Michael Shanklin v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Jun 16 2015, 10:02 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ginny Maxwell Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Shanklin, June 16, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1409-CR-601
v. Appeal from the Marion Superior
Court.
The Honorable Steven R. Eichholtz,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 49G20-1210-FA-73615
Darden, Senior Judge
Statement of the Case
[1] Michael Shanklin appeals from his conviction of five counts of dealing in
cocaine or a narcotic drug, two counts as Class A felonies and three counts as
Class B felonies, all pursuant to Indiana Code section 35-48-4-1 (2006), and one
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count of possession of marijuana, hash oil, or hashish, a Class A misdemeanor,
Indiana Code section 35-48-4-11(1) (2012). We affirm.
Issues
[2] Shanklin presents two issues for our review, which we restate as:
I. Whether the trial court’s admission of audio recordings of
phone calls and conversations between Shanklin and a
confidential informant violated the Confrontation Clause.
II. Whether destroyed evidence was materially exculpatory
such that its absence from trial violated Shanklin’s due
process rights.
Facts and Procedural History
[3] On three different occasions in October 2012, Shanklin sold cocaine to a
confidential informant (CI) who was working with Detective Dings of the
Metropolitan Drug Task Force. On October 2, 2012, Detective Dings made a
photocopy of buy money and searched the CI and her vehicle for money, drugs,
and weapons. Finding none of these things, Detective Dings equipped the CI
with the buy money and an audio recording device. The device was activated,
and the CI made a call on her cell phone to Shanklin to arrange a meeting.
With Detective Dings following, the CI drove her vehicle to meet Shanklin.
While Detective Dings watched from his vehicle, the CI exited her vehicle and
entered Shanklin’s vehicle. The CI then returned to her vehicle and Detective
Dings followed her to a meeting place. When they met, the CI gave Detective
Dings a bag containing a substance that appeared to be and was later identified
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as cocaine. Detective Dings then retrieved the audio recording device and
again searched the CI.
[4] On October 9 and October 23, 2012, Detective Dings, working with the same
CI, followed the same protocols that were observed during the buy on October
2. On both occasions, the CI called Shanklin and made arrangements to meet
him while recording the phone call on the audio recording device. On October
9, Detective Dings observed the CI park her vehicle directly behind the same
vehicle that was involved in the buy on October 2. The CI exited her vehicle
and went to stand next to Shanklin’s vehicle. Upon completing the buy, the CI
met up with Detective Dings and produced a bag of a substance later identified
as cocaine. On October 23, Detective Young rode with the CI, and Detective
Dings followed and observed. Detective Dings observed Detective Young and
the CI park behind a vehicle. The CI exited her vehicle and sat in the front
passenger seat of the other vehicle. When the CI returned to her vehicle, she
handed Detective Young a bag containing a substance later identified as
cocaine. During the buys, additional officers performed surveillance and
recorded video of Shanklin.
[5] On October 24, 2012, Detective Dings again had the CI call Shanklin to make
arrangements to buy cocaine. A location for the buy was arranged, but before
the buy occurred, Shanklin drove away from the location. Officers assisting
with surveillance of the buy stopped Shanklin’s vehicle because the license plate
on the vehicle was registered to another car and the window tint was too dark.
Upon stopping the vehicle and arresting Shanklin, the officers searched
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Shanklin and found money from one of the previous controlled buys.
Shanklin’s wife, who was also present in the car, was searched as well. From
that search the police recovered from between her buttocks a bag that contained
a substance later identified as cocaine.
[6] A search warrant was then executed on Shanklin’s residence, and drugs and
drug paraphernalia were found and seized. In addition, in the residence the
officers located more of the buy money that was used in one of the controlled
buys. Based upon these occurrences, Shanklin was charged with two counts of
dealing in cocaine as Class A felonies, two counts of possession of cocaine as
Class C felonies, three counts of dealing in cocaine as Class B felonies, three
counts of possession of cocaine as Class D felonies, and one count of possession
of marijuana as a Class A misdemeanor. At trial, the CI did not testify, but
audio recordings of the phone calls and the controlled buys were introduced
into evidence over defense counsel’s objection. In addition, although the State
introduced photographs of the drugs and drug paraphernalia that were seized
from Shanklin’s residence, it did not introduce the actual drugs and related
items because they had been inadvertently destroyed prior to trial. Shanklin
was found guilty on all eleven counts but, due to the merger of several of the
counts, judgment of conviction was entered only on two counts of dealing in
cocaine or a narcotic drug, as Class A felonies; three counts of dealing in
cocaine or a narcotic drug, as Class B felonies; and one count of possession of
marijuana, hash oil, or hashish, a Class A misdemeanor; and sentenced to an
aggregate sentence of thirty years.
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Discussion and Decision
I. Confrontation Clause
[7] Shanklin first contends that his federal and state constitutional rights to
confront and cross-examine the witnesses against him were violated when the
1
trial court admitted audio recordings of phone calls and controlled drug buys
between himself and the CI because the CI did not testify at trial. The
admissibility of evidence is within the sound discretion of the trial court, and we
will not disturb the decision of the trial court absent a showing of abuse of that
discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse
of discretion occurs when the trial court’s decision is clearly against the logic
and effect of the facts and circumstances before the court. Id.
[8] Here, we pause to note that although Shanklin claims a violation of his rights
under both the Sixth Amendment of the United States Constitution and article
I, section 13 of the Indiana Constitution, he presents no authority or
independent analysis supporting a separate standard under the state
constitution. Therefore, Shanklin has waived any state constitutional claim.
See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002).
1
Exhibit 1 is a DVD containing the audio recordings of phone calls and conversations during drug buys
between the CI and Shanklin. The DVD also contains video and still photographs taken by the officers
performing surveillance. Shanklin only objected to and claims error with the admission of the portions of
Exhibit 1 that contain the recorded phone calls and conversations between himself and the CI.
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[9] The Confrontation Clause of the Sixth Amendment to the United States
Constitution prohibits the admission of an out-of-court statement if it is
testimonial, the declarant is unavailable, and the defendant had no prior
opportunity to cross-examine the declarant. Thornton v. State, 25 N.E.3d 800,
803 (Ind. Ct. App. 2015). Testimonial statements include: (1) ex parte in-court
testimony or its functional equivalent such as affidavits, custodial examinations,
prior testimony that the defendant was unable to cross-examine, or similar pre-
trial statements that declarants would reasonably expect to be used
prosecutorially; (2) extra-judicial statements contained in formalized
testimonial materials such as affidavits, depositions, prior testimony, or
confessions; and (3) statements that were made under circumstances that would
lead an objective witness reasonably to believe that the statement would be
available for use at a later trial. Williams v. State, 930 N.E.2d 602, 607 (Ind. Ct.
App. 2010), trans. denied. However, the Confrontation Clause does not bar the
use of testimonial statements for non-hearsay purposes, i.e., for purposes other
than establishing the truth of the matter asserted. Id. at 607-08, n.3; cf. Ind.
Evidence Rule 801(c) (defining hearsay as an out-of-court statement offered to
prove the truth of the matter asserted). In summary, if a statement is either
non-testimonial or non-hearsay, the Confrontation Clause does not prohibit its
admission at trial. Williams, 930 N.E.2d at 607-08.
[10] Here, the trial court admitted the audio recordings of the phone calls and the
conversations during the controlled drug buys between the CI and Shanklin.
These recordings of the CI’s statements did not constitute hearsay because they
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were not offered for the truth of the matter asserted by the CI. The CI’s
recorded statements merely provided context for Shanklin’s statements and
involvement. Statements that provide context for other admissible statements
are not hearsay because they are not offered for their truth. Id. at 609 (quoting
U.S. v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006), cert. denied, 549 U.S. 1149, 127
S. Ct. 1019, 166 L. Ed. 2d 768 (2007)). Having determined that the CI’s
statements contained in the audio recordings were not hearsay, we hold that the
admission of the recordings was not barred by the Confrontation Clause, and
we thus conclude that the trial court did not abuse its discretion in admitting the
audio recordings at Shanklin’s trial. See, e.g., Vaughn v. State, 13 N.E.3d 873,
880 (Ind. Ct. App. 2014) (holding that trial court’s admission of audio
recordings of telephone calls between CI and defendant to discuss meeting
place for controlled drug buys did not violate defendant’s right to confront
witnesses because recordings were not offered for truth of matter asserted and
therefore did not constitute hearsay), trans. denied; Williams, 930 N.E.2d at 609
(holding that statements of CI, recorded in course of controlled drug buys, were
non-hearsay and thus trial court’s admission of statements did not violate
defendant’s right to confront witnesses because statements were not offered to
prove truth of CI’s statements but rather provided context for defendant’s
statements); and Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010)
(holding no error occurred in admission of audio recordings of conversations
between defendant and CI during drug transactions; conversations contained
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drug-dealing terminology and CI’s statements were not introduced for truth of
2
matter asserted and therefore were not hearsay), trans. denied.
II. Due Process Rights
[11] Although Shanklin labels his second claim as a sufficiency of the evidence
issue, his assertions demonstrate otherwise. First, Shanklin contends that his
inability to confront and cross-examine the CI at trial caused the evidence
against him to be insufficient. He provides no further argument to support this
contention, and it appears that this is merely an attempt to relitigate the matter
already determined in Issue I. Furthermore, Shanklin does not assert that he
requested of the State or sought an order from the court that the CI be made
available for an interview deposition. Having determined that the admission of
the recordings of phone conversations and drug buys between Shanklin and the
CI was not barred by the Confrontation Clause, we decline to address the issue
any further.
[12] With regard to Shanklin’s final contention, he seems to assert that he was
harmed by the absence at trial of the drugs and drug paraphernalia that were
seized from his residence during the execution of the search warrant on October
24, 2012. Again, he provides no argument to support this allegation.
2
In his brief, Shanklin argues that his right to confront the witnesses against him was violated in part because
he was improperly forced to choose between acquiring the identity of the CI and engaging in plea bargaining
with the State. His argument fails. A criminal defendant has no constitutional right to engage in plea
bargaining, and the State has no duty to plea bargain. Bethea v. State, 983 N.E.2d 1134, 1144 (Ind. 2013).
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[13] To determine whether a defendant’s due process rights have been violated by
the State’s failure to preserve evidence, we must first decide whether the
evidence in question is potentially useful evidence or materially exculpatory
evidence. State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010). Evidence
is potentially useful if no more can be said than that it could have been
subjected to testing, the results of which might have exonerated the defendant.
Blanchard v. State, 802 N.E.2d 14, 26 (Ind. Ct. App. 2004). The State’s failure to
preserve potentially useful evidence does not constitute a violation of due
process rights unless the defendant shows bad faith on the part of law
enforcement. Id. at 26-27. On the other hand, materially exculpatory evidence
is that evidence which possesses an exculpatory value that was apparent before
the evidence was destroyed and which is of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available
means. Id. at 27. Failure to preserve materially exculpatory evidence violates
due process regardless of whether the State acted in good or bad faith. Durrett,
923 N.E.2d at 453.
[14] At the time the search warrant was executed upon Shanklin’s residence on
October 24, 2012, the officers seized substances they believed to be drugs in
addition to drug paraphernalia. The items that were seized from Shanklin’s
home were stored in the police evidence room to be kept until trial. At some
point, the items that were seized from Shanklin’s home were mistakenly
destroyed. However, prior to being destroyed, these items had been
photographed and had undergone laboratory testing. At the final pre-trial
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conference on July 14, 2014, the State informed the trial court that the items
had been mistakenly destroyed and that it had informed defense counsel of this
fact in January or February 2014. At the pre-trial conference, defense counsel
sought exclusion of the photographs and lab reports concerning the destroyed
items. After a hearing, the trial court denied defense counsel’s motion to
exclude the photographs and lab reports because it determined the destruction
of the items was “inadverten[t]” and “not by intentional acts or bad faith of the
police department.” Tr. p. 22.
[15] At trial, the State introduced the photographs of the destroyed items. The
photographs depicted different substances alleged to be drugs as well as a
marijuana pipe, rubber gloves, a pan, a Pyrex measuring cup containing white
residue, and sandwich baggies. The trial court admitted the photographs over
defense counsel’s objection. The State then presented testimony about the use
of the kitchen items that were depicted in the photographs in the crack cocaine-
making process. Additionally, the State presented testimony and introduced
the lab report of a forensic drug chemist who tested the substances. The
chemist testified that he performed the testing on the substances on October 25,
2012, the day after the items were seized, and that the testing revealed the
substances to be marijuana and cocaine, and the same was admitted as
evidence.
[16] As to whether the destroyed items were either materially exculpatory or
potentially useful, Shanklin makes no assertion and provides no argument in
support. Upon review, we find no exculpatory value in the destroyed items.
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Accordingly, at most, the items might have been potentially useful. However,
Shanklin makes no showing of bad faith on the part of the State, and in fact
states in his brief that “[t]here is no assertion by Michael Shanklin that the
destruction by IMPD was in bad faith.” Appellant’s Br. p. 10. Thus, having
found no bad faith on the part of the State, we conclude that the absence of the
items did not violate Shanklin’s due process rights, and it was a matter of
weight to be determined by the jury. See Durrett, 923 N.E.2d at 453-54 (finding
no violation of defendant’s due process rights where there was no apparent
exculpatory value to a van not preserved for trial, no evidence of State’s bad
faith, and available photographs depicting damage to van were comparable
evidence that defendant had failed to establish were insufficient).
Conclusion
[17] For the reasons stated, we conclude that the trial court’s admission of the audio
recordings between Shanklin and the CI did not violate Shanklin’s rights under
the Confrontation Clause. In addition, the absence of the destroyed items at
trial did not violate Shanklin’s due process rights.
[18] Affirmed.
[19] Riley, J., and Crone, J., concur.
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