Beer v. State
| Decision Date | 29 April 2008 |
| Docket Number | No. 01A02-0707-CR-569.,01A02-0707-CR-569. |
| Parties | Gary D. BEER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Michelle F. Kraus, Fort Wayne, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Gary Beer appeals his convictions and sentence for three counts of dealing in cocaine as class A felonies,1 unlawful possession of a firearm by a serious violent offender,2 possession of cocaine with the intent to deliver,3 and maintaining a common nuisance as a class D felony.4 Beer raises three issues, which we revise and restate as:
I. Whether the trial court abused its discretion by admitting the evidence obtained during the search;
II. Whether the trial court abused its discretion by denying Beer's motion for mistrial; and
III. Whether the trial court erred by imposing consecutive sentences.
We affirm.
The relevant facts follow. On March 29, April 1, and April 13, 2005, officers in the Drug Task Force in Adams County, with assistance from the Indiana State Police, performed three controlled buys of cocaine from Beers by using two confidential informants, "C.I. 1020" and "C.I. 1021." Transcript at 489. C.I. 1020 and C.I. 1021 were engaged to be married and agreed to act as confidential informants in hopes for leniency on a charge pending against C.I. 1021.
During each of the controlled buys, C.I. 1020 and C.I. 1021 met "Allen," who lived on Beer's porch and let them into Beer's house. Id. at 621. Each time, C.I. 1020 and C.I. 1021 went to Beer's bedroom, where Beer gave C.I. 1020 cocaine in exchange for money.
On April 14, 2005, the State charged Beer with three counts of dealing in cocaine as class A felonies. That same day, Indiana State Police Detective Daniel Mawhorr applied for a "no knock" search warrant by submitting the following affidavit:
I, Daniel Mawhorr, swear (or affirm, as the case may be) that I believe and have good cause to believe that controlled substances, specifically cocaine, ledgers, U.S. currency (money), packaging materials, controlled substances paraphernalia, ammunition and/or any firearms may be found in a two story tan farmhouse located on the north side of County Road 300 South west of County Road 600 west with an address of 6373 West 300 South — 1 in Bluffton, in Adams County, Indiana. . . . In support of this, I represent that the following is true:
1. CI 1021 stated to this officer that this CI has previously obtained cocaine from a Gary Beer at 6373 West 300 South — 1 in Bluffton, in Adams County, Indiana. CI 1020 stated that this CI has obtained cocaine on a regular basis from Gary Beer for the past 2 years.
2. CI 1020 stated to this officer that this CI has previously obtained cocaine from Gary Beer at 6373 West 300 South — 1 in Bluffton, in Adams County, Indiana. CI 1020 stated that this CI has obtained cocaine on a regular basis from Gary Beer for the past 2 years.
3. CI 504 provided Detective Kyle Randall, Bluffton Police Department with information regarding other individuals who were dealing controlled substances and burglaries in the area and I was able to confirm that information through Detective Kyle Randall. (see attached exhibit 1)
4. CI 504 stated to Detective Kyle Randall that Gary Beer has stated to CI 504 that Gary Beer will not go back to prison and that if he were caught driving he would not stop for the police. Additionally, CI 504 stated that CI 504 had observed cocaine, rifles, hand guns and shotguns in Gary Beer's residence in the past and knows Gary Beer to carry a .22 caliber handgun on his person. The last time that CI 504 observed these items was on April 4, 2005.
5. CI 504 also stated that Gary Beer [sic] residence is equipped with motion sensors that alert those present in the residence when someone approaches the residence.
6. CI 504 also stated that Gary Beer keeps controlled substances in a safe in one of the outbuildings.
7. On April 11, 2005 Kyle Randall met with CI 1014 who had provided information regarding another individual who had been dealing in controlled substances and Detective Randall was able to confirm and corroborate this information.
8. CI 1014 stated that during the fall of 2004 he had been in contact with Gary Beer. Gary Beer is known to him to have numerous weapons and keeps several of those weapons in the upstairs bedroom. CI 1014 described these weapons as assault weapons.
9. CI 1014 stated that Gary Beer told him that if Gary Beer's house were to be raided again by the police he (Gary Beer) would not go back to prison and would not go down alone. Gary Beer stated that he would take out as many cops as he could. (see attached exhibit 2)
10. On March 28, 2005, CI 1020 contacted Detective Mike Mahan and stated that this CI could purchase controlled substances from Gary Beer at his residence located at 6373 West 300 South — 1, in Bluffton, Adams County, Indiana.
11. On March 29, 2005, CI 1020 contacted Detective Mike Mahan and confirmed that the time of the purchase would be approximately 7:00 p.m. on the 29th day of March, 2005.
12. At approximately 6:00p.m. CI 1020 and CI 1021 arrived at a predetermined location and they were searched by law enforcement officers as well as their vehicle. No contraband was found on either person or their vehicle.
13. Both CI 1020 and CI 1021 were furnished with a digital recorder.
14. CI 1020 was provided $600.00 in buy money.
15. At approximately 6:30p.m. CI 1020 and CI 1021 were followed to Gary Beer's residence by law enforcement officers and entered the residence.
16. At approximately 6:48p.m. I observed CI 1020 and CI 1021 leave the residence in their vehicle. They were followed back to the predetermined location and searched. The digital recorders were recovered and it was determined that CI 1020's recorder malfunctioned. Also, CI 1020 turned over $80.00 not needed for the drug buy and explained that $220.00 was used to clear up an old debt and $300.00 was used to purchase ¼ ounce of cocaine. A small baggie containing a white powder was recovered from CI 1020. CI 1020 and CI 1021 along with their vehicle were searched by law enforcement officers and no other contraband was located on either CI 1020 or CI 1021.
17. The white powder was later field tested and tested positive for cocaine.
18. CI 1020 stated that they knocked on the door to the residence and a male identified as Allen answered the door. Allen stated that Gary was upstairs. CI 1020 went upstairs while CI 1021 went to the bathroom. When CI 1020 got upstairs he saw Gary Beer in a bedroom sitting at a desk. On the desk were cocaine and a .357 handgun. CI 1020 paid Gary Beer for the old debt and Gary Beer provided CI 1020 cocaine in exchange for $300.00. This was confirmed upon listening to the digital recoding [sic] obtained from CI 1021.
19. On Friday, April 1, 2005 Detective Mahan was contacted by CI 1020 who stated that ¼ ounce of cocaine could be purchased from Gary Beer that afternoon at approximately 5:00p.m.
20. At approximately 4:10p.m. CI 1020 and CI 1021 and their vehicle were searched and no contraband was found.
21. At that time CI 1020 was provided with $400.00 to purchase cocaine.
22. CI 1020 was furnished with a digital recorder.
23. At approximately 4:28p.m. CI 1020 and CI 1021 were followed from the predetermined location to Gary Beer's residence by law enforcement officers.
24. CI 1020 and CI 1021 arrived at Gary Beer's residence at approximately 4:33pm. and were observed driving north on the driveway behind the residence.
25. At approximately 4:50p.m. CI 1020 and CI 1021 were observed leaving Gary Beer's residence in their vehicle.
26. At approximately 5:06 p.m. CI 1020 and CI 1021 arrived at a predetermined location. Both CI 1020 and CI 1021 and their vehicle were searched by law enforcement officers. CI 1020 turned over a small plastic bag containing what I believed to be cocaine through my training and experience and $100.00 that was not needed to purchase the cocaine. The digital recorder was retrieved. No other contraband was located on CI 1020, CI 1021 or in their vehicle.
27. CI 1020 stated that he went to the door of Gary Beer's residence and was met by a male identified by Al. He was told that Gary Beer was upstairs. Both CI 1020 and CI 1021 went upstairs where CI 1020 and Gary Beer exchanged $300.00 for ¼ ounce of cocaine. CI 1020 indicated that he observed a .357 handgun and approximately 3 ounces of cocaine on the desk in the room where Gary Beer was located. This information was confirmed by listening to the digital recording retrieved from CI 1020.
28. On April 13, 2005 Detective Mahan was contacted by CI 1020 who stated that a purchase of cocaine from Gary Beer could be arranged for the afternoon of April 13, 2005. At approximately 3:40p.m. CI 1020 confirmed that the "deal" was set up.
29. On April 13, 2005 at approximately 4:40p.m. CI 1020 and CI 1021 arrived at a predetermined location.
30. At approximately 4:45p.m. CI 1020, CI 1021 and their vehicle were searched by law enforcement with no contraband being located.
31. CI 1020 was provided $300.00 "buy" money and provided a digital recorder which was later determined to have malfunctioned.
32. At approximately 5:00p.m. CI 1020 and CI 1021 left the predetermined location and were followed by law enforcement officer to Gary Beer's residence.
33. At approximately 5:17p.m. CI 1020 and CI 1021 arrived at Gary Beer's residence.
34. At approximately 5:30p.m. CI 1020 and CI 1021 were observed leaving Gary Beer's residence and were followed to a predetermined location.
35. At approximately 5:43p.m. CI 1020 and CI 1021 arrived at the predetermined location and they and their vehicle were searched by law enforcement officers.
36. Recovered from CI 1020 was a small bag of white powder that was believed to be cocaine through my...
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