Burton v. State

• Decision Date: 30 January 2015
• Docket Number: No. 41A01–1312–CR–539.,41A01–1312–CR–539.
• Citation: 26 N.E.3d 1077 (Table)
• Parties: Thomas W. BURTON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

26 N.E.3d 1077 (Table)

Thomas W. BURTON, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 41A01–1312–CR–539.

Court of Appeals of Indiana.

Jan. 30, 2015.

Cynthia M. Carter, Law Office of Cynthia M. Carter, LLC, Indianapolis, IN, Attorney for Appellant.

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

MEMORANDUM DECISION

BROWN

, Judge.

[1] Thomas W. Burton appeals his convictions for dealing in a schedule II controlled substance as a class B felony, aiding in dealing in methamphetamine as a class B felony, and two counts of dealing in a schedule IV controlled substance as class C felonies. Burton raises six issues which we revise and restate as:

I. Whether the trial court violated his right to counsel;

II. Whether the court abused its discretion in denying his motion for a continuance;

III. Whether the court abused its discretion and violated Burton's confrontation rights by not ordering the State to produce a confidential informant's recent criminal history and not ordering the State to reveal any deals it made with the confidential informant;

IV. Whether the court abused its discretion when it denied Burton's pro se Motion for Special Prosecutor to be Appointed;

V. Whether the prosecutor committed prosecutorial misconduct resulting in fundamental error; and

VI. Whether the evidence is sufficient to sustain Burton's convictions for aiding in dealing in methamphetamine and one count of dealing in a schedule IV controlled substance.

We affirm.

Facts and Procedural History

[2] In December 2012, Narcotics Detective Travis Wampler with the Johnson County Sheriff's Department, who was a certified substance abuse counselor, had worked as a probation officer, and had been formally trained in conducting covert narcotics buys, became familiar with Confidential Informant 32 (“CI–32”). CI–32 was incarcerated for theft and escape, and he offered to assist in arresting three different targets, none of whom were Burton, in exchange for a reduction in his charges and an early release from jail. A contract to that effect was signed by CI–32 on January 3, 2013. CI–32 ultimately assisted the police with fifty to sixty buys against twenty-seven different dealers.

[3] On March 15, 2013, after CI–32's contract with the Johnson County Sheriff's Office had expired, CI–32 called Burton to arrange a purchase of methamphetamine. On March 22, 2013, CI–32 arranged to purchase methamphetamine for $120 from Burton at the Tearman Hotel in Franklin, Indiana, and informed Detective Wampler, who was assisted by Johnson County Narcotics Detective Damian Katt. Detective Wampler searched CI–32 prior to conducting the transaction, and CI–32 did not have any narcotics on his person. CI–32 was provided with $200 to purchase methamphetamine and potentially other drugs. Burton drove a white van into the hotel parking lot, and Jeremy Clark accompanied him in the front passenger seat. Burton told CI–32 to enter the driver's-side rear seat of the van, and CI–32 did so. Clark performed the hand-to-hand drug transaction with Burton. Both Detectives Wampler and Katt observed the transaction and video-recorded it. CI–32 returned to Detective Katt after leaving the van without leaving the sight of the detectives and handed Detective Katt two baggies containing a substance which the detectives identified as methamphetamine and which field tested positive for methamphetamine. CI–32 had eighty dollars remaining on his person.

[4] On April 16, 2013, Detective Wampler received a phone call from CI–32 and made arrangements for Detective Katt to transport CI–32 to a Dollar Tree “where the transaction was going to take place in what is know[n] as a ‘roving deal or a moving deal.” ’ Transcript at 193. Detective Wampler “was for safety and security going to monitor the deal” and drove an undercover vehicle, and Detective Katt followed in a second undercover vehicle with CI–32 as the passenger. Id. The detectives searched CI–32 prior to the transaction and found no contraband, and they placed a monitoring device, or “keil,” on him. Id. at 195. CI–32 was given fifty dollars and Detective Katt was given $150 to try to purchase additional narcotics, as well as “a covert-video-recording device” to record the buy. Id. at 197. CI–32 purchased twenty Xanax tablets from Burton in exchange for $50 and was recorded by Detective Katt's recording device. Detective Wampler identified the Xanax

tablets by drugs.com and the Drug ID Bible. The Xanax tablets were then sealed and submitted to the evidence technician for evidence.

[5] On April 17, 2013, CI–32 called Burton and asked whether he had any prescription medications available for purchase. Burton said that he could obtain Xanax

from his sister, who had a prescription for the pills. Burton later called CI–32 and said that he could obtain twenty tablets for three dollars per tablet, explaining the price by saying that his sister named the price for the pills and was “taxing,” which is a term used to explain a high price. Id. at 214. CI–32 agreed to pay the money, and Burton told CI–32 the address where they could meet.

[6] CI–32 was searched and subsequently provided with $60 in buy money and a keil, for which Detective Wampler had the keil receiver. Detective Katt drove CI–32 to the house and saw Burton sweeping inside the garage, and Detective Wampler parked a separate vehicle one street over to listen to the purchase via monitoring equipment and to watch the vehicle arrive at the residence. Detective Katt observed CI–32 enter the garage, pick up a small paper-wrapped package lying on a table, and hand money to Burton. CI–32 returned to the vehicle and handed the package to Detective Katt, which contained twenty pills and which Detective Katt recognized, based on having seen such pills “thousands of times,” to be Xanax

, also known as Alprazolam. Id. at 382. Detective Wampler also confirmed the identity of the pills by checking their identification with drugs.com and the Drug ID Bible. The Xanax tablets were placed in an envelope and placed in the evidence property room.

[7] On May 13, 2013, Detective Katt was to transport CI–32 to a residence to meet with Burton and purchase seventeen hydrocodone tablets. The detectives searched CI–32 and provided him with ten dollars which was “a small amount so that he wouldn't have enough money for the purchase.” Id. at 224. Detective Katt was provided with the remainder of the buy money “so that ... if the drug deal was going to occur it was going to occur with a cop being involved.” Id. Detective Wampler set up across the street from the residence with a camcorder to record the events. Detective Katt eventually exchanged seventy dollars with Burton to purchase seventeen hydrocodone tablets. The detectives and CI–32 then debriefed, and the tablets, which contained “the markings M363 upon them which are specifically hydrocodone

tablets,” were placed in an evidence envelope. Id. at 234. The tablets were later identified as hydrocodone using drugs.com and the Drug ID Bible.

[8] On May 29, 2013, the State charged Burton with Count I, dealing in a schedule II controlled substance as a class B felony; Count II, aiding in dealing in methamphetamine as a class B felony; Count III, dealing in a schedule IV controlled substance as a class C felony; and Count IV, dealing in a schedule IV controlled substance as a class C felony.¹ On June 26, 2013, the Johnson Superior Court No. 2 held an initial hearing and entered an order on the chronological case summary (“CCS”) noting that Burton did not request a public defender, that he requested a special prosecutor, and that he requested a speedy trial by jury. The court set a pretrial hearing for August 1, 2013, and a speedy trial date for August 27, 2013. On July 29, 2013, Burton filed a number of pro se motions, including “Defendant's Motion to Reveal the Identity of the Confidential Informant—C.I–032,” “Defendant's Motion to Reveal Agreement entered into between the State and the Confidential Informant to testify at trial,” and “Defendant's Motion for Prosecution To Reveal Documents on Record of the Confidential Informant—‘C.I–032’ Being Approved By a Judge To Be a Valid C.I.” Appellant's Appendix at 63–67. That same day the court entered an order taking Burton's pro se motions under advisement. On July 31, 2013, Burton filed a pro se motion titled “Defendant's Motion for Disclosure of Benefits Provided State's Witnesses and for Disclosure of Exculpatory Evidence.” Id. at 70.

[9] On August 1, 2013, Burton filed a “Motion for Special Prosecutor to be appointed,” as well as “Defendant's Motion for Conesensual [sic] Interception, and Transmission of Recorded of any Communication of State's Witness.” Id. at 72, 79. That same day, the court held a pretrial hearing in which Burton requested a public defender, and the court appointed Attorney Carrie Miles to defend him. Id. at 4. The court entered an order on the CCS that “[a]ll pending motions filed are set for hearing on August 15, 2013....” Id. On August 6, 2013, Attorney Miles filed a motion to withdraw due to a conflict, and the court entered an order granting the motion. On August 12, 2013, the court entered an order to “transfer this file to another Court by random rotation filing” due to the conflict with Attorney Miles. Id. at 89. On August 14, 2013, the Johnson Circuit Court received the case file and set a hearing date for the next day.

[10] On August 15, 2013, the Johnson Circuit Court held a hearing and at the outset asked Burton if he wanted an attorney appointed to represent him, and Burton responded that he “would like to have an attorney to assist me.” Transcript at 3–4. The court inquired what Burton meant by “assist,” asking if he wanted an attorney “just to stand by and give you documents if you request it,” Burton replied “[s]ure,” and the court stated that it did not “allow what we call hybrid or bifurcated...