Gates v. State
| Decision Date | 20 September 2011 |
| Docket Number | No. 12A02-1102-CR-160,12A02-1102-CR-160 |
| Parties | JON DALTON GATES, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
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:
DAVID L. WHITSETT, II
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE CLINTON SUPERIOR COURT
The Honorable Justin H. Hunter, Judge
Jon Gates appeals his conviction and sentence for Class D felony maintaining a common nuisance. We affirm.
The restated issues before us are:
The evidence most favorable to the conviction reveals that on February 2, 2009, Gates was living in a house in Clinton County that he previously shared with his wife, Veca Gates. However, the two had been separated since July 2008, and Veca was living elsewhere. Living with Gates on February 2 were Veca's brother, Joshua McCollum, and another man, Matt Fickle. Gates lived primarily in the basement of the house, while McCollum stayed in a bedroom on the main floor.
On the afternoon of February 2, after Veca finished work, she attempted to call Gates to check on their twin boys, three-year-old J.G. and A.G., who were with Gates. When Veca was unable to contact Gates, she went to the house. After banging on thedoor repeatedly without answer, she looked in the house and saw Gates asleep on a couch in the living room, and she also saw A.G. walking around the couch carrying a drug pipe and a cell phone. Veca then let herself in and saw J.G. asleep near Gates and Fickle asleep on another couch. Veca yelled and screamed at Gates, but he was unresponsive. She took the pipe from A.G. and threw it near Gates's head, then took the boys and left the house.
After getting home, Veca contacted the Clinton County Sheriff's Department to make a complaint of drug use and requested that someone be dispatched to Gates's house to check on his welfare. Deputies Matthew Freterick and Dan Roudebush went to the house, and smelled burnt marijuana as they approached it. After the deputies knocked on the door loudly for several minutes, Gates finally got up and answered the door. Gates then allowed the deputies inside at their request. According to the deputies, Gates was acting strangely, i.e. he was "jittery, uh twitchy, uh something that you'd call as tweaking." Tr. p. 181. Deputy Freterick saw and seized the pipe on the couch, which contained a green leafy substance. Deputy Roudebush field-tested the substance and confirmed it was marijuana. Fickle later awoke and exhibited the same strange behavior as Gates. McCollum, on the other hand, came out of the first floor bedroom and was not exhibiting any such behavior.
After Gates refused to consent to a complete search of the house, the deputies obtained a search warrant for it. The ensuing search uncovered "shake," or marijuana residue, throughout the house and garage, except in the bedroom where McCollum wasstaying. Police also found a broken mirror on a bookcase in the living room that had a three-inch long line of methamphetamine powder on it. In the basement, police found items used to ingest drugs, including a hollowed-out light bulb with some residue in it, a paper towel tube with a small bowl attached to it, and a marijuana bong. Police also found a device used to grind marijuana, and a pill bottle containing marijuana. Under a couch in the basement living area was a tray that contained numerous pipes, 3.45 grams of marijuana, a hollowed-out cigar that contained marijuana, and a container with methamphetamine inside of it. In the basement bedroom, police found a small pipe and a tin with white powder in it on a nightstand, and in the bedroom closet was a two-liter soda bottle with a tube coming out of the cap.
The State charged Gates with Class D felony possession of methamphetamine, Class A misdemeanor possession of marijuana, Class D felony maintaining a common nuisance, and Class A possession of paraphernalia. A jury trial was held on January 4-5, 2011, after which the jury found Gates guilty of Class D felony maintaining a common nuisance, but it was hopelessly deadlocked as to the other three counts. The trial court entered judgment of conviction on the jury's finding on January 5, 2011, and scheduled sentencing for January 21, 2011. The sentencing hearing was continued to January 31, 2011, at Gates's request. At the conclusion of the hearing, the trial court stated its belief that Gates was addicted to methamphetamine and discussed the possibility that Gates needed treatment for that addiction. It also stated, "I find that the aggravators and mitigators balance and as such a year and a half sentence is appropriate." Tr. p. 316. Thetrial court also stated that it would issue a written sentencing order more fully explaining the sentence at a later date.
On February 10, 2011, the trial court called Gates into court to read the written sentencing order to him, but continued the hearing until February 16, 2011, because Gates's attorney was ill. The written sentencing order was signed on February 10, 2011. On February 16, 2011, Gates filed a motion for change of judge, based on the trial court's comments regarding its belief that Gates was addicted to methamphetamine. At the February 16 hearing, the trial court denied that motion and further explained why it believed Gates was addicted to methamphetamine. It then read the written sentencing order to Gates, which stated that his purported methamphetamine addiction was a mitigating circumstance. The written order reiterated that the trial court was imposing a sentence of one and one-half years, fully executed, and recommended that Gates obtain substance abuse counseling while incarcerated. Gates now appeals. Additional facts will be provided as necessary.
First, we address Gates's claim that he is entitled to a new trial because the jury may have overheard the trial court say that he has a criminal history. Specifically, before trial, the trial court granted a motion in limine barring any testimony regarding Gates's criminal history. During cross-examination, Deputy Roudebush was attempting to explain Gates's odd behavior and testified, Tr. pp. 200-01. Gates objected to the last sentence of this answer and requested that it be stricken. The trial court excused the jury from the courtroom to discuss the objection and the following transpired:
Id. at 203. After further discussion, the trial court overruled Gates's objection to Deputy Roudebush's testimony, and the trial proceeded. Before the jury came back in, the trial court confirmed with Gates's attorney that the door to the courtroom had been closed during their discussion.
On appeal, Gates only argues that the jury may have heard the trial court refer to his criminal history after it left the courtroom; he does not challenge Deputy Roudebush'stestimony in any way. As Gates concedes, however, he did not move for a mistrial based on the jury's alleged exposure to improper prejudicial information. Gates also did not request that the jury be admonished to disregard anything they might have heard regarding his prior criminal history. A "'timely and accurate admonition is presumed to cure any error in the admission of evidence.'" Banks v. State, 761 N.E.2d 403, 405 (Ind. 2002) (quoting Heavrin v. State, 675 N.E.2d 1075, 1084 (Ind. 1996)). By failing to request either an admonishment or mistrial, Gates has waived any claim of error on this issue.
Gates does contend that the failure to move for a mistrial was the result of ineffective assistance of trial counsel. However, Gates is represented on appeal by the same attorney who served as trial counsel. As an ethical matter, an attorney is not supposed to argue his or her own ineffectiveness. See Matter of Sexson, 666 N.E.2d 402, 403-04 (Ind. 1996); see also Caruthers v. State, 926 N.E.2d 1016, 1023 (Ind. 2010) (citing Ind. Professional Conduct Rule 1.7(a)). As a matter of appellate review, courts will not, under most circumstances, entertain a claim of ineffectiveness of trial counsel presented on direct appeal by the same attorney who tried the case. Etienne v. State, 716 N.E.2d 457, 463 (Ind. 1999). The only exception to this rule is when an ineffectiveness claim is sufficiently clear that immediate review is appropriate to avoid unnecessary delay in addressing it. Id. Otherwise, ruling "on...
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