Kevin S. Varner, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Kevin Varner shot and killed Danielle Brown in Lake County over a $10 drug dispute. He was apprehended the same day in Benton County but not before he led police on a 100-mph chase during which he shot at an officer's vehicle. Varner ultimately was convicted of crimes in both Lake and Benton counties and separately appealed each set of convictions.

[2] In this appeal from Lake County, Varner challenges his conviction for murder and the finding that he is a habitual offender. Although he raises a variety of procedural and evidentiary claims, we find none of them persuasive and therefore affirm. In a separate decision issued on this date, we also affirm Varner's convictions in Benton County.

Facts

[3] On the day of Brown's death, Brown and a friend, Reginald Woodard, drove to Varner's Lake County home to purchase marijuana. When they arrived, Varner was in the shower, so he asked his cousin/roommate, Steven Nash, to handle the sale. Nash gave the marijuana to Brown, who handed Nash money in return. Nash then placed the money in Varner's room.

[4] Varner later complained to Nash that Brown's payment was short by $10, prompting Nash to contact Brown about the shortfall. When Brown did not reply to Nash's text message or answer Nash's phone call, Varner grabbed his Draco firearm,¹ cocked the gun, and said to Nash: “[Brown's] going to die over $10 and you're going to take me to her.” Tr. Vol. IV, p. 70. Nash then drove Varner to Woodard's home, which was also in Lake County.

[5] When Woodard returned from a nearby store, Woodard found Nash and Varner standing outside his home. Both were armed. While opening his front door, Woodard spoke with Varner and ascertained that he was upset about Brown's $10 shortage. Woodard offered to pay Varner the $10, but Varner refused, stating: “I am not playing no more. Everybody can't keep punking me out like that.” Tr. Vol. III, p. 196.

[6] Varner repeatedly asked Woodard for Brown's location. He then forced his way into Woodard's house, where Brown was in a bedroom. Multiple gunshots rang out. Varner then exited the house and instructed Nash to drive him away from the scene.

[7] Though Woodard had fled when Varner entered his house, Woodard heard the gunfire and called 911. Police were dispatched to the scene, and Varner soon called Woodard while Woodard was talking to one of the responding officers. The officer listened over speaker phone while Varner told Woodard:

I told you it was 2023. I am not going to let people keep playing with me. It wasn't even about the money. I'll have somebody come and clean that up.

Id. at 137.

[8] When other police officers entered Woodard's home, they found Brown was dead. She had been shot 15 times. An autopsy later revealed that five of Brown's gunshot wounds—four to her head and one to her chest—were fatal. Police did not find a gun on or around Brown's body, and Woodard reported that he had not seen Brown armed that day.

[9] Meanwhile, Varner was on the run with Nash. Varner became unhappy with Nash's driving, suggesting Nash should have taken a different route or driven more slowly “because [Varner] had a murder weapon in the car at the moment.” Tr. Vol. IV, p. 74. After they arrived back at their home, Varner left in his own vehicle. Varner eventually was found later the same day in Benton County, where he fled from police by car.

[10] During a chase reaching speeds over 100 miles per hour, Varner grabbed from his front seat the same Draco gun he used to kill Brown. Varner fired at the officer in pursuit through the back window of Varner's car. Varner then threw the gun from his vehicle before driving into a ditch, wrecking the car. He fled on foot and was later apprehended.

[11] In connection with Brown's death, the State charged Varner in this Lake County case with murder and Level 4 felony possession of a firearm by a serious violent felon. The State also sought to enhance Varner's sentence in two ways: first, by alleging Varner was a habitual offender, and second, by alleging that Varner used a firearm to commit the murder.

[12] Varner moved for an early trial, but the trial court did not consider the pro se motion because Varner was represented by counsel at the time of its filing. Varner soon took over his own representation. During Varner's jury trial, the State introduced evidence of Varner's flight and subsequent arrest in Benton County, including dashcam footage of him shooting at the pursuing officer. The trial court overruled Varner's objections to the video's admission as unduly prejudicial and to the State's cross-examination of Sharay Edmond (“Brown's girlfriend”) as overbroad.

[13] The jury returned a verdict of guilty as to murder. Then, under a plea agreement, Varner admitted he was a habitual offender in exchange for a habitual offender enhancement of 16 years and dismissal of both the firearms charge and enhancement. The trial court sentenced Varner to 63 years for murder, enhanced by 16 years by the habitual offender finding. Varner filed a motion to correct error, which the trial court denied. Varner appeals.

Discussion and Decision

[14] Varner raises five issues on appeal that we restate as follows:

I. Whether the trial court deprived Varner of various constitutional rights, including his right to a fair trial and to present a defense, when the trial court allegedly denied Varner the opportunity to depose four police officers;

II. Whether the trial court abused its discretion by admitting the dash cam video of the police chase that led to Varner's capture;

III. Whether prosecutorial misconduct arose from the State's allegedly overbroad cross-examination of Brown's girlfriend;

IV. Whether the State violated its duty to disclose exculpatory evidence to Varner; and

V. Whether the alleged errors collectively deprived Varner of various constitutional rights.

As none of Varner's claims prevail, we affirm.

I. The Trial Court Did Not Deny Varner the Opportunity to Depose Four Police Officers

[15] Varner claims he was denied the opportunity to depose four police officers, at least one of whom earlier failed to appear for a scheduled deposition. A criminal defendant's right to depose witnesses in Indiana “is neither constitutional nor absolute.” Church v. State, 189 N.E.3d 580, 586 (Ind. 2022). As trial courts have broad discretion over discovery matters, we will reverse a court's handling of discovery only for an abuse of that discretion. Id. We find no abuse of discretion because the record does not reveal that the trial court restricted Varner's ability to take the four officers’ depositions.

[16] Varner does not point to any order by the trial court specifically denying his motion to depose those officers. Instead, he claims the trial court's alleged inaction deprived him of the opportunity to depose the four officers. Without citation to authority, he asserts that he needed a court order granting his motion to depose, in addition to the State's cooperation, before he could proceed with the depositions.

[17] But the State had already shown its willingness to cooperate by coordinating previous depositions with Varner. And although the court suggested to Varner that the depositions might not be fruitful, the court cleared the way for the depositions by authorizing Varner to subpoena the four officers. The trial court even helped him accomplish the depositions by advising him of his need to subpoena them.

[18] Varner does not suggest that he ever issued the subpoenas or otherwise arranged for the depositions. The record therefore establishes that Varner's own inaction—not the court's failure to act or the State's alleged lack of cooperation—prompted the deposition failure. We find no error.

II. The Trial Court Did Not Abuse its Discretion in Admitting the Dash Cam Video of the Police Chase That Led to Varner's Capture

[19] Varner argues that admission of the dash cam video was unduly prejudicial under Indiana Evidence Rule 403. “A court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Evid. R. 403. Whether unfair prejudice occurred depends “on the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest decision on improper basis.’ ” D.R.C. v. State, 908 N.E.2d 215, 224 (Ind. 2009) (quoting Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999)). “Trial courts are given wide latitude in weighing probative value against the danger of unfair prejudice, and we review that determination for abuse of discretion.” Hall v. State, 177 N.E.3d, 1183, 1193 (Ind. 2021).

[20] Varner claims the prejudicial impact of the dash cam video far exceeded its probative value. He argues that the video offered no details of the offense not already revealed to the jury through the testimony of the police officers and through the photographs of the crime scene and areas relevant to the chase.

[21] The dash cam video was extremely probative because it: (1) illustrated the testimony of the Benton County officer who pursued Varner; (2) placed the weapon used to kill Brown in Varner's hands; and (3) showed both his flight and the location where he abandoned the murder weapon. In addition, the dash cam video showed that the location where officers recovered spent shells in Benton County matched where Varner fired the murder weapon at the officer in pursuit. And those shells found in Benton County matched the shells found at the murder scene. The trial court did not err in finding that the probative value of the dash cam video was not substantially outweighed by any of the factors noted in Rule 403: “unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

[22] But even if the trial court erred in admitting the dash cam video, Varner has failed to show that he is entitled to reversal. “Generally, errors in the admission of evidence are to be disregarded unless they affect the substantial rights of a party.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012). Error thus is harmless “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.” Id.

[23] This is the case here, given that the other evidence against Varner was overwhelming. He admitted he shot and killed Brown. Although Varner claimed he did so in self-defense to prevent Brown from shooting him, he offered only his own self-serving statements in support of that defense. The other evidence in the record belies his theory.

[24] First, there is no evidence other than Varner's testimony suggesting Brown was armed that day. Brown's girlfriend testified she had never seen Brown with a gun during their five-year relationship. Woodard also testified he never saw Brown with a gun that day. When police arrived at the murder scene within minutes after the shooting, they did not find the gun that Varner later alleged Brown had supposedly drawn.

[25] Additionally, Varner's statements to Nash and Woodard showed Varner entered Woodard's home with the intent to kill Brown. Varner even acknowledged to Nash that Varner possessed the “murder weapon.” Tr. Vol. IV, p. 74. And the sheer number of shots fired into Brown's body—15, including five that each would have killed her—supported the testimony of Nash and Woodard that Varner shot Brown not in self-defense but as personal retribution for shorting Varner $10. Rather than remaining at the scene for police to arrive, Varner fled, attempted to evade police, and abandoned the weapon he used to kill Brown. Given this mountain of evidence, the admission of the dash cam video was, at most, harmless error.

III. No Prosecutorial Misconduct Arose from the State's Allegedly Overbroad Cross-examination of Brown's Girlfriend

[26] The premise of Varner's claim is that: (1) the prosecution agreed to limit its cross-examination of Brown's girlfriend; (2) the prosecutor then violated that agreement; and (3) the trial court abused its discretion in rejecting Varner's claim both at trial and through its denial of Varner's motion to correct error. But at trial, the prosecutor denied entering into such an agreement, and Varner offers no refuting evidence. Varner suggests that discussions off the record showed such an agreement, but he failed to ensure those discussions were part of the trial and appellate record. See Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998) (ruling that the appellant has “the burden of presenting a record that is complete with respect to the issues raised on appeal”); Ind. Appellate Rule 31 (providing procedure to follow when a transcript of all or part of evidence is unavailable on appeal).

[27] Varner does not challenge the allegedly overbroad cross-examination on any basis other than prosecutorial misconduct. As the record does not establish any violation of any agreement between Varner and the prosecutor, the trial court did not err in rejecting this claim at trial and in its denial of Varner's motion to correct error.

IV. The State Did Not Fail to Disclose Exculpatory Evidence

[28] Varner claims that Brown was a suspect in an unrelated 2022 murder by stabbing in East Chicago and that the State violated its duty to disclose this allegedly exculpatory evidence.² The trial court compounded the violation of his constitutional rights, according to Varner, by refusing to allow Varner to call a prosecutor to testify about that murder investigation. The record does not support Varner's claims.

[29] The State was required to disclose Brown's alleged suspect status only if this evidence was material to either his guilt or punishment. Church v. State, 189 N.E.3d 580, 592 (Ind. 2022) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). Varner bore the burden of proving the Brady violation that he alleged. State v. Royer, 166 N.E.3d 380, 400 (Ind. Ct. App. 2021). “To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.” Bunch v. State, 964 N.E.2d 274, 297 (Ind. Ct. App. 2012) (quoting Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998)).

[30] Varner did not meet this burden because he failed to prove the prosecution suppressed evidence. The record does not reveal the existence of the evidence that he accuses the State of wrongfully withholding.

[31] Varner claimed that the stabbing murder evidence was material and exculpatory because it related directly to his claim of self-defense. Varner alleged that he shot Brown after she drew a gun because Varner knew she had fatally stabbed the victim in the 2022 murder and believed he would be next if he did not shoot her. But the record shows that Brown was never charged with the stabbing murder. And while Brown had a criminal history, the State disclosed relevant documents from those prosecutions.

[32] Varner focuses on statements made by a deputy prosecutor in Varner's case early in the proceedings. The deputy prosecutor speculated that, “[a]s [the 2022 stabbing murder] case moved forward, they thought possibly Danielle Brown may be involved. I am not sure.” Tr. Vol. II, p. 152. For Brady purposes, the prosecutor is charged with police officers’ knowledge of information even if the prosecutor is not personally aware of this information. State v. Royer, 166 N.E.3d 380, 400 (Ind. Ct. App. 2021). But Varner called the detective who investigated the stabbing murder, and the detective confirmed that someone else was charged with the murder. The detective reported that the person charged had been released recently after moving for a “fast and speedy [trial].” Tr. Vol. IV, p. 190.³

[33] When Varner asked the detective whether he recalled if Brown was a suspect in that investigation, the detective testified, “No.” Id. After the detective left the stand and the jury left the courtroom, Varner again raised the issue of calling other witnesses to prove that Brown was implicated in the stabbing murder. Varner's statements prompted the following exchange:

THE COURT: Well, he just said that he doesn't—that Danielle Brown is not a suspect in that.

MR. VARNER: Yes, he definitely said that ․ So it's going to be just my word basically.

Id. at 192-93.

[34] On appeal, Varner points to no evidence other than his own testimony suggesting that Brown was a suspect in the stabbing murder. Varner thus has failed to prove the existence of the evidence that he claims the State failed to disclose—that is, evidence showing Brown was a suspect in the stabbing murder. Varner also has failed to show that anyone else would testify that Brown was a suspect. Given the lack of any evidence that the State suppressed, Varner has not established a Brady violation. We find no error.

V. No Collective Error Deprived Varner of His Various Constitutional Rights

[35] Varner points to a variety of circumstances during his trial that he alleges combined to result in a violation of his constitutional rights, including his right to due process. We already have determined that two of the circumstances he raises—the alleged deprivation of his right to depose four officers and the alleged Brady violation—did not generate any error. We find no merit to Varner's remaining allegations involving the State's discovery responses and his search warrant request.

A. Discovery Issues

[36] Varner contends the handling of discovery matters deprived him of due process under the Fourteenth Amendment, which prohibits states from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const. amend XIV, § 1. “But the ‘Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded.’ ” Church, 189 N.E.3d at 594. Varner focuses on photographs provided by the State during discovery and the trial court's denial of his request for a search warrant for Woodard's home. We find no due process violation there.

i. Photographs

[37] Varner first claims that the State violated his due process right by providing its substantial discovery, including many hundreds of photos, on a USB drive. He notes he could only access the information on the USB drive in the law library where he was incarcerated and to which he lacked unlimited access. After Varner later complained about receiving discovery on USB drives, the State provided Varner thumbnail paper copies of all the photographs on the drive. Varner maintains the photos on the sheets were too small to see, although he introduced some of the thumbnail sheets into evidence at trial.

[38] “Although the Fourteenth Amendment does not guarantee criminal defendants a general right to discovery, it does require prisons to allow inmates ‘meaningful access to the courts,’ either by ‘providing ․ adequate law libraries or adequate [legal] assistance.’ ” Griffith v. State, 59 N.E.3d 947, 952 (Ind. 2016) (internal citations omitted). Varner argues that his restricted law library access and the format of the State's discovery combined to deprive him of meaningful access to the courts and a full defense. He contends this alleged deprivation left him unable to discover potentially exculpatory evidence in the photos before his conviction. The record does not support Varner's claim.

[39] First, the State repeatedly ensured that Varner had access to the jail library. The record suggests the court proactively called the head of the facility to ensure Varner's access. The facility head then placed Varner in a cell closest to the law library to increase his accessibility. When addressing Varner's later complaints of limited access, the court noted that the facility head had “ben[t] over backwards to accommodate” Varner to allow him access to the law library. Tr. Vol. II, p. 189.

[40] In any case, Varner admittedly accessed the jail library after he received the thumbnail photos six days before trial. And during one of those pre-trial visits, Varner seemingly accessed the full-size photos on the USB drive, as Varner told the court on the first day of trial that he had “blown up” one of the thumbnail photos. Id. at 163. At the least, the record shows Varner had the opportunity to access the USB drive pre-trial. Thus, Varner—not the State—was to blame for his belated discovery of the allegedly exculpatory aspects of the photos. The trial court even offered Varner a continuance on the first day of trial if he needed more time to prepare his defense, but he opted to proceed with the trial.

[41] For these reasons, Varner's reliance on Griffith is unavailing. In that case our Supreme Court noted: “It is quite possible that the State could violate a pro se prisoner's due process rights by providing discovery solely in a format it knows the petitioner has no means of accessing.” 59 N.E.3d at 954 n.2. But the Court found no violation of Griffith's rights arising from the State's provision of the allegedly inaccessible electronic discovery. Factors contributing to this decision were Griffith's failure to seek a continuance or the help of his stand-by counsel in accessing the electronic materials. Id. at 952-53. Not only did Varner receive the paper copies, as Griffith did, but Varner rejected the court's offer of a continuance. Varner has not shown a violation of his right to due process.

ii. Denial of Continuance

[42] On the first day of his trial, Varner sought a continuance because the State had not provided a report relating to the phone numbers from which 911 calls were made immediately after the shooting. The State had not provided the report to Varner because it did not possess such a report and therefore had no corresponding obligation to disclose it. See Ind. Trial Rule 34(A)(1) (allowing any party to request the other party produce or allow inspection and copying of documents “which are in the possession, custody or control of the party upon whom the request is served”).

[43] Varner appeared to argue that the report was exculpatory because it would support his theory that one of the callers used Brown's phone to call 911. This evidence, in turn, according to Varner, supported his defense theory that someone removed Brown's gun from the scene before police arrived.

[44] The trial court rejected Varner's claim that this potential evidence was exculpatory but nonetheless directed the State to obtain the report of the 911 calls immediately. The court also agreed to grant Varner's requested continuance but indicated that any resulting delay would be attributed to Varner for purposes of Indiana Criminal Rule 4(B).

[45] Varner objected but opted to proceed with trial, rather than pursue the continuance. He later cited the other discovery issues—the provision on discovery on the USB drive and his limited access to the jail library—as further support for his need for a continuance. When the State provided the 911 report later in the trial, Varner acknowledged the report showed the 911 calls at issue did not originate from Brown's phone number. Tr. Vol. IV, p. 209-10.

[46] On appeal, Varner claims the trial court improperly required him to choose between being prepared for trial or sacrificing his speedy trial rights. But if such a choice was required, Varner was solely responsible for it. As we already have determined, he had sufficient access to the discovery on the USB drive and simply was tardy in discovering the allegedly exculpatory nature of some of that evidence.

[47] As to the 911 calls, Varner could have subpoenaed the same records from which the State produced the report for Varner. See generally Ind. Criminal Rule 2.5(E)(2) (authorizing issuance of subpoenas duces tecum to obtain copies of documents in criminal prosecutions). Varner's failure to subpoena—not the State's failure to disclose records it lacked—left him without the information he alleged he needed to adequately prepare for trial. And his pro se status does not excuse such oversight. See Wright v. State, 168 N.E.3d 244, 263-64 (Ind. 2021) (pro se criminal defendants are held to the same standards as a trained attorney).

[48] Under these circumstances, the trial court did not abuse its discretion in noting that the delay from Varner's requested continuance would be attributed to him and would extend the 70-day period for bringing him to trial under Rule 4(B).

iii. Search Warrant

[49] Varner next claims the trial court denied his right to due process by rejecting his request for a search warrant for Woodard's home. He alleges that because the trial court denied the motion, he was prevented from presenting a full defense. Varner has waived this error because the record on appeal does not contain his motion or any ruling by the trial court on this issue. See generally Ford, 704 N.E.2d at 461 (Ind. 1998) (noting appellant's burden of producing an adequate appellate record).⁴

[50] Waiver notwithstanding, Varner has cited no authority establishing that he was entitled to a search warrant, which traditionally is sought by and granted to law enforcement. He also cites no authority establishing that denial of a search warrant to a criminal defendant may violate due process. And in addition to those defects, Varner has failed to show that he established, by oath or affirmation, probable cause for a warrant. See Indiana Code 35-33-5-1 (providing that “[a] court may issue warrants only upon probable cause, supported by oath or affirmation, to search any place ․”). Varner has not established a due process violation arising from his alleged efforts to obtain a search warrant.

[51] Because all Varner's claims fail, we affirm the trial court's judgment.

FOOTNOTES

1.   A Draco firearm was described by an investigating officer as similar to, but smaller than, an AK-47 but capable of shooting the same rounds. Tr. Vol. IV, p. 148.

2.   This claim builds on Varner's theory of self-defense: that he shot Brown because Brown drew a gun and he believed she would kill him if he did not shoot her.

3.   A review of the chronological case summary in the stabbing murder prosecution shows that the trial court granted the State's motion to dismiss filed August 23, 2023, which alleged that “[a]dditional investigation needs to be done before the State is able [to] meet its burden of proof in this matter.” Case No. 43G02-2211-MR-55.

4.   After the clerk issued the notice of completion of transcript, Varner moved the trial court to cure various alleged omissions in the record. He specifically mentioned his motion for a search warrant. The trial court ruled it no longer had jurisdiction in the case. At the time of this ruling, the Notice of Completion of Clerk's Record had been filed, and the appeal had entered the briefing stage. See Ind. Appellate Rule 8 (“The Court on Appeal acquires jurisdiction on the date the Notice of Completion of Clerk's Record is noted in the Chronological Case Summary. Before that date, the Court on Appeal may, whenever necessary, exercise limited jurisdiction in aid of its appellate jurisdiction ․”). Varner could have sought relief from this Court in the form of remand under Indiana Appellate Rule 31. He did not.

Weissmann, Judge.

Judges Vaidik and Foley concur. Vaidik, J., and Foley, J., concur.