Tiras D. Johnson v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 26 2019, 8:21 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James Brandon Dillon Curtis T. Hill, Jr.
The Dillon Law Firm, LLC Attorney General of Indiana
Merrillville, Indiana
Tyler G. Banks
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tiras D. Johnson, December 26, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1769
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C04-1709-F2-2231
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1769 | December 26, 2019 Page 1 of 9
Statement of the Case
[1] Tiras D. Johnson appeals his convictions for dealing in cocaine, as a Level 2
felony; dealing in methamphetamine, as a Level 2 felony; and maintaining a
common nuisance, as a Level 6 felony, following a jury trial. Johnson raises
two issues for our review, which we restate as follows:
1. Whether the trial court abused its discretion when it
denied Johnson’s motion to continue his jury trial, which
motion Johnson made one day before his trial was
scheduled to commence.
2. Whether the State violated his constitutional rights when it
searched his residence without a warrant but pursuant to
the terms of Johnson’s conditions of release on community
corrections.
[2] We affirm.
Facts and Procedural History
[3] In 2017, the Madison County Drug Task Force engaged in controlled drug buys
from Eric Troutman. In August, Drug Task Force and Anderson Police
Department Officer Chad Boynton learned from Troutman that Johnson was
involved in drug activity. Officer Boynton then learned that Johnson had been
placed in local community corrections and had signed an agreement with the
Madison County Community Justice Center pursuant to his placement.
[4] Johnson’s agreement to be placed in community corrections included the
following waivers:
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11. I agree and specifically waive any and all rights as to
search and seizure under the laws and constitutions of both the
United States and the State of Indiana.
12. I have been advised of my rights and understand that any
community corrections staff, law enforcement officer or
probation officer may enter my residence at any time without
prior notice to search. I agree and consent to these terms, and
understand that, upon request, I must facilitate the entry to my
vehicle, residence, other location where my property may be
located, or electronic devices, by providing keys, combinations or
passwords. My refusal to do so would be a violation which could
cause my sentence to be revoked.
Ex. Vol. at 8. 1 In a supplemental document attached to the agreement and
titled “[d]isclosure to individuals residing with a participant on electronic
monitoring,” the following language appears:
This disclosure is provided to make you aware that as a
participant of the electronic monitoring/Home Detention
Program [Johnson] has signed a contract that states:
I agree to allow the Madison County Community Justice
Center Staff to enter my residence at any time, without
prior notice, and to make reasonable inquiry into my
activities and the activities of others in the home. I agree
to waive my right against search and seizure, and permit
Madison County Community Justice Center or any law
enforcement officer acting on behalf of Madison County
Community Justice Center to search my person, residence,
1
Our pagination of the Exhibits Volume is based on the .pdf pagination.
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motor vehicle or any other location where my personal
property may be found . . . .
Id. at 14 (emphasis added).
[5] Officer Boynton approached officials at the Community Justice Center and
informed them that Troutman had identified Johnson as a participant in drug
activity. Those officials then “requested . . . that [the Anderson Police
Department] make contact at the residence and proceed with a search . . . to
verify whether the information was accurate.” Tr. Vol. III at 9. Officer
Boynton and other officers then went to Johnson’s residence, went inside, and
immediately smelled the “odor of burnt . . . marijuana.” Id. at 37. The officers
then searched the residence and seized 679.97 grams of cocaine; 367.60 grams
of methamphetamine; firearms; manufacturing equipment; and $6,944.02 in
cash. Officers also found Johnson’s driver’s license under the cushions of a
couch.
[6] On September 1, the State charged Johnson with dealing in cocaine, as a Level
2 felony; dealing in methamphetamine, as a Level 2 felony; and maintaining a
common nuisance, as a Level 6 felony. The court later set Johnson’s jury trial
date for June 5, 2019. On June 4, Johnson moved to continue the trial, among
other reasons, so that he could locate and depose an additional witness.
According to Johnson, the additional witness would have “testif[ied] that [there
was a] person[] in the house other than Mr. Johnson.” Tr. Vol. II at 119. But
Johnson gave no explanation to the court as to why that witness had yet to be
deposed or the efforts he had previously made to locate that witness, and the
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court responded to Johnson’s motion by stating that “[t]his is a case which is
over eighteen . . . months old now” and “at some point the court has to hold
parties accountable for timely preparation of a case.” Id. at 120. The court then
denied the motion to continue.
[7] At Johnson’s ensuing trial, he objected to the evidence seized from his
residence on the ground that it had been seized in violation of his state and
federal constitutional rights. The trial court overruled that objection. The jury
then found Johnson guilty as charged, which the trial court reduced to
judgment. The court then sentenced Johnson, and this appeal ensued.
Discussion and Decision
Issue One: Motion to Continue
[8] On appeal, Johnson first asserts that the trial court abused its discretion when it
denied his motion to continue. We review the trial court’s decision to grant or
deny a motion to continue for an abuse of discretion. Maxey v. State, 730
N.E.2d 158, 160 (Ind. 2000). An abuse of discretion occurs when the trial
court’s judgment is clearly against the logic and effect of the facts and
circumstances before the court. E.g., Schuler v. State, 132 N.E.3d 903, 904 (Ind.
2019). “A motion to postpone the trial on account of the absence of evidence
can be made only upon affidavit,[ 2] showing the materiality of the evidence
2
The record does not show that Johnson’s June 4 motion to continue was in writing and verified.
Nonetheless, we prefer to resolve appeals on their merits, and the State does not assert that the fact that
Johnson only made his motion orally should be the basis for our decision.
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expected to be obtained, and that due diligence has been used to obtain it . . . .”
Ind. Trial Rule 53.5.
[9] According to Johnson, the trial court erred when it denied his motion to
continue because, in doing so, the court denied him the right to present a
defense by effectively prohibiting him from locating and deposing the additional
witness. Johnson further asserts that his case is analogous to the facts of Barber
v. State, in which we held that the trial court abused its discretion when it
denied the defendant’s motion to continue to depose an additional, recently
discovered witness. 911 N.E.2d 641, 646-47 (Ind. Ct. App. 2009), trans. denied.
In particular, in Barber we stated as follows:
there is no evidence that defense counsel acted in bad faith in
asking for a continuance on the morning of Barber’s December
15, 2008, bench trial and filing her updated witness list that
morning as well. Defense counsel had just located the witnesses
that weekend and needed time to secure their presence for trial.
Barber was arrested on October 15, 2008. Barber’s first
continuance came only five days after her arrest and before her
defense counsel had been appointed. Barber’s second
continuance was filed on November 17, 2008, about one month
after her arrest. It provided, “On the evening on November 14,
2008, an investigator located one of the many potential witnesses
that would be essential to the Defendant’s case, however through
that investigation, it has been learned that there may be several other
witnesses left to be identified.” Appellant’s App. p. 19 (emphasis
added). As a result, defense counsel alleged that she could not
provide an effective defense for Barber. The trial court granted
the continuance and scheduled the trial for December 15, 2008.
In the meantime, defense counsel and the Public Defender’s
Agency Investigators continued to look for additional witnesses.
On Saturday, December 13, 2008, two days before trial, defense
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counsel finally contacted two additional witnesses, Mathis and
Collier, who could support Barber’s defense of involuntary
intoxication. Accordingly, on the morning of trial, defense
counsel filed a Verified Emergency Motion to Continue seeking a
motion to continue the trial or, in the alternative, a motion to
bifurcate the trial allowing the State to present its witnesses that
day and giving the defense an opportunity to present its
newfound witnesses on a later date. Defense counsel then
provided an offer of proof. The only prejudice the State alleged it
would suffer was that had it known earlier, it could have called
off its witnesses (two civilians and two officers), who showed up
for trial that morning. However, defense counsel located Mathis
and Collier over the weekend and filed the motion to continue on
Monday morning, the day of the bench trial. As such, the State
would not have known whether the trial was still on until the trial
court ruled on the motion. The prejudice to the State is minimal.
Barber’s defense was involuntary intoxication. Under Indiana
law, “[i]t is a defense that the person who engaged in the
prohibited conduct did so while he was intoxicated, only if the
intoxication resulted from the introduction of a substance into his
body: (1) without his consent; or (2) when he did not know that
the substance might cause intoxication.” Ind. Code § 35-41-3-5.
There is obvious prejudice to Barber from not being able to
present the testimony of Collier and Mathis. Although Barber
testified that she believed she was drugged, Collier would have
testified that she believed the same thing happened to her on the
evening of October 15, 2008, at the same American Legion. And
according to defense counsel, Mathis would have supported both
Barber’s and Collier’s testimony.
Id.[10] Here, as in Barber, there is no evidence that defense counsel acted in bad faith
when he requested a continuance. Nonetheless, we cannot agree with Johnson
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that his facts are analogous to the detailed showing in Barber or that the trial
court here abused its discretion. Johnson asserts that the additional witness
would have testified that there was another person at the residence with
Johnson at the time of the search and seizure. Be that as it may, unlike in
Barber, Johnson does not explain the materiality, if any, such testimony would
have had to Johnson’s defense. Also, unlike the two-month timeframe in
Barber, Johnson had approximately eighteen months to locate and depose his
additional witness. And further unlike in Barber, Johnson makes no attempt to
show the due diligence he may have used to locate and depose that witness
within that timeframe. Thus Barber is inapposite here, and we cannot say that
the trial court abused its discretion when it denied Johnson’s motion to
continue.
Issue Two: Warrantless Search and Seizure
[11] Johnson next asserts that the State violated his state and federal constitutional
rights against unreasonable searches and seizures when it entered his home
without a warrant. “We review de novo a trial court’s ruling on the
constitutionality of a search and seizure.” Belvedere v. State, 889 N.E.2d 286,
287 (Ind. 2008).
[12] Johnson asserts that he only waived his rights with respect to searches and
seizures for those officers “acting on behalf of” the Madison County
Community Justice Center. Appellant’s Br. at 17-18. But Johnson does not
discuss his agreement with the Community Justice Center in his argument on
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appeal. Instead, Johnson’s argument relies on the language of the disclosure to
third parties that was attached to the agreement.
[13] We reject Johnson’s argument. The actual agreement he signed to participate
in community corrections unambiguously waived his rights with respect to
searches and seizures by law enforcement officers, whether those officers were
acting on behalf of the Community Justice Center or not. And we reject
Johnson’s bald assertion that Officer Boynton’s coordination with the
Community Justice Center prior to searching Johnson’s residence was
pretextual. The record supports the conclusion that the Community Justice
Center asked Officer Boynton to act on the its behalf. In any event, again, as a
condition of his placement in community corrections Johnson validly waived
his right to complain about searches and seizures at his residence. Accordingly,
we affirm the trial court’s admission of the evidence seized from Johnson’s
residence.
Conclusion
[14] In sum, we affirm Johnson’s convictions.
[15] Affirmed.
Vaidik, C.J., and Tavitas, J., concur.
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