Hozyfa H. Sultan v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 27, 2018
• Docket: 02A05-1705-CR-1207
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 27 2018, 9:12 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michelle F. Kraus Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana Angela N. Sanchez Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Hozyfa H. Sultan, March 27, 2018 Appellant-Defendant, Court of Appeals Case No. 02A05-1705-CR-1207 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Appellee-Plaintiff. John F. Surbeck, Jr., Judge Trial Court Cause No. 02D06-1511-MR-9

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A05-1705-CR-1207 | March 27, 2018 Page 1 of 10 [1] Hozyfa H. Sultan (“Sultan”) was convicted of murder,1 a felony, attempted

murder,2 a Level 1 felony, and an enhancement for the use of a firearm.3 He

appeals his convictions, raising the following restated issue: whether the trial

court abused its discretion when it denied Sultan’s motion to dismiss, which he

requested as a sanction for an alleged discovery violation.

[2] We affirm.

Facts and Procedural History [3] On October 22, 2015, Sultan went to the home of Brandon Washington

(“Washington”), where he met Washington and his friend, Mikal Montgomery

(“Montgomery”). Sultan spoke with the two briefly and then showed them a

handgun and asked Washington, who had expressed interest in buying a gun

from Sultan, if that gun would work. Trial Tr. Vol. I at 51. Washington told

Sultan that it would work. Id. at 52. Sultan next asked if either Washington or

Montgomery had a gun, and they responded that they did not. Id. At that

point, Sultan started shooting at Washington. Washington was struck by three

bullets, each of which could have been fatal on its own, and fell to the ground in

the living room, where he ultimately died from his wounds.

1 See Ind. Code § 35-42-1-1. 2 See Ind. Code §§ 35-42-1-1, 35-41-5-1(a). 3 See Ind. Code § 35-50-2-11.

Court of Appeals of Indiana | Memorandum Decision 02A05-1705-CR-1207 | March 27, 2018 Page 2 of 10 [4] Sultan continued to shoot, and as Montgomery attempted to run away, he was

struck several times as well. Ultimately, Montgomery managed to reach the

bathroom and was able to shut himself inside. Sultan fled out the front door of

the house. When he could hear no more shots, Montgomery came out of the

bathroom and briefly spoke to Washington, who was still alive at that point.

Montgomery then ran out the back door of the house and to a nearby home to

get help.

[5] Soon after the shooting was reported to 911, Fort Wayne Police Department

Officer Matthew Foote (“Officer Foote”) arrived at the scene and went to speak

with Montgomery and assess his condition. Officer Foote requested help for

Montgomery and attempted to ascertain what had happened. At that time,

Montgomery told Officer Foote that he did not know who shot him. Id. at 59-

61, 131-32. This conversation was recorded by the system in Officer Foote’s

patrol car. Montgomery survived his injuries, and a few days later, he told the

police that he had always known who shot him and identified Sultan as the

shooter. Id. at 61-62, 67-68; Appellant’s App. Vol. II at 22.

[6] The State charged Sultan with murder, attempted murder, as a Level 1 felony,

and an enhancement for the use of a firearm during the commission of a felony.

The probable cause affidavit, filed on November 6, 2015, stated that when

police spoke with Montgomery at the hospital following the shooting on

October 23, he initially told police that he did not know who shot him and

described the shooter only as a black male. Appellant’s App. Vol. II at 22. The

affidavit also stated that when police interviewed him again six days later on

Court of Appeals of Indiana | Memorandum Decision 02A05-1705-CR-1207 | March 27, 2018 Page 3 of 10 October 29, Montgomery admitted that he had always known that Sultan was

the person who shot him and Washington. Id.

[7] The recording of Officer Foote’s conversation with Montgomery at the scene

was not discovered by prosecutors or given to Sultan until March 2017, days

before the then-scheduled trial. This was because in October 2015, at the time

the crime occurred, the Fort Wayne Police Department used a system of

marking the recordings made on their patrol car systems that associated the

recording with a specific case or marked it as irrelevant. March 13 Tr. at 19-21.

Officer Foote mistakenly marked footage of him driving around with the

control number associated with this investigation and marked the recording of

his conversation with Montgomery as irrelevant, and the two videos should

have been marked in reverse. Id. Because of this mistake, the recording of the

interview with Montgomery was not associated with the investigation and was

not discovered by the State until they were preparing Officer Foote for trial.

During this preparation, Officer Foote reviewed the videos from his vehicle

system and expressed skepticism that his conversation with Montgomery had

not been recorded. He engaged in further investigation and located the missing

video. The State immediately disclosed the video to Sultan and searched to

locate any other videos associated with the case that may have been overlooked

to provide to Sultan.

[8] After Sultan received the late discovery of Officer Foote’s video, he filed a

motion to dismiss the charges or for alternate sanctions against the State. A

hearing on the motion to dismiss was held, and at the hearing, the trial court

Court of Appeals of Indiana | Memorandum Decision 02A05-1705-CR-1207 | March 27, 2018 Page 4 of 10 and the parties openly acknowledged ongoing struggles in Allen County with

discovery problems. The State explained in detail the many efforts undertaken

by the prosecutor and police in the county to correct these issues. The State

explained that, among other changes instituted, the police department had

stopped using the labelling system that led to Officer Foote’s recorded

conversation with Montgomery not being associated with Sultan’s investigation

in the police database. Id. at 20.

[9] At the hearing, Sultan acknowledged that the State had not acted in bad faith

and had promptly provided the information when it became aware of it and

worked to discover additional possible oversights. Id. at 22-23. The trial court

also found that there was no misconduct or bad faith on the part of the State

that contributed to the discovery delays in the case. Id. at 25, 29. The trial

court further noted that everyone was acting diligently and recognized the

ongoing efforts being made by the prosecutor, the police, and others to correct

the flaws in the systems used to store and organize information, including the

voluminous videos recorded by the police department on a daily basis. Id. at

29-34. The trial court stated, “I think in the long run just the continued

diligence of everyone involved is the appropriate sanction cause everybody is

gonna [sic] be working harder.” Id. at 35. The trial court denied Sultan’s

motion to dismiss the charges against him and, instead, ordered a continuance

of the trial to allow Sultan time to further evaluate the newly discovered

information. Id. The trial was continued to March 27, 2017. At the conclusion

of the three-day jury trial, Sultan was found guilty as charged. On May 1, 2017,

Court of Appeals of Indiana | Memorandum Decision 02A05-1705-CR-1207 | March 27, 2018 Page 5 of 10 the trial court sentenced him to an aggregate sentence of 110 years executed.

Sultan now appeals.

Discussion and Decision [10] “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). “Where there has been a failure to

comply with discovery procedures, the trial judge is usually in the best position

to determine the dictates of fundamental fairness and whether any resulting

harm can be eliminated or satisfactorily alleviated.” State v. Schmitt, 915 N.E.2d

520, 522 (Ind. Ct. App. 2009) (quoting Lindsey v. State, 877 N.E.2d 190, 195

(Ind. Ct. App. 2007), trans. denied), trans. denied. The trial court will be granted

deference in assessing what constitutes substantial compliance with discovery

orders. Id. We may reverse a trial court’s determination only for an abuse of

discretion involving clear error and resulting prejudice. Alcantar, 70 N.E.3d at

356.

[11] A continuance is usually the proper remedy if a remedial measure is warranted.

Schmitt, 915 N.E.2d at 523. However, if the State’s actions were deliberate and

the conduct prevented a fair trial, a more extreme remedial measure, such as

the exclusion of evidence, may be employed. Id. “Dismissal of charges is also

a sanction within the arsenal of the trial judge in dealing with the failure of the

State to afford the defense access to evidentiary materials as ordered.” Id.

(citing Robinson v. State, 450 N.E.2d 51, 52 (Ind. 1983)). In determining

Court of Appeals of Indiana | Memorandum Decision 02A05-1705-CR-1207 | March 27, 2018 Page 6 of 10 whether dismissal was proper, the court should consider whether the breach

was intentional or in bad faith and whether substantial prejudice resulted. Id.

[12] Sultan contends that the trial court abused its discretion when it denied his

motion to dismiss the charges against him. Specifically, he asserts that the trial

court should have dismissed the charges because the State committed a “grave

discovery violation that resulted in the violation of [his] due process rights;

violated his Sixth Amendment Right to effective assistance of counsel; and

created substantial prejudice to him.” Appellant’s Br. at 11. Sultan claims that

the State’s late discovery of the in-car video of Officer Foote speaking with

Montgomery was a violation of the discovery order and that there was “an

ongoing, systematic flaw in the way discovery [was] handled in criminal cases

in Allen County.” Id. at 16. He also argues that the discovery violation was

prejudicial to him and violated his right to effective assistance of counsel

because the late discovery of the video made it impossible for his attorney to

review the evidence prior to the hearing on the motion to dismiss. Sultan

maintains that the trial court erred in denying his motion to dismiss because the

State committed a serious discovery violation and “continued to exhibit the

same pattern of discovery violations.” Id. at 19.

[13] Sultan challenges the late discovery of Officer Foote’s recorded conversation

with Montgomery at the crime scene in which Montgomery claimed that he did

not know who shot him. The video was discovered by Officer Foote after his

pretrial preparation with the State when he expressed skepticism that there was

not a video of his interaction with Montgomery. It is undisputed that the State

Court of Appeals of Indiana | Memorandum Decision 02A05-1705-CR-1207 | March 27, 2018 Page 7 of 10 was not aware of the video prior to Officer Foote’s discovery of it, and it is also

undisputed that the State acted promptly to obtain the video and provide it to

Sultan. Sultan received this video immediately after the State first discovered it,

which was on March 10, 2017, a few days before the then-scheduled trial date

in early March 2017. During the hearing on the motion to dismiss, Sultan

acknowledged, and the trial court found, that there had been no misconduct or

bad faith on the part of the State in this case. March 13 Tr. at 22-23, 25, 29. In

light of the lack of misconduct or bad faith, the trial court found that dismissing

the charges against Sultan was not an appropriate sanction, and instead,

concluded that the discovery violation could be remedied by continuing trial to

allow Sultan additional time to review the new evidence. Id. at 35-36.

[14] The trial court was in the best position to “determine the dictates of

fundamental fairness and whether any resulting harm can be eliminated or

satisfactorily alleviated.” Schmitt, 915 N.E.2d at 522. The trial court’s decision

recognized that there was no misconduct and that the State did not act in bad

faith, and it provided Sultan sufficient time in which to review the newly

discovered information and prepare for trial. The trial court’s determination

was reasonable in light of the fact that the newly-discovered video did not

actually provide significant new information because Sultan was aware from

the beginning of the case that Montgomery initially refused to identify him as

the shooter to police and told the police he did not know who the shooter was,

given that this information was contained in the probable cause affidavit.

Appellant’s App. Vol. II at 22.

Court of Appeals of Indiana | Memorandum Decision 02A05-1705-CR-1207 | March 27, 2018 Page 8 of 10 [15] Despite the fact that Sultan asserts that the discovery violation was prejudicial

to him, he does not actually contend that the continuance was insufficient to

allow him time to review the evidence and to prepare for trial. Nor does he

claim that any actual prejudice to his rights at trial resulted from the trial court’s

decision to allow a continuance. Instead, Sultan maintains that the trial court’s

determination was not an adequate remedy in light of the State’s discovery

violation in the present case, and in light of other ongoing discovery issues in

Allen County. Although more extreme sanctions exist for a discovery

violation, such sanctions are only appropriate if a defendant establishes “‘that

the State’s actions were deliberate or otherwise reprehensible, and this conduct

prevented the defendant from receiving a fair trial.’” Cain v. State, 955 N.E.2d

714, 718 (Ind. 2011) (quoting Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000)).

In fact, a defendant bears an even heavier burden when he seeks the extreme

sanction of dismissal of the charges against him. Terry v. State, 857 N.E.2d 396,

404 (Ind. Ct. App. 2006), trans. denied.

[16] Here, there is no contention that the State’s actions were deliberate or that its

conduct prevented Sultan from receiving a fair trial. Although there was

acknowledgment during the hearing on the motion to dismiss of past discovery

problems in Allen County, the State discussed, and the trial court recognized,

that the prosecutor’s office and the county’s police agencies had been working

diligently since they became aware of the problems to change the procedures

that led to some of the discovery problems experienced. March 13 Tr. at 17, 25-

35.

Court of Appeals of Indiana | Memorandum Decision 02A05-1705-CR-1207 | March 27, 2018 Page 9 of 10 [17] We conclude that the trial court did not err in its determination to deny Sultan’s

motion to dismiss. Nothing in the record indicated that the State acted

deliberately in not discovering and providing the video to Sultan; in fact, as

soon as the State learned of the video’s existence, it promptly provided Sultan

with the evidence. Further, Sultan has not shown how the State’s conduct

prevented him from receiving a fair trial or how the continuance was not an

adequate remedy for the discovery violation. We, therefore, find that the trial

court did not abuse its discretion when it denied Sultan’s motion to dismiss.

[18] Affirmed.

[19] Bailey, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A05-1705-CR-1207 | March 27, 2018 Page 10 of 10