Donnegan v. State

• Decision Date: 14 June 2004
• Docket Number: No. 79A04-0305-CR-231.,79A04-0305-CR-231.
• Citation: 809 N.E.2d 966
• Parties: Harold DONNEGAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

809 N.E.2d 966

Harold DONNEGAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A04-0305-CR-231.

Court of Appeals of Indiana.

June 14, 2004.

Transfer Denied August 26, 2004.

Steven Knecht, Vonderheide & Knecht, P.C. Lafayette, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Harold Donnegan appeals his convictions for dealing in cocaine, possession of cocaine, and possession of marijuana. Although we find one instance of misconduct by the prosecutor, none of the instances alleged by Donnegan placed him in a position of grave peril. However, because Donnegan simultaneously possessed the cocaine that supported the possession and dealing in cocaine convictions, we find that Indiana double jeopardy principles are violated; consequently, we reverse the possession of cocaine convictions. Additionally, we find that the evidence is sufficient to show that Donnegan constructively possessed the cocaine and marijuana because he lived in the residence where the drugs were found and the drugs were his. Because Donnegan had a sophisticated operation that was responsible for bringing large amounts of cocaine from Chicago to Tippecanoe County to sell and had prior convictions, we find that his forty-year sentence for dealing in cocaine is not inappropriate.

Facts and Procedural History

Pursuant to an ongoing drug investigation, on the morning of March 27, 2001, Tippecanoe County Drug Task Force Officers took four bags of trash from the residence at 910 Eastwich Drive in Lafayette, where Donnegan and Angelia Hill were believed to be living. In the trash, officers found, among other things, marijuana seeds and residue, cocaine residue, and plastic baggie remnants.¹

The next day, March 28, 2001, officers obtained a search warrant for the residence at 910 Eastwich Drive. Around 11:30 a.m. that morning, officers conducted surveillance of the residence and observed Donnegan in the backyard. When Donnegan left the residence in his car just minutes later, officers stopped and arrested him on an unrelated warrant. Officers searched Donnegan and found a crack pipe and 1.63 grams of cocaine in his pocket.

Following Donnegan's arrest, officers searched the residence at 910 Eastwich Drive. During the search, officers found 48.97 grams of cocaine in multiple packages inside a "canister safe"² underneath the kitchen sink, 2.97 grams of cocaine in a kitchen drawer, .85 grams of cocaine in a leather jacket, .06 grams of cocaine embedded in the carpet, a digital scale and baggies in a kitchen cabinet, marijuana on a counter in the kitchen, and marijuana seeds in an ashtray in the living room. Hill, who was present at the beginning of the search, was arrested. Hill later pled guilty to dealing in cocaine as a Class A felony and was sentenced to thirty years, twenty of which were ordered to be executed.

The State ultimately charged Donnegan with the following: Count I: Possession of Cocaine as a Class B felony; Count II: Dealing in Cocaine as a Class A felony (possession with intent to deliver three or more grams); Count III: Possession of Cocaine as a Class A felony; Count IV: Conspiracy to Deal in Cocaine as a Class A felony; Count V: Possession of Marijuana as a Class A misdemeanor; and Count VI: Possession of Cocaine as a Class B felony. At the jury trial in this case, Hill testified that the lease for 910 Eastwich Drive was in her name only but that Donnegan lived with her about half of the time and helped pay bills; the other half of the time Donnegan lived in Chicago.³ Hill also testified that Donnegan—whose drug network included at least three or four other individuals—brought large amounts of cocaine from Chicago, oftentimes via public transportation, to sell in Tippecanoe County and that she sold cocaine for Donnegan. Hill testified generally that cocaine was kept in the residence at 910 Eastwich Drive and that both she and Donnegan had access to it. Hill testified specifically that the cocaine found inside the canister safe had been there for approximately one week.

Following trial, the jury found Donnegan guilty as charged. The trial court entered judgment of conviction for Count I: Possession of Cocaine as a Class B felony;⁴ Count II: Dealing in Cocaine as a Class A felony;⁵ Count V: Possession of Marijuana as a Class A misdemeanor;⁶ and Count VI: Possession of Cocaine as a Class B felony.⁷ The trial court did not enter judgment of conviction for Counts III and IV. At the sentencing hearing, the trial court identified seven aggravators (1) criminal history; (2) Donnegan is likely to reoffend; (3) Donnegan committed another crime after he was found guilty in this case; (4) the amount of cocaine involved; (5) Donnegan's treatment of women; (6) Donnegan committed crimes while on bond; and (7) Donnegan is in need of rehabilitative treatment that can best be provided by commitment to a penal facility. The trial court also found two mitigators: (1) Donnegan's family support; and (2) his offer of employment. Concluding that the aggravators outweighed the mitigators, the trial court sentenced Donnegan as follows: Count I, fourteen years; Count II, forty years; Count V, one year; and Count VI, fourteen years. The trial court ordered Count I to run concurrent with VI but consecutive to the remaining counts, for an aggregate sentence of fifty-five years. Donnegan now appeals.

Discussion and Decision

Donnegan raises several issues on appeal, which we reorder and restate as follows. First, Donnegan contends that the trial court erred by denying his motions for mistrial based on two instances of prosecutorial misconduct. Second, he contends that his convictions for dealing in cocaine and possession of cocaine violate Indiana double jeopardy principles. Third, Donnegan contends that the evidence is insufficient to support his convictions. Last, he contends that his sentence is inappropriate. We address each issue in turn.

I. Prosecutorial Misconduct

Donnegan contends that the trial court erred by denying his motions for mistrial based on two instances of prosecutorial misconduct. When we review a claim of prosecutorial misconduct, we determine: (1) whether the prosecutor engaged in misconduct; and (2) whether that misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. Muex v. State, 800 N.E.2d 249, 251 (Ind.Ct.App.2003). The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision, not on the degree of impropriety of the misconduct. Id. Furthermore, a mistrial is an extreme remedy warranted only when no other curative measure will rectify the situation. Kirby v. State, 774 N.E.2d 523, 533 (Ind.Ct.App.2002), trans. denied. The determination of whether to grant a mistrial is within the trial court's discretion, and we will reverse only for an abuse of that discretion. Id. We accord great deference to the trial court's decision, as it is in the best position to gauge the circumstances and the probable impact on the jury. Id. at 534.

Donnegan argues first that the prosecutor committed prosecutorial misconduct during closing argument by broaching the subject of whether one of the State's witnesses, Tammy Tarleton, had taken a polygraph examination when that subject was not addressed with Tarleton during trial. The facts surrounding this issue are as follows. Several of the State's witnesses had entered into plea agreements with the State, which required them to submit to a polygraph examination. At trial, the defense wanted to explore whether these witnesses complied with the terms of their plea agreements. The trial court permitted the defense to ask these witnesses whether they complied with the terms of their plea agreements, including whether they submitted to a polygraph examination. However, the trial court refused to admit any evidence concerning the results of the polygraph examinations.

During trial, the defense asked at least two of the State's witnesses whether they had taken a polygraph examination. However, for Tarleton, the defense only asked her about the existence of a plea agreement; the defense did not inquire whether she had taken a polygraph examination. Nor did the prosecutor ask Tarleton about the plea agreement or whether she had taken a polygraph examination. Nevertheless, during closing argument, the prosecutor introduced the subject of whether Tarleton had submitted to a polygraph examination. Specifically, the prosecutor stated:

Tammy Tarleton gave ... her first statement before she had any deal with the [S]tate whatsoever, right after she'd been arrested, before she had to give a cleanup and a polygraph and all that great stuff and she didn't give a polygraph ⁸ but it doesn't matter, the statement she gave was spontaneous....

Tr. p. 386. The defense objected and requested a mistrial. The trial court denied the motion for mistrial but admonished the jury that the results of polygraph examinations are not admissible.

We agree with Donnegan that the prosecutor's statement that Tarleton did not take a polygraph examination constitutes misconduct. We find this to be misconduct because there was no evidence in the record regarding whether Tarleton had submitted to a polygraph examination. During closing arguments, counsel cannot argue evidence that was not admitted into evidence. See Trice v. State, 519 N.E.2d 535, 538 (Ind.1988) ("It is improper for counsel in argument to comment on matters not in evidence.").

However, we do not find that this misconduct placed Donnegan in a position of grave peril to which he should not have been subjected. First, this is not a case where there was no mention of polygraph examinations up to the point of the defense's objection. Indeed, the defense—with the permission of the...