doctrine of “res gestae” is unpersuasive. See Swanson v. State, 666 N.E.2d 397,

398 (Ind. 1996) (holding that the doctrine of res gestae, allowing the admission

of evidence of uncharged bad acts to complete the story of the charged offense,

was abolished by the adoption of the Indiana Rules of Evidence). We have

concluded that Breedlove’s texts were nonhearsay and so were not inadmissible

under the Indiana Rules of Evidence, and Luckett provides no authority for his

proposition that the concept of res gestae applies to hearsay which does not

involve uncharged bad acts.

[20] However, even if the trial court’s admission of Breedlove’s texts had been in

error, we would still not reverse Luckett’s convictions. “The improper Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 10 of 14 admission [of evidence] is harmless error if the conviction is supported by

substantial independent evidence of guilt satisfying the reviewing court there is

no substantial likelihood the challenged evidence contributed to the

conviction.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012). Officers

Johanningsmeier and Gunn identified Luckett in open court as the man who

was driving the Toyota Tundra and fled from their presence on August 23,

2022. In addition, Officer Johanningsmeier’s body camera footage which

showed Luckett’s face and physique as well as his BMV photograph and

Facebook images of his face and body were admitted into evidence, all of which

permitted the jury to make its own independent assessment of Luckett’s

identity. The jury also heard evidence that Breedlove had rented the truck

Luckett was seen driving on August 23, 2022, and that Breedlove and Luckett

were associated.

[21] We are aware that where, as here, no limiting instruction was provided to the

jury that it should only consider Breedlove’s texts as context for Luckett’s own

statement, we presume that the jury considered the evidence as substantive

evidence. See Jethroe v. State, 262 Ind. 505, 511, 319 N.E.2d 133, 138 (1974)

(holding that where the jury received no limiting instruction on its

consideration of hearsay “the assumption must be that the jury considered the

testimony as evidence of the truth of the matters asserted”). However, Luckett

did not request any limiting instruction at trial, and, on appeal, he makes no

claim of prejudice relative to the admission of the challenged evidence. In light

of the substantial independent evidence in the record pointing to Luckett’s

Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 11 of 14 identity and his failure to demonstrate any prejudice flowing to him as the result

of the admission of Breedlove’s texts, we conclude that any claimed error was,

at best, harmless. See Hoglund, 962 N.E.2d at 1238.

B. Late Disclosure

[22] Luckett further contends that the trial court erred when it denied his motion to

exclude and admitted the Breedlove/Luckett text stream and the cellphone

photographs because that evidence was late disclosed to the defense. A trial

court has broad discretion to manage discovery, and we presume that the court

acted fairly and equitably. State v. Lyons, 211 N.E.3d 500, 505 (Ind. 2023). This

court will reverse a trial court’s ruling on late disclosed evidence only where the

trial court has committed clear error resulting in prejudice. Berry v. State, 715

N.E.2d 864, 866 (Ind. 1999). “Exclusion of the evidence is an extreme remedy

and is to be used only if the State’s actions were deliberate and the conduct

prevented a fair trial.” Id. Five factors guide our review of a trial court’s

rulings on late disclosed evidence, namely, “when the parties first knew of the

evidence; the importance of the evidence; the prejudice resulting to the

opposing party; the appropriateness of a less severe remedy such as a

continuance; and whether the opposing party would be unduly surprised and

prejudiced by admission.” Perryman v. State, 80 N.E.3d 234, 249 (Ind. Ct. App.

2017).

[23] In addressing Luckett’s claim, we first observe that Luckett did not request a

continuance after being presented with the challenged evidence. The failure to

request a continuance in conjunction with a motion to exclude evidence, where

Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 12 of 14 a continuance may be an appropriate remedy, results in the waiver of a claim of

error due to a discovery violation. Warren v. State, 725 N.E.2d 828, 832 (Ind.

2000) (finding Warren’s claim based on the State’s failure to comply with

Marion County’s local automatic discovery deadlines to be waived because he

did not request a continuance). Here, although Luckett claims the State

committed a discovery violation by not tendering the challenged evidence in

accordance with the Marion County Local Court Rules, he did not request a

continuance, and, therefore, he waived his claim of error. See id.

[24] Regardless of Luckett’s waiver of the issue, we do not agree with him that the

trial court abused its discretion when it declined his motion to exclude the late

disclosed text stream and photographs. While the State’s methods for obtaining

the data on the cellphones found in the white Toyota Tundra may not represent

the model of orderly trial preparation, the State disclosed the evidence as soon

as it became aware of it. Luckett does not direct our attention to anything in

the record demonstrating the State’s bad faith or deliberate misconduct meant

to prejudice him, nor does Luckett assert that he was unduly surprised by the

discovery of his texts with Breedlove on his cellphone. Luckett similarly fails to

argue that the challenged evidence was of overwhelming significance to his

conviction.

[25] Luckett’s claim of prejudice is that he was forced into the untenable position of

either going into trial unprepared or waiving his right to a speedy trial. We are

not persuaded by this argument, as Luckett was in possession of all the

challenged evidence as of his trial date, February 22, 2023, and his speedy trial

Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 13 of 14 deadline was April 25, 2023. Due to Luckett’s failure to seek a continuance,

although the trial court referenced the fact that Luckett had made a speedy trial

request in denying his motion to exclude, there is nothing before us in the

record indicating that Luckett could not have had an adequate continuance to

address the late disclosed evidence and still be brought to trial before his speedy

trial deadline expired. Given these circumstances, we conclude that the trial

court acted within its discretion when it declined to exclude the text stream and

photographs. See Perryman, 80 N.E.3d at 249 (affirming the trial court’s denial

of Perryman’s motion to exclude evidence and a witness disclosed for the first

time during his trial, after the jury was empaneled).

CONCLUSION [26] Based on the foregoing, we conclude that the trial court’s admission of the

State’s late disclosed exhibits did not violate Luckett’s confrontation right or the

prohibition against hearsay and that the trial court acted within its discretion in

denying Luckett’s motion to exclude that evidence.

[27] Affirmed.

[28] Crone, J. and Mathias, J. concur

Court of Appeals of Indiana | Opinion 23A-CR-1166 | November 29, 2023 Page 14 of 14