William P. Stickrod v. State of Indiana ( 2018 )

FILED
Aug 03 2018, 7:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Graham Law Firm, P.C. Attorney General of Indiana
Lafayette, Indiana Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William P. Stickrod, August 3, 2018
Appellant-Defendant, Court of Appeals Case No.
79A04-1710-CR-2473
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Thomas H. Busch,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79C01-1612-F5-167
Barteau, Senior Judge.
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Statement of the Case
[1] William P. Stickrod appeals his convictions of possession of methamphetamine,
1 2
a Level 5 felony; and possession of paraphernalia, a Class C misdemeanor.
We affirm in part, reverse in part, and remand with instructions.
Issues
[2] Stickrod raises three issues, which we restate as:
I. Whether the trial court erred in admitting evidence the
police found in Stickrod’s house while serving two arrest
warrants.
II. Whether the trial court violated Stickrod’s right to present
evidence in his defense by barring a witness’s testimony.
III. Whether Stickrod’s two convictions for possession of
methamphetamine violate the federal constitutional
prohibition of double jeopardy.
Facts and Procedural History
[3] At 6:50 p.m. on December 17, 2016, Officer Grant Leroux of the Lafayette
Police Department and other officers arrived at a house in Lafayette, Indiana.
The house belonged to Stickrod’s mother, but Officer Leroux knew that
Stickrod lived there. The officers were there to execute warrants to arrest
Stickrod for failing to appear at court hearings in two criminal cases.
1
Ind. Code § 35-48-4-6.1 (2014).
2
Ind. Code § 35-48-4-8.3 (2015).
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[4] We discuss the circumstances in more detail below, but in summary Stickrod’s
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girlfriend, Jessica Caliz, eventually answered the door and told Officer Leroux
that Stickrod was not at home. The officers heard a “thud” coming from the
house’s attached garage. Caliz had previously lied to Officer Leroux about
Stickrod’s whereabouts. In addition, Officer Leroux had arrested Stickrod at
that house a few weeks prior to December 17, 2016, after finding Stickrod
hiding in the garage. The officers entered the house and discovered Stickrod
hiding in the garage once again. They handcuffed him and, during a search of
his person, discovered a glasses case in a pants pocket. The case contained a
glass pipe and a small plastic bag which in turn contained a white powdery
substance. Subsequent testing revealed the presence of .8 grams of
methamphetamine in the bag and methamphetamine residue on the pipe.
[5] The State charged Stickrod with possession of methamphetamine, a Level 6
felony; possession of paraphernalia, a Class C misdemeanor; and possession of
methamphetamine, a Level 5 felony. The State further alleged that Stickrod
was an habitual offender. Stickrod filed a motion to suppress all evidence that
the State obtained after entering his home. The trial court held a hearing and
denied the motion.
[6] The court bifurcated the case, choosing to first submit the Level 6 felony and
Class C misdemeanor charges to a jury. After the State rested, Stickrod’s
3
Caliz’s name is spelled several different ways in the record. We use the spelling set forth in the presentence
investigation report.
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attorney informed the court outside the presence of the jury that he would not
present testimony by Caliz because he believed Caliz would commit perjury on
the stand. Stickrod disagreed with his attorney’s decision and told the court
that Caliz’s testimony was “imperative for [his] defense.” Tr. Vol. 2, p. 156.
Stickrod further asked the court to fire his attorney. The court denied Stickrod’s
request to fire his attorney and did not allow Caliz to testify.
[7] The jury determined Stickrod was guilty of the Level 6 felony and the Class C
misdemeanor, and the court entered a judgment of conviction. Stickrod waived
his right to a jury trial on the Level 5 felony and the habitual offender
sentencing enhancement. During the second phase of trial, Stickrod pleaded
guilty to the Level 5 felony and to being an habitual offender.
[8] At sentencing, the court dismissed the habitual offender enhancement and
imposed a sentence on the Level 6 felony, the Level 5 felony, and the Class C
misdemeanor. The court further held the Level 6 felony would merge with the
Level 5 felony. This appeal followed.
Discussion and Decision
I. Admission of Evidence
[9] Stickrod argues the trial court should have granted his motion to suppress.
Once a case proceeds to trial, the question of whether the trial court erred in
denying a motion to suppress is no longer viable. Baird v. State, 854 N.E.2d
398, 403 (Ind. Ct. App. 2006), trans. denied. Instead, we review whether the trial
court erred in admitting the evidence at trial. Id.Court of Appeals of Indiana | Opinion 79A04-1710-CR-2473 | August 3, 2018 Page 4 of 15
[10] In general, rulings on the admissibility of evidence are reviewed for an abuse of
discretion and reversed when admission is clearly against the logic and effect of
the facts and circumstances. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017).
When a challenge to such a ruling is based on the constitutionality of the search
or seizure of evidence, it raises a question of law that we review de novo. Id.[11] Stickrod argues the officers’ entry into his home violated his Fourth
Amendment protection against unreasonable search and seizure. He does not
present a claim under the Indiana Constitution. 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.
The protections of the Fourth Amendment have been extended to the states
through the Fourteenth Amendment. Ratliff v. State, 770 N.E.2d 807, 809 (Ind.
2002).
[12] In Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980),
the United States Supreme Court addressed the circumstances under which an
officer may enter a person’s dwelling to make an arrest. The Court noted that
searches and seizures without a warrant are presumptively unreasonable, and
“absent exigent circumstances,” officers may not enter a dwelling without a
warrant. Id. at 590, 100 S. Ct. at 1382. By contrast, for purposes of the Fourth
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Amendment, “an arrest warrant founded on probable cause implicitly carries
with it the limited authority to enter a dwelling in which the suspect lives when
there is reason to believe the suspect is within.” Id. at 603, 100 S. Ct. at 1388.
An Indiana statute provides that an officer who is serving an arrest warrant
“may break open any outer or inner door or window in order to execute an
arrest warrant, if the officer is not admitted following an announcement of the
officer’s authority and purpose.” Ind. Code § 35-33-2-3 (2011).
[13] In Duran v. State, 930 N.E.2d 10 (Ind. 2010), officers attempted to execute a
warrant to arrest Hernandez, but they mistakenly entered Duran’s apartment
rather than Hernandez’s apartment. Once inside, they saw evidence of a drug
dealing operation and arrested Duran. Duran claimed the officers’ entry
violated his Fourth Amendment rights. The Indiana Supreme Court
determined that, pursuant to the holding in Payton, officers must have a
reasonable belief that the dwelling is the residence of the subject of the warrant
and that the subject is present at the time the officers attempt to enter on
authority of an arrest warrant. The officers’ belief that Hernandez was in
Duran’s apartment was unreasonable because their belief was based entirely on
statements by an anonymous man outside the building who may not have had
any connection to the building. The officers’ entry violated Duran’s Fourth
Amendment protections.
[14] By contrast, in Carpenter v. State, 974 N.E.2d 569 (Ind. Ct. App. 2012), trans.
denied, an officer arrived at Carpenter’s house with an arrest warrant for
Howard. Another officer had told the first officer that Howard lived at that
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address, but Howard had not lived there for several years. When the arresting
officer and his colleagues approached Carpenter’s house, there were cars in the
driveway and lights were on. An officer looked in a window and saw
Carpenter placing items in a toilet. Items used to manufacture
methamphetamine were also visible. The officers obtained a search warrant
and arrested Carpenter.
[15] Carpenter claimed the officers had no reason to approach his house because
Howard was not present. A panel of this Court concluded the information the
first officer received from another officer, plus the presence of cars in the
driveway and lights on in the house, provided a reasonable belief that the house
was Howard’s residence and that he was home. The officers did not violate
Carpenter’s Fourth Amendment rights by approaching the house and looking in
the window.
[16] In Stickrod’s case, Officer Leroux and several other officers arrived at a house
in Lafayette, Indiana on the evening of December 17, 2016. Stickrod’s mother
owned the house, but Officer Leroux knew Stickrod lived there because he had
arrested Stickrod at that address a few weeks prior to the incident at issue.
Officer Leroux was there to execute warrants that had been issued by a
magistrate in two probation revocation cases. One case involved misdemeanor
charges and the other involved a felony and several misdemeanors. Both
warrants commanded officers to arrest Stickrod for failure to appear in court
and to hold him without bond.
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[17] A light was on in Stickrod’s bedroom. Officer Leroux knew which bedroom
Stickrod used because, during the last time he arrested Stickrod, Stickrod’s
mother had allowed Officer Leroux to enter the house and had shown him the
room in which Stickrod slept. Officer Leroux knocked on the door repeatedly,
but no one answered. He asked dispatch operators to call the home’s number,
and eventually Caliz answered the door. Caliz said that Stickrod was not
home, but she had previously lied to Officer Leroux about Stickrod’s
whereabouts. As they talked, Officer Leroux heard a “thud” coming from the
attached garage. Tr. Vol. 2, p. 147. During the prior arrest, Leroux had found
Stickrod hiding in the attic of the house’s garage.
[18] Caliz agreed to allow the officers to enter the house, but the officers hesitated
because they did not believe her consent was valid. Officer Leroux called a
prosecutor to ask for a search warrant, but the prosecutor advised that a warrant
was unnecessary. Several officers entered the house and found Stickrod hiding
in a gun safe in the garage. The officers discovered contraband on Stickrod’s
person during a search incident to arrest.
[19] We conclude the facts of this case more closely resemble the circumstances of
Carpenter than the facts of Duran. Officer Leroux’s visit to the house only a few
weeks prior to the incident at issue provided ample reason to believe that
Stickrod lived there. In addition, based on Officer Leroux’s observations on the
evening of December 17, 2016, he had ample reason to believe that Stickrod
was present in that house on that night.
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[20] Stickrod argues the officers lacked the authority to enter the house because the
warrants were not true arrest warrants. He compares the warrants to the writ
that was at issue in Casselman v. State, 472 N.E.2d 1310 (Ind. Ct. App. 1985). In
that case, Casselman was a defendant in a civil lawsuit brought by a creditor.
He twice failed to appear for court hearings, believing that he did not need to
attend because he had filed for bankruptcy and an automatic stay was in effect.
No one had informed the court in the civil case about the stay, and after
Casselman twice failed to appear the court issued a writ of attachment, ordering
the sheriff to take him into custody.
[21] An officer arrived at Casselman’s house. Casselman answered the door, and
the officer told him he had a body attachment “from the corporation” and that
Casselman needed to come with him. Id. at 1312. The officer further stated
Casselman could pay a “thousand dollars bond.” Id. Casselman refused to go
with the officer and retreated into his house. The officer followed Casselman
into the house and took him into custody. Casselman was convicted of
resisting law enforcement, and he appealed.
[22] A panel of this Court concluded the writ of attachment was “not a criminal
arrest warrant” and the officer “could not claim the right to exercise the powers
associated with the service of such a warrant.” 472 N.E.2d at 1312. The Court
further determined the officer “was not lawfully engaged in the execution of
civil process when . . . he prevented Casselman from closing the door to his
home.” Id. at 1314. Casselman had the right to close his door, and as a result
he could not be convicted of resisting law enforcement.
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[23] The holding in Casselman does not govern here. Casselman was a defendant in
a civil suit, but Stickrod was on probation in two criminal cases when he failed
to appear in court. The magistrate issued two “Bench Warrants” ordering the
sheriff of Tippecanoe County to “arrest” Stickrod and hold him without bond
pending the resolution of the criminal cases. Tr. Ex. Vol., State’s Exhibits 11
and 12. By contrast, in Casselman’s case the court issued a writ of attachment,
and he had the option of paying a bond. The Bench Warrants in Stickrod’s case
were criminal arrest warrants. In addition, in Casselman the key issue was
whether Casselman could resist the officer’s entry into his home. By contrast,
the offense of resisting law enforcement is not at issue in Stickrod’s case. We
conclude the officers’ entry into Stickrod’s house did not violate the Fourth
Amendment, and the trial court did not err in admitting evidence the officers
discovered on Stickrod’s person after entering the house.
II. Right to Present a Defense
[24] Stickrod claims the trial court deprived him of his Sixth Amendment right to
present a defense by barring Caliz from testifying. The State argues Stickrod
has waived this claim for appellate review because: (1) he did not present the
Sixth Amendment claim to the trial court; and (2) he did not present an offer of
proof describing the substance of Caliz’s testimony. After reviewing the record,
we conclude Stickrod adequately informed the trial court that his right to
present a defense was at issue, and he adequately described Caliz’s proposed
testimony. We reject the State’s waiver claim and turn to the merits.
[25] The Sixth Amendment provides:
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In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
[26] The Sixth Amendment right to present witnesses in one’s defense applies to the
states through the Due Process Clause of the Fourteenth Amendment.
Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019(1967). “Just as an accused has the right to confront the prosecution’s witnesses
for the purpose of challenging their testimony, he has the right to present his
own witnesses to establish a defense. This right is a fundamental element of
due process of law.” Id. at 19, 87 S. Ct. at 1923.
[27] The right to present witnesses in one’s defense is not unlimited, but rather is
subject to “reasonable restrictions” designed to accommodate other legitimate
interests in the criminal trial process. U.S. v. Scheffer, 523 U.S. 303, 308, 118 S.
Ct. 1261, 1264, 140 L. Ed. 2d 413 (1998). As a result, “the accused, as is
required of the State, must comply with established rules of procedure and
evidence designed to ensure both fairness and reliability in the ascertainment of
guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038,
1049, 35 L. Ed. 2d 297 (1973). A rule of procedure or evidence violates the
Sixth Amendment when it infringes upon an accused’s “weighty” interests and
is disproportionate to the purposes that it is designed to serve. Holmes v. South
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Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731, 164 L. Ed. 2d 503 (2006)
(quotation omitted).
[28] An accused “does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard rules of
evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653, 98 L. Ed.
2d. 798 (1988). “[T]here is no right whatever—constitutional or otherwise—for
a defendant to use false evidence.” Nix v. Whiteside, 475 U.S. 157, 173, 106 S.
Ct. 988, 997, 89 L. Ed. 2d 123 (1986).
[29] In the current case, after the State rested, the trial court and the parties held a
conference outside the presence of the jury. Stickrod’s attorney told the court:
Judge I know I approached before with the possibility of some
ethical obligations. I just wanted to put that and make sure it
was on the record and if Mr. Stickrod believes that it’s an
ineffective assistance kind of argument that at least it is on the
record for appeal purposes or PCR purpose [sic] but I think my
ethical obligations judge is [sic] that I cannot call Mr. Stickrod’s
girlfriend and I believe that and obviously as an officer of the
court that I cannot support any kind of perjury or what I would
feel possible falsehood judge so that would be my position just
for the record in case there is an issue with ineffective judge.
Tr. Vol. 2, p. 154.
[30] Stickrod objected to his attorney’s statement, claiming Caliz’s testimony was
“imperative for [his] defense” because she would testify that he had been asleep
when the officers arrived and that he did not have anything on his person, such
as contraband, at the time of his arrest. Id. at 156. Stickrod asked the court to
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discharge his counsel, accusing counsel of raising the ethical issue for the first
time at trial. In response, Stickrod’s attorney told the court, “I have explained
this to him, I am not risking my law license or anything else on something that I
think is unethical and I am not going to call her nor did I plan to call her ever
when she came and first met with me.” Id. at 159. The court denied Stickrod’s
4
request to fire his attorney and his request to present Caliz’s testimony.
[31] We conclude that the trial court did not err in barring Caliz from testifying.
Preventing the presentation of perjured testimony on the stand is a legitimate
and substantial interest, and excluding Caliz’s testimony was not
disproportionate to that interest. See Makiel v. Butler, 782 F.3d 882, 910 (7th Cir.
2015) (no error in rejection of habeas corpus petition based on claim of unfair
exclusion of witness’s testimony; evidence indicated the testimony was false).
[32] Stickrod argues his attorney failed to explain why he thought Caliz would lie on
the stand. The attorney’s statement to the court that he believed Caliz would
perjure herself on the stand was a sufficient basis upon which to exclude her
testimony. Whether counsel was incorrect in his belief, or failed to render
effective assistance, are matters for post-conviction proceedings.
4
The trial court further stated while excluding Caliz’s testimony that she had violated the court’s order
mandating separation of witnesses by remaining in the courtroom during the trial. We need not address this
issue, but the record demonstrates that the court granted the State’s motion to separate witnesses at the
beginning of the trial. Tr. Vol. 2, p. 59. Further, Stickrod does not challenge the trial court’s denial of his pro
se request to discharge counsel.
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III. Double Jeopardy
[33] Stickrod argues his convictions for possession of methamphetamine as Level 5
and Level 6 felonies violate his federal constitutional protection against double
jeopardy, and that the court’s merger of the counts at sentencing failed to
correct the problem. We agree.
[34] A double jeopardy violation occurs when judgments of conviction are entered
for the same criminal act and cannot be remedied by the “practical effect” of
concurrent sentences or by merger after conviction has been entered. West v.
State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014), trans. denied. A trial court’s act
of merging, without also vacating the conviction, is not sufficient to cure a
double jeopardy violation. Id. The State agrees that “a separate but merged
conviction for [a] lesser included offense cannot stand.” Appellee’s Br. p. 20.
[35] The jury determined Stickrod was guilty of possession of methamphetamine as
a Level 6 felony, and the trial court entered a “judgment of conviction” on that
count. Appellant’s App. Vol. II, p. 77. Later, after Stickrod pleaded guilty to
possession of methamphetamine as a Level 5 felony, the court entered another
judgment of conviction. The court imposed sentences for both convictions of
possession of methamphetamine but determined that the two counts would
“merge.” Id. at 10. The entry of judgments of convictions for both counts
violated double jeopardy, and merely merging the two convictions at sentencing
was insufficient to correct the violation. We reverse the conviction for
possession of methamphetamine as a Level 6 felony and remand with
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instructions to vacate that conviction. The conviction for possession of
methamphetamine as a Level 5 felony remains in effect.
Conclusion
[36] For the reasons stated above, we affirm the judgment of the trial court in part,
reverse in part, and remand with instructions.
[37] Affirmed in part, reversed in part, and remanded.
Bradford, J., and Pyle, J., concur.
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