Moffitt v. State

• Decision Date: 23 September 2004
• Docket Number: No. 49A02-0310-CR-910.,49A02-0310-CR-910.
• Parties: Frederick MOFFITT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

817 N.E.2d 239

Frederick MOFFITT, Appellant, v. STATE of Indiana, Appellee.

No. 49A02-0310-CR-910.

Court of Appeals of Indiana.

September 23, 2004.

Publication Ordered November 5, 2004.

Janice L. Stevens, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Appellant Frederick Moffitt ("Moffitt") was convicted following a jury trial of possession of cocaine as a Class C felony,¹ possession of marijuana as a Class A misdemeanor,² and resisting law enforcement as a Class A misdemeanor.³ Moffitt pleaded guilty to being a habitual offender and the trial court sentenced him to an aggregate term of twenty-one years incarceration. Moffitt initiated a direct appeal from his convictions, but subsequently sought and was granted permission to dismiss his appeal without prejudice to pursue post-conviction relief. His petition for post-conviction relief was denied. Moffitt now appeals, alleging errors arising both from the direct appeal and from the denial of his petition for post-conviction relief.⁴ We affirm.

Issues

On direct appeal, Moffitt raises two issues, which we restate as:

I. Whether the trial court abused its discretion by admitting evidence obtained from an illegal search and seizure; and

II. Whether the trial court erred by allegedly excluding a belatedly disclosed defense witness absent a showing of bad faith on the part of Moffitt and substantial prejudice to the State.

In addition, on appeal from the denial of his petition for post-conviction relief, Moffitt raises two issues, which we restate as:

I. Whether Moffitt's guilty plea to the habitual offender count was knowingly made; and

II. Whether Moffitt received effective assistance of trial counsel.

Facts and Procedural History

On June 9, 2001, at approximately 6:30 p.m., Indianapolis Police Officer Scott Emminger ("Officer Emminger") was on routine patrol in the East District of Indianapolis near the intersection of 10th Street and Oakland Avenue. When he turned his vehicle onto Oakland Avenue, Officer Emminger saw "three (3) white females and one (1) black male engaged in basically a pile up fight" in the middle of the street. Tr. at 30. Brandi Thompson ("Thompson") was at the bottom of the "pile," Crystal Anderson ("Anderson") was on top of Thompson, Moffitt was on top of Anderson, and Chastity Ray ("Ray") was the top person on the "pile." Officer Emminger witnessed Thompson and Anderson punching each other and, while he believed that Moffitt was attempting to break up the fight between Thompson and Anderson, he observed Moffitt hit Thompson. Officer Emminger did not see Ray hit anybody. Officer Emminger radioed for backup and then gave a "verbal command to break it up." Tr. at 34. Officer Emminger placed Thompson and Anderson in handcuffs and told everybody that they were going to jail for disorderly conduct unless they could talk him out of it. Officer Emminger directed Moffitt to drop the rag that he had in his hand, which he did. Subsequently, Officer Emminger conducted a pat-down search of Moffitt and found a small lump in Moffitt's right watch pocket that he believed to be a controlled substance. Officer Emminger removed the lump from Moffitt's pocket and found a small amount of marijuana in a baggie. Officer Emminger ordered Moffitt to put his arms behind his back and, in response, Moffitt attempted to flee the scene. Officer Emminger and other backup officers successfully subdued Moffitt and then the officers found a small baggie of crack cocaine in Moffitt's front left pocket. Officer Emminger also found a partially burned marijuana cigarette in the rag that Moffitt had dropped earlier that evening.

On June 11, 2001, the State charged Moffitt with possession of cocaine as a Class C felony, possession of marijuana as a Class A misdemeanor, resisting law enforcement as a Class A misdemeanor, and with being a habitual offender.⁵ On June 26, 2001, in an affidavit, Thompson maintained that: (1) she and Anderson were fighting over some crack cocaine; (2) Moffitt —an acquaintance—tried to break up the fight; and (3) Anderson handed Moffitt the rag. Likewise, Anderson, by affidavit, attested that: (1) she and Thompson were fighting over some crack cocaine; (2) Moffitt —a friend—tried to break up the fight; (3) she "had a rag wrapped around crack cocaine and marijuana and handed it with her broken necklace to [Moffitt] who, without looking at the time[ ], reflexively put them in his pocket;" and (4) the illegal substances found on Moffitt by the police were the same that she had possessed. Appellant's App. at 38b. In addition, on August 23, 2001, Moffitt filed a motion in limine regarding evidence of Moffitt's criminal record and prior involvement in illegal substances.

Prior to a jury trial, Moffitt's counsel, Steven Geller ("Geller"), apparently did not file a witness list, naming Anderson and Thompson as witnesses, with the trial court. At a jury trial, Anderson testified that she and Thompson were fighting over some crack cocaine that they had found on the ground and that Thompson had placed the cocaine in a rag and was holding it in her hand. Anderson also testified that Moffitt, who did not see the crack cocaine, attempted to separate her and Thompson and that Anderson gave Moffitt a necklace that Thompson had "snapped" off of her neck, along with the rag containing crack cocaine. Anderson further testified that Moffitt placed the rag in his pocket without opening it to see what was inside. Thompson did not testify at trial.

At the conclusion of trial, the jury found Moffitt guilty of the offenses of possession of cocaine, possession of marijuana, and resisting law enforcement. The trial court entered judgments of conviction on the jury's verdicts and Moffitt pleaded guilty to being a habitual offender. The trial court then sentenced Moffitt to the custody of the Indiana Department of Correction for a term of eight years for the possession of cocaine conviction, one year for the possession of marijuana conviction, and one year for the resisting law enforcement conviction. The trial court enhanced the possession of cocaine sentence by twelve years for Moffitt's status as a habitual offender and ordered Moffitt to serve the possession of cocaine sentence consecutive to the resisting law enforcement conviction and concurrent to the possession of marijuana conviction, for an aggregate sentence of twenty-one years.

Moffitt appealed his convictions and sentences to the Indiana Court of Appeals. However, on February 19, 2002, Moffitt moved to dismiss the appeal without prejudice and to petition the trial court for post-conviction relief, which another panel of this court granted. On June 11, 2003, Moffitt filed a petition for post-conviction relief alleging that he did not receive effective assistance of trial counsel and that his guilty plea was not knowingly, intelligently, and voluntarily made. After conducting an evidentiary hearing, the post-conviction court denied Moffitt's petition for relief. This appeal ensued.

Discussion and Decision

I. Direct Appeal

A. Admission of Evidence: Improper Search and Seizure

On direct appeal, Moffitt first claims that his convictions should be reversed because the trial court abused its discretion by admitting the cocaine and marijuana evidence, which were the fruits of an illegal search and seizure. The admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent a showing that the trial court abused its discretion. Williams v. State, 754 N.E.2d 584, 587 (Ind.Ct.App.2001), trans. denied. Upon review of a trial court's ruling with respect to the validity of a search and seizure, we will consider the evidence most favorable to the ruling and any uncontradicted evidence to the contrary to determine whether there is sufficient evidence to support the ruling. Id. If the evidence is conflicting, we consider only the evidence favorable to the ruling and will affirm if the decision is supported by substantial evidence of probative value. Id.

In the present case, Moffitt argues that the cocaine and marijuana evidence resulted from an illegal search and seizure and, thus, should not have been admissible at trial. The State counters that the evidence is admissible because the search was incident to a lawful arrest. To determine whether the trial court abused its discretion by admitting the cocaine and marijuana evidence, we must first decide whether the warrantless search of Moffitt's person was reasonable.

The Fourth Amendment to the United States Constitution provides, in pertinent part, that: "The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." U.S. CONST. Amend. IV.⁶ The Fourth Amendment's protection against unreasonable searches and seizures has been extended to the States through the Fourteenth Amendment. See Berry v. State, 704 N.E.2d 462, 464-65 (Ind.1998)

. As a general rule, the Fourth Amendment prohibits a warrantless search. Id. Consequently, when a search is conducted without a warrant, the State has the burden of proving that the search falls into one of the exceptions to the warrant requirement. Id. at 465.

A search incident to a lawful arrest is one such exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969),reh'g denied; see also White v. State, 772 N.E.2d 408, 411 (Ind.2002)

. Under this exception, an officer may conduct a warrantless search of the arrestee's person and the area within his or her immediate control. White, 772 N.E.2d at 411. Our initial inquiry under this exception to the warrant requirement is to determine whether the arrest itself was lawful. Gibson v. State, 733 N.E.2d...