GALLARDO v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Santiago Gallardo was convicted of dealing in methamphetamine, a Level 2 felony. Gallardo appeals and claims: (1) the trial court abused its discretion by denying Gallardo's motion to exclude belatedly disclosed evidence retrieved from Gallardo's cell phone; and (2) the State failed to bring Gallardo to trial within the one-year time limit set forth in Indiana Criminal Rule 4(C). Because Gallardo waived both claims, we affirm.

Issues

[2] Gallardo presents two issues, which we revise and restate as:

I.  Whether Gallardo waived his claim of evidentiary error.

II. Whether Gallardo waived his Criminal Rule 4(C) claim by failing to move for discharge or dismissal.

Facts

[3] On December 13, 2021, law enforcement officers executed a search warrant on Gallardo's home in Washington, Indiana. Gallardo was detained during the execution of the warrant. During a search of Gallardo's person, officers discovered a cell phone and almost $2,500 in cash. Inside the home, the officers found a police scanner, a digital scale, plastic baggies, and two locked safes. When the safes were opened, they contained $3,000 in cash and 168.96 grams of methamphetamine. Shortly after the search warrant was executed, Brandon Garland, a detective with the Washington Police Department, turned Gallardo's cell phone over to the Knox County High Tech Crime Unit (“Crime Unit”) to see if the Crime Unit could extract any data. At the time, however, the Crime Unit was unable to access any data on Gallardo's phone.

[4] On December 15, 2021, the State charged Gallardo with dealing in methamphetamine, a Level 2 felony. After numerous delays, Gallardo's jury trial was eventually scheduled for January 29, 2025.

[5] On January 8, 2025, Detective Garland spoke with a member of the Crime Unit, who informed the detective that there was a high probability that the data on Gallardo's phone could now be accessed with newer technology. With this information, Detective Garland sought and obtained a warrant to search the phone. Detective Garland sent the phone back to the Crime Unit on January 10, 2025. As predicted, the Crime Unit was now able to access the data on the phone, and Detective Garland obtained a copy of the data on January 20, 2025. He sent a copy of the raw data to the prosecuting attorney that day and a summary of the extracted data a day or two later. The State sent a copy of the data and the summary to Gallardo's counsel on January 23, only six days before trial.

[6] On January 28, 2025, Gallardo moved to exclude the evidence obtained from his cell phone and argued that the State had not given him adequate time to review the data. The trial court addressed Gallardo's motion on the morning of the jury trial. Gallardo's counsel again argued that he did not have adequate time to review the data and was unable to develop a defense as a result. The State argued that it had given the data to Gallardo's counsel quickly once it was turned over by Detective Garland and that the State had believed that the data on the phone was inaccessible until that point. The State also argued that it intended to introduce only a small portion of the data obtained from the phone. The trial court denied Gallardo's motion to exclude. Gallardo did not move for a continuance so that he could better review the evidence.

[7] At trial, the State offered into evidence Gallardo's cell phone, two data logs from the phone, and certain text messages that had been sent and received from the phone. Gallardo objected to the admission of the text messages on several grounds: (1) hearsay, (2) foundation, and (3) authentication. The trial court overruled the objections. The admitted text messages were between Gallardo and three others, and the messages were, according to Detective Garland, indicative of drug dealing.¹ The State also introduced into evidence the items found during the search of Gallardo and his home—the digital scale, baggies, cash, scanner, and large amount of methamphetamine, all of which Detective Garland testified were indicative of drug dealing. The jury found Gallardo guilty as charged, and the trial court sentenced him to seventeen and one-half years of incarceration. Gallardo now appeals.

Discussion and Decision

I. Gallardo waived his challenge to the evidence obtained from his cell phone.

[8] Gallardo first claims that the trial court abused its discretion by denying his motion to exclude the evidence obtained from his cell phone. Since Gallardo did not seek an interlocutory appeal of the trial court's denial of his pre-trial motion to exclude and instead appeals following his trial and conviction, his argument is better framed as one that the trial court abused its discretion in the admission of the evidence. See Viverett v. State, 215 N.E.3d 352, 355 (Ind. Ct. App. 2023), trans. denied. We review such challenges to the admission of evidence for an abuse of the trial court's discretion. Combs v. State, 168 N.E.3d 985, 990 (Ind. 2021). A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances. Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013).

[9] Gallardo claims that the evidence obtained from his cell phone should not have been admitted because it was belatedly disclosed to him, thereby denying him the opportunity to review the evidence and prepare a defense against it. Although Gallardo filed a pre-trial motion to exclude the evidence from his cell phone on grounds that it was belatedly disclosed and that he had insufficient time to review the evidence, it is also well settled that a pre-trial motion does not preserve evidentiary error. Laird v. State, 103 N.E.3d 1171, 1175 (Ind. Ct. App. 2018) (citing Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)). “ ‘The purpose of this rule is to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors.’ ” Id. (quoting Brown, 929 N.E.2d at 207).

[10] Further, although Gallardo made this argument in his motion to exclude, he did not object to the admission of the evidence on this ground at trial. Instead, he objected only to the admission of the text messages obtained from his phone on grounds of hearsay, lack of foundation, and improper authentication. It is well settled that “a party may not object on one ground at trial and raise a different ground on appeal.” Ko v. State, 243 N.E.3d 1153, 1160 (Ind. Ct. App. 2024) (citing White v. State, 772 N.E.2d 408, 411 (Ind. 2002)). “This results in waiver of the issue on appeal.” Id. (citing White, 772 N.E.2d at 411).

[11] Additionally, if a defendant moves to exclude evidence based on a discovery violation but fails to request a continuance, where a continuance may be an appropriate remedy, he waives any claim of error on appeal. Cain v. State, 955 N.E.2d 714, 718, 718 n.6 (Ind. 2011) (citing Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000)). Although Gallardo moved to exclude the evidence discovered on his cell phone due to its belated disclosure, he did not seek a continuance in the alternative. Nor does he claim that a continuance would not have been an appropriate remedy. Thus, Gallardo has also waived his claim of evidentiary error for failing to seek a continuance. For all of these reasons, we conclude that Gallardo waived his claim that the trial court improperly admitted the evidence discovered on his cell phone.

[12] Waiver notwithstanding, any error in the admission of the evidence from Gallardo's cell phone was harmless. “The improper admission of evidence is harmless error when the conviction is supported by such substantial independent evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction.” Pelissier v. State, 122 N.E.3d 983, 988 (Ind. Ct. App. 2019), trans. denied; see also Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009) (noting that the improper admission of evidence is harmless when the court on appeal is persuaded that the jury's verdict was not “substantially swayed” by the erroneously-admitted evidence”). Here, the text messages from Gallardo's phone related to Gallardo's alleged dealing activities. The State, however, also admitted into evidence the items found in Gallardo's home and on his person, which included a police scanner, plastic baggies, a large amount of cash, and a very large amount of methamphetamine. See Echeverria v. State, 146 N.E.3d 943, 950 (Ind. Ct. App. 2020) (holding that evidence found in home, which included large quantities of drugs, scales, and paraphernalia for dealing, was sufficient to support dealing conviction). Given this evidence, we are satisfied that the jury's verdict was not substantially swayed by the admission of the text messages retrieved from Gallardo's phone.

II. Gallardo waived his claim that the State failed to bring him to trial within the one-year time limit of Criminal Rule 4(C) by failing to move for discharge.

[13] Gallardo next claims that the State failed to bring him to trial within the one-year period set forth in Criminal Rule 4(C). This rule provides in part:

No person can be held on recognizance or otherwise to answer a criminal charge for a period in aggregate exceeding one year from the date the criminal charge against such defendant is filed, or from the date of the arrest on such charge, whichever is later. Delays caused by a defendant, congestion of the court calendar, or an emergency are excluded from the time period. If a defendant is held beyond the time limit of this section and moves for dismissal, the criminal charge against the defendant must be dismissed․

Crim. R. 4(C) (emphasis added).²

[14] Generally, we review a trial court's ruling on a motion for discharge under Criminal Rule 4(C) for an abuse of discretion. Battering v. State, 150 N.E.3d 597, 600 (Ind. 2020). When the relevant facts are undisputed and the issue is a question of law, however, we review a Criminal Rule 4(C) motion for discharge de novo. Id.

[15] Both the United States and Indiana Constitutions guarantee a criminal defendant the right to a speedy trial. U.S. Const. amend. VI; Ind. Const. art. 1, § 12. Criminal Rule 4(C) protects this right by placing an affirmative duty on the State to bring a defendant to trial within one year from the later of two dates: (1) the filing of charges or (2) the arrest. Brown v. State, 725 N.E.2d 823, 825 (Ind. 2000). But Criminal Rule 4(C) is “not intended to be a mechanism for providing defendants a technical means to escape prosecution.” Austin v. State, 997 N.E.2d 1027, 1037 (Ind. 2013).

[16] Criminal Rule 4(C) recognizes that some delays are inevitable and allows the one-year period to be extended in certain circumstances based on the actions of either the State, the defendant, or the trial court. Battering, 150 N.E.3d at 598. Thus, “criminal defendants extend the one-year period ‘by seeking or acquiescing in delay resulting in a later trial date.’ ” Id. (quoting Pelley v. State, 901 N.E.2d 494, 498 (Ind. 2009)).

[17] A defendant has no obligation to remind the State of its duty, or to remind the trial court of the State's duty, to bring the defendant to trial within the period established by Criminal Rule 4(C). Ferman v. State, 232 N.E.3d 133, 138 (Ind. Ct. App. 2024). Thus, if the trial court, after the one-year period has expired, sets a trial date, the defendant need only file a motion for discharge. Id. Still, “[w]hen a trial court, during the one-year period, schedules a trial date outside of the one-year period, the defendant must object in order to give the trial court an opportunity to cure its mistake.” Ratliff v. State, 132 N.E.3d 41, 43 (Ind. Ct. App. 2019) (citing Young v. State, 765 N.E.2d 673, 679 (Ind. Ct. App. 2002)).

[18] Criminal Rule 4 is also not self-executing, “and a defendant must therefore move for a discharge or the right will be waived.” Young v. State, 765 N.E.2d 673, 679 (Ind. Ct. App. 2002) (citing Roseborough v. State, 625 N.E.2d 1223, 1224-25 (Ind. 1993)); cf. Grimes v. State, 235 N.E.3d 1224, 1231 (Ind. 2024) (holding that, if a trial court continues a trial after a defendant has requested a speedy trial under Criminal Rule 4(B), the defendant must object at the earliest opportunity and, if the deadline passes without a trial, move for discharge).³ Indeed, Criminal Rule 4(C) itself states that a defendant must “move for dismissal” if the time limits of that rule are violated.

[19] As noted above, Gallardo never moved for discharge or dismissal, even when the trial court noted the age of the case.⁴ Gallardo's Criminal Rule 4(C) argument is, therefore, waived. See Martin v. State, 419 N.E.2d 256, 259 (Ind. Ct. App. 1981) (holding that defendant waived Criminal Rule 4(C) rights by failing to move for discharge). The requirement that the defendant move for discharge or dismissal is not “unduly technical.” Id. Upon a motion to discharge or dismiss, a hearing can been held and a record developed regarding the reasons for the delays in bringing the defendant to trial. Given the lack of a record here, we are unable to review Gallardo's claim. Thus, Gallardo's failure to move for discharge or dismissal waived his claim under Criminal Rule 4(C).

Conclusion

[20] Gallardo waived his claim that the trial court abused its discretion by denying his motion to exclude evidence recovered from Gallardo's cell phone, and waiver notwithstanding, any error in the admission of this evidence was harmless. Gallardo also waived his Criminal Rule 4(C) claim by failing to move for dismissal or discharge. We, therefore, affirm the trial court's judgment.

[21] Affirmed.

FOOTNOTES

1.   The text messages appear to discuss prices and amounts, such as “[d]o a g for $80?” Ex. Vol. 1 p. 55.

2.   The current version of Criminal Rule 4 was amended effective January 1, 2024. Prior versions referred to “discharge,” whereas the current version refers to “dismissal.” See Grimes v. State, 235 N.E.3d 1224, 1231 (Ind. 2024) (noting the change in language in Criminal Rule 4(B) but holding that the Court's opinion was equally applicable under the old and newer versions of the rule).

3.   This requirement is long standing. See Martin v. State, 419 N.E.2d 256, 259 (Ind. Ct. App. 1981) (citing Randolph v. State, 122 N.E.2d 860 (Ind. 1954) (holding that, under predecessor statute to Criminal Rule 4, the failure to make a timely motion for discharge constituted a waiver of the right to discharge)).

4.   See Tr. Vol. II p. 40 (“I have some real concern that we've violated this gentleman's rights with respect to having a trial in a timely manner.”). The trial court released Gallardo from jail on October 15, 2023, apparently under Criminal Rule 4(A), which provides that a person held in jail must be brought to trial within 180 days of the charges being filed or the arrest on such charge, whichever is later, or else released on recognizance.

Tavitas, Judge.

Vaidik, J., and Felix, J., concur.