Tammy Echeverria v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 02 2020, 8:56 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Alyssa J. Devine Curtis T. Hill, Jr.
Certified Legal Intern Attorney General of Indiana
Joel M. Schumm Tiffany A. McCoy
Appellate Clinic Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tammy Echeverria, April 2, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1459
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G21-1807-F2-21817
Baker, Judge.
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[1] Tammy Echeverria appeals her convictions and the sentence imposed by the
trial court for Level 2 Felony Dealing in Methamphetamine1 and Level 2
Felony Dealing in a Narcotic Drug,2 arguing that the trial court erred by
admitting certain evidence—including testimony about a law enforcement
team, ledgers, and firearms—because it was unduly prejudicial. Echeverria also
contends that she did not have a fair opportunity to contest the contents of her
Pre-Sentence Investigation Report (PSI) because it was furnished to her just
before her sentencing hearing. Finding that the trial court committed, at most,
only harmless error and that Echeverria is not entitled to relief with regards to
the PSI, we affirm.
Facts
[2] On July 3, 2018, Indianapolis Metropolitan Police Department (IMPD) Officer
Lona Douglas met with a SWAT team to discuss the execution of a search
warrant for a home in Indianapolis. IMPD officers had been surveilling the
home and observed Echeverria and four other individuals entering the
residence. Later, two individuals left the home, got into a vehicle, and drove
away. IMPD officers conducted a traffic stop of that vehicle, discovered that the
two individuals were Echeverria’s niece and nephew, and found approximately
1
Ind. Code § 35-48-4-1.1(a)(2), -1.1(e)(1).
2
I.C. § 35-48-4-1(a)(2), -1(e)(1).
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100 grams of a substance later determined to be methamphetamine and over
$14,000 on their persons. Officers arrested the two and placed them in custody.
[3] Shortly thereafter, the SWAT and the IMPD southwest “Flex” teams executed
the search warrant. SWAT entered first, and upon entry, found a man sitting on
a couch in the living room and Echeverria lying on a bed in the bedroom.
Officers from both teams then searched the residence and discovered
approximately 447.424 grams of a substance later determined to be
methamphetamine, 57.110 grams of a substance later determined to be heroin,
scales with drug residue on them, and other drug paraphernalia.
[4] In the bedroom specifically, officers found $16,000, four firearms, a woman’s
clothing, and bedding. They also discovered roughly twenty-eight pages of
ledgers of drug transactions featuring multiple entries of dates, names, and
dollar amounts. The officers Mirandized3 both Echeverria and the man and
asked them questions. Echeverria admitted to living at that residence and
selling narcotics, but claimed that she only did it to pay off her son’s
outstanding debts. They were subsequently arrested.
[5] On July 5, 2018, the State charged Echeverria with one count of Level 2 felony
dealing in methamphetamine, one count of Level 2 felony dealing in a narcotic
drug, and one count of Level 6 felony maintaining a common nuisance. On
November 21, 2018, Echeverria filed a written request for copies of the ledgers
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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pursuant to Indiana Evidence Rule 404(b). Echeverria feared that any prior bad
acts evidenced by the notations in the ledgers would unduly prejudice her case
and would only prove that she had acted in conformity with those acts. The
State did not respond to Echeverria’s request and ultimately did not provide
copies of the ledgers until March 15, 2019—three days before trial.
[6] The State moved to dismiss the maintaining a common nuisance count on
March 14, 2019, which the trial court granted. Echeverria’s three-day jury trial
began on March 18, 2019. During the trial, officers from the IMPD “Flex”
team testified about the circumstances surrounding the July 3, 2018, search and
arrest. At one point, the State asked Officer Clayton Powell about what the
“Flex” team does, and he replied that “[w]e are a proactive unit tasked with
reducing violent crime, going after targeted violent offenders involved with
firearms, narcotics—[.]” Tr. Vol. II p. 185. Echeverria’s counsel objected,
arguing that Officer Powell’s testimony improperly characterized Echeverria as
a violent criminal. The trial court overruled the objection. The trial court also
ruled, over Echeverria’s objections, that most of the ledgers and the four
firearms would be admissible.
[7] On March 20, 2019, the jury found Echeverria guilty as charged. On May 9,
2019, the probation department provided Echeverria with her PSI, just one day
before her initial sentencing hearing. However, the trial court continued the
hearing to May 29, 2019, on which day it sentenced Echeverria to an aggregate
term of ten years, with five years to be executed in the Department of
Correction, two years to be served on community corrections, two years
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suspended to probation, and one year wholly suspended. Echeverria now
appeals.
Discussion and Decision
I. Admission of Evidence
[8] First, Echeverria argues that the trial court erred by admitting certain
evidence—including testimony about a law enforcement team, ledgers, and
firearms—because it was unduly prejudicial. When there is a challenge to a trial
court’s admission of evidence, we will reverse only when the decision is clearly
against the logic and effect of the facts and circumstances before it. Fansler v.
State, 100 N.E.3d 250, 253 (Ind. 2018). This Court will sustain a trial court’s
decision regarding the admission of evidence “if it can be done on any legal
ground apparent in the record.” Jester v. State, 724 N.E.2d 235, 240 (Ind. 2000).
[9] Indiana Evidence Rule 403 states that “[t]he court may exclude relevant
evidence 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.” In other
words, even if particular evidence is probative and could assist a jury in
reaching its decision, the trial court can still exclude the admission of said
evidence if the trial court believes that the evidence will overtly prejudice one
party for any of the aforementioned reasons. Furthermore, Indiana Evidence
Rules 404(a)(1) and 404(b)(1) prohibit the introduction of specific character
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traits or bad acts to prove that, in this instance, the defendant acted in
conformity with those traits or prior bad acts.
Officer Testimony
[10] First, there is the testimony from Officer Powell describing the role of the
IMPD “Flex” team: “[w]e are a proactive unit tasked with reducing crime,
going after targeted violent offenders involved with firearms, narcotics—[.]” Tr.
Vol. II p. 185.
[11] Echeverria contends that this testimony unduly prejudiced her because Officer
Powell’s description of the “Flex” team painted her as a violent felon who
traffics in firearms and narcotics. Echeverria’s argument is unavailing. Officer
Powell’s statement did not characterize Echeverria as a violent criminal.
Rather, as the trial court pointed out, Officer Powell is “simply answering the
question of what he does for a living and the purpose of the flex team.” Id. at
185. It was important for the jurors to understand Officer Powell’s position and
the work that the “Flex” team does in these types of situations.
[12] Accordingly, there was high probative value in the testimony. As to the
testimony’s prejudicial value, Echeverria is correct in pointing out that
“prejudice may arise in a jury trial when a defendant is identified and repeatedly
referred to as a ‘serious violent felon.’” Imel v. State, 830 N.E.2d 913, 918 (Ind.
Ct. App. 2005) (quoting Spearman v. State, 744 N.E.2d 545, 550 (Ind. Ct. App.
2001)) (emphasis added). The problem is that this was the only testimony where
Officer Powell made any remark about how the “Flex” team specializes in
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targeting violent offenders. Thereafter, Officer Powell answered questions about
the situation based on first-hand, personal experience and never directly
characterized Echeverria as violent. In weighing this testimony’s probative
value with its prejudicial effect, we have a difficult time believing that
Echeverria was unduly prejudiced by this lone statement. Thus, the trial court
did not err by admitting this evidence.
Ledgers
[13] Next, there are the ledgers. The roughly twenty-eight pages of ledgers contained
names, dates, and dollar amounts allegedly connected with Echeverria’s prior
drug transactions.
[14] As a preliminary matter, Indiana Evidence Rule 404(b)(2), states, in relevant
part, the following:
(2) . . . On request by a defendant in a criminal case, the
prosecutor must:
(A) provide reasonable notice of the general nature of any
such evidence [of crimes, wrongs, or other acts] that the
prosecutor intends to offer at trial; and
(B) do so before trial—or during trial if the court, for good
cause, excuses lack of pretrial notice.
According to Echeverria, in order for the State to permissibly use the ledgers as
404(b) evidence, the State has to provide her with information about the nature
of the evidence or, in the alternative, receive explicit permission from the trial
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court to introduce the ledgers during trial. See, e.g., Hatcher v. State, 735 N.E.2d
1155, 1158 (Ind. 2000).
[15] However, it is well established that “[d]etermining whether the State’s notice
was reasonable requires an examination of whether the purpose of the notice
provision was achieved in light of the circumstances of a particular case.” Id.
(emphasis in original). And in this particular case, the State provided
Echeverria with photocopies of the ledgers at least three days before trial, and
there was a high likelihood of Echeverria knowing that the State would enter
the ledgers as evidence. After all, the officers questioned Echeverria about the
items found on the night of the search, and Echeverria knew that she had been
charged with serious drug offenses. Further, the fact that Echeverria specifically
requested copies of the ledgers demonstrates that she knew the general nature of
the evidence that the State would introduce at trial. Based on these
circumstances, it is apparent that Echeverria did, in fact, have reasonable notice
of the State’s intent to use the ledgers as evidence. With this information in
mind, the State met its burden, and there was no violation of 404(b)’s notice
requirement.
[16] In terms of whether the ledgers were unduly prejudicial, for 404(b) evidence,
the trial court had to (1) determine whether the evidence of other crimes,
wrongs, or acts is relevant to a matter at issue other than a person’s propensity
to engage in similar criminal behavior; and then (2) balance the probative value
of that evidence against its prejudicial effect. Bassett v. State, 795 N.E.2d 1050,
1053 (Ind. 2003).
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[17] We concede that Echeverria raises strong arguments about how the ledgers
might impugn her character and paint her as a repeat narcotics dealer. After all,
the ledgers show names, dates, and inscriptions of past drug deals all connected
with Echeverria’s actions. So, in that sense, the ledgers are somewhat
prejudicial and potentially violate Rule 404(b)’s strictures. However, to say that
the ledgers have no probative value is simply incorrect.
[18] As the State highlights, “the ledger is a tool commonly used by drug dealers,
and [Echeverria’s] mere possession of the ledgers was evidence of her present
intent to deal.” Appellee’s Br. p. 16. We agree. Indiana Evidence Rule 404(b)(2)
permits evidence of a crime, wrong, or other inadmissible act for purposes other
than to prove a person’s character, “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” In this instance, the ledger can be proffered, along with other
evidence discovered by the SWAT and “Flex” teams, to show Echeverria’s
intent to deal in illegal narcotics. Additionally, the ledgers could be proffered to
identify Echeverria and showcase that she, as opposed to any other occupants
of the house, is the one currently dealing in methamphetamine and heroin.
Further, the ledgers demonstrate Echeverria’s preparation for subsequent drug
transactions, especially considering that the ledgers were found alongside drug
scales with residue on them, large sums of money, and huge quantities of the
drugs themselves.
[19] The ledgers have substantial probative value for purposes of establishing intent,
identity, or even preparation, and while they might have some prejudicial effect,
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it does not outweigh their probative value. As such, the trial court did not err
when it admitted these ledgers into evidence.
Firearms
[20] Finally, there are the four firearms. Echeverria argues that the introduction of
the four firearms unduly prejudiced her and irreparably painted her as a violent
individual. According to Echeverria, “[t]he State should not have been allowed
to bring the guns in the courtroom for the jury’s review when neither firearms
nor violence was an element of [Echeverria’s] charged offenses.” Appellant’s
Br. p. 31.
[21] As a preliminary matter, Echeverria is correct in citing Brown v. State, in which
this Court ruled that the State’s introduction of a shotgun, duct tape, and ski
masks “had no relevancy to the issue of Brown’s guilt or innocence on the
charge of possessing an unlicensed handgun, nor do they prove or disprove any
material fact in this case.” 747 N.E.2d 66, 68 (Ind. Ct. App. 2001). The Brown
Court went on to state that even if the evidence had “but a scintilla of
relevancy,” it would nevertheless be unduly prejudicial and irreparably harm
the defendant. Id. at 69. Here, because possession or use of a firearm does not
comprise any elements of the crimes with which Echeverria was charged, the
introduction and admission of the firearms did, in some capacity, prejudice
Echeverria’s case.
[22] However, the nature of Echeverria’s criminal charges is different from that in
Brown. Echeverria was charged with Level 2 felony dealing in
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methamphetamine and in a narcotic drug, and our Supreme Court has
previously held that the presence or possession of a firearm near or by a
criminal defendant, along with a significant amount of drugs and
paraphernalia, can support a conclusion that the defendant had the intent to
deliver. J.L.H. v. State, 642 N.E.2d 1368, 1370 (Ind. 1994). In other words, the
firearms here have probative value—to prove Echeverria’s intent to deal in
narcotics. As the State points out, “the four guns in this case made it more
probable that [Echeverria] intended to distribute the large amount of
methamphetamine and heroin.” Appellee’s Br. p. 19. Thus, the trial court did
not err by admitting this evidence.
Harmless Error
[23] We concede that the ledgers and the four firearms had some prejudicial effect
for Echeverria’s case. However, even if we were to find that the trial court erred
by admitting them as evidence, that error was, at most, harmless. “Errors in the
admission or exclusion of evidence are to be disregarded as harmless error
unless they affect the substantial rights of the party.” Corbett v. State, 764 N.E.2d
622, 628 (Ind. 2002). Specifically, we look at whether the defendant’s
convictions were supported by substantial independent evidence of guilt and
whether the challenged evidence contributed to the conviction. Maffett v. State,
113 N.E.3d 278, 283 (Ind. Ct. App. 2018).
[24] In looking at the record as a whole, we find that there was overwhelming
independent evidence supporting Echeverria’s convictions. Echeverria herself
confessed to dealing in large quantities of drugs in order to pay off her son’s
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outstanding debts; her clothes and possessions were intermingled with the drugs
and paraphernalia, Henderson v. State, 715 N.E.2d 833, 836 (Ind. 1999)
(reiterating that mingling of contraband with defendant’s own possessions
implies control); law enforcement discovered excessive amounts of cash; and,
most importantly, there were large quantities of drugs, scales, and
paraphernalia for dealing found inside the home, Beverly v. State, 543 N.E.2d
1111, 1115 (Ind. 1989) (finding that “evidence of appellant’s possession of a
large quantity of drugs and the paraphernalia necessary to cut, package, and sell
it” is sufficient to sustain a conviction for possession with intent to deliver); see
also McGuire v. State, 613 N.E.2d 861, 864 (Ind. Ct. App. 1993) (holding that
circumstantial evidence of intent to deliver, such as possession of a large
quantity of drugs, large amounts of currency, scales, plastic bags, a loaded
firearm, and other paraphernalia can support a conviction).
[25] The substantial independent evidence in the record demonstrates that
Echeverria would have been convicted of the two dealing charges irrespective of
the admission or exclusion of the ledgers or firearms. And on the whole, the
discussion surrounding the contested evidence comprised only a short amount
of time during the course of Echeverria’s three-day trial. This makes it all the
more likely that the officer’s testimony, the ledgers, and the four firearms did
not affect Echeverria’s substantial rights. Accordingly, because the trial court
committed, at most, only harmless error, we will not reverse the trial court’s
admission decisions on this basis.
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II. Pre-Sentence Investigation Report
[26] Next, Echeverria argues that she did not have a fair opportunity to contest the
contents of her PSI because it was furnished to her just before her sentencing
hearing.
[27] Pursuant to Indiana Code section 35-38-1-12(b), “[t]he court shall furnish the
factual contents of the presentence investigation or a copy of the presentence
report sufficiently in advance of sentencing so that the defendant will be afforded a
fair opportunity to controvert the material included.” (Emphasis added). As a
general matter, “it would be better if trial courts routinely made sure the pre-
sentence report was available more than one day before the sentencing
hearing[.] Lang v. State, 461 N.E.2d 1110, 1114 (Ind. 1984). However, “it is
incumbent upon [the] defendant to show how [she] was prejudiced by a short
time period within which to review a pre-sentence report.” Goudy v. State, 689
N.E.2d 686, 699 (Ind. 1997).
[28] The State provided Echeverria with the PSI on May 9, 2019—one day before
her sentencing hearing. It is undisputed, however, that the initial May 10, 2019,
sentencing hearing was continued to May 29, 2019. So, while Echeverria
received her PSI just one day before the initial sentencing hearing, the trial
court effectively gave Echeverria another nineteen days within which to
evaluate the PSI’s contents. As such, Echeverria had more than enough time to
review and dispute the contents of her PSI before the trial court conducted its
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sentencing hearing.4 We hold that Echeverria was given ample time to review
her PSI, and, therefore, she is not entitled to relief regarding this issue.
[29] The judgment of the trial court is affirmed.
Najam, J., and Tavitas, J., concur.
4
This Court and our Supreme Court have held that criminal defendants were given ample time to review the
contents of their PSIs after having received them for a markedly shorter amount of time than that ultimately
afforded to Echeverria. Wagner v. State, 474 N.E.2d 476, 496 (Ind. 1985) (four days); Eubank v. State, 456
N.E.2d 1012, 1017 (Ind. 1983) (one day); Evans v. State, 855 N.E.2d 378, 387 (Ind. Ct. App. 2006) (one day).
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