926 N.E.2d 35 (Ind.App. 2010), 35A05-0909-CR-513, Lehman v. State

Docket Nº35A05-0909-CR-513.
Citation926 N.E.2d 35
Opinion JudgeRILEY, Judge.
Party NameStephen M. LEHMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
AttorneyMatthew G. Grantham, Bowers, Brewer, Garrett & Wiley, LLP, Huntington, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge PanelCRONE, J., concurs. VAIDIK, J., concurs in result with separate opinion. VAIDIK, Judge, concurring in result.
Case DateApril 13, 2010
CourtCourt of Appeals of Indiana

Page 35

926 N.E.2d 35 (Ind.App. 2010)

Stephen M. LEHMAN, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 35A05-0909-CR-513.

Court of Appeals of Indiana.

April 13, 2010

Page 36

Matthew G. Grantham, Bowers, Brewer, Garrett & Wiley, LLP, Huntington, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Stephen M. Lehman (Lehman), appeals his conviction for Count I, dealing in cocaine, a Class A felony, Ind.Code § 35-48-4-1; Count II, dealing in a schedule I, II, or III controlled substance, a Class A felony, I.C. § 35-48-4-2; and his adjudication as an habitual substance offender, I.C. § 35-50-2-10.

We affirm.

ISSUE

Lehman raises one issue on appeal, which we restate as: Whether the trial court properly admitted the deceased confidential informant's statement at trial.

FACTS AND PROCEDURAL HISTORY

In August of 2008, Huntington City Police Detective Michael Slagel (Detective Slagel) worked with Charles Howard (Howard), a confidential informant. On August 5, 2008, Howard contacted Detective Slagel to inform the detective that he had a deal set up. Detective Slagel contacted other officers to help with the transaction and they all met with Howard at a predetermined meeting place. At the meeting place, Detective Slagel searched Howard and his vehicle and placed an electronic device on him. He also handed Howard $200 to purchase drugs.

Howard, followed by the officers, traveled to 626 Court Street in Huntington, Indiana. The officers saw Howard pull into the alley at the residence and then lost visual contact. However, Detective Slagel was able to hear the transaction on the audio device and recognized both Howard and Lehman's voice. Detective Slagel heard Howard and Lehman talk about weighing out different amounts of cocaine, and discuss a " ball," " powder," and " doing a line." (Transcript p. 263). Huntington City Police Detective Cory Boxell (Detective Boxell), who also monitored the transaction through the audio device, heard Lehman talk about his upcoming appointment with his probation officer. When the transaction was complete, Howard left the residence and drove to the meeting place while being followed by the officers. At the meeting place, Howard handed Detective Slagel a clear plastic bag containing a white powdery substance. This substance tested positive for cocaine.

On August 20, 2008, Detective Slagel received another call from Howard about setting up another deal with Lehman. Again, a meeting was set up at a predetermined place where Howard was searched. He was fitted with an electronic listening device and given money to buy drugs. Howard and the officers drove to Lehman's residence in separate vehicles. Howard pulled into the alley and Huntington City Police Detective Chad Hacker

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(Detective Hacker) saw Lehman walk up to Howard's vehicle. Detective Slagel and Officer Boxell, who were monitoring the audio device, heard Howard talk to Lehman about twenty milligram pills and thirty milligram pills. When the transaction was completed, Howard returned to the meeting place with the officers in tow and gave Detective Slagel a clear plastic bag with ten orange twenty-milligram Adderall capsules. In the fall of 2008, Howard died of a drug overdose.

On April 2, 2009, the State charged Lehman with Count I, dealing in cocaine, a Class A felony, I.C. § 35-48-4-1; and Count II, dealing in a schedule I, II, or III controlled substance, a Class A felony, I.C. § 35-48-4-2. The next day, the State amended this charging information by adding an habitual substance offender Count, I.C. § 35-50-2-10. On July 9 and 10, 2009, a jury trial was conducted. At the close of the evidence, the jury returned a guilty verdict on Counts I and II. Thereafter, Lehman pled guilty to the habitual substance offender charge. On August 11, 2009, during the sentencing hearing, the trial court sentenced Lehman to concurrent sentences of thirty-six years each on Counts I and II, and enhanced the sentence on Count I by six years because of the habitual substance adjudication. Lehman's aggregate sentence amounted to forty-two years.

Lehman now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Lehman contends that the trial court erred by admitting Howard's statements which he made during the two transactions and which were audiotaped. These statements were admitted through the testimony of several officers and by playing the audiotapes to the jury. Specifically, Lehman claims that the admission of the deceased confidential informant's statements constituted inadmissible hearsay and violated his right to confrontation under the United States Constitution.

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004). An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. However, if a trial court abused its discretion by admitting the challenged evidence, we will only reverse for that error if the error is inconsistent with substantial justice or if a substantial right of the party is affected. Id. Any error caused by the admission of evidence is harmless error for which we will not reverse a conviction if the erroneously admitted evidence was cumulative of other evidence appropriately admitted. Id.

A. Inadmissible Hearsay

First, we turn to Lehman's claim that Howard's statements constituted inadmissible hearsay and therefore were inadmissible at trial. Our review of the record indicates that during trial, the State initially introduced Howard's statements of the August 5 conversation through Detective Slagel's testimony. Lehman objected based on unspecified hearsay grounds. The trial court overruled the objection. Additionally, Lehman concedes in his brief that he failed to object when Howard's statements were admitted through the testimony of several other officers. Lehman also objected to the introduction of the audiotapes of the August 5 and 20 conversations between Howard and Lehman. Lehman objected to the admission of the first tape on confrontational grounds and to the second tape because it was unintelligible. In each instance, the trial court overruled the objection.

Page 38

Because Lehman did not raise a specific hearsay objection, he waived his argument. Willis v. State, 510 N.E.2d 1354, 1357 (Ind.1987), reh'g denied, cert. denied, 484 U.S. 1015, 108 S.Ct. 721, 98 L.Ed.2d 670 (1988). Also, we have repeatedly held that a contemporaneous objection is required to preserve an issue on appeal. Staley v. State, 895 N.E.2d 1245, 1248 (Ind.Ct.App.2008), trans. denied. 1 Nonetheless, waiver notwithstanding, we will evaluate Lehman's contention under the fundamental error theory. The fundamental error doctrine is extremely narrow and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. Id.

We agree with the State that no error, let alone fundamental error, occurred in the admission of Howard's statements. In Williams v. State, 669 N.E.2d 956, 957 (Ind.1996), Williams contested the trial court's admission of two tapes of conversations Williams had with a police informant who died before trial. Id. at 957. Our supreme court ruled that the informant's statements were not hearsay as they were not admitted for the truth of the matters asserted. Id. at 958. Rather, the informant's statements were largely designed to prompt Williams to speak and as such, it was the statements made by Williams that really constituted the evidentiary weight of the conversation. Id.

Likewise here, the conversations between Howard and Lehman were short and referenced street drug-dealing terminology. In the August 5 tape, Howard and Lehman talked about weighing out different amounts of cocaine, and discussed a " ball," " powder," and " doing a line." (Tr. p. 263). In the August 20 tape, they mention " 30s" and " 20s." These terms only have a specific significance with regard to the drug trade. During the conversations, Howard was questioning Lehman with regard to the drugs. As such, we find that Howard's statements were not introduced for the truth of the matter asserted and are therefore not hearsay. See Angleton v. State, 686 N.E.2d 803, 809 (Ind.1997), reh'g denied. Moreover, even if Howard's statements amounted to hearsay, their admission would still result in harmless error. The record reflects that officers searched Howard prior to the undercover buy and determined that he did not have drugs on him. They followed him to Lehman's residence. After the purchase was completed, Howard gave the officers the purchased drugs. Furthermore, Officer Hacker testified that during the August 20 buy, he noticed Lehman walk up to Howard's car. A factfinder could reasonable infer from this circumstantial evidence that Lehman was guilty as charged.

B. Right to Confront Witnesses

Next, Lehman objects to the trial court's admission of Howard's audiotaped statements because it violated his right to

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confront and cross-examine Howard under the United States Constitution.2 The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, states: " In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354...

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53 practice notes
  • 984 N.E.2d 725 (Ind.App. 2013), 49A02-1207-CR-560, Aka v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Marzo 2013
    ...a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court." Lehman v. State, 926 N.E.2d 35, 37 (Ind.Ct.App.2010), trans. denied. " However, if a trial court abused its discretion by admitting the challenged evidence, we will o......
  • 947 N.E.2d 951 (Ind.App. 2011), 82A01-0910-CV-498, Johnson v. Wait
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 Abril 2011
    ...harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Lehman v. State, 926 N.E.2d 35, 38 We have applied the fundamental error doctrine only in limited situations in civil cases. See S.M. v. Elkhart Cnty. Office of Family &......
  • 984 N.E.2d 720 (Ind.App. 2013), 49A02-1207-CR-607, Morales v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Febrero 2013
    ...Standard of Review A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind.Ct.App.2010) (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004)), trans. denied. An abuse of discretion occurs if the trial cou......
  • 87 N.E.3d 61 (Ind.App. 2017), 35A05-1611-PC-2603, Lehman v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Julio 2017
    ...because of the habitual substance adjudication. Lehman's aggregate sentence amounted to forty-two years. Lehman v. State, 926 N.E.2d 35, 36-37 (Ind.Ct.App. 2010), trans. denied . Lehman challenged his convictions on appeal, arguing that the trial court abused i......
  • Request a trial to view additional results
53 cases
  • 984 N.E.2d 725 (Ind.App. 2013), 49A02-1207-CR-560, Aka v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 8 Marzo 2013
    ...a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court." Lehman v. State, 926 N.E.2d 35, 37 (Ind.Ct.App.2010), trans. denied. " However, if a trial court abused its discretion by admitting the challenged evidence, we will o......
  • 947 N.E.2d 951 (Ind.App. 2011), 82A01-0910-CV-498, Johnson v. Wait
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 Abril 2011
    ...harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Lehman v. State, 926 N.E.2d 35, 38 We have applied the fundamental error doctrine only in limited situations in civil cases. See S.M. v. Elkhart Cnty. Office of Family &......
  • 984 N.E.2d 720 (Ind.App. 2013), 49A02-1207-CR-607, Morales v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 Febrero 2013
    ...Standard of Review A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind.Ct.App.2010) (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004)), trans. denied. An abuse of discretion occurs if the trial cou......
  • 87 N.E.3d 61 (Ind.App. 2017), 35A05-1611-PC-2603, Lehman v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 Julio 2017
    ...because of the habitual substance adjudication. Lehman's aggregate sentence amounted to forty-two years. Lehman v. State, 926 N.E.2d 35, 36-37 (Ind.Ct.App. 2010), trans. denied . Lehman challenged his convictions on appeal, arguing that the trial court abused i......
  • Request a trial to view additional results

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