Gordon L. Peak, Jr. v. State of Indiana , 2015 Ind. App. LEXIS 110 ( 2015 )

Feb 25 2015, 9:31 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David M. Payne Gregory F. Zoeller
Ryan & Payne Attorney General of Indiana
Marion, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gordon L. Peak, Jr., February 25, 2015
Appellant-Defendant, Court of Appeals Case No.
27A04-1406-CR-260
v. Appeal from the Grant Circuit Court.
The Honorable Mark E. Spitzer,
Judge.
State of Indiana, Cause No. 27C01-1201-FD-12
Appellee-Plaintiff.
Sharpnack, Senior Judge
Statement of the Case
[1] Gordon L. Peak, Jr., was arrested after police stopped his car and found
marijuana on his person. He appeals his conviction of possession of marijuana
in excess of thirty grams, a Class D felony. Ind. Code § 35-48-4-11 (2011). We
affirm.
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Issue
[2] Peak raises one issue, which we restate as: whether Peak received ineffective
assistance of trial counsel.
Facts and Procedural History
[3] On January 22, 2012, Sergeant Shawn Sizemore of the Marion Police
Department was sitting in an unmarked car watching a house that was
suspected of being used for illegal drug transactions. He saw someone in a
silver Buick drive away from the residence and followed it. As Sergeant
Sizemore followed the Buick, he saw the driver of the Buick stop at a red light,
activate its right turn signal, and then turn right. He concluded that the driver
of the Buick had committed an infraction by failing to use a turn signal for 200
feet prior to the turn. Sergeant Sizemore radioed Sergeant John Kauffman,
identified the infraction he had observed, and asked him to stop the Buick.
[4] Sergeant Kauffman, who was in uniform and driving a marked car, stopped the
Buick and walked up to it. Peak was driving, and he had no passengers. Before
he began speaking with Peak, Sergeant Kauffman noticed “an overwhelming
smell of raw, green marijuana.” Tr. p. 108. Peak handed Sergeant Kauffman
an identification card and conceded that his license was suspended. Sergeant
Sizemore walked up to the car while Sergeant Kauffman spoke with Peak.
Sergeant Kauffman told Sergeant Sizemore he smelled an odor of marijuana.
[5] Peak appeared to be nervous, would not make eye contact with Sergeant
Kauffman, and kept his left hand between his seat and the car door. Sergeant
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Kauffman asked Peak to get out of the car to make sure “he didn’t have a
weapon.” Id. When Peak stepped out of the Buick, Sergeant Kauffman again
smelled an odor of marijuana. Sergeant Sizemore also smelled an odor of
marijuana, which he concluded was coming from Peak’s person.
[6] Sergeant Kauffman had Peak walk to the rear of his car and put his hands on
the car to facilitate a pat down. During the pat down, Peak kept his groin
pressed up against the car so that Sergeant Kauffman could not reach it.
Sergeant Kauffman turned Peak away from the car and patted Peak’s groin
area. He felt a substance which had “the same feel and consistency of packaged
marijuana.” Id. at 109. When he asked Peak what it was, Peak “admitted that
he had marijuana on his possession.” Id. at 110.
[7] The officers arrested him and took him to the police station, where they
searched him and found a bag containing a green leafy substance in his
underwear. They also advised Peak of his Miranda rights, and he signed a
waiver of those rights. During a subsequent interview, he again admitted that
the green leafy substance was marijuana. The officers performed a field test on
the green leafy substance, and testing indicated that it was marijuana. They
weighed the marijuana, and the scale indicated that the marijuana, plus the
plastic bags it was packaged in, weighed thirty-nine point six grams. A
subsequent weighing revealed that even without the plastic bags the marijuana
still exceeded thirty grams in weight.
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[8] Sergeant Kauffman issued a written warning for failure to properly signal before
a turn and issued a citation for driving with a suspended license. The State
charged Peak with possession of marijuana in an amount greater than thirty
grams.
[9] Peak’s counsel did not file a motion to suppress prior to trial. Instead, Peak
filed a pro se motion for discovery and a pro se motion for hearing, asserting
that the officers lacked probable cause to stop his car. Peak also filed a “Pro Se
Motion to Compel Counsel to Investigate Criminal Case.” Appellant’s App. p.
42. Next, he and his counsel both signed a motion to continue the trial,
asserting that Peak wanted additional discovery and wanted a new lawyer.
[10] The trial court held a hearing on May 14, 2014, on the pending motions. At the
hearing, Peak’s counsel identified several differences of opinion between him
and Peak regarding defense strategy. With respect to suppression of the
marijuana, Peak’s counsel told the court:
The Defendant wants me to file a motion to suppress the alleged
marijuana that was found on his person and we have discussed this on
multiple occasions at some length, I am not aware of any legal theory
that would require suppression of the evidence. He disagrees with me
in regard to a number of my interpretations of the statute and case law.
So he is of the opinion that he is entitled to suppress the marijuana
because he believes that, uh, the stop was not justified. . . . Now I
have discussed with the Defendant my unwillingness to do these
things, which he wants me to do because I do not believe that they are
justified under the law or the facts of this case.
Tr. p. 21.
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[11] Counsel repeated, later in the hearing, that he had “explained [the suppression
issue] to him in some detail.” Id. at 25. The trial court and the parties
discussed the discovery issues, but the court declined to appoint a new lawyer
for Peak.
[12] The case was tried by jury. During the trial, Peak, by counsel, moved to
suppress the marijuana, asserting that the officers should have obtained a search
warrant after they smelled marijuana and Sergeant Kauffman felt it on Peak’s
person during the pat down. The trial court denied his motion. The jury
determined that Peak was guilty, and the trial court sentenced him accordingly.
This appeal followed.
Discussion and Decision
[13] Peak argues that his trial counsel should have (1) filed a motion to suppress the
marijuana prior to trial and (2) objected at trial to the admission of the
marijuana, based on a challenge to the validity of the traffic stop. He further
argues that the traffic stop that led to the discovery of the marijuana violated his
federal and state constitutional protections against illegal search and seizure,
and if his attorney had raised those constitutional claims, he would have
prevailed.
[14] Claims of ineffective assistance of counsel are evaluated using the Strickland
standard articulated by the United States Supreme Court. Wilkes v. State, 984
N.E.2d 1236, 1240 (Ind. 2013). To establish ineffective assistance of counsel, a
defendant must demonstrate two elements. Id.
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[15] First, a defendant must demonstrate that counsel performed deficiently based
on prevailing professional norms. Id. We evaluate prevailing professional
norms based on an objective standard of reasonableness. Pruitt v. State, 903
N.E.2d 899, 905 (Ind. 2009). Counsel is afforded considerable discretion in
choosing strategy and tactics, and we will accord that decision deference. Id. at
906. A strong presumption arises that counsel rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment. Id. A defendant must offer strong and convincing evidence to
overcome this presumption. Ritchie v. State, 875 N.E.2d 706, 714 (Ind. 2007).
[16] Second, a defendant must establish that counsel’s deficient performance
resulted in prejudice to the defendant. Wilkes, 984 N.E.2d at 1240. A
defendant establishes prejudice by demonstrating a reasonable probability that,
but for counsel’s deficient performance, the result of the proceeding would have
been different. Pruitt, 903 N.E.2d at 906. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id.
[17] We note that Peak brings his claim of ineffective assistance of trial counsel on
direct appeal. Post-conviction proceedings are usually the preferred forum for
adjudicating claims of ineffective assistance because presenting such claims
often requires the development of new facts not present in the trial record.
Rogers v. State, 897 N.E.2d 955, 964-65 (Ind. Ct. App. 2008), trans. denied.
When a defendant presents a claim of ineffective assistance of trial counsel on
direct appeal, the issue is foreclosed from collateral review. Id. at 965.
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[18] Peak’s claim of ineffective assistance of counsel is premised on his conclusion
that the officers seized him in violation of the Fourth Amendment to the United
States Constitution.1 The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
[19] A traffic stop is a “seizure” within the meaning of the Fourth Amendment.
Croom v. State, 996 N.E.2d 436, 440 (Ind. Ct. App. 2013), trans. denied.
[20] The Fourth Amendment generally prohibits a warrantless search or seizure
unless a valid exception to the warrant requirement exists. Sanders v. State, 989
N.E.2d 332, 335 (Ind. 2013). A warrantless traffic stop and limited search is
permissible where an officer has at least a reasonable suspicion that a traffic law
has been violated. Id. The existence of reasonable suspicion is determined by
looking at the totality of the circumstances to see whether the detaining officer
has a particularized and objective basis for suspecting wrongdoing. State v.
Bulington, 802 N.E.2d 435, 438 (Ind. 2004). Reasonable suspicion must be
more substantial than an officer’s unparticularized suspicion or hunches.
Croom, 996 N.E.2d at 440.
1
Peak also claims that the traffic stop violated article I, section 11 of the Indiana Constitution, but he does
not address that claim separately from his Fourth Amendment claim. His state constitutional claim is
therefore waived. See Klein v. State, 698 N.E.2d 296, 299 (Ind. 1998).
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[21] Here, the officers stopped Peak because he failed to display his turn signal for
the required distance before making a right turn. Indiana Code section 9-21-8-
25 (1991) provides:
A signal of intention to turn right or left shall be given continuously
during not less than the last two hundred (200) feet traveled by a
vehicle before turning or changing lanes. A vehicle traveling in a
speed zone of at least fifty (50) miles per hour shall give a signal
continuously for not less than the last three hundred (300) feet traveled
by the vehicle before turning or changing lanes.
[22] There is no dispute that Peak failed to signal for the required 200 feet before
turning right. Instead, Peak argues that the statute does not apply here because
he did not intend to turn right until he came to a stop at a red light and made
the decision.
[23] When a statute is unambiguous, we must apply the plain and ordinary meaning
of the language and not resort to other rules of construction. Adams v. State, 960
N.E.2d 793, 798 (Ind. 2012). The plain language of Indiana Code section 9-21-
8-25 provides that the requirement to signal is contingent upon an intention to
turn. However, although Peak may have formed the intent to turn while
stopped at the traffic light, that does not affect the result here. Peak might have
raised a defense at trial that he lacked the intent to turn during the 200 feet, but
the reasonable suspicion analysis looks at the totality of the circumstances
leading up to a traffic stop to determine whether the officer had a particularized
and objective basis for the stop. Failure to signal within the required distance is
objective evidence of failure to comply with the statute. Thus, Peak’s alleged
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subjective lack of an intent would not preclude the officers from having an
objective, reasonable suspicion that the turn signal law had been violated.
[24] Peak cites to State v. Rhodes, 950 N.E.2d 1261 (Ind. Ct. App. 2011), in support
of his argument that he did not violate Indiana Code section 9-21-8-25. That
case is factually distinguishable. There, the defendant turned left without
activating his turn signal for 200 feet before turning. However, he argued, and
a panel of this Court agreed, that compliance with the statute was not possible
because the defendant had to pass a cross street before arriving at his turn, and
the State failed to prove that there was at least 200 feet of street between where
he entered the street and the place where he turned. Id. at 1265. In this case,
Peak does not argue that compliance with the signaling requirement was
impossible.
[25] Peak further claims that he did not violate the statute because he came to a stop
at the red light, thus failing to travel continuously for the last 200 feet before
turning. “The plain language of the statute requires that a vehicle must use a
signal whenever it intends to turn or change lanes. There are no restrictions
that it only applies in certain situations or on certain roadways.” Datzek v. State,
838 N.E.2d 1149, 1155 (Ind. Ct. App. 2005), trans. denied. Thus, the duty to
signal not less than 200 feet before turning applies regardless of whether a
stoplight or other traffic signal requires a complete stop before turning.
[26] Peak’s arguments are without merit, and his violation of Indiana Code section
9-21-8-25 provided reasonable suspicion for the officers to detain Peak without
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a warrant. See Santana v. State, 10 N.E.3d 76, 78 (Ind. Ct. App. 2014) (violation
of signaling requirement provided reasonable suspicion). The officers did not
violate the Fourth Amendment.
[27] If trial counsel had filed a motion to suppress the marijuana or had objected at
trial to the admission of the marijuana on grounds that the traffic stop was
illegal, counsel would not have prevailed. Counsel’s performance is not
deficient for failing to present a claim that would have been meritless. Stowers v.
State, 657 N.E.2d 194, 200 (Ind. Ct. App. 1995), trans. denied. Peak has failed to
carry his burden of demonstrating ineffective assistance of counsel.
[28] Peak also argues in passing that the admission of the marijuana at trial was
fundamentally erroneous because the officers had no basis to conduct a traffic
stop. Our Supreme Court has stated:
A failure to object when the evidence is introduced at trial waives the
issue for appeal. But a claim waived by a defendant’s failure to raise a
contemporaneous objection can be reviewed on appeal if the reviewing
court determines that a fundamental error occurred. The fundamental
error exception is extremely narrow, and applies only when the error
constitutes a blatant violation of basic principles, the harm or potential
for harm is substantial, and the resulting error denies the defendant
fundamental due process.
Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (citations and quotation
omitted).
[29] In this case, we have already determined that the officers’ seizure of Peak did
not violate the Fourth Amendment. There was thus no error, let alone
fundamental error, in the admission of the marijuana at trial.
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Conclusion
[30] For the reasons stated above, we affirm the judgment of the trial court.
[31] Affirmed.
[32] Najam, J., and Bradford, J., concur.
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