Samtwan Hobby v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 04 2020, 9:24 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Ellen M. O’Connor Josiah Swinney
Marion County Public Defender Agency Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Samtwan Hobby, June 4, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-765
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Richard
Appellee-Plaintiff Hagenmaier, Commissioner
Trial Court Cause No.
49G21-1709-F4-33069
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020 Page 1 of 9
[1] Samtwan Hobby appeals his convictions for one count of Level 4 felony dealing
in cocaine 1 and two counts of Level 5 felony dealing in cocaine. 2 He raises one
issue on appeal, which we restate as whether the trial court abused its discretion
when it limited the questions Hobby could ask witnesses regarding a corrective
action request and a forensic scientist’s resignation from the Indianapolis-
Marion County Forensic Services Agency (“Crime Lab”). We affirm.
Facts and Procedural History
[2] In the summer of 2017, Todd Bevington, a special agent with the United States
Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), was assigned
to the Indianapolis field office. The Indianapolis Metropolitan Police
Department (“IMPD”) asked Special Agent Bevington to assist them in a drug
investigation. The IMPD wished to have a confidential informant conduct
controlled buys of narcotics. However, the IMPD did not wish to use a local
informant because of concern that the informant’s safety would be jeopardized.
Bevington introduced the IMPD to R.E., 3 an informant from Virginia he had
used in the past.
1
Ind. Code § 35-48-4-1(c).
2
Ind. Code § 35-48-4-1(a).
3
We refer to the confidential informant by her initials because the State indicated at trial that she could
potentially be called as a witness in approximately ten open federal cases.
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[3] R.E. traveled to Indianapolis and participated in three controlled buy
operations where Hobby was the target. The first occurred on August 3, 2017,
the second on August 9, 2017, and the third on August 11, 2017. Each
controlled buy followed the same procedure. Before the buy, IMPD Sergeant
Gregory Kessie would search R.E. and her car to make sure R.E. did not have
any illegal drugs in her possession. Sergeant Kessie would then give R.E.
marked bills to use when she purchased narcotics. Sergeant Kessie also
equipped R.E. with a recording device prior to each buy, and officers surveilled
Hobby’s house during each buy. R.E. would drive to Hobby’s house. She
would go inside Hobby’s house and purchase cocaine from Hobby. After each
buy, R.E. would meet with Sergeant Kessie at a predetermined location, and
she would turn over the drugs to him. He would also search her and her vehicle
again. Sergeant Kessie would photograph the drugs and store them in heat-
sealed plastic envelopes until the Crime Lab took possession of them. Forensic
scientists at the Crime Lab tested the items, and their tests confirmed the
substances were cocaine.
[4] Police officers arrested Hobby on August 14, 2017. The State charged Hobby
with one count of Level 4 felony dealing in cocaine, three counts of Level 5
felony dealing in cocaine, three counts of Level 6 felony possession of cocaine, 4
4
Ind. Code § 35-48-4-6.
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and one count of Class B misdemeanor possession of marijuana. 5 The State
also alleged Hobby was eligible for an habitual offender enhancement. 6
[5] In discovery, the State produced a corrective action request (“CAR”) dated
November 2, 2017. The CAR stated that Matthew Whitt, a forensic scientist in
the Crime Lab, routinely failed to follow proper procedures when he analyzed
blood alcohol content samples. He adjusted an external control value by using
a technique outside of the lab’s standard operating procedure and he did not
document doing so in his lab reports. Whitt resigned from his position with the
Crime Lab shortly before the CAR was issued. Whitt was also the forensic
scientist who originally tested and confirmed that the substance R.E. bought in
the second controlled buy was cocaine. On February 14, 2019, Ryan Farrell,
another forensic scientist at the Crime Lab, retested the substance originally
tested by Whitt. The retest indicated that the substance was cocaine.
[6] Prior to trial, the State filed a motion in limine asking the court to prohibit
Hobby from asking any questions regarding the details of Whitt’s employment
with the Crime Lab and questions about the CAR. The trial court denied the
State’s motion stating, “I’m gonna allow the defense to inquire about [the
CAR]. If the [forensic scientists] don’t know about it, then they can just say I
don’t know.” (Tr. Vol. II at 37.) The court held a jury trial on February 21 and
5
Ind. Code § 35-48-4-11.
6
Ind. Code § 35-50-2-8.
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22, 2019. Prior to trial, the State dismissed the three possession of cocaine
charges, one of the Level 5 dealing in cocaine charges, and the Class B
misdemeanor possession of marijuana charge.
[7] During trial, forensic scientist Dustin Crawford testified that the Crime Lab
utilized a peer review process whereby a forensic scientist’s work was reviewed
and approved by another chemist before a formal report was generated. On
cross-examination, Hobby began to reference the CAR, and the State objected.
The court held a sidebar conference. At the conclusion of the conference, the
court stated, “Well, since it’s only an allegation (indiscernible) I’m going to
limine that out. So, I don’t want that brought into this case.” (Id. at 231.)
Hobby then requested to make an offer of proof outside the presence of the jury.
During the offer of proof, Crawford testified that he was aware Whitt resigned,
but he was not aware of the specifics surrounding his resignation.
[8] Hobby then attempted to ask Crawford questions regarding the CAR, but
Crawford indicated that he was not familiar with the CAR. The court
designated the CAR as Court’s Exhibit A and explained to the parties that the
jury would not be able to view the document:
I am ruling right now that, uh, this witness has no personal
knowledge of this from the, uh, Court’s Exhibit A . . . it does
appear that this involved, uh, blood alcohol content and, uh, I
just think it’s too remote. If you continue to question him and
get, uh, I don’t know, answers and I’m not sure then you’re
interjecting prejudicial evidence, uh, into the record through . . .
your own questions. That is my ruling.
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(Id. at 239.) The court further stated, “And my ruling right now is that you’re—
as far as this witness you’re, uh, this line of questioning is not going to be
allowed. It’s not relevant, it’s prejudicial (indiscernible).” (Id. at 240.) The
jury returned to the courtroom, and Hobby’s trial resumed.
[9] After Crawford finished testifying, Ryan Farrell testified that the substance R.E.
bought in the second controlled buy was originally tested by another forensic
scientist, and the forensic scientist who originally tested the substance no longer
worked at the Crime Lab. Hobby then asked if the forensic scientist who
originally tested the substance “resigned under suspicion[.]” (Tr. Vol. III at 2.)
The State objected, and the trial court sustained the State’s objection.
[10] The jury returned verdicts of guilty on the remaining charges against Hobby.
Hobby admitted that he qualified for the habitual offender enhancement. The
court imposed an enhanced sixteen-year sentence for the Level 4 felony dealing
in cocaine conviction, with eight years ordered to be served in the Indiana
Department of Correction, two years to be served in Community Corrections,
and six years suspended. The court also imposed six-year sentences for each of
the Level 5 felony dealing in cocaine convictions. The trial court ordered the
sentences to be served concurrently.
Discussion and Decision
[11] Hobby argues the trial court abused its discretion by limiting his questioning of
Crawford and Farrell about Whitt and the CAR. Hobby contends he should
Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020 Page 6 of 9
have been allowed to question the Crime Lab scientists about those topics
because “a chemist who would alter data and work outside of established
protocol on one type of testing could do the same on any category of analysis.”
(Appellant’s Br. at 13-14.) Further, Hobby argues such questioning would have
cast doubt on the effectiveness of the peer review process because the peer
review process did not timely catch Whitt’s errors.
[12] We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Blankenship v. State, 5 N.E.3d 779, 782 (Ind. Ct. App. 2014). “A
trial court abuses its discretion only if its decision is clearly against the logic and
effect of the facts and circumstances before the court.” Id. A criminal
defendant enjoys “the right to ask pointed and relevant questions in an attempt
to undermine the opposition’s case, as well as the opportunity to test a witness’
memory, perception, and truthfulness.” Howard v. State, 853 N.E.2d 461, 465
(Ind. 2006). Nonetheless, “[t]he trial judge has discretion to determine the
scope of cross-examination and only a clear abuse of that discretion warrants
reversal.” Carter v. State, 505 N.E.2d 798, 800 (Ind. 1987).
[13] The State argues the trial court properly curtailed Hobby’s cross-examination
related to Whitt and the CAR because such questions were not relevant and
were unfairly prejudicial. As we have explained before:
Evidence is relevant when it has any tendency to prove or
disprove a consequential fact. This liberal standard for relevancy
sets a low bar. The trial court enjoys wide discretion in deciding
whether that bar is cleared. Relevant evidence is admissible
unless any applicable rule or statute provides otherwise.
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Poortenga v. State, 99 N.E.3d 691, 695 (Ind. Ct. App. 2018) (internal citations
and quotation marks omitted). Additionally, Indiana Evidence Rule 403
provides that relevant evidence may be excluded “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Whitt did not testify at trial, and he played a
small role in the investigation. He tested only the substance R.E. bought in the
second transaction, not the substances she bought in the first and third
transactions.
[14] While the CAR indicates Whitt resigned following revelations about how he
analyzed blood alcohol content, the State did not present blood alcohol
evidence in Hobby’s case. Rather, the State was required to prove the
substance Hobby sold R.E. was cocaine. See Ind. Code § 35-48-4-1 (“A person
who knowingly or intentionally . . . delivers . . . cocaine or a narcotic drug . . .
commits dealing in cocaine or a narcotic drug[.]”). Farrell re-tested the
substance Whitt originally tested. Farrell determined the substance was cocaine
and testified at trial. The Crime Lab’s peer review process was only relevant to
the extent it shed light on the tests conducted by Crawford and Farrell, and the
court allowed Hobby to ask Farrell questions during cross-examination about
the Crime Lab’s peer review process. The alleged failure of the peer review
process to ferret out Whitt’s improper blood alcohol testing in other unrelated
cases was too remote to be relevant. See Hicks v. State, 690 N.E.2d 215, 220
(Ind. 1997) (“proffered evidence may be irrelevant because it is too remote”).
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[15] Also, Crawford testified during Hobby’s offer of proof that the instrument used
to determine blood alcohol content was different from the instrument used to
identify illicit substances and that the staff kept the instruments in separate parts
of the Crime Lab. Therefore, it would have been unfairly prejudicial to the
State if Hobby had asked questions implying Whitt did not follow proper
procedure in testing the suspected cocaine because Whitt did not follow proper
procedure in performing blood alcohol content tests. See Newland v. State, 126
N.E.3d 928, 932 (Ind. Ct. App. 2019) (holding court did not abuse its discretion
by not allowing defendant to cross-examine witness regarding the facts and
circumstances surrounding witness’s prior theft convictions).
Conclusion
[16] The trial court did not abuse its discretion in limiting Hobby’s questions about
Whitt and the CAR because such questions were not relevant to whether
Hobby sold cocaine to a confidential informant and would have unfairly
prejudiced the State. Therefore, we affirm.
[17] Affirmed.
Robb, J., and Vaidik, J., concur.
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