Davis v. State
Decision Date | 19 December 2019 |
Docket Number | Court of Appeals Case No. 19A-PC-984 |
Citation | 139 N.E.3d 246 |
Parties | Ricci DAVIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Court | Indiana Appellate Court |
Attorneys for Appellant: Stephen T. Owens, Public Defender of Indiana, Jonathan O. Chenoweth, Deputy Public Defender, Indianapolis, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Tyler G. Banks, Supervising Deputy Attorney General, Indianapolis, Indiana
[1] Ricci Davis appeals the denial of his petition for post-conviction relief. We affirm.
[2] The relevant facts as discussed in Davis's direct appeal follow:
pills; empty boxes and the water bladders from cold compresses and the ammonium nitrate that had been extracted therefrom; lithium batteries and empty battery packages; salt; several bottles of drain cleaner (lye); Liquid Fire (sulfuric acid); three empty one-gallon containers of Coleman fuel (an organic solvent); coffee filters; plastic tubing; funnels; Ziploc bags; side cutters (for stripping the lithium out of the batteries); gas masks; and latex gloves. The search also revealed a plastic bag containing a liquid substance; a bottle that had been used as a "one-pot" (first stage of methamphetamine manufacturing); at least six bottles that had been used as hydrochloric gas (HCL) generators (second stage of methamphetamine manufacturing), one of which was located on the upstairs toilet lid; a cast iron skillet coated in white powder; a pill crusher; several loose syringes; and "partial directions on a couple steps of manufacturing methamphetamine." (Tr. pp. 206, 211). Testing on the liquid substance indicated the presence of methamphetamine, but the sample was too diluted to run a confirmatory test.
Davis v. State , No. 35A02-1411-CR-804, slip op. at 2-5, 2015 WL 3499869 (Ind. Ct. App. June 2, 2015) (" Davis I").
[3] The State charged Davis with dealing in methamphetamine within 1,000 feet of a youth program center as a class A felony. Id. at 5. In October 2014, the court held a jury trial. Id. During opening argument, Davis's trial counsel stated:
Trial Transcript Volume II at 93.
[4] During the State's evidence, Dathen Strine, a GIS / IT Technician for Huntington County, testified regarding the creation of maps and buffer zones and that on either side of a point of measurement would be a two and one-half foot margin of error for a total margin of error of five feet. He testified he created a map that measured the distance between Davis's residence and Trinity United Methodist Church. The court admitted the map as State's Exhibit 58, which indicates the distance as 970 feet. He stated that the distance could be as little as 965 feet and as great as 975 feet. He testified that he created a map that measured the distance between Davis's residence and the Boys & Girls Club as 940 feet with a total margin of error of five feet. The court admitted the map as State's Exhibit 59.
[5] Outside the presence of the jury, the parties and the court discussed the admission of a disclaimer which states in part:
Defendant's Exhibit A. The court sustained the prosecutor's objection to the disclaimer, stated that it would not allow the disclaimer into evidence, and stated: Trial Transcript Volume III at 516.
[6] Davis's counsel tendered an instruction which stated that the jury could consider the included crimes of possession of chemical reagents or precursors with intent to manufacture controlled substances, possession of methamphetamine, or maintaining a common nuisance. The court refused to give the jury the instruction.
[7] During closing argument, Davis's counsel stated:
[T]he elected prosecutor of Huntington County, ultimately gets to decide what charges are brought against the defendant .... And tin [sic] this case, ladies and gentlemen, boy did she reach for that brass ring. She went right for the A felony. She went right for the crime that has and is in the same category as aggravated rape and one spot less than murder. That's what she went for ... which she's allowed to do. She has prosecutorial discretion. She can bring that charge if she wants but that means that she has to prove every element of that crime to you. It's not enough that she proves some other lesser crime. She has to prove that crime to you beyond a reasonable doubt. And I will submit to you, ladies and gentleman, that she has failed in that task.
Trial Transcript Volume IV at 587. Davis's counsel also stated:
So then they move on to this thousand (1000) feet issue. I don't dispute that those buildings, by the way, are youth program centers. Those are good and (INAUDIBLE) programs that they have out there. They are a great thing for the community. They should be maintained. But what do we have as far as distances. Well, we know they didn't go out there and measure manually. It's what they used to do by the way. They used to go out with one of those wheels that has the quickie things on it and every time you go a feet (sic), you get a foot. That is what they used to do. They don't do that anymore, apparently. They are content to have someone who sits downstairs in the same building to get on a computer and not type in addresses. He doesn't do that. He picks. He takes his mouse and clicks one spot and goes down. Then he clicks another spot and gets a distance. Now this has a margin of error. We know that. He testified that it is a five (5) foot margin of error. Of course, that is not verified. He stated they haven't verified that. It could be about anything. So we've got that margin of error. We've got the human margin of error. And then and this is the most important part, he has no idea how...
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