Carroll v. State

Citation740 N.E.2d 1225
Decision Date14 December 2000
Docket NumberNo. 48A04-9912-CR-564.,48A04-9912-CR-564.
PartiesDwight A. CARROLL, Appellant-Defendant, v. STATE of Indiana, Appellee-Appellee.
CourtCourt of Appeals of Indiana

Thomas G. Godfrey, John T. Wilson, Anderson, Indiana, Attorneys for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Janet Brown Mallett, Rosemary L. Borek, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

MATHIAS, Judge

Dwight A. Carroll was convicted of dealing in cocaine, a Class B felony, and possession of cocaine with intent to deliver, a Class A felony. He was sentenced to concurrent terms of twenty years for dealing and thirty years with ten years suspended for possession with intent to deliver. He was placed on probation for eight years, and that probation was later revoked. In this appeal, which consolidates both his direct appeal and appeal of his probation revocation, Carroll raises four issues for our review:

I. Whether the State violated Brady v. Maryland when it failed to disclose that one of its witnesses had been previously convicted of the misdemeanor offense of false reporting or informing;

II. Whether the trial court's instruction on constructive possession was erroneous because it did not reiterate that possession requires a knowing exercise of control;

III. Whether his dual convictions violate Indiana Code section 35-38-1-6 or the Indiana Double Jeopardy Clause; and

IV. Whether the trial court could require as a condition of probation that Carroll cooperate with the Drug Task Force, "answer fully, truthfully and completely all questions posed," and testify at trial if required to do so.

We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

On April 19, 1999, the Madison County Drug Task Force sent Ron Jones, an informant, to buy cocaine from Paula Hoppes at her residence. Jones gave Hoppes $100.00 in cash with recorded serial numbers, and she in turn obtained cocaine from a man inside the residence. Jones did not know the man, but merely noted he was an African-American wearing a black jacket. Jones observed the man take a large plastic bag of cocaine from the pocket of his black jacket.

After leaving Hoppes' residence, Jones spoke to a member of the Madison County Drug Task Force, who decided to obtain a search warrant for Hoppes' residence. Approximately two hours later, a warrant was executed by a S.W.A.T. team, which forced entry into the home. The S.W.A.T. team found Carroll in the east bedroom, near a stack of money, $90.00 of which had serial numbers that matched the bills Jones used when he purchased cocaine from Hoppes. A black jacket with white stripes was found approximately two feet from Carroll. Police found 3.74 grams of cocaine and a cellular phone in the jacket.

According to Hoppes' sixteen-year-old son, Carroll was wearing the jacket when the S.W.A.T. team broke in. Carroll threw the jacket down as he ran to the east bedroom. Hoppes also testified that the black jacket belonged to Carroll. Moreover, the cellular phone records for the phone found in the pocket of the jacket showed several calls to Carroll's niece at the same number Carroll called while in jail awaiting trial.

Carroll was convicted of dealing in cocaine, a Class B felony, and possession of cocaine with intent to deliver, a Class A felony. He was sentenced to concurrent terms of twenty years for dealing and thirty years with ten suspended for possession. He was placed on probation for eight years. One condition of probation was that Carroll give a clean-up statement to the Madison County Drug Task Force.

Within days of sentencing, a member of the Task Force attempted to secure the clean-up statement. The officer did not believe that Carroll was being honest with him and sought to have Carroll's probation revoked. After a hearing held a few months later, the trial court revoked Carroll's probation and ordered that he serve eight years of the previously suspended ten-year sentence. This is a consolidated direct appeal of the convictions and an appeal of the probation revocation.

I. Brady Claim

Carroll first contends that he is entitled to a new trial because the State failed to disclose before trial that Hoppes had a prior criminal history. The State responds that it did not discover and disclose the criminal history before trial because Hoppes had been convicted under an alias.

Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady applies to evidence impeaching the credibility of State's witnesses. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)

(citing Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). The United States Supreme Court has recently summarized three components of a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

The State concedes that the first Strickler component is established. Hoppes' prior criminal history, particularly her conviction for false informing or reporting, a crime of dishonesty pursuant to Evidence Rule 609, is potential impeaching evidence that falls within the ambit of Brady and its progeny. Nevertheless, the State contends that this evidence was not suppressed by the State because defense counsel could have discovered the convictions with due diligence. We disagree.

In Crivens v. Roth, 172 F.3d 991 (7th Cir.1999), the State failed to disclose that a crucial witness had a prior criminal history cataloged under a different name. The Seventh Circuit pointed out that "[c]riminals often use aliases, but the police are able to link the various names to a single individual through a variety of means." Id. at 997. "If, as the state would have us believe, extracting [a defendant's] criminal history was a complicated endeavor, how could [the defendant] have accomplished such a difficult feat on his own?" Id. The court distinguished cases in which a witness's criminal history was in the possession of another state. See United States v. Young, 20 F.3d 758, 764 (7th Cir.1994)

.

The criminal record of the witness in Crivens, like Hoppes' in this case, is from the same county as the trial of the subsequent case at which the witness testified. Thus, the criminal history was clearly within the State's reach. "[T]he availability of information is not measured in terms of whether the information is easy or difficult to obtain but by whether the information is in the possession of some arm of the state." Id. at 997-98 (quoting United States v. Perdomo, 929 F.2d 967, 971 (3d Cir.1991)); see also Martinez v. Wainwright, 621 F.2d 184, 186-87 (5th Cir. 1980)

. Because the State had Hoppes' record at its disposal but failed to disclose it, the second Strickler prong is satisfied.

Thus, this case turns on whether the nondisclosure was prejudicial to Carroll, i.e., whether the suppressed evidence was material. Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Bagley, 473 U.S. at 682,105 S.Ct. 3375. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. In proving materiality, it is not necessary for the defendant to show that "after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." Kyles v. Whitley, 514 U.S. 419, 434-35, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Rather, the defendant must show that the "favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 435, 115 S.Ct. 1555 (footnote omitted).

At issue in this case is a six-year-old misdemeanor conviction for false informing or reporting.1 Its impeaching value is, in light of all of the evidence in the case, negligible, at best. Hoppes was not portrayed as a highly credible witness or an otherwise upstanding citizen. The State elicited testimony on direct examination that she was hoping for a favorable deal from the State in exchange for her testimony against Carroll. Moreover, she admitted that she had sold drugs and allowed others to sell drugs from her home in the presence of her children, age five and sixteen. This conduct led the prosecutor, during closing argument, to refer to Hoppes as a "crackhead" and "a terrible mother." R. at 1372. A six-year-old misdemeanor conviction for false reporting could not have depreciated the jury's view of Hoppes by much.

In addition to Hoppes' testimony, there was also other evidence of Carroll's guilt, which further casts doubt on the significance of the State's nondisclosure. Jones saw Hoppes retrieve cocaine from an African-American male wearing a black jacket. Hoppes' sixteen-year-old son, without any suggestion from his mother or the police, told police that the black jacket found within two feet of Carroll was Carroll's. Hoppes' son also testified that he had seen Carroll take off the jacket and throw it to the floor when the S.W.A.T. team was knocking in the door. Finally, $90.00 of the $100.00 that Jones gave Hoppes was found underneath Carroll.

In sum, this independent evidence, combined with the State's presentation of Hoppes as a less-than-sterling witness, leads us to conclude that the State's nondisclosure of a six-year-old...

To continue reading

Request your trial
19 cases
  • Kendall v. State
    • United States
    • Indiana Appellate Court
    • 18 Abril 2005
    ...on both a greater and lesser-included offense. An offense may either be inherently included or factually included. Carroll v. State, 740 N.E.2d 1225, 1231 (Ind.Ct.App.2000), trans. denied. An offense is inherently included in another offense if the lesser offense may be established "by proo......
  • Reid v. State, 89A01–1208–PC–377.
    • United States
    • Indiana Appellate Court
    • 8 Abril 2013
    ...(3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).Carroll v. State, 740 N.E.2d 1225, 1229 (Ind.Ct.App.2000), trans. denied. Again, the State argues that Appellants are not entitled to the requested relief because they have fail......
  • McKnight v. State
    • United States
    • Indiana Appellate Court
    • 31 Diciembre 2013
    ...presented at trial, the impeaching value of Rhymer's ten-year-old theft conviction was negligible, at best. See Carroll v. State, 740 N.E.2d 1225, 1230 (Ind.Ct.App.2000) (impeaching value of six-year-old misdemeanor conviction for false informing was negligible in light of all the evidence ......
  • Caron v. State
    • United States
    • Indiana Appellate Court
    • 31 Marzo 2005
    ...a reasonable possibility the jury used the same evidence to establish the essential elements of the two offenses. See Carroll v. State, 740 N.E.2d 1225 (Ind.Ct.App.2000), trans. denied. As a result, we affirm Caron's conviction for the manufacturing offense and vacate his conviction and sen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT