Jeremy Cole Searcy v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 11 2019, 8:03 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Cole Searcy, December 11, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-593
v. Appeal from the Rush Superior
Court
State of Indiana, The Honorable Brian D. Hill,
Appellee-Plaintiff Judge
Trial Court Cause No.
70D01-1804-F4-307
Altice, Judge.
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Case Summary
[1] Jeremy Cole Searcy appeals his convictions for dealing in methamphetamine, a
level 4 felony, unlawful possession of a syringe, and maintaining a common
nuisance, both level 6 felonies. Searcy contends that the trial court erred in
denying his motion for a mistrial because it improperly admitted his videotaped
statement into evidence in violation of Indiana Evid. Rule 404(b), which placed
him in a position of grave peril. Searcy also claims that his conviction for
maintaining a common nuisance must be vacated in light of double jeopardy
concerns under Article 1, Section 14 of the Indiana Constitution.
[2] We reverse.
Facts & Procedural History
[3] On March 5, 2018, a confidential informant (CI) contacted Rushville Police
Department detectives and advised them that she could purchase
methamphetamine from Searcy. In response, Detective Alex Shaver instructed the
CI to contact Searcy and arrange for the purchase of an eight ball 1 of
methamphetamine.
[4] The CI contacted Searcy and the two agreed on a plan. Immediately prior to the
controlled buy, Detective Shaver met the CI and searched her pursuant to police
1
An eight ball is approximately 3.5 grams of methamphetamine.
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department procedure. The CI was then equipped with audio and video recording
devices and $150 in cash that had been photocopied.
[5] Detective Shaver drove the CI to a local park to meet Searcy. At some point
during the drive, Searcy telephoned the CI. Detective Shaver overheard Searcy tell
the CI that he was near the park and ask if she wanted to buy additional drugs
because he had his “plug” 2 with him. Transcript at 160. The CI declined and told
Searcy that she only needed the eight ball.
[6] While at the park, Detective Shaver watched the CI as she approached Searcy’s
2014 Chevy Malibu. The CI leaned toward Searcy’s driver’s side window and
handed him the cash. When Searcy asked the CI if she wanted to sample the
methamphetamine, she responded, “not right now. Not while my kids are
awake.” State’s Exhibit 9. Searcy then handed the CI a cigarette pack and told her
that the methamphetamine was inside.
[7] Sergeant Josh Brinson, a deputy with the Rush County Sheriff’s Department, was
also at the park. He observed the CI walk way from Searcy’s car and approach his
vehicle. Once inside, the CI handed Sergeant Brinson the cigarette pack. Sergeant
Brinson opened the pack and found the methamphetamine.
[8] Following the controlled buy, Searcy drove away and police officers noticed that
he failed to signal his intention to change lanes numerous times. Sheriff’s Deputy
2
Detective Shaver testified that a “plug” commonly refers to the drug dealer’s source. Transcript at 160.
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Doug Keith initiated a traffic stop after observing these violations. Before Searcy
came to a complete stop, Gary Smith, the front seat passenger, ran from the
vehicle. Sergeant Keith arrested Searcy and another officer apprehended Smith.
Juanita Owens was identified as a backseat passenger in Searcy’s vehicle.
[9] Upon searching the car, officers located a digital scale, a plastic baggie that
contained a crystal like substance, and a bag of hypodermic syringes. Smith was
found in possession of a loaded hypodermic syringe, Suboxone, a controlled
substance, and methamphetamine when he was searched at the jail. Searcy had
eight dollars of the buy money that had been provided to the CI, and Owens
possessed seventy dollars of the marked money. At some point, Searcy told
Sergeant Keith that he was “just here to do a deal for somebody.” Id. At 211.
Searcy also provided a videotaped statement to the detectives that contained
references to past prison sentences and prior criminal offenses.
[10] On April 13, 2018, the state charged Searcy with Count I, dealing in
methamphetamine, a Level 4 felony, and Count II possession of
methamphetamine, a Level 6 felony. Thereafter, on January 3, 2019, the State
charged Searcy with Count III, unlawful possession of a syringe, and Count IV,
maintaining a common nuisance, both Level 6 felonies.
[11] On April 16, 2018, Searcy filed a motion for discovery and a “Request for Rule 404
and 405 Evidence.” Appendix Vol. II at 20. The motion requested, inter alia, that
the State produce any and all recorded or written statements made by Searcy, and
to set forth the general nature of other crimes, wrongs, or acts of Searcy or any
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witness that the State intended to offer for any purpose at trial. Searcy also
requested that the State set forth the specific Evid. R. 404(b) exception that it
would rely upon for the admission of such evidence. Finally, Searcy requested that
the State provide him with specific instances of conduct that it would use in cross-
examination regarding character evidence.
[12] The trial court granted the motion, and Searcy subsequently filed a motion in
limine on December 27, 2018, indicating that he believed that the State knew of
evidence of other alleged misconduct that included, but was not limited to, arrests,
convictions, or pending cases. Searcy further asserted that he was aware of no
legitimate purpose for admitting such evidence, and that the State should be
precluded from mentioning or referring to such evidence in the jury’s presence.
[13] The trial court granted Searcy’s motion in limine, which provided that the State
and its witnesses were to “refrain from making any reference whatsoever . . . at any
. . . time during the trial in any manner without first obtaining permission of the
Court . . . concerning . . . [a]ny misconduct prior or subsequent, charged or
uncharged, including any criminal convictions, or other prior bad acts of . . .
Searcy.” Appendix Vol. II at 55.
[14] The State responded to Searcy’s motion for discovery on January 3, 2019,
indicating that it intended to use Searcy’s “prior criminal acts that were shown on
the criminal record that it had previously submitted . . . for all purposes allowable
under [the] law.” Id. at 65. The State also indicated that it would use Searcy’s
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prior arrests and convictions to rebut his testimony and evidence of good character
that might be offered.
[15] Searcy’s jury trial commenced on January 15, 2019. At the close of the State’s
case-in-chief, it sought to admit Searcy’s videotaped statement into evidence.
Searcy lodged an objection on the grounds of hearsay and further commented that
“there [is] a motion in limine on file that it may very well violate.” Transcript Vol.
III at 21-22. The State acknowledged that the interview contained “incriminating
statements,” yet it was unaware of “any specific thing that would violate the
motion in limine.” Id. at 22. The trial court noted Searcy’s continuing objection
and allowed Searcy’s videotaped statement to be played for the jury.
[16] At various points during the videotape, the jury learned of an outstanding warrant
for Searcy because he had violated probation in another case, that Searcy abused
controlled substances, smoked marijuana, used methamphetamine the day before
his arrest and on other occasions, and used suboxone on the day of arrest. The
videotape also revealed that Searcy was being investigated by the drug task force in
another case, that he had spent nearly seventeen years in prison over the years, and
that he vowed to continue abusing illegal substances if he was released from jail.
[17] At the conclusion of the video, Searcy moved for a mistrial outside of the jury’s
presence. Searcy argued that the information in the recording repeatedly violated
the motion in limine because it contained improper references to “all kinds of
behavior,” including assertions that Searcy was “high.” Transcript Vol. III at 50.
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Searcy also pointed out that the State had failed to request permission from the
trial court before offering the alleged improper Evid. R. 404(b) evidence.
[18] In response, the State contended that the evidence was admissible because Searcy’s
statements were voluntary, they established his knowledge of the charged offenses,
they were relevant, and they were not being offered as evidence of guilt. The State,
however, requested the trial court to issue a limiting instruction if it determined
that the order on the motion in limine had been violated. The trial court denied
Searcy’s motion for a mistrial and gave no limiting instruction. The State offered
no further evidence and rested its case-in-chief.
[19] The jury found Searcy guilty as charged, and the trial court entered a judgment of
conviction on all counts. The Court subsequently vacated the methamphetamine
possession conviction (Count II) on double jeopardy grounds. On February 11,
2019, the trial court sentenced Searcy to the Indiana Department of Correction for
an aggregate twelve-year term of imprisonment. Searcy now appeals.
Discussion and Decision
I. Waiver
[20] Before proceeding to the merits of this appeal, we initially address the State’s
contention that Searcy has waived his claim of error regarding the mistrial. The
State claims that Searcy made only a general objection at trial as to the
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admissibility of the videotaped statement, and the earlier grant of his motion in
limine failed to properly preserve the issue.
[21] The State correctly observes that a motion in limine is not a final ruling on the
admissibility of evidence. Sharp v. State, 534 N.E.2d 708, 713 (Ind. 1989). Only
trial objections, not motions in limine, effectively preserve claims of error for
appellate review. See Brown v. State, 783 N.E.2d 1121, 1125 (Ind. 2003). The
failure to object at trial to the admission of the evidence results in waiver of the
error, notwithstanding a prior motion in limine. Id. Hence, a party must
contemporaneously reassert the objection at trial so as to allow the trial court an
opportunity to make a final ruling on the matter in the proper context. Vehorn v.
State, 717 N.E.2d 869, 872 (Ind. 1999). The objection must be sufficiently specific
to alert the trial judge fully of the legal issue. Moore v. State, 669 N.E.2d 733, 742
(Ind. 1996).
[22] As discussed above, the trial court granted Searcy’s pretrial motion in limine that
prohibited the State from referencing “any misconduct prior or subsequent,
charged or uncharged, including any criminal conviction, or other prior bad acts . .
. of Searcy.” Appendix Vol. II at 20, 55. When the State moved to admit Searcy’s
videotaped statement at trial, Searcy immediately objected and argued that the
admission of the statement would violate the order on his motion in limine. In our
view, Searcy’s specific reference to potential Evid. R. 404(b) violations in his
objection was sufficient to preserve the claimed error for review. Thus, the State’s
claim that Searcy has waived the issue fails.
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II. Mistrial
[23] Proceeding to the merits of the appeal, Searcy claims that the trial court abused its
discretion in denying his motion for a mistrial. Specifically, Searcy argues that the
videotaped statement was riddled with instances of prior bad acts, misconduct, and
improper character evidence in violation of Evid. R. 404(b). Thus, given the
quantity and incriminating quality of the statements, and the fact that the trial
court gave no limiting instruction or admonishment, Searcy claims that the
admission of this evidence placed him in a position of grave peril and, therefore, a
mistrial was warranted.
[24] “A mistrial is an ‘extreme remedy’ that should be used only when no other curative
measure will rectify the situation.” Moore v. State, 652 N.E.2d 53, 57 (Ind. 1995).
In reviewing the denial of a motion for a mistrial, the defendant must demonstrate
that the conduct complained of was both in error and had a probable persuasive
effect on the jury’s decision. Pierce v. State, 761 N.E.2d 821, 825 (Ind. 2002). More
specifically, the appellant must establish that the questioned conduct “was so
prejudicial and inflammatory that he was placed in a position of grave peril to
which he should not have been subjected.” Gregory v. State, 540 N.E.2d 585, 589
(Ind. 1989). The gravity of the peril is measured by the conduct’s probable
persuasive effect on the jury, not the degree of impropriety of the conduct. Id. A
trial judge’s discretion in determining whether to grant a mistrial is afforded great
deference, because the trial judge is in the best position to gauge the surrounding
circumstances of an event and its impact on the jury. Mickens v. State 742 N.E.2d
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927, 929 (Ind. 2001). Thus, we review the trial court’s decision solely for an abuse
of discretion. Id.
[25] Evid. R. 404(b) provides that
Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, [or] identity.
[26] In this case, the State asserts that Searcy’s videotaped statements were admissible
because they established proof of Searcy’s knowledge of the charged offenses. We
note, however, that many of Searcy’s acknowledgments and admissions, as well as
statements made by the interviewing detective, had nothing to do with
methamphetamine. Indeed, the jury heard evidence that there was an outstanding
arrest warrant for Searcy on a probation violation that stemmed from a prior
conviction, that Searcy illegally purchased and possessed suboxone and marijuana,
and that he had spent almost seventeen years in prison. Moreover, the admission
of the videotaped statement was offered after the State had already presented the
majority of its evidence to establish Searcy’s guilt. In fact, the numerous
incriminating statements, admissions, and acknowledgments on the videotape
were the last bits of evidence that the jury heard prior to deliberating. Further, the
trial court provided no curative measure, such as a limiting instruction that would
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have admonished the jury to consider the incriminating evidence only for a
particular purpose set out in Evid. R. 404(b)(2).
[27] In light of these circumstances, we cannot agree with the State that the probable
persuasive effect of this evidence on the jury was minimal. Rather, it is apparent to
us that Searcy’s videotaped statement contained numerous Evid. R. 404(b)
violations that may have had a significant effect on the jury. Therefore, we must
conclude that the incriminating nature of the evidence contained in the videotape
was so prejudicial and inflammatory to Searcy that it placed him in a position of
grave peril to which he should not have been subjected. The trial court erred in
denying Searcy’s motion for a mistrial. Thus, his convictions must be reversed. 3
3
Although we reverse Searcy’s convictions for the reasons discussed above, we briefly address Searcy’s
alternative argument for reversal, as it is likely to arise again on retrial. We agree with Searcy that his
convictions for maintaining a common nuisance and dealing in methamphetamine would not stand in light
of double jeopardy concerns. We find instructive this Court’s opinion in Hunter v. State, 72 N.E.3d 928, 935
(Ind. Ct. App. 2017), trans. denied, where we vacated the defendant’s conviction for maintaining a common
nuisance on double jeopardy grounds under the “same evidence test,” pursuant to Article 1, Section 14 of the
Indiana Constitution. In Hunter, nothing was articulated in the charging information, the evidence at trial,
jury instructions, or the State’s closing argument that separated the defendant’s maintaining a common
nuisance charge from the evidence presented that was used to establish the possession and dealing in cocaine
offenses. Thus, we concluded that there was a reasonable possibility that the jury used the same evidentiary
facts to establish the elements of all charged offenses, and we vacated the conviction with the less severe
penal consequences, i.e., the maintaining a common nuisance conviction.
Our review of the record in this case establishes that there is a reasonable possibility that the jury used the
same evidentiary facts to prove the essential elements of all charged offenses, similar to the circumstances in
Hunter. Indeed, it is apparent that the jury “may have latched on to exactly the same facts for both
convictions.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008) (emphasis added). Nothing was presented to
establish Searcy’s maintaining a common nuisance charge, other than evidence that he used a vehicle when
committing the other charged offenses. Hence, the actual evidence test would preclude Searcy’s conviction
for maintaining a common nuisance on double jeopardy grounds. See Hunter, 72 N.E.3d at 935.
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[28] Judgment reversed.
Brown, J. and Tavitas, J., concur.
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