Bailey v. State

• Decision Date: 30 January 2023
• Docket Number: Court of Appeals Case No. 22A-CR-808
• Parties: Robert F. BAILEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

202 N.E.3d 485

Robert F. BAILEY, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 22A-CR-808

Court of Appeals of Indiana.

Filed January 30, 2023

Attorneys for Appellant: Valerie K. Boots, Indianapolis, Indiana, Anna Onaitis Holden, Zionsville, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Samuel J. Dayton, Deputy Attorney General, Indianapolis, Indiana

Altice, Chief Judge.

Case Summary

[1] Following a jury trial, Robert F. Bailey was convicted of Level 2 felony dealing in methamphetamine, Level 2 felony dealing in a narcotic drug (fentanyl), and Level 6 felony unlawful possession of a syringe. He was also found to be a habitual offender. Bailey received an aggregate sentence of eighteen years in the Indiana Department of Correction (the DOC). He presents two issues on appeal, which we restate as follows:

1. Was it fundamental error to admit into evidence at trial drugs and contraband obtained by police during the search of Bailey's person and the hotel room in which he was staying?

2. Did the State present sufficient evidence that Bailey constructively possessed drugs found under a mattress in the hotel room that he shared with another individual?

[2] On cross-appeal, the State argues that the trial court imposed an illegal sentence – nine years below the minimum sentence – for the Level 2 felony dealing in a narcotic drug. Bailey concedes this error but asks that we revise the sentence to the minimum rather than remand for resentencing.

[3] We affirm in part, reverse in part, and remand.

Facts & Procedural History

[4] On June 2, 2021, officers from the Indianapolis Metropolitan Police Department were dispatched to a Marion County Holiday Inn Express on the report of a domestic disturbance. The 911 call had been made by hotel staff at the request of Victoria Hicks, who was the registered guest renting Room 204. Bailey had also been staying in that room with Hicks.

[5] Officers Timothy Huddleston and Jason Norman initially responded to the hotel lobby where they spoke with Hicks and hotel staff. Hicks reported being physically assaulted by Bailey, and hotel staff indicated that they wanted him removed from the premises. The officers, along with two hotel staff members, then proceeded to Room 204. Officer Huddleston knocked on the door and waited for about twenty seconds. When there was no answer, he knocked again and announced that police and management were outside and wanted Bailey to answer the door. The officers knocked a third time and informed Bailey that they could hear him inside the room. Bailey opened the door about forty-five seconds after the first knock.

[6] Officer Huddleston handcuffed Bailey in the hallway and informed him of Hicks's allegations. He also checked Bailey for weapons and learned that Bailey had a syringe in his pocket. Meanwhile, a staff member unlocked the door to the room and Officer Norman and the staff members entered, followed by Bailey and Officer Huddleston.

[7] As they all entered the bedroom area, Bailey attempted to sit on one corner of the bed, despite there being chairs nearby. This caught Officer Huddleston's attention because, based on his experience, he understood that "in many cases, if somebody tries to do that, it's to – if you're sitting on the bed, police can't pick up the bed." Transcript Vol. 3 at 89. Officer Huddleston thus believed there might be contraband under the bed that Bailey was attempting to conceal.

[8] Bailey was directed away from the bed, and a full search of his pockets commenced after he was advised of his Miranda rights. Among other things, Officer Huddleston removed the syringe, three large bundles of cash totaling $7795, and separate bags of what the officers believed to be heroin. The substances in each bag were lab tested at a later date and found to be 5.3178 grams of fentanyl, 3.3602 grams of fentanyl, and 1.8799 grams of cocaine. Bailey suggested to the officers that the drugs on his person were for personal use and that he was just an addict. Based on his training and experience, however, Officer Huddleston did not believe that the larger amounts were for personal use. As Officer Huddleston explained at trial, in his experience "working the street," a drug user is "usually buying one dose at a time, which is in small, small quantities usually." Id. at 88.

[9] The officers also searched the room and began collecting Bailey's personal belongings to remove him from the property, as requested by hotel staff. Bailey indicated that he had a bag of clothing, which was found next to the bed. There were also what appeared to be items belonging to a female in the room.

[10] During the search, Officer Huddleston lifted the corner of the mattress in the same location where Bailey had tried to sit about ten minutes earlier. He immediately discovered packaging for a cell phone accessory between the mattress and box springs. The packaging contained "two large bags of substance that [he] thought were narcotics." Id. at 90. Testing later revealed that one bag contained 21.5957 grams of methamphetamine and the other contained 35.3834 grams of fentanyl

. The officers also recovered from somewhere inside the room a digital scale with fentanyl residue on it.

[11] On February 15, 2022, Bailey was tried before a jury and found guilty of Level 2 felony dealing in methamphetamine (Count I), Level 2 felony dealing in a narcotic drug (Count II), and Level 6 felony unlawful possession of a syringe (Count III). Bailey then admitted to being a habitual offender.

[12] At the sentencing hearing on March 14, 2022, the trial court noted that Bailey's criminal history was "terrible" and that his "entire adult history is dealing, using." Id. at 161. Bailey was thirty-three years old at the time and had accumulated twenty-one arrests, six misdemeanor convictions, and five felony convictions. He also had prior probation violations, as well as a criminal case pending in another state for drug charges. The court expressly determined that the "aggravators outweigh the mitigators." Id. at 168. It then sentenced Bailey on Count I to twelve years in the DOC enhanced by six years for being a habitual offender. On Counts II and III, which the trial court appears to have mistakenly believed were both Level 6 felonies, Bailey received one-year concurrent sentences.

[13] Bailey now appeals his convictions, and the State cross-appeals regarding the sentence imposed for Count II. Additional information will be provided below as needed.

Discussion & Decision

1. Fundamental Error

[14] Bailey initially challenges the admission into evidence of the drugs and other contraband seized by police during the search of his pockets and the hotel room. He argues that the warrantless search and seizure violated both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. Acknowledging that he failed to contemporaneously object to the admission of the evidence at trial, Bailey asserts fundamental error in an attempt to avoid waiver.

[15] "On rare occasions, appellate courts may analyze an issue under the fundamental error doctrine to examine an otherwise procedurally defaulted claim." Matter of Eq.W. , 124 N.E.3d 1201, 1214 (Ind. 2019). Such review is "extremely narrow" and is "available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible." Id. at 1214-15.

[16] Bailey fails to recognize that our Supreme Court has long circumscribed fundamental-error review in cases involving allegations of unconstitutional searches. See, e.g. , Swinehart v. State , 268 Ind. 460, 376 N.E.2d 486, 491 (1978) ("That the evidence may have been obtained in violation of the defendant's constitutional rights to be protected against unlawful search and seizure does not elevate the issue to the status of fundamental error that may be raised for the first time on appeal."); see also Membres v. State , 889 N.E.2d 265, 272 (Ind. 2008) (observing that "the exclusionary rule that prohibits introduction into evidence of unlawfully seized materials is an example of a rule that does not go to the fairness of the trial"). The Court has observed that "improperly seized evidence is frequently highly relevant" and "its admission ordinarily does not cause us to question guilt." Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010). Accordingly, the admission of unlawfully seized evidence is not per se fundamental error. See id.

[17] Rather, the Supreme Court has approved of the application of the fundamental error exception for illegally seized evidence only where there is "[a] claim of fabrication of evidence or willful malfeasance on the part of the investigating officers [or a] contention that the evidence is not what it appears to be." Id. Bailey makes no such claims here, asserting only a generalized claim of fundamental error. Thus, the claimed error in this case does not rise to the level of fundamental error. See id. at 208 ("Brown makes no similar contention that he did not receive a fair trial, other than his assertion that the evidence was the product of an unconstitutional search and seizure.").

2. Sufficiency of the Evidence

[18] Bailey contends that the State failed to present sufficient evidence that he constructively possessed the drugs found hidden under the mattress in the hotel room that he shared with Hicks.

When reviewing the sufficiency of evidence supporting a conviction, we neither reweigh the evidence nor assess the credibility of witnesses. Fix v. State , 186 N.E.3d 1134, 1138 (Ind. 2022). "When there are conflicts in the evidence, the jury must resolve them." Young v. State , 198 N.E.3d 1172, 1176 (Ind. 2022). Thus, on appeal, we consider only the probative evidence and the reasonable inferences supporting the...