Combs v. State

• Decision Date: 25 August 2011
• Docket Number: No. 46A03-1006-CR-403,46A03-1006-CR-403
• Parties: JATUN COMBS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

JATUN COMBS, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 46A03-1006-CR-403

COURT OF APPEALS OF INDIANA

Dated: August 25, 2011

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

MICHELLE L. SHIRK

Newby, Lewis, Kaminski & Jones, LLP

LaPorte, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

ANDREW R. FALK

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE LAPORTE CIRCUIT COURT

The Honorable Thomas J. Alevizos, Judge

Cause No. 46C01-0910-FA-571

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Jatun Combs ("Combs") appeals from his convictions after a jury trial of one count of Class B felony dealing in cocaine¹ , and one count of possession with intent to deliver cocaine,² also as a Class B felony. Combs presents several issues for our review, which we restate as the following:

I. Whether the trial court abused its discretion by allowing the State to amend the charges against Combs by adding another felony count seven days prior to Combs' jury trial;

II. Whether the trial court abused its discretion by denying Combs' request to sever the newly-added felony count;

III. Whether the trial court's failure to enter a finding on the State's peremptory challenge of the only African-American juror in the venire was an abuse of discretion;

IV. Whether the trial court abused its discretion by admitting certain statements Combs made while in police custody; and

V. Whether the evidence was sufficient to sustain Combs' convictions. We affirm.

FACTS AND PROCEDURAL HISTORY

On October 17, 2009, Justin Lubke ("Lubke") stole a laptop computer from a friend in order to trade it for cocaine. Lubke took the laptop to 712 Tipton Street, LaPorte, Indiana, where he knew he could purchase cocaine. While at the house, Lubke set the laptop down, and Combs, who was known as "Nephew," handed him a "teener," which Lubke understood to be approximately 1.6 grams of cocaine. Tr. at 316-18. Lubke went into the kitchen andafter consuming the cocaine, he became high.

On October 19, 2009, Lubke borrowed twenty dollars from his mother, went to the residence at 712 Tipton Street, and purchased more cocaine. Lubke consumed the cocaine at the residence before leaving. Later that day, police officers who were investigating the theft of the laptop computer detained Lubke. Captain Clyde Crass of the LaPorte Police Department questioned Lubke about the laptop computer, and Lubke admitted that he had stolen it in order to exchange it for cocaine. After receiving that information, Captain Crass obtained a search warrant for the residence at 712 Tipton Street.

That same afternoon, officers went to 712 Tipton Street to execute the search warrant. Police officers who went to the back door of the residence observed Kevin Shoemaker ("Shoemaker"), who had rented the house for fourteen years, sitting on the back step of the porch eating a sandwich. The officers placed Shoemaker under arrest.

Upon entering the residence, the officers found Michelle Carpenter ("Carpenter"), Shoemaker's girlfriend, who was living at the residence, in a bed in one of the bedrooms. Officers found Carpenter's friend, Kristina Kuta ("Kuta"), playing dice or cards at a table in the kitchen. Kuta had stopped by the residence in order to help care for Carpenter, who was sick with the flu. In the living room of the residence, officers found Eugene Thompson ("Thompson") sitting in a recliner playing a video game. Thompson, who was one of Combs' friends, was ordered to the get on the ground, and officers secured him in handcuffs. When the officers first entered the residence, Combs ran down a hallway toward the kitchen and away from the living room where he had been playing video games with Thompson.Officers found fifteen individually-packaged rocks of crack cocaine in the living room on the table next to a chair where Combs had been sitting. The rocks of cocaine were "dimes," meaning they were worth ten dollars each, and were packaged for delivery. Id. at 562-68. Officers also found a small baggie of marijuana. Combs had been sitting in the chair when Kuta arrived at the house, approximately ten minutes prior to the arrival of the police officers.

While the officers were detaining him, Combs volunteered that the officers had "missed the big guy," who Combs identified as "Holiday." Combs said that he suspected that Holiday's disappearance was related to the arrival of the police officers. Combs also stated that he should be telling the officers about Holiday's activities instead of the other way around. Captain Crass offered Combs the opportunity to speak with him, but Combs declined. Captain Crass had not asked Combs any questions.

Shoemaker, who was unemployed and collecting unemployment benefits, was trying to keep his rent payments covered. He had attempted to sub-lease a room to Combs, but the arrangement did not work out, and Combs did not pay Shoemaker. Shoemaker had asked Combs to pay rent whenever he stayed for four or five nights. Instead of paying Shoemaker, Combs began staying just two nights at Shoemaker's home before leaving to go home, or to visit his girlfriend, and then returning to Shoemaker's residence. On the morning of October 19, 2009, Combs had told Shoemaker that he could not help with the rent because he had no money. Thompson also had no cash that morning.

When the officers searched Combs, they found cash totaling four hundred ninety-sixdollars. Combs was the only person there who had any significant amount of cash in their possession, and no one had any illegal drugs on their person. A search of Combs' room resulted in the discovery of a small digital scale used to weigh illegal drugs and a box of plastic baggies. The scale had a white powder residue on it. The officers did not find the missing laptop computer.

The State charged Combs with two counts of dealing in cocaine, and both counts were enhanced to Class A felonies because they were committed within one thousand feet of a public park. The State moved to amend the charging information to include an additional count of dealing in cocaine as a Class A felony seven days prior to trial. At the conclusion of the second day of trial, Combs moved for a judgment on the evidence regarding the enhancement of each of the charged counts to Class A felonies. The trial court took the matter under advisement and granted that motion. At the conclusion of his jury trial, Combs was found guilty of one count of dealing in cocaine, and one count of possession with intent to deliver cocaine, each as Class B felonies, and not guilty of the other count. The trial court sentenced Combs to eighteen years executed on each count to be served concurrently. Combs now appeals. Additional facts will be provided where necessary.

DISCUSSION AND DECISION

I. Amendment of Charges

Combs challenges the trial court's decision to allow the State to amend the information against him to add another felony charge one week before trial. In general, Indiana Code section 35-34-1-5(b) permits the State to amend a charging information even inmatters of substance at any time before the commencement of trial so long as the amendment does not prejudice the defendant's substantial rights. Brown v. State, 912 N.E.2d 881, 890 (Ind. Ct. App. 2009). The "substantial rights" of a defendant include an opportunity to be heard regarding the charge and a right to sufficient notice. Id. "'Ultimately, the question is whether the defendant had a reasonable opportunity to prepare for and defend against the charges.'" Id. (quoting Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998), abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007), superseded by statute, Ind. Code § 35-34-1-5). A defendant's substantial rights are not prejudiced if: (1) a defense under the original information would be equally available after the amendment; and (2) the defendant's evidence would apply equally to the information in either form. Id. "[A]n amendment is of substance only if it is essential to making a valid charge of the crime." McIntyre v. State, 717 N.E.2d 114, 125-26 (Ind. 1999).

In the present case, Combs moved for a continuance because of the State's late amendment of the information, and also moved to sever the new charge. Both requests were denied by the trial court. Combs argues that his trial strategy had to be altered due to the addition of the new felony count against him. More specifically, Combs argued that he had intended to use an alibi defense at trial, but with the addition of the new count alleging possession with the intent to deliver cocaine, such defense was no longer available. Although the new charge does remove a potential alibi defense, as Combs was arrested during the execution of the search warrant at the 712 Tipton Street residence, it is unlikely that such a defense would have been successful at trial on the original charges. Combs wasarrested at the residence Lubke identified, and each of the people present, in addition to Lubke, identified Combs as the person known as "Nephew." Therefore, while the trial court's decision to allow the State to amend the information just one week prior to trial is somewhat troublesome, in this particular situation Combs' substantial rights were not prejudiced. The facts supporting the additional charge were set out in the original probable cause affidavit, and Combs' evidence was equally applicable to the charges against him, i.e., he was not the person who possessed the cocaine which was pre-packaged for delivery, and was not the person who twice sold cocaine to Lubke. We find no reversible error here.

II. Motion to Sever

Combs asserts that the trial court abused its discretion by denying Combs' request to sever Count III, the newly added count of...