Bryant v. State

• Decision Date: 20 December 2011
• Docket Number: No. 45A03–1101–CR–11.,45A03–1101–CR–11.
• Citation: 959 N.E.2d 315
• Court: Indiana Appellate Court
• Parties: Christopher A. BRYANT, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.

959 N.E.2d 315

Christopher A. BRYANT, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 45A03–1101–CR–11.

Court of Appeals of Indiana.

Dec. 20, 2011.

Scott L. King, Merrillville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johaningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

CASE SUMMARY¹

Appellant–Defendant Christopher Bryant appeals from his convictions of and sentences for two counts of Class A felony Dealing in a Narcotic Drug, ² Class A misdemeanor Resisting Law Enforcement,³ and Class A misdemeanor Marijuana Possession ⁴ and his admission that he is a Habitual Substance Offender.⁵ Bryant raises the following issues on appeal:

I. Whether he received ineffective assistance of trial counsel due to his attorney's failure to challenge a search conducted at a police station;

II. Whether the trial court abused its discretion in denying his motion for a mistrial after certain statements alleged to have been made in violation of Miranda were admitted; and

III. Whether the trial court abused its discretion in sentencing him.

We affirm.

FACTS AND PROCEDURAL HISTORY

On September 1, 2010, Hammond Police outfitted a confidential informant (“CI”) with an audio-visual recorder, provided him with $150 of “buy” money, and directed him to arrange a drug deal with a person known only to the police and the CI as “Prophet,” but who later turned out to be Bryant. The CI telephoned Bryant, who arrived at the CI's residence approximately thirty minutes later. The CI approached Bryant's vehicle and purchased $130 worth of heroin, leaving him with $20 of buy money left. The CI returned to his residence and gave 0.54 grams of heroin and the remaining buy money to police.

Hammond Police Detective Marc Ferry followed Bryant's vehicle when it pulled away. Eventually, Bryant failed to signal a turn, and Detective Ferry activated his lights and siren to initiate a stop. Detective Ferry approached the vehicle, and, after knocking on the driver's side window with his flashlight, asked twice for Bryant's identification and vehicle registration. When Bryant asked why he had been stopped, Detective Ferry said, “Well, for starters because of the loud music.” Tr. p. 67. At this point, Bryant drove off slowly.

Detective Ferry returned to his vehicle and pursued Bryant, who leaned “hard to the right” momentarily before stopping in an empty lot after approximately two blocks. Tr. p. 69. Detective Ferry had witnessed others lean and pull away as Bryant had done and believed that “people when they pull away like that, they are buying time, they're trying to hide something.” Tr. p. 72. Detective Ferry testified that “[a]t that time, [Bryant was being arrested] for resisting law enforcement.” Tr. p. 70. When Bryant was taken into custody, Detective Ferry received permission from his supervisor to conduct a strip search. When two officers forcibly bent Bryant over, Detective Ferry recovered a “clear plastic bag which was slightly torn opened [sic], containing a green, leafy substance” that was determined to be 2.14 grams of marijuana from between Bryant's buttocks. Tr. p. 73. Bryant then told Detective Ferry that he “got it from the patrol car that transported him into the station.” Tr. p. 93. Bryant had not been read his Miranda rights at the time of the search. Detective Ferry also recovered the $130 of buy money from Bryant's pants. Police identified “Prophet” as Bryant, and he was eventually released.

On September 7, 2010, police again fitted the CI with an audio-visual recorder, provided him with $200 in buy money, and again instructed him to arrange a drug deal with Bryant. The CI telephoned Bryant and told him that he wanted to purchase one gram of heroin. When Bryant arrived at the CI's residence, the CI approached the vehicle and purchased $230 worth of heroin for $200 from Bryant. The CI returned to his residence and gave police officers the 0.93 grams of heroin he had just purchased. Police followed Bryant's vehicle as he drove away and arrested him inside a store in Hammond. The next day, the CI selected Bryant from a photo array and identified him as the person from whom he had purchased heroin on September 1 and 7, 2010. Eventually, the State charged Bryant with two counts of Class A felony dealing in a narcotic drug, Class A misdemeanor resisting law enforcement, Class A misdemeanor marijuana possession, and with being a habitual substance offender.

Following trial, a jury found Bryant guilty of two counts of Class A felony dealing in a narcotic drug, Class A misdemeanor resisting law enforcement, and Class A misdemeanor marijuana possession. Bryant admitted that he was a habitual substance offender. The trial court sentenced Bryant to forty-two years for each of his two dealing in a narcotic drug convictions, one year for resisting law enforcement, and one year for marijuana possession, and with being a habitual substance offender, all sentences to be served concurrently. The trial court enhanced Bryant's sentence three years by virtue of his habitual substance offender status. The trial court found, as aggravating circumstances, Bryant's criminal history, that leniency in the past had not deterred his criminal behavior, and that he is in need of correctional and rehabilitative treatment that can best be provided by commitment to a penal facility. The trial court found no mitigating circumstances.

DISCUSSION AND DECISION

I. Whether Bryant Received Ineffective Assistance of Trial Counsel

Bryant contends that his trial counsel was ineffective for failing to file a motion to suppress evidence of the marijuana found during what he contends was an illegal strip search. We review claims of ineffective assistance of counsel based upon the principles enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

[A] claimant must demonstrate that counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and that the deficient performance resulted in prejudice. Prejudice occurs when the defendant demonstrates that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” A reasonable probability arises when there is a “probability sufficient to undermine confidence in the outcome.”

Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Because an inability to satisfy either prong of this test is fatal to an ineffective assistance claim, this court need not even evaluate counsel's performance if the petitioner suffered no prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind.1999).

Bryant argues that the strip search which yielded the marijuana was unreasonable and therefore violated Article I, Section 11 of the Indiana Constitution.⁶ Consequently, Bryant contends that his trial counsel was ineffective for failing to file a motion to suppress on that basis. Article I, Section 11 reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

“Although this language tracks the Fourth Amendment [of the United States Constitution] verbatim, Indiana has explicitly rejected the expectation of privacy as a test of the reasonableness of a search or seizure.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005). “The legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances.” Id. (citing Moran v. State, 644 N.E.2d 536, 539 (Ind.1994)). “We believe that the totality of the circumstances requires consideration of both the degree of intrusion into the subject's ordinary activities and the basis upon which the officer selected the subject of the search or seizure.” Id. at 360.

“[A] police officer may conduct a warrantless search of a person if the search is incident to a lawful arrest.” Edwards v. State, 759 N.E.2d 626, 629 (Ind.2001) (citing Townsend v. State, 460 N.E.2d 139, 141 (Ind.1984)). “In such situations, the search and the arrest must be ‘substantially contemporaneous,’ and the search must be confined to the immediate vicinity of the arrest.” Id. (quoting Townsend, 460 N.E.2d at 141). “The requirement of a contemporaneous search has been interpreted liberally, however, and this Court has validated searches that do not occur until the arrestee arrives at a law enforcement facility, as long as the items searched are ‘found on the person of an arrestee’ or are ‘immediately associated with his person.’ ” Id. (quoting Chambers v. State, 422 N.E.2d 1198, 1203 (Ind.1981)).

As for the scope of the search, “[t]he United States Supreme Court has held that once a lawful arrest has been made, authorities may conduct a ‘full search’ of the arrestee for weapons or concealed evidence.” Id. (quoting U.S. v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)). “No additional probable cause for the search is required, and the search incident to arrest may involve a relatively extensive exploration of the person.” Id. (citation omitted). On the other hand, the Indiana Supreme Court has held that “[w]e do not believe that routine, warrantless strip searches of misdemeanor arrestees, even when incident to lawful arrests, are reasonable as both Article I, Section 11 of our state constitution and the Fourth Amendment to the federal constitution require.” Id.

Bryant's argument is essentially that the police had no justification for conducting a strip search because he was arrested for resisting law enforcement,...