Elliott v. State
| Decision Date | 01 November 2012 |
| Docket Number | No. 13A04–1201–CR–11.,13A04–1201–CR–11. |
| Parties | Angela R. ELLIOTT, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Crawford Circuit Court; The Honorable K. Lynn Lopp, Judge; Cause No. 13C01–1007–FA–4.
Paul Matthew Blanton, Jeffrey K. Branstetter, Blanton & Branstetter, LLC, Jeffersonville, IN, Attorneys for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-defendant Angela R. Elliott appeals her convictions for Dealing in Methamphetamine,1 a class A felony, Maintaining a Common Nuisance,2 a class D felony, Possession of Paraphernalia,3 a class A misdemeanor, and Resisting Law Enforcement,4 a class A misdemeanor. Elliott argues that her convictions must be reversed because her right to be free from unreasonable search and seizure was violated when the trial court admitted drugs into evidence that the police had seized during an improper search of a vehicle. Elliott also argues that the trial court erred in denying her motion for a mistrial, that the trial court abused its discretion in admitting evidence of prior bad acts at trial in violation of Indiana Evidence Rule 404(B), and that the jury was improperly instructed. Concluding that the drugs seized during the search were properly admitted into evidence and finding no other error, we affirm the judgment of the trial court.
On July 21, 2010, Indiana State Trooper Katrina Smith received a telephone call from M.M., a confidential informant, who indicated that she could purchase methamphetamine from Elliott. Trooper Smith was aware that Floyd County Sheriff's Deputy Troy McDaniel had used M.M. as an informant on numerous occasions. Deputy McDaniel had found M.M. to be credible and reliable in the past, because the information that she had provided has led to drug arrests and convictions. Trooper Charles Pirtle, who also became involved in the investigation, also knew that other “officers had used [M.M.] for credible information.” Tr. p. 39.
Trooper Smith contacted her supervisor, Sergeant Paul Andry, and requested his assistance in the investigation. M.M. had also supplied Sergeant Andry with information on prior occasions and had “never known it to be wrong.” Id. at 60. In fact, he determined that M.M. was “usually blatantly honest.” Id. Sergeant Andry knew Elliott, as he had arrested her on other occasions. In one incident, Sergeant Andry made an undercover purchase of marijuana from Elliott. On another occasion, Sergeant Andry arrested Elliott in connection with a methamphetamine lab in Orange County.
Sergeant Andry was also involved in investigating another meth lab in Orange County where an individual named James Bayless had been charged. One of the individuals arrested with Bayless's sister had stated that Bayless was living with Elliott in a mobile home in a nearby town. Sergeant Andry had also received information that Elliott and Bayless were potentially involved in drug manufacturing at that location. Another source had informed Sergeant Andry that Elliott and Bayless had been seen riding together in a red PT Cruiser automobile.
Later that day, M.M. contacted Elliott and arranged to purchase a quantity of methamphetamine for $100. Trooper Smith relayed that information to Sergeant Andry. Trooper Smith and Sergeant Andry proceeded to M.M.'s residence at approximately 2:30 that afternoon and waited for Elliott to arrive. It was agreed that several other officers, including Trooper Pirtle, would be at various locations where they could watch Elliott's vehicle approach. While waiting for Elliott to arrive, Sergeant Andry overheard some of the phone calls between M.M. and Elliott. Sergeant Andry recognized Elliott's voice from his past experiences with her and heard M.M. talking about the amount of drugs that she was going to buy. Sergeant Andry heard Elliott say where she was going before she would arrive at M.M .'s house.
Elliott was driving a PT Cruiser, and Bayless was in the passenger seat. Sergeant Andry saw Elliott from the location where he was stationed. At some point, Elliott sounded the vehicle's horn and looked toward the residence. Trooper Smith and Sergeant Andry came out and yelled, “State Police, show me your hands.” Tr. p. 10. Sergeant Andry approached the vehicle with his gun drawn and told Elliott and Bayless to raise their hands.
Sergeant Andry walked toward the driver's side door as Trooper Smith went to the passenger side. Sergeant Andry saw Elliott holding plastic baggies in her right hand. At some point, Elliott appeared to drop the baggies. At that moment, Trooper Smith heard Sergeant Andry say that Elliott had something in her hand, and when Trooper Smith looked inside the vehicle, she saw two bags containing an “off white” substance next to Elliott. Id. at 119. Sergeant Andry placed Elliott under arrest, and he holstered his gun so he could control Elliott's hands. Although the troopers ordered Elliott from the vehicle, she refused to comply.
When Sergeant Andry tried to remove Elliott from the vehicle, she resisted. Other officers came to his aid and tried to remove Elliott from the vehicle. During this incident, Sergeant Andry saw a glass pipe that was in the vehicle's console. Elliott kept one of her hands closed and made a motion suggesting that she was going to swallow the baggies she was holding. The troopers pried open Elliott's hand, and the baggies fell out. After Elliott was handcuffed, the troopers advised her and Bayless of their Miranda rights. Elliott stated that she was bringing methamphetamine to M.M. so that they could smoke it. In response, Sergeant Andry remarked that he did not believe that Elliott was there to smoke the meth. Rather, he told Elliott he thought that she was going to deal it. Elliott then stated, “why would I sell [M.M.] a gram for a hundred when I'm getting a hundred and twenty-five for a half.” Tr. p. 319.
Trooper Pirtle searched Bayless and found two plastic bags containing a clear powdery substance on his person that Trooper Pirtle believed was methamphetamine. Trooper Robert Lambert had brought his canine to the scene, and the dog alerted to the presence of drugs at the front passenger door.
A search of the vehicle revealed $867 and a glass pipe containing some type of drug residue. In the vehicle's center console, the troopers found a blue zipper bag containing an instrument for ingesting methamphetamine, a Tylenol bottle that held a plastic bag containing a crystal-like substance, and a set of digital scales. Another bag appeared to have been shoved between the center console and the passenger seat. This bag had a lock, and keys found in the center console opened it. Inside that bag were additional bags. One of these bags contained eighteen baggies that held a crystal-like substance. Another bag held thirty-nine bags containing a crystal-like substance. Two additional plastic bags held eleven more bags that contained a similar-looking substance. The troopers also found cell phones and a camera inside the vehicle. Laboratory testing of the baggies that Elliott had held in her hand and the bags that were found in the vehicle showed that, combined, they contained over 130 grams of methamphetamine.
On July 26, 2010, Elliott was charged with the following offenses:
Count I Dealing in Methamphetamine, a class A felony
Count II—Possession of Methamphetamine, a class C felony
Count III—Maintaining a Common Nuisance a class D felony
Count IV—Possession of Paraphernalia, a class A misdemeanor
Count V—Resisting Law Enforcement, a class A misdemeanor
On August 5, 2011, Elliott filed a motion to suppress, claiming that her statements and evidence seized at the scene were “obtained in violation of Article 1, Section 11 of the Indiana Constitution and in violation of the Fourth and Fourteenth Amendments of the United States Constitution.” Appellant's App. p. 279. Elliott argued that the police officers lacked probable cause to arrest her, and that under the totality of the circumstances, “the warrantless search was clearly unreasonable insofar as the vehicle in question was parked in a private drive, was not a danger to the public in general, was not interfering with business operations, was flanked by a number of police officers, and was not readily mobile.” Id. at 294–95.
Following a hearing, the trial court denied Elliott's motion to suppress concluding, among other things, that the police officers had received “credible information from an informant that had provided information in the past ... that had been proven to be reliable.” Id. at 13–14. It was also determined that the search of the vehicle was lawful as a search incident to arrest.
A jury trial commenced on November 28, 2011. When the trial court permitted Sergeant Andry to testify that he believed that Elliott was at the scene to deal in methamphetamine, Elliott objected and moved for a mistrial. The trial court denied Elliott's motion. The trial court also permitted testimony about the cash that was seized from the vehicle during the search, and Sergeant Andry was allowed to testify over Elliott's objection that Elliott had asked why, when she was getting $125 per half-gram of dope, would she sell it for only $100 per gram.
Following the presentation of the evidence, the trial court refused to give Elliott's tendered instruction on the charged offenses, which provided that “if the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty.” Tr. p. 359; Appellant's App. p. 64 (emphasis added). Instead, the trial court's final instructions read that the defendant “should” be found not guilty if the State failed to prove the elements beyond a reasonable doubt. Appellant's App. p. 84–87. Following the presentation of the...
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