Michigan City man’s burglary conviction upheld by COA

IL file photo

The Court of Appeals of Indiana rejected a man’s claims that the state committed “trial by ambush” by allowing testimony and video evidence that showed him taking two cases containing Glock handguns.

Malcolm Dwight Smith II lived at a Red Roof Inn in Michigan City across the street from Brianna Neyhart and Torez Pearson, who were living at the Dunes Inn with their two daughters.

On May 27, 2020, Neyhart left her room to smoke a cigarette and collect some money a friend owed her, according to court records.

Pearson had left two Glock cases, each containing one Glock handgun, in the room.

While Neyhart was out smoking, Smith entered the room.

Smith grabbed the Glock cases, tucked them under his shirt and left.

A hotel manager at the Dunes Inn showed police a video of Smith entering the room and leaving with the Glock cases tucked under his shirt.

The manager was unable to provide a copy of the video at the time but said he would email a copy to police at a later time. He did so the next day.

In June 2020, the state charged Smith with Level 4 felony burglary.

At his initial hearing, Smith told the LaPorte Superior Court he was “manic depressive” and had not taken medication for his condition in years. Smith also said he would get an attorney and made a speedy trial request to the trial court.

During the hearing, Smith cut off the trial court more than a dozen times and attempted to discuss the facts of the case. The trial court repeatedly reminded Smith that the hearing was only his initial hearing and that he should not discuss the facts of the case.

Smith said he “would go pro se” and that he “did not need an attorney.” The trial court told Smith that he had the right to proceed pro se, but that it was concerned because he had both asked for an attorney and to proceed pro se.

Eventually, the trial court appointed a public defender to represent Smith and set a bond hearing for July 2020.

Smith interrupted the trial court and began to talk about facts of his case again and mentioned Indiana Criminal Rule 26. The trial court ended the hearing.

In February 2021, the trial court released Smith on his own recognizance under the condition that he report to the LaPorte County Community Corrections GPS monitoring program. He violated the terms of his release in March 2021 and was arrested.

His counsel requested another speedy trial date under Indiana Criminal Rule 4(B), with the request granted.

In May 2021, five days before Smith’s trial, the state found the video recording from the Dunes Inn and immediately emailed it to Smith’s counsel.

At Smith’s trial, the trial court allowed the hotel manager’s testimony over Smith’s objection and admitted the video recording into evidence, again over Smith’s objection.

Smith moved for a mistrial, with the trial court denying his motion.

A jury found Smith guilty of Level 4 felony burglary. The trial court sentenced Smith to six years in the Indiana Department of Correction.

Smith argued in his appeal that the trial court violated his right to a speedy trial and abused its discretion when it admitted evidence. He also argued there was insufficient evidence to support his conviction.

The appellate court disagreed and affirmed the trial court’s decision.

Writing for the court, Judge Rudolph Pyle first addressed Smith’s speedy trial claim.

Pyle wrote that the appellate court’s review of the record showed Smith never filed a motion for discharge after Sept. 8, 2020, the 70^th day after his initial speedy trial request.

“The record is clear that Attorney Payne represented Smith at the time of his Sept. 11 motion to dismiss, and the trial court was not required to respond to Smith’s pro se motion to dismiss while he was represented by counsel,” Pyle wrote.

The appellate court also rejected Smith’s argument that the trial court abused its discretion when it admitted the testimony of the hotel manager and the video recording.

The court’s opinion pointed out that Smith, when asked by the trial court for a continuance in regard to the video recording, decided against one “as a matter of principle” and waived this argument on appeal.

Smith cited Dillard v. State, 102 N.E.3d 310 (Ind. Ct. App. 2018), for the proposition that “it is unfair to put a defendant in an untenable situation in deciding to proceed to trial unprepared or waive the defendant’s right to a speedy trial.”

But “Dillard is distinguishable from the case before us because Smith never moved for discharge, never moved for a continuance, and still had nearly a month before the expiration of his speedy trial request,” Pyle wrote.

Pyle noted that Smith entered Neyhart and Pearson’s room at the Dunes, left the room, returned almost immediately thereafter and then left with the Glock cases tucked under his shirt.

Smith’s entry into the room and his exit with the Glock cases were captured by the video recording provided by the hotel manager. Neyhart also testified that Smith had admitted to entering her room, taking Pearson’s Glock cases and selling them sometime later.

“All of this evidence supports the inference that Smith had entered Neyhart and Pearson’s room with the intent to commit theft,” Pyle wrote in rejecting Smith’s sufficiency argument.

Judges Margret Robb and Leanna Weissmann concurred.

The case is Malcolm Dwight Smith II v. State of Indiana, 22A-CR-1514.