40 N.E.3d 531 (Ind.App. 2015), 48A02-1409-CR-669, Dean v. State

JudgeBrown, Judge. Barnes, J., and Crone, J., concur. Barnes, J., and Crone, J., concur.
PartiesBobby Lee Dean, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
Date15 September 2015
Citation40 N.E.3d 531
CourtIndiana Appellate Court
Docket Number48A02-1409-CR-669

Page 531

40 N.E.3d 531 (Ind.App. 2015)

Bobby Lee Dean, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff

No. 48A02-1409-CR-669

Court of Appeals of Indiana

September 15, 2015

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

Appeal from the Madison Circuit Court. The Honorable David A. Happe, Judge. Trial Court Cause No. 48C04-0807-FA-401.

ATTORNEY FOR APPELLANT: Hilary Bowe Ricks, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, Indiana.

Brown, Judge. Barnes, J., and Crone, J., concur.

MEMORANDUM DECISION

Brown, Judge.

[¶1] Bobby Lee Dean appeals his convictions for dealing in cocaine as a class A felony, maintaining a common nuisance as a class D felony, and resisting law enforcement as a class A misdemeanor. Dean raises five issues which we consolidate and restate as:

I. Whether the court abused its discretion in admitting certain evidence;

II. Whether the court's final instruction resulted in fundamental error; and III. Whether the prosecutor committed misconduct during closing argument which resulted in fundamental error.

We affirm.

Facts and Procedural History

[¶2] On June 15, 2008, Anderson Police Detective Kevin Earley, a member of the Madison County Drug Task Force, received a phone call on his cell phone at home from an individual telling him that Dean and Anwar Hopgood were at a house on Horton Drive in the Brentwood Addition in Anderson, Indiana, that they were cooking crack cocaine, and that they were about to leave the residence in a white four door Buick and would be going to Dean's address on West 34th Street. Detective Earley was familiar with the caller who had provided reliable information to him in the past, specifically, information leading to multiple search warrants and arrests.1 Detective Earley was familiar with Dean and Hopgood, had prior dealings with them, including three previous arrests of Dean, was aware that Dean had drugs on him during these previous contacts, and was also aware that Dean was staying at a residence on 34th Street.

[¶3] Detective Earley left his residence, drove to the area in an undercover vehicle, and arrived there in approximately three minutes. Upon arriving, he observed a white four door Buick going south on Raible a half a block to a block south of Horton Drive. He followed the vehicle as it turned west on 34th Street and pulled into a residential driveway on its own. He called for backup, parked and exited his vehicle, walked up to the driver's side window of the Buick, and observed Hopgood whom he recognized in the driver's seat and Dean in the front passenger seat. Detective Earley's vehicle was parked in a position where Hopgood could not have backed straight out but " [t]here could have been" room for Hopgood to turn and " get out." Transcript at 357.

[¶4] At this time, Detective Earley was dressed in shorts, tennis shoes, and a t-shirt, but was wearing a badge hanging on a chain around his neck. The driver's side window was down, and Detective Earley and Hopgood engaged in a conversation. Dean looked and saw Detective Earley, turned away, then stuck his right hand in his pants pocket, and started digging in his pocket. Dean's action caused Detective Earley concern because he " didn't know if he was possibly in possession of a handgun." Id. at 24. He asked Dean to remove his hand from his pocket, and Dean " [t]otally ignored" him. Id. at 25. He made the request " a couple times real quick," and with his right hand still in his right pants pocket Dean reached across his body and opened the front passenger door, jumped from the car, and took off running towards the front door of a house. Id.

[¶5] Detective Earley pursued Dean because he " felt like he had drugs or a weapon on him," announced that he was a police officer, and told Dean to stop. Id. at 311. Dean continued to run, opened the front door of the house, and, just as he slammed the door closed, Detective Earley forced the door open with his shoulder. Detective Earley saw Dean run to the kitchen, turn behind a refrigerator, and make a throwing motion with his hand. A clear baggie containing a white substance " came over the refrigerator landing on the floor out into the kitchen." Id. at 27. Detective Earley then grabbed Dean and took him to the ground. Dean screamed and yelled for his girlfriend, Olympia Hindman, and she appeared.

[¶6] At this point, Detective Earley had his gun in his right hand and Dean was seated with his back against a cabinet. Dean yelled at Hindman to pick up the baggie, and she " was moving like she was going to do so." Id. at 29. Dean then grabbed Detective Earley's gun. Detective Earley pulled back, Dean reached and grabbed the gun a second time, and Detective Earley struck Dean on the forehead with his gun. Dean remained conscious and " continued fighting trying to get away from" Detective Earley, who was eventually able to secure him. Id. at 214.

[¶7] Anderson Police Officer Nick Durr took Dean into custody and rode in the ambulance with him and the medics to the hospital. At some point, Dean said that he wanted to speak to Detective Earley or Detective Stephon Blackwell and was transported to the police station.

[¶8] At the station, Detective Earley advised Dean of his Miranda rights, and Dean stated that he understood his rights. He was not stumbling or having trouble speaking. Detective Blackwell showed Dean a written rights waiver, which he refused to sign, stating that he did not want to sign it because he thought it would violate his probation or parole. He did not want to talk about his current case, but said that he wanted to work with Detective Earley and Detective Blackwell in exchange for charges being dropped against him and his girlfriend, Hindman. He said that he had been to Chicago with another individual numerous times to pick up kilos of cocaine and that they were due to make a trip two days later to pick up more cocaine. Dean did not talk about the facts of the instant case. Detective Earley did not record the interview because Dean did not want it to be recorded.

[¶9] Meanwhile, Detective Earley obtained a search warrant for the residence. The police discovered a box in a bedroom closet containing digital scales with white residue later determined to be cocaine residue. The police also discovered a gun and $14,000 in cash. Approximately 156 grams of cocaine were collected.

[¶10] On July 9, 2008, the State charged Dean with dealing in cocaine as a class A felony, maintaining a common nuisance as a class D felony, and resisting law enforcement as a class A misdemeanor. At some point, Dean bonded out and was not apprehended until more than four years later. On July 2, 2013, he filed a motion to suppress all property seized by the arresting officers, all observations made by the arresting officers, and all statements made by Dean. On December 12, 2013, the court held a hearing on the motion, and on April 24, 2014, denied it. The court's order stated: " The Court agrees with the opinion of the judge who issued the search warrant that the police conduct which led to observations of information establishing probable cause was justified." Appellant's Appendix at 26.

[¶11] In August 2014, Dean filed a motion to suppress any oral or written communications, confessions, statements, or admissions he had made. The court held a hearing on his motion at which his counsel argued that Dean's statements were not voluntary. The court denied the motion.

[¶12] On August 12, 2014, the court began a jury trial. During the testimony of Detective Earley, Dean's counsel objected to every piece of evidence discovered after Detective Earley's entry into the home based upon the arguments made at the suppression hearing. The court overruled the objection and showed the objection as continuing. Detective Earley and Detective Blackwell as well as a number of other officers testified to the foregoing.

[¶13] Irene Nunn, the mother of Dean's girlfriend, testified that she owned the house where Dean was arrested and that she did not know the origin of the $14,000. Hindman testified that she took a buyout from a prior employer which closed its business of $70,000, that she had $22,000 at her house, and that the police took $22,000. She also testified that Dean never threw a bag of drugs or asked her to take it for him, that she lived in the house into which Dean had ran, that she saw mail delivered to that residence addressed to Dean, and that a prescription bottle in her room with Dean's name on it might have been left when Dean visited.

[¶14] Dean testified that Hopgood asked him to hold on to something for him after they arrived at the house on 34th Street, and that in response he opened the glove box, grabbed two bags of cocaine, and stuck one in each of his pockets. He testified that he opened the door, jumped out of the car, and ran towards the door of the house because he had crack in his pocket and because he was on probation. He said that Detective Earley never told him to stop. On recross-examination, Dean testified that he lied when he said that his address was the house where he was arrested.

[¶15] After the defense rested, the court and the attorneys discussed final instructions. State's Proposed Final Instruction No. 6 stated: " A warrantless arrest in the home for a misdemeanor is permitted where there is immediate or continuous pursuit from the scene of a misdemeanor crime to the door of the home." Id. at 67. Defense counsel stated: " I don't have any legal basis for objecting to that one either, Judge." Transcript at 784. The trial court later read this instruction to the jury and provided the...

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