995 N.E.2d 19 (Ind.App. 2013), 49A02-1211-CR-934, McGill v. State
| Judge | BAILEY, J., and MAY, J., concur. |
| Parties | Brian McGILL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Date | 25 September 2013 |
| Docket Number | 49A02-1211-CR-934. |
| Court | Indiana Appellate Court |
| Citation | 995 N.E.2d 19 |
Page 19
Appeal from the Marion Superior Court; The Honorable Carol Orbison, Judge; Cause No. 49G22-1105-FB-30908.
MEMORANDUM DECISION— NOT FOR PUBLICATION
On April 30, 2011, Appellant-Defendant Brian McGill was working security at a pea-shake house in Indianapolis that was owned and operated by his family. At some point during the evening, McGill became involved in an incident with Eric Kendrick. During this incident, McGill struck Kendrick on the left side of the face and shot Kendrick in the left knee. McGill was subsequently charged with and convicted of Class B felony aggravated battery. McGill was also found to be a habitual offender and in indirect contempt of court. He was sentenced to an aggregate term of twenty-three years, with six years suspended and the final four years served through community corrections.
On appeal, McGill raises numerous issues which we restate as follows: (I) whether the trial court abused its discretion in admitting evidence recovered from the search of McGill's residence; (II) whether the State committed prosecutorial misconduct; (III) whether the trial court abused its discretion in denying McGill's request to give surrebuttal during closing arguments; (IV) whether the trial court abused its discretion in permitting the State to belatedly amend the charging information to include the allegation that McGill is a habitual offender; and (V) whether the evidence is sufficient to sustain the trial court's determination that McGill is a habitual offender. We affirm.
FACTS AND PROCEDURAL HISTORY
McGill's family has owned and operated a pea-shake house on Columbia Street in Indianapolis for fifty to sixty years. A pea-shake house is an illegal gambling operation that runs a game of chance, akin to a lottery, where peas with numbers are selected from a cup to produce the winning four-digit combination. April 30, 2011, was customer appreciation day at the pea-shake house. On customer appreciation day, the pea-shake house would offer free beer to attract patrons. Customer appreciation day was usually scheduled near the time that people would receive their disability payments.
On April 30, 2011, McGill was working as head of security at the pea-shake house. As head of security, McGill had no police powers. He wore a shirt denoting himself as " Security" and possessed a .32 caliber revolver, a stun gun, a night stick, pepper spray, and handcuffs.
Eric Kendrick, a left leg below the knee amputee, arrived at the pea-shake house at approximately 6:30 p.m. After arriving at the pea-shake house, Kendrick purchased his numbers. He then went outside to reminisce with acquaintances.
While outside, Kendrick spoke with one of the employees of the pea-shake house known as " Twin." Kendrick asked Twin if he could take ice from the container holding the free beer after all of the beer had been removed. Twin responded affirmatively. Once the beer was gone, Kendrick again asked Twin if he could take some of the leftover ice, and Twin again responded affirmatively.
Kendrick retrieved a bucket from his van and entered the pea-shake house to collect the ice. Kendrick encountered McGill, who was standing near the container holding the ice, and informed him that Twin had given him permission to take some of the ice. McGill told Kendrick that he was " a damn liar" and " [a]in't nobody told you you could have some ice." Tr. p. 39. McGill then offered to give Kendrick some ice in exchange for two or three dollars. Kendrick said he would not pay for the ice and attempted to leave the pea-shake house. McGill lunged at Kendrick before other people intervened and Kendrick was able to leave the building.
While outside, someone brought Kendrick a bag of ice. Kendrick emptied the ice into a cooler in his van. Kendrick remained outside and spoke with people while waiting " for the shake to come out." Tr. p. 42.
At some point, McGill came out of the house and approached Kendrick " real fast." Tr. p. 42. McGill confronted Kendrick, inquiring why Kendrick had told people that McGill had " made a gun play." Tr. p. 42. Though Kendrick had not told anyone about the " gun play," he told McGill that McGill had done so by having his hand inside of his pocket while talking to Kendrick inside the pea-shake house. Tr. p. 42.
McGill struck Kendrick on the left side of the face with a revolver, causing the revolver to fire one round. The impact of the blow knocked off and broke Kendrick's glasses. McGill told Kendrick to " [g]et the hell off these people's property." Tr. p. 44. Then, while standing approximately five to six feet away from Kendrick, McGill shot Kendrick in the left knee. Kendrick hid between two cars and attempted to call the police on his cell phone. After McGill fired two more shots, Kendrick fled to a Masonic Lounge that was located next door to the pea-shake house, and McGill ran from the pea-shake house.
Officer Timothy Westerhof of the Indianapolis Metropolitan Police Department responded to an emergency call that came in from the Masonic Lounge. When Officer Westerhof arrived at the Masonic Lounge, he found Kendrick sitting in a chair in the parking lot. Kendrick was suffering from a wound to the head and a gunshot wound to the left knee. Kendrick was able to describe his shooter to Officer Westerhof and told Officer Westerhof that he knew his shooter as " Gill." Tr. p. 84. Gill was one of McGill's nicknames.
Paramedics transported Kendrick to Methodist Hospital, where he underwent emergency surgery to remove the bullet from his knee. Surgeons removed a .32 caliber bullet fragment from Kendrick's knee. Kendrick spent two to three days at Methodist. He was unable to properly attach his prosthetic leg following discharge and required " extensive physical therapy." As of the date of trial, Kendrick continued to suffer pain, and his knee would not bend the same as it did before he was shot.
A few days after Kendrick was shot, Detective Peter Perkins met with Kendrick and showed him a photographic array. In this array, Kendrick recognized Reginald McGill, another family employee at the pea-shake house who was not involved in the incident, and informed Detective Perkins that Reginald was not the shooter. The photographic array did not include a picture of McGill. Detective Perkins showed Kendrick a second photographic array which included a picture of McGill. From this second array, Kendrick identified McGill as the shooter.
At some point, police officers interviewed McGill. McGill told the officer that he had spent the entire evening of April 30, 2011, with his girlfriend at a tattoo party. He also informed the police that he did not work at the pea-shake house despite the fact that the police had discovered a pull tab ticket book on McGill when they arrested him. McGill indicated that he was unaware of the shooting until family members contacted him the following day. McGill, however, subsequently admitted that he shot Kendrick and claimed that he did so in self-defense.
On May 6, 2011, the State charged McGill with one count of Class B felony aggravated battery. On May 15, 2011, McGill placed a phone call to his girlfriend from jail, during which he instructed her to give certain items to an individual known as " Tone-Bone" but to keep another item that was " on safety" in the closet for protection. Exhibits Vol. 1, p. 123. On May 18, 2011, Detective Perkins obtained a search warrant for McGill's residence, which was located at 5819 East 39th Street, after discovering the May 15, 2011 phone call. Detective Perkins executed the warrant on May 19, 2011.
During his search of McGill's residence, Detective Perkins discovered a shoebox containing ammunition, four live .32 caliber rounds on an entertainment center, and a red box containing .32 caliber ammunition behind a bar. Detective Perkins also intercepted two letters that McGill had sent to his girlfriend, in which McGill included information about Kendrick and instructed his girlfriend to do " what needs to be done" to keep Kendrick from cooperating with Detective Perkins's investigation and the upcoming criminal proceedings. Exhibits Vol. 1, p. 28.
On September 23, 2011, the State requested permission to amend the charging information to include an allegation that McGill was a habitual offender. Following an October 12, 2011 hearing on the State's request, the trial court permitted the State to file the habitual offender enhancement over McGill's objection.
On September 9, 2012 through September 11, 2012, the trial court conducted a jury trial. Just prior to the beginning of trial, McGill filed a motion to suppress the evidence that was recovered during Detective Perkins's search of his residence. Upon reviewing the affidavit for probable cause and hearing argument from the parties, the trial court denied McGill's motion. During trial, the State presented evidence of McGill's guilt. McGill acknowledged that he possessed a .32 caliber revolver, stipulated to the fact that he had written the letters that had been intercepted by Detective Perkins, admitted that he initially lied to police, admitted that he made attempts to convince Kendrick not to cooperate with the police, and testified that he was acting in self-defense when he shot Kendrick.
On September 11, 2012, following the conclusion of the presentation of evidence, the jury found McGill guilty of Class B felony aggravated battery. McGill then waived the right to have the evidence relating to the...
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