Calvin Lowery v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 06 2019, 8:33 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Elizabeth A. Flynn Curtis T. Hill, Jr.
Braje, Nelson & Janes, LLP Attorney General of Indiana
Michigan City, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Calvin Lowery, September 6, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2991
v. Appeal from the LaPorte Superior
Court
State of Indiana, The Honorable Michael S.
Appellee-Plaintiff. Bergerson, Judge
Trial Court Cause No.
46D01-1712-F4-1185
Friedlander, Senior Judge.
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[1] Calvin Lowery appeals his conviction of dealing in cocaine or a narcotic drug
1
with a prior conviction, a Level 4 felony. He raises two issues: (1) whether the
trial court erred in granting the State’s motion to continue the trial; and (2)
whether there is sufficient evidence to sustain his conviction. We affirm.
[2] Brittany Becker was a heroin user. She purchased heroin from Todd Hunsley,
with whom she had gone to high school. Becker had been to Hunsley’s
apartment on many occasions. At the apartment, she met a man named “D.”
Tr. Vol. II, p. 45. Becker subsequently encountered D “at least thirty” times.
Id.
[3] On one occasion, Becker became seriously ill, and one of her friends overdosed,
after using heroin they had bought from Hunsley. As a result, Becker agreed to
work for the LaPorte County Drug Task Force (the Task Force) as a paid
confidential informant.
[4] On November 27, 2017, Becker contacted Hunsley by text or phone call at the
request of Task Force police officers. She and Hunsley agreed that she would
purchase heroin at Hunsley’s apartment later in the day. Next, the officers
searched Becker and gave her $40 in recorded buy money. They also hid a
camera on her person. The camera recorded audio and video and also
broadcast audio live to the officers.
1
Ind. Code § 35-48-4-1 (2017).
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[5] An officer drove Becker to Hunsley’s apartment and parked nearby. Other
officers watched Becker as she approached the apartment and knocked on the
door. The individual Becker knew as D answered the door and let her inside.
Hunsley was not present.
[6] Becker had intended to buy two baggies of heroin from Hunsley, but D told her
he had only one for sale. Becker gave D $20, and he gave her a green plastic
baggie containing a tan powdery substance. The substance was later submitted
to a state laboratory for testing, and it was determined to be .33 grams of heroin
and Benadryl.
[7] Meanwhile, Becker returned to the vehicle in which she had arrived.
Surveillance officers watched her walk from the apartment to the vehicle.
Becker gave the officers in the vehicle the green baggie and the unused $20.
They searched her and removed the camera. They also paid her $100, an
amount one officer later described as typical for an informant participating in a
controlled buy involving heroin. Corporal Francisco Rodriguez of the
Michigan City Police Department was one of the officers who monitored the
transaction. He later reviewed the camera’s recording.
[8] On December 7, 2017, a team of police officers, including Corporal Rodriguez,
executed a search warrant at Hunsley’s apartment. They found two men in the
apartment. One of the men, who was later identified as Lowery, was lying on a
makeshift bed in a large closet space. Corporal Rodriguez recognized Lowery
from the recording as the person who had sold heroin to Becker. Tr. Vol. I,
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State’s Ex. 8, at 8:38. In addition, officers found a wallet, which contained
Lowery’s Illinois identification card, near his bed.
[9] On December 12, 2017, an officer texted Becker a photographic lineup of six
unnamed persons. The lineup included a photograph of Lowery. The officer
asked Becker if any of the individuals was D, and she identified Lowery as D.
[10] Meanwhile, on December 8, 2017, the State charged Lowery with dealing in
cocaine or a narcotic drug as a Level 4 felony. On February 1, 2018, the trial
court scheduled a jury trial for May 21, 2018. On March 22, 2018, Lowery
filed a motion to continue the trial, which the court granted, rescheduling the
trial for June 18, 2018.
[11] On June 1, 2018, the State filed a motion to continue the trial pursuant to
Indiana Rule of Criminal Procedure 4(D), claiming that the state laboratory
needed more time to complete testing on the heroin. Lowery did not file a
response. Instead, on June 5, 2018, the court held a hearing on the State’s
motion, during which Lowery stated “he does not stipulate to that request for
an extension.” Tr. Vol. II, p. 4. The trial court granted the State’s motion,
rescheduling the trial for September 10, 2018.
[12] The court held a jury trial on September 10 and 11, 2018. Among other
evidence, the State presented testimony by Becker, who identified Lowery as
the person who sold heroin to her. The jury determined Lowery was guilty of
dealing in cocaine or a narcotic drug as a Level 5 felony. Outside the presence
of the jury, Lowery admitted that he had a prior qualifying conviction for
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dealing in a controlled substance, which enhanced his Level 5 felony conviction
to a Level 4 felony. On November 15, 2018, the court imposed a sentence, and
this appeal followed.
1. State’s Motion to Continue
[13] Lowery claims the trial court erred in granting the State’s motion to continue
the trial, arguing the State failed to provide valid grounds for an extension. In
response, the State claims Lowery waived this claim by failing to file a motion
for discharge, and that in the alternative, the extension was justified. We
disagree with the State as to waiver, concluding that Lowery’s refusal to agree
to the extension preserved the issue for appellate review.
[14] An accused’s right to a speedy trial is guaranteed by article I, section 12 of the
Indiana Constitution and by the Sixth Amendment to the United States
Constitution. State v. Lindauer, 105 N.E.3d 211 (Ind. Ct. App. 2018), trans.
denied. Indiana Criminal Rule 4 was adopted to implement the right to a
speedy trial. Id. The parties agree the State’s motion to continue is governed by
Indiana Criminal Rule 4(D), which provides:
If when application is made for discharge of a defendant under
this rule, the court be satisfied that there is evidence for the state,
which cannot then be had, that reasonable effort has been made
to procure the same and there is just ground to believe that such
evidence can be had within ninety (90) days, the cause may be
continued, and the prisoner remanded or admitted to bail; and if
he be not brought to trial by the state within such additional
ninety (90) days, he shall then be discharged.
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[15] The reasonableness of a continuance under Rule 4(D) is judged in the context
of the particular case, and the decision of the trial court will not be disturbed
except for an abuse of discretion. Smith v. State, 982 N.E.2d 393 (Ind. Ct. App.
2013), trans. denied. An abuse of discretion occurs if the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before the
court, or if the court has misinterpreted the law. Bryant v. State, 959 N.E.2d 315(Ind. Ct. App. 2011).
[16] In its June 1, 2018 motion for continuance, the State alleged it did not yet have
test results on the heroin from the state laboratory. The State further alleged
that a prosecutor had called the lab’s director on May 31, 2018 and learned that
due to a high caseload and a temporary staff shortage, the lab was unlikely to
complete testing by the June 18, 2018 trial date. In addition, the State claimed
the lab results were necessary to prove the case against Lowery, and the test
results could be obtained within ninety days.
[17] During the June 5, 2018 hearing, the prosecutor reiterated that she had called
the lab’s director, who had told her that she could not get the test results back in
time for the June 18, 2018 trial date due to a staff shortage. The prosecutor
further stated she filed the motion to continue the next day. Upon questioning
by the trial judge, the prosecutor stated that the test results would be crucial to
the case. Lowery, who was represented by counsel, did not ask any questions
about the lab testing process or the date when the State had submitted the
heroin for testing. In a pro se statement, Lowery complained that he had been
incarcerated for seven months.
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[18] Lowery argues the trial court did not sufficiently inquire into the reasonableness
of the State’s efforts, but the State presented evidence that it had reached out to
the lab’s director and further sought an extension immediately upon learning of
a problem, several weeks prior to trial. This evidence is sufficient to meet the
requirements of Rule 4(D), and the trial court’s decision was not clearly against
the logic and effect of the facts and circumstances. See Wilhelmus v. State, 824
N.E.2d 405 (Ind. Ct. App. 2005) (no abuse of discretion in granting Rule 4(D)
motion; among other unavailable evidence, the lab needed more time to decrypt
computer files); cf. Small v. State, 112 N.E.3d 738 (Ind. Ct. App. 2018) (State
failed to demonstrate reasonable efforts to obtain test results; State erroneously
delayed obtaining defendant’s DNA sample after trial court granted request to
take sample), trans. denied.
[19] Next, Lowery notes that at trial, the State presented testimony from Officer
Anthony McClintock, who had transported the heroin to the lab. Officer
McClintock testified that he had transported the heroin to the lab on June 4,
2018, after the State filed the motion to continue the trial but before the hearing
on the motion. Lowery argues that the State’s delay in transporting the heroin
to the lab was unreasonable because the State could have done so at any time in
the prior seven months. In effect, Lowery is citing evidence discovered at trial
to relitigate the State’s motion for an extension under Rule 4(D). But he did not
object to the delay or otherwise raise this issue during trial, such as by
requesting exclusion of the test results, during or after Officer McClintock’s
testimony. Lowery’s failure to raise the issue at trial results in waiver on
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appeal. See Lenoir v. State, 515 N.E.2d 529 (Ind. 1987) (failure to object to in-
court identification at trial waived issue for appellate review, even though the
court had addressed the same issue prior to trial).
[20] Lowery additionally claims the trial court erred because Indiana Criminal Rule
4(A) requires that if a defendant is held for more than six months without trial,
the defendant must be released from incarceration, and in this case the trial was
not held within the six-month deadline specified by Rule 4(A). Lowery never
objected to his continued detention, and he at best “lost only the right to be
released until trial.” Mills v. State, 512 N.E.2d 846, 850 (Ind. 1987). His claim
is now moot. See id. (determining claim under Rule 4(A) was moot after trial).
[21] Finally, Lowery also argues he should have been discharged because he was not
tried within the ninety-day period set forth in Rule 4(D). When the trial court
granted the motion for an extension of time on June 5, 2018, the court
rescheduled the trial for September 10, 2018, ninety-seven days later. Lowery
neither objected to the new trial date nor filed a motion to discharge. As a
result, this aspect of his Rule 4(D) claim is procedurally defaulted. See Dean v.
State, 901 N.E.2d 648 (Ind. Ct. App. 2009) (defendant must object to a trial date
set after a Criminal Rule 4 deadline and move for discharge or waive the claim),
trans. denied.
2. Sufficiency of the Evidence
[22] Lowery claims the State failed to provide sufficient evidence to prove that he
was the person who sold heroin to Becker on November 27, 2017. The State
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responds that Becker’s identification of Lowery was reliable and based on
numerous prior interactions with him.
[23] The standard of review for sufficiency of evidence claims is well-established:
On appeal, this Court does not reweigh the evidence nor judge
the credibility of the witnesses, but instead looks to the evidence
most favorable to the verdict and to all the reasonable inferences
to be drawn therefrom. In other words, we will affirm the
conviction if the admitted evidence contains adequate probative
value from which the jury could infer guilt beyond a reasonable
doubt.
Toney v. State, 715 N.E.2d 367, 368-69 (Ind. 1999).
[24] In order to obtain a conviction of Level 4 felony dealing in cocaine or a narcotic
drug as charged, the State was required to prove beyond a reasonable doubt
that: 1) Lowery 2) knowingly or intentionally 3) delivered 4) heroin 5) in an
amount less than one gram 6) with a prior similar conviction. Ind. Code § 35-
48-4-1.
[25] Becker testified that she had been to Hunsley’s apartment on numerous
occasions and that, at the apartment, she met an individual who went by the
name D. Becker further testified that she had seen D thirty times prior to
November 27, 2017. In addition, after the controlled buy she identified Lowery
as D in a photographic lineup, and she again identified Lowery as D at trial.
Further, Corporal Rodriguez reviewed the camera recording of the controlled
buy, and when he entered Hunsley’s apartment on December 7, 2017, he
recognized Lowery as the person who had sold heroin to Becker. This evidence
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is sufficient to establish beyond a reasonable doubt that Lowery delivered
heroin to Becker.
[26] Lowery argues that Becker’s testimony should have been disregarded because it
2
was “inherently unreliable” and “simply not believable.” Appellant’s Br. p. 18.
Lowery points to discrepancies between her trial testimony and her deposition.
He further notes Becker is a convicted felon, and she had a grudge against
Hunsley because he sold heroin that harmed her and her friend. Finally,
Lowery notes the police paid Becker $100 for participating in the controlled
buy. Lowery’s arguments amount to a request to reweigh the evidence, which
contravenes our standard of review. The jury was informed of each of the
points Lowery raises here, and members of the jury were free to make their own
decisions about Becker’s credibility. See Bowman v. State, 51 N.E.3d 1174 (Ind.
2016) (evidence sufficient to support conviction for dealing in heroin;
eyewitness identified Bowman as the dealer, and jury was informed of possible
defects in the eyewitness’s credibility).
[27] For the reasons stated above, we affirm the judgment of the trial court.
[28] Judgment affirmed.
2
Lowery does not claim that the incredible dubiosity doctrine bars Becker’s testimony. That doctrine
provides that testimony should not be admitted when there is: 1) a sole testifying witness 2) testimony that is
inherently contradictory, equivocal, or the result of coercion, and 3) a complete absence of circumstantial
evidence. Moore v. State, 27 N.E.3d 749 (Ind. 2015).
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Bailey, J., concurs
Kirsch, J., dissents with opinion.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2991 | September 6, 2019 Page 11 of 13
IN THE
COURT OF APPEALS OF INDIANA
Calvin Lowery,
Appellant-Defendant,
September 6, 2019
v.
Court of Appeals Case No.
18A-CR-2991
State of Indiana,
Appellee-Plaintiff.
Kirsch, Judge, dissenting.
[29] I respectfully dissent.
[30] On June 1, 2018, the State filed a Verified Motion to Continue the trial date
alleging that the State was not in possession of the lab results regarding the
narcotics alleged to have been sold by the defendant Calvin Lowery. In its
motion, the State alleged that the Indiana State Police Lab was unable to
complete testing by the time of the June 18, 2018 trial, and the State would be
unable to proceed without said results.
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[31] Lowery was denied his right to a speedy trial due to the failure of the State to
process the evidence in a timely fashion. That failure was compounded by the
State’s lack of candor to the trial court. The State provided no information as
to when the State provided the evidence to the lab for testing or regarding the
State’s efforts to procure the evidence before requesting a continuance, and the
trial court never inquired to determine if the State’s conduct was reasonable.
[32] Lowery had been in custody since December 7, 2018, providing the State with
ample time to have obtained the lab results. The State did not transport the
narcotics to the state lab for testing until June 4, 2018, which was three days
after the State’s motion was filed, one day before the hearing on the State’s
motion, and nearly six months since Lowery’s incarceration.
[33] Lowery’s trial commenced on September 10, 2018, which was in excess of six
months, specifically 206 days, from the date the criminal charge was brought
against Lowery. For its unjustified delay in seeking testing of the narcotics and
its lack of candor to the trial court, I would remand with instructions to vacate
Lowery’s conviction and dismiss the charge against him.
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