Perry v. State

• Decision Date: 10 August 1994
• Docket Number: No. 49S00-9311-CR-1223,49S00-9311-CR-1223
• Parties: William PERRY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1236

638 N.E.2d 1236

William PERRY, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-9311-CR-1223.

Supreme Court of Indiana.

Aug. 10, 1994.

I. Marshall Pinkus, Dutton Overman Goldstein Pinkus, P.C., Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was tried by a bench trial and convicted of Count I, Conspiracy to commit dealing in cocaine, a Class A felony; Count II, Dealing in Cocaine, a Class A felony; and Count III, Possession of Cocaine, a Class C felony. He was sentenced to thirty (30) years on Count I, which was enhanced by an additional thirty (30) years due to a finding that he is a habitual offender. He received thirty (30) years for Count II, to run consecutive to Count I. He also received four (4) years for Count III, to run concurrent with Count II.

The facts are: On October 20, 1990, Jeff Poikey, an undercover narcotics officer, agreed with Thomas Gasper to purchase an "eight-ball" of cocaine. Shortly after that, they went to a local bar where Gasper placed a telephone call to appellant's pager. A few minutes later, appellant called Gasper back at which time Gasper asked appellant to sell him an "eight-ball" of cocaine. Appellant agreed to sell Gasper the cocaine for a purchase price of $150 and a certain quantity of marijuana. Appellant also agreed to deliver the cocaine to Gasper's home. Gasper and Officer Poikey returned to Gasper's home where they waited for appellant to deliver the cocaine.

Subsequently, Rosieanne Faceson, appellant's girlfriend, arrived outside Gasper's home in appellant's car. Gasper met with Faceson in the car and gave her cash and marijuana in exchange for the cocaine. Faceson counted the money and determined that it was $5 short. Consequently, she made Gasper return the cocaine to her. After Faceson left the scene, Officer Poikey transmitted a radio broadcast describing the car she was driving and ordered that it be stopped.

The broadcast made by Officer Poikey was heard by Officer Mark Burke, who stopped the car. Officer Burke searched the car and discovered a plastic bag containing a white powdered substance which was believed to be cocaine. Based on this discovery, Officer Burke transported Faceson to the police station and impounded the car.

Officer Poikey advised Faceson of her Miranda rights and she signed a waiver of rights form. Faceson then informed the police that appellant gave her the cocaine and instructed her to deliver it to the home of Thomas Gasper. At the request of the police, Faceson telephoned appellant and informed him that the deal had not been completed and asked what she should do with the cocaine. Appellant responded, "You don't call me up after you've been sitting on a dope house for twenty (20) minutes."

Officer Burke subsequently accompanied Faceson to her home where he asked her to call appellant and ask him to come to the house. Several minutes after Faceson made the call, appellant arrived at the home. Upon his arrival, appellant was arrested by Officer Burke.

Faceson later signed a consent to search form for the residence. Appellant assisted the police in their search by opening a safe that contained approximately six thousand dollars ($6,000). He then led them to a kitchen garbage can where the officers found several plastic bags with the corners cut out. Appellant also led the officers to a window sill upon which were four bags of cocaine, and he showed them a scale which he used to weigh marijuana. The officers also recovered two bottles of Inositol, a substance used to dilute cocaine.

Appellant contends he was denied effective assistance of counsel. He cites three instances in which he claimed his trial counsel fell below the required standard. First, he contends his trial counsel encouraged and advised him to flee during the course of the trial.

To support his contention, appellant cites an affidavit in the record by Darnessa Y. Moore, a paralegal for the Marion County Municipal Court Public Defender's Office. Ms. Moore accompanied appellant to a suppression hearing. In her affidavit, Ms. Moore states that she overheard appellant's attorney say the following:

" 'One, you could go to trial and take the chance of being found guilty, at least for the conspiracy to sell cocaine, and habitual, or two, plead guilty and receive a minimum time sentence of thirty years.' He then stated, 'you already know what your third is', and went on to say that, 'he knew of some people who chose to run.' "

Appellant fled during a recess of the trial on April 10, 1992. The judge decided to proceed with the trial and habitual offender proceeding in the absence of appellant. Appellant claims he fled because his attorney advised him, during the recess, that it was in his best interest to leave.

The record indicates that appellant's attorney expressed uncertainty as to the whereabouts of his client when questioned by the court. Further, his attorney moved for a continuance stating that he could not present a proper defense because appellant was an essential witness to the case who intended to testify in his own behalf. After the court denied a continuance, appellant's trial counsel offered the testimony of numerous defense witnesses.

We cannot say that the attorney's conduct constituted ineffective assistance of counsel. While the paralegal's affidavit deserves a certain degree of credibility, counsel's quoted statement does not rise to the level of advising his client to flee. Based on the surrounding facts and circumstances, we believe it merely was proffered as a facetious rhetorical comment. It is difficult to accept the notion that appellant somehow interpreted that statement as an endorsement from his attorney to flee. Thus his conduct does not fall below the standard required in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

Appellant also claims his trial counsel failed to interview several defense witnesses prior to trial. The fact that trial counsel did not interview these witnesses prior to trial does not in and of itself demonstrate ineffective assistance of counsel. To prevail on his claim, appellant must show first, that his attorney's performance was deficient, and second, that the defense was prejudiced by the deficient performance. Id.

We find no impairment in the manner in which counsel questioned the witnesses on direct examination. Also, there has been no showing that the outcome of the trial would have been any different had counsel interviewed the witnesses prior to trial. Therefore, we are unable to say that counsel's handling of the trial fell below the standards set forth in Strickland.

Appellant claims his counsel was ineffective in that although he filed a motion to suppress cocaine and drug paraphernalia seized by the police, which motion was overruled by the trial court, he failed to object at trial when this evidence was submitted by the State. Appellant contends his counsel's failure to object at trial to the evidence waived the issue on appeal, citing Hart v. State (1991), Ind., 578 N.E.2d 336 and Wilson v. State (1987), Ind., 514 N.E.2d 282.

A review of the record in this case indicates that appellant's counsel did in fact object to the admission of the evidence at trial. When the State moved to introduce the evidence, appellant's trial counsel offered the following objection:

"I do object to the admission of the evidence of cocaine, the Inositol which--(unintelligible)--testimony, and the scales, but, in particular, I would object to the entry of the evidence into evidence because I don't believe that the State's proved a chain of custody. Aside from the ongoing motions established at the beginning of this trial, the fact that defence believes that the--this evidence was obtained illegally with an illegal search of the residence, but aside from that I don't believe the State has proved that there's been a chain of custody of this evidence that they're attempting to admit into evidence at the present time, and for that reason we would object, Your Honor." (Record 674-75)

Appellant contends the above objection was insufficient to preserve for appeal the issue concerning an illegal search by the police because it was based primarily on the chain of custody ground. However, counsel referred to the pretrial motion issue in his objection which serves to preserve it on appeal. Counsel should not be faulted for failing to elaborate further on issues that were substantially argued during the suppression hearing. This conduct does not fall short of the Strickland standards.

Appellant claims the trial judge committed a reversible error by admitting evidence that was obtained from an illegal search and seizure. Specifically, appellant claims that Faceson did not have the authority to consent to the police's request to search the house and without a warrant the evidence seized by the police should have been inadmissible.

During a hearing on the motion to suppress, Benita Jones testified that she owned the residence and was selling the home on contract to James Perry, appellant's uncle. She further testified that Mr. Perry allowed appellant to live in the home and that Faceson resided with appellant at the house ...