Robert Bowen v. State of Indiana

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
May 08 2013, 9:33 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK K. LEEMAN GREGORY F. ZOELLER
Logansport, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT BOWEN, )
)
Appellant-Defendant, )
)
vs. ) No. 08A04-1206-CR-305
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CARROLL SUPERIOR COURT
The Honorable Kurtis D. Fouts, Judge
Cause No. 08D01-1103-FD-20
May 8, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Robert Bowen (Bowen), appeals his conviction for Count I,
possession of a controlled substance, a Class D felony, Ind. Code § 35-48-4-7(a); and
Count II, possession of paraphernalia, a Class A misdemeanor, I.C. § 35-48-4-8.3(a)(1).
We affirm.
ISSUES
Bowen raises two issues for review, which we restate as the following:
(1) Whether the trial court abused its discretion by admitting evidence obtained
through execution of a search warrant; and
(2) Whether the trial judge committed error by failing to disqualify himself from
the proceedings due to judicial bias.
FACTS AND PROCEDURAL HISTORY
On March 21, 2011, Robert Glenn (Glenn) was stopped for driving on a
suspended license by Officer Shane Bernhardt (Officer Bernhardt) of the Delphi Police
Department. On that same day, both Glenn and Officer Bernhardt submitted their
affidavits in support of probable cause to search Bowen’s garage in Delphi, Indiana for
firearms and methamphetamine manufacturing precursors. In his affidavit, Glenn stated
that earlier in the day he had spoken to Bowen who told Glenn that he was hiding in his
garage because of an outstanding warrant for his arrest. Glenn had been in the garage the
previous week and saw a rifle and shotgun that Glenn had shot a month previously.
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Glenn stated that Bowen had manufactured methamphetamine in the past and that he saw
“empty Pyrex baking dishes, battery strips, and match strips” in the garage. (Motion to
Suppress Hearing, State’s Exh. 1). In his affidavit, Officer Bernhardt cited Glenn’s
affidavit as well as Bowen’s outstanding arrest warrant and prior searches of his property
that had resulted in seized guns, drugs, and stolen property.
That same day, the trial court issued a search warrant. Officer Bernhardt along
with other officers from the Delphi Police Department, Carroll County Sheriff’s Office,
and Indiana State Police went to Bowen’s garage to execute the search warrant. Carroll
County Sheriff’s Deputy Dennis Randle (Deputy Randle) knocked on the door of
Bowen’s garage and announced that police would enter if Bowen did not answer.
Officers heard movement inside the garage but they entered by force because Bowen did
not respond. Upon entry, Deputy Randle saw a clear jar with grayish white power inside.
He also found a gold smoking pipe that was later found with marijuana residue inside.
Police found approximately 80 white hydrocodone tablets, Bowen’s wallet, and a set of
digital scales. Bowen was later found hiding in a camper parked on the side of his
garage.
On March 22, 2011, the State filed an Information charging Bowen with Count I,
possession of a controlled substance, a Class D felony, I.C. § 35-48-4-7(a), and Count II,
possession of paraphernalia, a Class A misdemeanor, I.C. § 35-48-4-8.3(a)(1). On
August 12, 2011, Bowen filed a motion to suppress, arguing that the search warrant was
not supported by probable cause because it was based on stale information. On
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September 8, 2011, the trial court held a hearing on the motion, which it denied the
following day.
On January 17, 2012, a jury trial was held. Prior to voir dire, Bowen renewed his
motion to suppress, which the trial court denied. No further elaboration was given either
by the trial court or Bowen. Before it rested its case in chief, the State moved to admit
hydrocodone tablets and the smoking pipe seized from Bowen’s garage into evidence.
Bowen’s counsel did not object. Afterward, however, the trial court stated “[w]e’ll show
for the record [] continuing objection [] based on the pretrial motion that was filed.”
(Transcript p. 117). The jury later found Bowen guilty as charged.
On May 10, 2012, the trial court held a sentencing hearing. Bowen testified at the
hearing. Following his testimony, his counsel asked, “is there anything else that you
want Judge Fouts to know before he sentences you?” Bowen replied as follows:
[BOWEN]: That when Judge Fouts represented my daughter, in a case,
[sic] calendar year prior to this offense, as her lawyer he mentioned
something that just irked me. And I […], there was only [sic] person that
had an objection to having it dismissed, those charges[,] was Judge Fouts
and he didn’t believe that uh. I believe Judge Fouts is biased. I don’t
believe it.
[BOWEN’S COUNSEL]: Okay so you just wanted to get that out there
and let the Judge know that’s what you are thinking correct?
[BOWEN]: I believe he is.
***
[STATE]: So the bottom line Mr. Bowen is that you don’t believe Judge
Fouts would be biased against you? And irrespective of what may have
happened in the past, is that what you’re telling the [c]ourt?
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[BOWEN]: I just don’t believe Judge Fouts used the proper terminology
when he was representing my daughter.
[STATE]: I understand that. But you don’t think there’s any reason um
why he could not sentence you in this case do you?
[BOWEN]: No I don’t. No I don’t.
***
[TRIAL COURT]: He’s chosen to put it on the record. The [c]ourt doesn’t
harbor any biased [sic] against Mr. Bowen.
[BOWEN]: I don’t believe ...
[TRIAL COURT]: […] this is the first time the [c]ourt is hearing anything
about this uh but the [c]ourt did as I believe as the [g]uardian [a]d [l]item
uh or an attorney. Might have been as an attorney. Uh represent the
interest of his juvenile daughter in a delinquency matter. And uh the
[c]ourt withdrew from that case. I don’t know whether it’s been disposed
of. I don’t have any idea whether her case has been disposed of. I don’t
see her here today. So that makes me think she’s placed outside the home.
Probably as a result of that case. Um and I have a vague recollection of
perhaps making some negative comments uh about her parents. Because I
felt like they were being hard on her frankly given her tender age. Uh they
felt differently. I don’t know I suppose in retrospect I don’t know who was
right. Maybe they were. Maybe I was. I don’t know. But certainly
nothing about that uh the [c]ourt’s had a lot of contact with the family,
CHINS cases [juvenile delinquency] cases, and other cases. So that’s not
uh at all on the [c]ourt’s mind as we go forward today but um nothing’s
been filed throughout this case uh alleging there was any kind of problem
and uh the [c]ourt didn’t see that there was any potential even for a conflict
in this matter.
[BOWEN]: To answer your question Mr. District Attorney I just didn’t
understand the example that Judge Fouts made at that time as her lawyer.
But I don’t recognize her as a poltergeist. I don’t recognize an entity. But I
don’t recognize a[n] extraterrestrial. I do recognize God with good
question in the [c]ourt’s [sic] in this land but I just don’t recognize those
three terms.
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[TRIAL COURT]: I’m not sure where to go with that but I guess my point
is […] that I appreciate that [the State is] trying to make a record, but I just
feel like with Mr. Bowen’s sitting I’m gonna about [sic] to pronounce
sentence on him, that’s a heck of time [sic] to ask him whether he thinks
I’m a good guy.
(Sentencing Tr. pp. 12-15). No further inquiry regarding the trial court’s purported bias
thereafter occurred. Subsequently, the trial court reviewed mitigating and aggravating
factors before pronouncing sentence. It found Bowen’s criminal history to be an
aggravating factor and his military service, health, undiagnosed mental illness, and the
hardship on his family resulting from incarceration as mitigating factors. The trial court
sentenced Bowen to three years on Count I and one year on Count II, with sentences to
run concurrently.
Bowen now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
Bowen asserts that the trial court erred in denying his motion to suppress evidence
seized during the execution of a search warrant. Because Bowen appeals following a
conviction, the issue is more appropriately framed as whether the trial court properly
admitted the evidence at trial. A trial court has broad discretion in ruling on the
admissibility of evidence. Fentress v. State, 863 N.E.2d 420, 422-23 (Ind. Ct. App.
2007). Accordingly, we will reverse an evidentiary ruling only when the trial court
abuses that discretion. Id. An abuse of discretion involves a decision that is clearly
against the logic and effect of the facts and circumstances before the court. Id.I. Waiver
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On appeal, Bowen argues that the affidavits submitted by the police failed to
establish probable cause for the search warrant based upon Glenn’s credibility, the
reliability of his information, and the staleness of his observations. As a result, Bowen
contends that the hydrocodone pills were discovered and seized in violation of the Fourth
Amendment to the United States Constitution, Article 1, Section 11 of the Indiana
Constitution, and the hearsay requirements for issuance of a search warrant pursuant to
I.C. § 35-33-5-2(b). He also asserts that seizure of the hydrocodone pills cannot be
justified by good faith reliance upon the search warrant by the police. However, the State
argues that Bowen has waived these arguments because his trial counsel failed to make
timely objections to evidence regarding the hydrocodone pills. We agree with the State.
To preserve an error for review on appeal, the specific objection relied upon on
appeal must have been stated in the trial court as a basis for the objection. Hale v. State,
976 N.E.2d 119, 123 (Ind. Ct. App. 2012). The purpose of this rule is to give the trial
court the opportunity to evaluate the objection under the basis relied upon. Id. Prior to
trial, Bowen filed a motion to suppress invoking the Fourth Amendment and Section 11
to suppress all evidence obtained through execution on the grounds of staleness. At the
hearing on the motion, Bowen confined his argument to the staleness of Glenn’s
observations and Officer Bernhardt’s specification that Bowen was a serious violent felon
in possession of firearms. The trial court denied the motion and did so again when
Bowen renewed his motion to suppress, but made no additional argument, during voir
dire. By failing to state these grounds to the trial court, we therefore conclude that
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Bowen has waived his argument on appeal regarding Glenn’s credibility, the reliability of
his information, compliance with I.C. § 35-33-5-2(b), staleness, good faith reliance on the
warrant by the police, and his challenge under Section 11. See Owensby v. Lepper, 666
N.E.2d 1251, 1254 (Ind. Ct. App. 1996), reh’g denied.1
Further, a pre-trial motion to suppress does not preserve an error for appellate
review; the defendant must make a contemporaneous objection sufficient to preserve the
issue for appeal. Berry v. State, 574 N.E.2d 960, 965 (Ind. Ct. App. 1991), trans. denied.
The failure to make such an objection waives any claim on appeal that the evidence was
improperly admitted. See Brown v. State, 783 N.E.2d 1121, 1125 (Ind. 2003). Even
when lodging a continuous objection to evidence ruled admissible at a suppression
hearing, waiver results when counsel makes “no objection” to such evidence at trial. See
Hayworth v. State, 904 N.E.2d 684, 693-94 (Ind. Ct. App. 2009). Before it rested its case
in chief, the State moved to admit the hydrocodone pills seized from Bowen’s garage into
evidence. When asked by the trial court if he had any objection to the admission of such
evidence, Bowen’s trial counsel clearly stated “No judge not to this.” (Tr. p. 116).
Notwithstanding the trial court’s identification of a continuing objection after the
evidence was admitted, we deem this insufficient to overcome trial counsel’s failure to
object when the evidence was offered. See Hayworth, 904 N.E.2d at 693.
II. Staleness
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Likewise, by raising the issue for the first time in his reply brief, Bowen has waived his argument regarding the
specificity of the warrant authorizing the search for any manner of firearms. See Ashworth v. Ehrgott, 982 N.E.2d
366, 376 n.3 (Ind. Ct. App. 2013).
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Waiver notwithstanding, we address Bowen’s claim that the “the portion of the
warrant authorizing the search of methamphetamine precursors was also invalid because
it was based on stale information.” (Appellant’s Br. p. 14). In general, stale information
will not support a finding of probable cause. See Smith v. State, 953 N.E.2d 651, 659
(Ind. Ct. App. 2011), trans. denied. Our courts have not established a bright-line rule
regarding the amount of time that may elapse between obtaining the facts upon which the
search warrant is based and the issuance of the warrant. Id. Instead, whether the
information is tainted by staleness must be determined by the facts and circumstances of
each particular case. Id.Here, Glenn observed the Pyrex baking dishes, battery strips, and match strips in
Bowen’s garage one week before the execution of the search warrant. Officer Bernhardt,
based on his training and experience, identified these items as precursors to
methamphetamine manufacture. At the same time, Glenn also observed firearms in the
garage which he had used a month earlier. Bowen argues that the items identified by
Glenn were “presumably small […] and easily disposed of.” (Appellant’s Br. p. 15).
However, the identified precursors and firearms were not money or drugs, items that are
easily consumed. See Foster v. State, 633 N.E.2d 337, 345 (Ind. Ct. App. 1994), trans.
denied. Bowen also argues that the facts contradict Officer Bernhardt’s assertion that
methamphetamine manufacture is an ongoing process. That Officer Bernhardt failed to
find methamphetamine at Bowen’s garage one year previously does not necessarily
suggest an isolated incident. See Breitweiser v. State, 704 N.E.2d 496, 500 (Ind. Ct. App.
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1999). We therefore conclude that the information here was not too stale to support a
finding of probable cause. See Raymer v. State, 482 N.E.2d 253, 255 (Ind. 1985). The
trial court did not abuse its discretion in admitting the hydrocodone pills seized pursuant
to a search warrant.
III. Judicial Bias
Bowen also argues that the trial court erred when the trial judge refused to recuse
himself at sentencing. He contends that the trial judge, who represented Bowen’s
daughter in a prior juvenile action, was biased against him. Bowen asserts that this
purported bias resulted in the trial court ascribing lesser weight to a contested mitigating
factor, namely, whether Bowen’s incarceration would pose a hardship on his family.
We first note that Bowen failed to object or move for recusal and has thus waived
the issue. See Carr v. State, 799 N.E.2d 1096, 1098 (Ind. Ct. App. 2003). Timeliness is
important on recusal issues. Id. A party may not lie in wait and only raise the recusal
issue after receiving an adverse decision. Id. Waiver notwithstanding, Bowen argues
that fundamental error occurred and recusal was mandatory. To qualify as fundamental
error, an error must be so prejudicial to the rights of the defendant as to make a fair trial
impossible. Ruggieri v. State, 804 N.E.2d 859, 863 (Ind. Ct. App. 2004). To be
fundamental, the error must constitute a blatant violation of basic principles, the harm, or
potential for harm must be substantial, and the resulting error must deny the defendant
fundamental due process. Id.10
Bowen’s argument relies on Ind. Judicial Conduct Cannon 2, Rule 2.11(A), which
provides that under certain circumstances “a judge shall disqualify himself or herself in
any proceeding in which the judge’s impartiality might reasonably be questioned.” Two
such circumstances exist where the judge:
has a personal bias or prejudice concerning a party or personal knowledge
of facts that are in dispute in the proceeding.
[or]
served in governmental employment and in such capacity participated
personally and substantially as a lawyer or public official concerning the
proceeding or has publicly expressed in such capacity an opinion
concerning the merits of the particular matter in controversy.
Jud. Cond. Cannon 2, Rule 2.11(A)(1)&(6)(b). Under such circumstances, the obligation
to recuse is required whether or not a motion for recusal is filed. See Jud. Cond. Cannon
2, Rule 2.11, cmt. 2. Further, the “appearance of bias and partiality requires recusal just
as does the actual existence of those impediments.” Thakkar v. State, 644 N.E.2d 609,
612 (Ind. Ct. App. 1994). The question is “whether an objective person, knowledgeable
of all the circumstances, would have a rational basis for doubting the judge’s
impartiality.” Id.Unless the evidence suggests otherwise, we assume the trial judge would have
disqualified himself had his impartiality been reasonably called into question. Austin v.
State, 528 N.E.2d 792, 794 (Ind. Ct. App. 1998). Merely because the trial judge once
argued a case against a defendant “does not compel a determination that the trial judge
harbored any bias or prejudice.” Brown v. State, 830 N.E.2d 956, 962 (Ind. Ct. App.
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2005). During his sentencing hearing, Bowen told the trial court that he believed the trial
judge was biased. However, when pressed by the State to clarify whether he believed
that the judge could not sentence him, Bowen replied, “No I don’t. No I don’t.”
(Sentencing Tr. p. 13). The trial court then confirmed its prior involvement with
Bowen’s daughter, either as a guardian ad litem or an attorney, and stated that it was not
biased.
Bias or prejudice exists when the trial judge has expressed an opinion on the
merits of the controversy before him. See Wallace v. State, 486 N.E.2d 445, 456 (Ind.
1985), reh’g denied, cert. denied, 478 U.S. 1010 (1986). However, “[t]rial judges may
consider the conduct and attitude of the defendant when imposing sentence.” Hollins v.
State, 679 N.E.2d 1305 (Ind. 1997). The trial court proceeded to find four factors in
mitigation, including that incarceration would pose a hardship on Bowen or his
dependents. It attributed less weight to that factor because the hardship resulted, to some
extent, from Bowen’s conduct. The trial court stated that Bowen’s incarceration would
be “in some level [a] calming influence perhaps if he’s absent for a period of time.”
(Sentencing Tr. p. 26). Any negative comments by the trial court regarding Bowen’s
character and the effect his incarceration may have on his family during sentencing do
not establish bias. See id.Finally, Bowen was sentenced to the maximum term of three years on Count I.
However, a maximum sentence for an offense does not reflect bias per se. See Radcliff v.
State, 579 N.E.2d 71, 73 (Ind. 1991). This finding was well supported by evidence of
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Bowen’s prior criminal history, which included probation violations and pending felony
charges. In light of the foregoing, we do not conclude that an objective person,
knowledgeable of all the circumstances, would have a rational basis to doubt the trial
judge’s impartiality. See Brown, 830 N.E.2d at 962.
CONCLUSION
Based on the foregoing, we conclude that the trial court did not abuse its discretion
by admitting evidence seized pursuant to a search warrant and that the trial judge did not
commit error by failing to disqualify himself from the proceedings due to judicial bias.
Affirmed.
BAKER, J. and BARNES, J. concur
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