Opinion
24A-CR-452
09-13-2024
Theron M. Korte, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Krista L. Sutherland Betteau Law Office, LLC New Albany, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Clark Circuit Court The Honorable Bradley B. Jacobs, Judge Trial Court Cause No. 10C02-1903-F5-62
ATTORNEY FOR APPELLANT
Krista L. Sutherland Betteau Law Office, LLC New Albany, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General
Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
VAIDIK, JUDGE
Case Summary
[¶1] Theron M. Korte appeals his conviction for Level 6 felony possession of methamphetamine. We affirm.
Facts and Procedural History
[¶2] In March 2019, a pickup truck in which Korte was a passenger was pulled over. After receiving consent to search the truck, officers asked Korte to exit. As he did so, officers noticed that he had "some unnatural bulges in his pockets." Tr. Vol. II p. 100. When officers asked Korte if he had anything in his pockets, he emptied the contents, revealing a baggie of methamphetamine. Officers then searched the truck. In a toolbox in the bed of the truck, officers found a Dollar General bag containing, among other things, a toothbrush holder. Inside the toothbrush holder was another baggie of methamphetamine. A piece of mail addressed to Korte was on top of the Dollar General bag. Korte had the receipt for the items inside the Dollar General bag; however, he claimed he didn't know the meth was inside the toothbrush holder.
[¶3] Korte was arrested and charged with Level 5 felony possession of methamphetamine (at least 5 but less than 10 grams). The State later reduced the charge to Level 6 felony possession of methamphetamine. While the case was pending, the State offered a plea deal to Korte, but he rejected it. See id. at 17.
[¶4] In June 2023, defense counsel emailed the State to see if there were any bodycamera videos. The State said it would get back with defense counsel. On November 16-twelve days before trial-the State filed a supplemental discovery disclosure, which included four previously undisclosed body-cam videos. Appellant's App. Vol. II p. 117. Korte moved to exclude the videos, arguing the late disclosure violated his constitutional rights. Id. at 153. The trial court granted Korte's motion. Id. at 164.
[¶5] At the final pretrial hearing on November 20, the trial court confirmed with the State that it wasn't going to introduce the body-cam videos at trial, and the State responded:
I will put that on the record that there was some body cam that the police found maybe on a deleted server or something that they turned over late last week. And we will not be attempting to use it or introduce that as evidence in the case.
Tr. Vol. II p. 20. When the court asked if there was anything else, defense counsel said:
I just want to let the court know that Mr. Korte was asking me about [a] possible plea and I did let him know . . . what we just talked about. I believe at this time that all pleas are off the table. So, I let him know that, so I just want to let the court know what we were talking about.Id.
[¶6] A jury trial was held on November 28, and Korte was found guilty. At the sentencing hearing, defense counsel addressed why Korte went to trial:
I will also address one of the things that everyone kept asking, why are we having this trial, why are we having this trial, he had methamphetamine on him. I think it is important to address that and part of that is the Mr. Korte that was using [drugs] was difficult to reason with about this is what you need to take. That became very difficult. Once he was in custody, although a little late, he stated to me, the biggest issue was the methamphetamine that was in the back of the truck was not his. He had an issue pleading to that because that was not his. He has been very adamant that part wasn't his. Now what was in his pocket he would have easily accepted responsibility for that, he would have admitted to that but at that point we were a little too far down the road to put on the brakes. But that is why we went to trial, it's that part in the back that he couldn't accept responsibility for because it was not [his].Id. at 221-22. The trial court sentenced Korte to two-and-a-half years in prison.
[¶7] Korte now appeals. Discussion and Decision
[¶8] Korte first contends that his constitutional right to due process was violated by "the State's negligent withholding of material evidence." Appellant's Br. p. 7. Although Korte doesn't cite Brady v. Maryland, 373 U.S. 83 (1963), he cites cases that apply it. See id. at 8 (citing Kyles v. Whitley, 514 U.S. 419 (1995); Rubalcada v. State, 731 N.E.2d 1015 (Ind. 2000)). In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87.
[¶9] There are two problems with Korte's argument. First, he did not submit the body-cam videos to the trial court for inspection, and thus they are not included in the record on appeal. Accordingly, we have no way of evaluating whether the evidence is favorable and material to guilt or punishment. Second, even assuming the body-cam videos are favorable to Korte, Brady is not implicated "[i]f the favorable evidence becomes known to the defendant before or during the course of a trial." Williams v. State, 714 N.E.2d 644, 649 (Ind. 1999) (citing United States v. Agurs, 427 U.S. 97 (1976)). Because Korte received the body-cam videos before trial, there is no Brady violation.
[¶10] Korte next contends that the late disclosure of the body-cam videos deprived him of his constitutional right to "choose the objective of his defense." Appellant's Br. p. 10 (citing McCoy v. Louisiana, 584 U.S. 414 (2018)). Korte argues that the trial court should have "extend[ed] the plea deadline" (presumably at the November 20 hearing) to give him "the opportunity to adjust his defense" in light of the recently disclosed body-cam videos. Id. at 11. But Korte didn't ask for the plea deadline to be extended and thus faces the heavy burden of establishing fundamental error on appeal. See Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) ("Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible."), reh'g denied.
[¶11] The record rebuts Korte's claim that he may have pled guilty had he known about the body-cam videos. Defense counsel told the trial court at sentencing that Korte didn't plead guilty because he was adamant that the meth in the Dollar General bag was not his, although he was willing to admit to possessing the meth found on his person. This fact-and not the existence of the body-cam videos-is likely why Korte didn't ask the trial court to extend the plea deadline at the November 20 hearing. The court did not commit fundamental error in not doing so on its own.
[¶12] Affirmed.
Weissmann, J., and Foley, J., concur.