Robert O. Caruthers, Jr. v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Feb 10 2012, 9:18 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
CLERK
case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM A. GRAY GREGORY F. ZOELLER
New Albany, Indiana Attorney General of Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT O. CARUTHERS, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 10A01-1009-CR-514
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Jerome F. Jacobi, Judge
Cause No. 10D02-0802-FA-48
February 10, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Robert Caruthers, Jr., appeals his convictions for Class B felony dealing in
cocaine, Class A felony dealing in cocaine, two counts of Class D felony possession of a
controlled substance, and Class C felony maintaining a common nuisance. We affirm.
Issues
Caruthers raises four issues, which we restate as:
I. whether the trial court properly admitted evidence
found pursuant to a search warrant;
II. whether the trial court properly admitted a handgun
found at the searched residence;
III. whether the trial court properly denied Caruthers‟s
request for a continuance; and
IV. whether the trial court properly limited Caruthers‟s
cross examination of a law enforcement officer.
Facts1
On February 18, 2008, Detective Robert McGhee and Detective Dan Lawhorn of
the Jeffersonville Police Department conducted a controlled drug buy with confidential
informant, Robert Vest. Detective McGhee and Detective Lawhorn met with Vest at
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Indiana Appellate Rule 29(A), which provides that documentary exhibits shall be included in a
separately-bound volume. Nondocumentary and oversized exhibits “shall remain in the custody of the
trial court” and “[p]hotographs of any exhibit may be included in the volume of documentary exhibits.”
Ind. Appellate Rule 29(B). Here, State‟s Exhibits 10, 11, and 12 were photographs that should have been
included in the exhibit volume as documentary exhibits. Instead, the exhibit volume contains only a
photograph of blank sheets of paper with exhibit stickers marked State‟s Exhibit 10, 11, and 12.
Similarly, State‟s Exhibits 15 through 30 were pictures that were not included in the exhibit volume.
Again, the exhibit volume contains only a photograph of blank sheets of paper with exhibit stickers
marked State‟s Exhibit 15 through 30. Despite this failure to follow the appellate rules, we were able to
review Caruthers‟s arguments on appeal.
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Vest‟s residence, where they thoroughly searched Vest. Vest called Caruthers and
arranged to purchase forty dollars worth of cocaine from Caruthers. Caruthers called
back and asked Vest to put oil in Caruthers‟s car when he arrived. Either Detective
McGhee or Detective Lawhorn observed Vest from the time he left his house until he
returned. Detective McGhee watched from his vehicle on the street, and Detective
Lawhorn watched from Vest‟s residence. Vest rode his bicycle a short distance to 802
Walnut Street, Caruthers‟s mother‟s residence. Detective McGhee then saw Vest put oil
in Caruthers‟s car and approach the door to the Walnut Street residence. Caruthers told
Vest that he “wasn‟t ready” yet and said to put more oil in the car. Tr. p. 609. Vest
rechecked the oil in Caruthers‟s car and then returned to the residence. Caruthers then
gave Vest cocaine in exchange for the forty dollars. Detective McGhee saw Caruthers
standing in the threshold and saw Vest and Caruthers exchange something. Vest then
left, closed the hood on Caruthers‟s car, and rode his bicycle back to his house. Detective
Lawhorn searched Vest again, and Vest gave the cocaine to Detective Lawhorn. Later
testing revealed that Vest had purchased 0.27 gram of cocaine.
That evening Detective McGhee sought a search warrant for the Walnut Street
residence. He faxed a search warrant affidavit to Judge Cecile Blau shortly after
midnight on February 19, 2008, and the judge signed the search warrant at 12:20 a.m.
The judge faxed a signed copy of the search warrant back to Detective McGhee. During
a search of the residence later that day, the officers found a large amount of crack
cocaine, baggies, mail addressed to Caruthers, counterfeit currency, a digital scale, a nine
millimeter semi-automatic handgun, ammunition, controlled substances, and almost
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$76,000 in cash. Caruthers acknowledged to Detective McGhee that the digital scale
belonged to him and, after the officers found a large amount of cocaine, he said, “you
found what you‟re looking for just take me to jail.” Id. at 654. In Caruthers‟s pocket,
Detective McGhee discovered the forty dollars used by Vest to purchase cocaine.
Caruthers‟s driver‟s license identified his address as 802 Walnut Street.
The State charged Caruthers with Class A felony dealing in cocaine, Class C
felony possession of cocaine, two counts of Class D felony possession of a controlled
substance, and Class C felony maintaining a common nuisance. The State later added a
charge of Class B felony dealing in cocaine. Caruthers filed a motion to suppress
evidence, alleging defects in the search warrant process, but the trial court denied the
motion. During the jury trial, Caruthers objected to the admission of evidence found as a
result of the search warrant, which the trial court overruled. Caruthers also objected to
the admission of the handgun, which the trial court overruled, requested a continuance to
investigate a newly discovered document, which the trial court denied, and sought
unsuccessfully to question Detective Lawhorn regarding his actions in an unrelated drug
case. A jury found Caruthers guilty as charged. Due to double jeopardy concerns, the
trial court only sentenced Caruthers for his convictions of Class B felony dealing in
cocaine, Class A felony dealing in cocaine, two counts of Class D felony possession of a
controlled substance, and Class C felony maintaining a common nuisance. Caruthers was
sentenced to fifty years in the Department of Correction with ten years suspended to
probation. He now appeals.
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Analysis
I. Search Warrant
Caruthers argues that the trial court abused its discretion by admitting the evidence
found as a result of the search warrant. A trial court has broad discretion in ruling on the
admissibility of evidence, and we will disturb its rulings only where it is shown that the
court abused that discretion. Turner v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). An
abuse of discretion occurs when the trial court‟s decision is clearly against the logic and
effect of the facts and circumstances before it. Id.According to Caruthers, the search warrant was defective because it was based on
uncorroborated hearsay from a source with unknown credibility, i.e., Vest. “In deciding
whether to issue a search warrant, the issuing magistrate‟s task is simply to make a
practical, common-sense decision whether, given all the circumstances set forth in the
affidavit, there is a fair probability that evidence of a crime will be found in a particular
place.” State v. Foy, 862 N.E.2d 1219, 1224 (Ind. Ct. App. 2007) (citing State v.
Spillers, 847 N.E.2d 949, 952-53 (Ind. 2006)), trans. denied. “The reviewing court‟s duty
is to determine whether the issuing magistrate had a „substantial basis‟ for concluding
that probable cause existed.” Id. (quoting Spillers, 847 N.E.2d at 953). A substantial
basis requires the reviewing court, with significant deference to the magistrate‟s
determination, to focus on whether reasonable inferences drawn from the totality of the
evidence support the finding of probable cause. Id. (citing Spillers, 847 N.E.2d at 953).
The Fourth Amendment to the U.S. Constitution provides, “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
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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.” Article 1, Section 11 of the Indiana
Constitution contains nearly identical language. Jackson v. State, 908 N.E.2d 1140, 1143
(Ind. 2009). These constitutional principles are codified in Indiana Code Section 35-33-
5-2, which details the information to be contained in an affidavit for a search warrant. Id.Where a warrant is sought based upon hearsay information, the affidavit must either: “(1)
contain reliable information establishing the credibility of the source and of each of the
declarants of the hearsay and establishing that there is a factual basis for the information
furnished; or (2) contain information that establishes that the totality of the circumstances
corroborates the hearsay.” I.C. § 35-33-5-2(b). “[U]ncorroborated hearsay from a source
whose credibility is itself unknown, standing alone, cannot support a finding of probable
cause to issue a search warrant.” Foy, 862 N.E.2d at 1225 (quoting Jaggers v. State, 687
N.E.2d 180, 182 (Ind. 1997)).
In the affidavit for the search warrant, Detective McGhee described the controlled
drug buy between confidential informant Vest and Caruthers. Detective McGhee
described the search of Vest, the constant surveillance of Vest, observing the exchange
between Vest and Caruthers, and the field test of Vest‟s purchase from Caruthers. The
affidavit simply was not based on uncorroborated hearsay from Vest. Detective
McGhee‟s personal observation of the controlled buy was sufficient to establish grounds
for probable cause. The trial court did not abuse its discretion by admitting the evidence
on this basis. See, e.g., Mills v. State, 177 Ind. App. 432, 435, 379 N.E.2d 1023, 1026
6
(1978) (holding that an officer‟s personal observation of a controlled drug buy sufficed as
grounds for a finding of probable cause to issue a search warrant).
Next, Caruthers argues that the search warrant affidavit was defective because it
failed to comply with several statutory requirements. He argues that Detective McGhee
failed to make a return on the warrant as required by Indiana Code Section 35-33-5-4(1),
which provides: “The officer who executed the warrant shall make a return on it directed
to the court or judge, who issued the warrant, and this return must indicate the date and
time served and list the items seized.” However, the State points out that the search
warrant affidavit, the search warrant, and the return are all included in the record on
appeal. See App. pp. 247-50. Even if Detective McGhee failed to follow the statutory
requirement of making a return on the warrant, our supreme court held in Owens v. State,
659 N.E.2d 466, 478 (Ind. 1995), that the failure to file a return did not warrant the
suppression of evidence otherwise properly seized without a demonstration of prejudice.
Caruthers has not demonstrated that he was prejudiced by the alleged failure to file a
return.
Caruthers also argues that the requirements of Indiana Code Section 35-33-5-8 for
obtaining a search warrant by facsimile were not met. Indiana Code Section 35-33-5-8
provides, in relevant part:
(a) A judge may issue a search or arrest warrant without
the affidavit required under section 2 of this chapter, if
the judge receives sworn testimony of the same facts
required for an affidavit:
(1) in a nonadversarial, recorded hearing before the
judge;
(2) orally by telephone or radio; or
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(3) in writing by facsimile transmission (FAX).
*****
(c) After transmitting an affidavit, an applicant for a
warrant under subsection (a)(3) shall transmit to the
judge a copy of a warrant form completed by the
applicant. The judge may modify the transmitted
warrant. If the judge agrees to issue the warrant, the
judge shall transmit to the applicant a duplicate of the
warrant. The judge shall then sign the warrant retained
by the judge, adding the time of the issuance of the
warrant.
*****
(e) If a warrant is issued under subsection (a)(3), the judge
shall order the court reporter to the [sic] retype or copy
the facsimile transmission for entry in the record. The
judge shall certify the transcription or copy and
warrant retained by the judge for entry in the record.
(f) The court reporter shall notify the applicant who
received a warrant under subsection (a)(2) or (a)(3)
when the transcription or copy required under this
section is entered in the record. The applicant shall
sign the typed, transcribed, or copied entry upon
receiving notice from the court reporter.
I.C. § 35-33-5-8.
According to Caruthers, the requirements of subsections (e) and (f) were not met
because there is no evidence that the judge ordered the court reporter to retype or copy
the facsimile transmission for entry in the record, that the judge certified the transcription
or the copy, that the court reporter notified Detective McGhee when the transcription or
copy was entered in the record, or that Detective McGhee signed the typed, transcribed,
or copied entry. The State responds that “[t]here was nothing more the law enforcement
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officers could have done when seeking to comply with the law” and that “suppressing the
evidence based on record-keeping technicalities required of the court would do nothing to
deter police misconduct.” Appellee‟s Br. p. 14.
The Supreme Court of the United States held in United States v. Leon, 468 U.S.
897, 920, 104 S. Ct. 3405, 3419 (1984), that the exclusionary rule does not require the
suppression of evidence obtained in reliance on a defective search warrant if the police
relied on the warrant in objective good faith. “In most such cases, there is no police
illegality and thus nothing to deter.” Leon, 468 U.S. at 920-21, 104 S. Ct. at 3419. Leon
cautioned however that the good faith exception is not available in some situations,
including where (1) the magistrate is “misled by information in an affidavit that the
affiant knew was false or would have known was false except for his reckless disregard
of the truth,” or (2) the warrant was based on an affidavit “so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable.” Id. at
923, 104 S. Ct. at 3421 (citation omitted). The good faith exception to the warrant
requirement has been codified by Indiana Code Section 35-37-4-5. Spillers, 847 N.E.2d
at 957.
The alleged failure of the trial court and court reporter to complete the record-
keeping statutory requirements does not involve police illegality, misleading the
magistrate, or a lack of probable cause. Even if the trial court and court reporter failed to
comply with the record-keeping requirements of Indiana Code Section 35-37-4-5, we
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conclude that the officers relied on the search warrant in objective good faith. The trial
court properly admitted the evidence found pursuant to the search warrant.2
II. Admission of Handgun
Caruthers argues that the trial court abused its discretion by admitting the handgun
found during the search. A trial court has broad discretion in ruling on the admissibility
of evidence, and we will disturb its rulings only where it is shown that the court abused
that discretion. Turner, 953 N.E.2d at 1045. An abuse of discretion occurs when the trial
court‟s decision is clearly against the logic and effect of the facts and circumstances
before it. Id.
According to Caruthers, the trial court abused its discretion by admitting a
handgun found during the search because Caruthers was not charged with any offenses
related to the handgun. Relevant evidence is admissible unless its probative value is
substantially outweighed by the danger of unfair prejudice. Hubbell v. State, 754 N.E.2d
884, 889 (Ind. 2001) (citing Ind. Evidence Rule 403). Our supreme court has held that
“„the introduction of weapons not used in the commission of the crime and not otherwise
relevant to the case may have a prejudicial effect.‟” Id. at 890 (quoting Lycan v. State,
671 N.E.2d 447, 454 (Ind. Ct. App. 1996)). In Hubbell, where the defendant challenged
his convictions for murder and criminal confinement, the court held that “[t]he highly
attenuated relevance of the gun was insufficient to overcome its potential prejudice.” Id.2
Caruthers also argues that, under the totality of the circumstances, the search warrant was defective
under Article 1, Section 11 of the Indiana Constitution based on the lack of compliance with the statutory
requirements. The good faith exception is applicable under the Indiana Constitution. Wendt v. State, 876
N.E.2d 788, 790-91 (Ind. Ct. App. 2007), trans. denied. Having found that, even if the statutory
requirements were not met, the good faith exception applies, we need not address Caruthers‟s argument
further.
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However, in Eaton v. State, 889 N.E.2d 297, 302 (Ind. 2008), cert. denied, our supreme
court found that evidence seized from the defendant‟s residence, including handguns, was
“directly relevant to the defendant‟s intent to deliver” cocaine.
Here, the State argues the handgun was admissible because it “was with cocaine
and other accoutrements typically used by drug dealers” and it “reasonably supported the
inference that he was dealing in cocaine.” Appellee‟s Br. p. 17. We agree with the State.
The handgun was found during a search of Caruthers‟s mother‟s residence after Caruthers
sold cocaine to a confidential informant there. Officers found numerous items of
evidence associated with drug dealing, including a large amount of crack cocaine,
baggies, mail addressed to Caruthers, counterfeit currency, a digital scale, a nine
millimeter semi-automatic handgun, ammunition, controlled substances, and almost
$76,000 in cash. The State charged Caruthers with dealing in cocaine, along with other
drug related charges. As in Eaton, we conclude that the evidence, including the handgun,
was directly relevant to Caruthers‟s intent to deliver the cocaine. The trial court did not
abuse its discretion by admitting the handgun.
III. Request for a Continuance
Caruthers argues that the trial court abused its discretion by failing to grant a
continuance. This argument concerns a document that Caruthers first learned of during
the trial. Detective McGhee mentioned during his direct testimony that an FBI firearms
trace summary had been performed on the handgun discovered in the search of the
Walnut Street residence. Caruthers argued that he had not been provided with the
document during the discovery process and that the document was exculpatory.
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Caruthers asked for a continuance to look at the report and have the opportunity to offer it
as evidence. The trial court allowed Caruthers to question Detective McGhee about the
document. Detective McGhee testified that he had discovered the document only a few
days before the trial. The document demonstrated that the gun was purchased in 2005 by
someone other than Caruthers. The trial court denied Caruthers‟s request for a
continuance, and the document was entered into evidence as Defendant‟s Exhibit 1.
Caruthers discussed the document during his closing argument, and he argued that the
document showed the gun did not belong to Caruthers and that Caruthers did not sell
cocaine to Vest.
Indiana Code Section 35-36-7-1 provides for a continuance upon a proper showing
of an absence of evidence or the illness or absence of the defendant or a witness. Maxey
v. State, 730 N.E.2d 158, 160 (Ind. 2000). Rulings on non-statutory motions for
continuance, such as Caruthers‟s motion, lie within the discretion of the trial court and
will be reversed only for an abuse of that discretion and resultant prejudice. Id.On appeal, Caruthers argues that a continuance would have allowed him to
introduce evidence regarding the true owner of the handgun. The State points out that
Caruthers was able to examine the document, cross examine Detective McGhee about it,
enter the document into evidence, and argue during closing that the gun did not belong to
Caruthers. Moreover, even if Caruthers had been able to introduce evidence regarding
the gun‟s record owner, such evidence would not demonstrate that Caruthers did not sell
cocaine to Vest or that the significant amounts of cocaine, cash, controlled substances,
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and other paraphernalia did not belong to Caruthers. Caruthers has failed to demonstrate
how he was prejudiced by the trial court‟s denial of his motion for a continuance.
IV. Limitation of Cross Examination
Caruthers argues that the trial court abused its discretion by limiting his cross
examination of Detective Lawhorn regarding his actions in a different criminal case and
resulting discipline by his employer. The right to cross examine witnesses is guaranteed
by the Sixth Amendment to the United States Constitution and is one of the fundamental
rights of our criminal justice system. Washington v. State, 840 N.E.2d 873, 886 (Ind. Ct.
App. 2006), trans. denied. However, this right is subject to reasonable limitations
imposed at the discretion of the trial court. Id. Trial courts retain wide latitude to impose
reasonable limits on the right to cross examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness‟ safety, or interrogation
that is repetitive or only marginally relevant. Id. We will find an abuse of discretion
when the trial court controls the scope of cross examination to the extent that a restriction
substantially affects the defendant‟s rights. Id.Detective Lawhorn testified regarding the controlled buy with Vest and the search
of the Walnut Street residence. During cross examination, Caruthers sought to question
Detective Lawhorn regarding an unrelated drug case where Detective Lawhorn made an
incorrect statement in an affidavit for a search warrant. The incorrect statement was that
Detective Lawhorn had completely observed a controlled buy. As a result of the incident,
Detective Lawhorn received disciplinary action of five days suspension for conduct
unbecoming an officer. Detective Lawhorn was not prosecuted criminally for his actions.
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The trial court ruled that the evidence was not admissible under Indiana Evidence Rule
404(b).3
First, we fail to see how the evidence at issue was relevant. See Ind. Evidence
Rule 402. Detective Lawhorn testified that he was stationed in Vest‟s residence and did
not observe the controlled buy, and Detective Lawhorn also did not prepare the search
warrant affidavit here. Evidence that Detective Lawhorn incorrectly claimed in a search
warrant affidavit to have witnessed a controlled buy in an unrelated drug case is simply
not relevant.
On appeal, Caruthers argues that the evidence was admissible under Indiana
Evidence Rule 616 because it showed “bias.” Appellant‟s Br. p. 15. Indiana Evidence
Rule 616 provides: “For the purpose of attacking the credibility of a witness, evidence of
bias, prejudice, or interest of the witness for or against any party to the case is
admissible.” However, Caruthers has not demonstrated how Detective Lawhorn‟s actions
in an unrelated case show that he was biased against Caruthers. Moreover, Indiana
Evidence Rule 608(a) permits the attack of a witness‟s credibility by evidence in the form
of opinion or reputation, but only to the extent that the evidence refers to the witness‟s
3
Indiana Evidence Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused, the prosecution in a
criminal case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pre-trial notice on good cause shown, of
the general nature of any such evidence it intends to introduce at trial.
Caruthers makes no argument concerning Indiana Evidence Rule 404(b).
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truthfulness. The defendant may not inquire into specific instances of conduct, except for
evidence that the witness was convicted of a crime provided for in Indiana Evidence Rule
609. Ind. Evid. R. 608(b). Under these rules, Caruthers could not impeach Detective
Lawhorn‟s credibility with evidence specific to an allegation concerning the officer‟s
actions in the other drug case or the resulting disciplinary action against him. That
evidence did not constitute opinion of the officer‟s reputation under Indiana Evidence
Rule 608(a), and it is not a conviction of a crime listed in Indiana Evidence Rule 609.
See, e.g., Palmer v. State, 654 N.E.2d 844, 848 (Ind. Ct. App. 1995) (holding that an
officer‟s drug use and related suspension were not admissible on cross examination under
the rules of evidence). The trial court did not abuse its discretion by limiting Caruthers‟s
cross examination of Detective Lawhorn on this issue.
Conclusion
The trial court properly admitted evidence found pursuant to the search warrant
and properly admitted the handgun found during the search. The trial court did not abuse
its discretion by denying Caruthers‟s motion for a continuance. Further, the trial court
did not abuse its discretion by limiting Caruthers‟s cross examination of Detective
Lawhorn. We affirm.
Affirmed.
KIRSCH, J., and BRADFORD, J., concur.
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