Hawkins v. State Of Ind.
| Decision Date | 30 December 2010 |
| Docket Number | No. 84A01-1005-CR-268,84A01-1005-CR-268 |
| Parties | KENNY HAWKINS, JR., Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
ATTORNEY FOR APPELLANT:
MARK EVERETT WATSON Terre Haute, Indiana.
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER Attorney General of Indiana.
NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana.
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.
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable David R. Bolk, Judge
MEMORANDUM DECISION-NOT FOR PUBLICATIONFRIEDLANDER, Judge Kenny Hawkins, Jr. appeals his conviction of Dealing In Cocaine, 1 a class B felony, as well as the twelve-year sentence imposed thereon. Hawkins presents the following restated issues for review:
We affirm.
The facts favorable to the conviction are that on February 17, 2009, confidential informant #824 (the C.I.) contacted Detective Martin L. Dooley Jr. of the Terre Haute Police Department and informed him that she could purchase cocaine from persons from Mississippi. The C.I. met Detective Dooley and Detective Karen Cross at a predetermined location, where Detective Cross searched the C.I. and the C.I.'s vehicle for contraband. The C.I. was then equipped with a recording device known as a hawk device. In the detectives' presence, the C.I. placed a telephone call and asked for "Dred". Appellant's Appendix at 13. The individual that answered was not "Dred" and the C.I. informed the individual she had a "bill". Id. The individual on the phone informed the C.I. to meet him near the Jiffy Mini Mart around 25th and 8th Avenue. The C.I. was provided with photocopied buy money.
The C.I. drove to the designated location, where she met Hawkins and exchanged the one hundred dollars in buy money for five plastic bags. The transaction was recorded, although the quality of the recording was such that the court reporter later was unable to transcribe the audio portion. The C.I. returned to the staging area, where Detective Dooleytook possession of the hawk device and the baggies the C.I. had purchased from Hawkins. The C.I. was searched by Detective Cross. Detective Cross also conducted a search of the C.I.'s vehicle. No money or other contraband was found on the C.I.'s person or in the C.I.'s vehicle. The substance in the baggies was later field tested by Detective Dooley and tested positive for cocaine weighing 2.0 grams in the aggregate. The cocaine was tagged as evidence and later placed in the Terre Haute Police Department's evidence room.
On March 31, 2009, Detective Dooley filed an affidavit for probable cause to issue an arrest warrant for Hawkins. The probable cause affidavit indicated that all the facts were within Detective Dooley's personal knowledge. A charging information was prepared charging Hawkins with dealing in cocaine as a class B felony.
A jury trial was conducted on April 13-14, 2010, after which Hawkins was found guilty as charged. At sentencing, the trial court found Hawkins's criminal history as an aggravator and determined that it outweighed the lone mitigator, i.e., Hawkins's history of substance abuse. He was sentenced to twelve years in prison, which is two years above the advisory sentence for a class B felony. See I.C. § 35-50-2-5 (West, Westlaw through 2010 2nd Regular Sess.).
1.
Hawkins contends he received ineffective assistance of trial counsel in that counsel failed to file a timely motion to suppress the arrest warrant and to suppress the cocaine purchased in the drug buy because it lacked a sufficient chain of custody. He also claims counsel was ineffective for failing to challenge the reliability of the C.I.
In order to prevail on his claim of ineffective assistance of counsel, a petitioner mustdemonstrate both that his counsel's performance was deficient and that he was prejudiced thereby. French v. State, 778 N.E.2d 816 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668 (1984)). This is the so-called Strickland test. Counsel's performance is deficient if it falls below an objective standard of reasonableness based on prevailing professional norms. Id. To establish the requisite prejudice, a petitioner must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). The two elements of Strickland are separate and independent inquiries. The failure to satisfy either component will cause an ineffective assistance of counsel claim to fail. Taylor v. State, 840 N.E.2d 324 (Ind. 2006). Thus, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Landis v. State, 749 N.E.2d 1130 (Ind. 2001).
Hawkins's first claim in this regard is that counsel rendered ineffective assistance in failing to file a motion to suppress the arrest warrant because "the arrest warrant affidavit was not supported by probable cause because it was based on uncorroborated hearsay from a source whose reliability was an issue." Appellant's Brief at 11. Although cases involving motions seeking the suppression of evidence are legion, Hawkins does not direct this court's attention to authority for the proposition that a party may attain suppression of an arrest warrant. It is simply not clear what remedy Hawkins's trial counsel could have obtained by filing a motion to suppress the arrest warrant. It is possible that Hawkins is comingling two separate and distinct types of challenges that might have been made, one involving thevalidity of the arrest and the other involving the admissibility of the evidence. If so, both would have failed for the same reason, as will be explained below.
There was no flaw in the arrest warrant in this case.
A valid arrest warrant must be supported by probable cause. Probable cause turns on a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit... there is a fair probability" that the subject has committed a crime or evidence of a crime will be found. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). To establish probable cause, an affidavit in support of the warrant must do more than state the conclusion of the affiant. A neutral and detached magistrate must draw his or her own conclusion whether probable cause existed and cannot act as a "rubber stamp for the police." Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In assessing the validity of an issued warrant, the reviewing court is "to determine whether the magistrate had a 'substantial basis' for concluding that probable cause existed." Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997) (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. 2317). "[S]ubstantial basis requires the reviewing court, with significant deference to the magistrate's determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination" of probable cause. Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997) (discussing Gates, 462 U.S. at 236, 103 S.Ct. 2317).
Shotts v. State, 925 N.E.2d 719, 723 (Ind. 2010) (some internal citations omitted). In this case, contrary to Hawkins's assertions, Detective Dooley did not rely upon the uncorroborated hearsay of the C.I. in completing the probable cause affidavit.
At the staging area, Detective Dooley placed the hawk device on the C.I. after giving her $100 and searching her car and person, thereby confirming at that point that she had no contraband on her. Detective Dooley followed close behind her as she drove to the transaction, remaining in visual contact with her the whole time until they came within a few blocks of the target site. At that point, Detective Dooley pulled into a filling station and parked. Detective Matthew Cardin, driving in a different vehicle, fell in behind the C.I.'svehicle and followed her. There was no time when the C.I.'s vehicle was out of sight of both Detectives Dooley and Cardin; at least one of them was in visual contact at all times. Detective Cardin stopped about a block and a-half from the spot where the transaction was to take place. He observed as Hawkins approached the C.I.'s car and remained there for less than a minute, then walked away. At that point, the C.I. turned around and retraced the route she had followed to get there. Detective Cardin followed her until she was once again within sight of Detective Dooley, who at that point resumed following the C.I. back to the original staging point. Once there, the C.I. gave Detective Dooley five plastic baggies containing what was later determined to be two grams of cocaine. A subsequent search of the C.I.'s person and vehicle revealed the presence of no contraband or money. The C.I. described in detail the transaction to Detective Dooley, who then retrieved the hawk device from the C.I., drove to the police station, downloaded and then viewed the video recording, which was "accurate and consistent" with the C.I.'s account of the transaction. Transcript at 67.
Yet, Hawkins maintains that there were inadequate controls with respect to the buy to establish that Hawkins was the source of the cocaine delivered to Detective Dooley by the C.I. This claim is simply unavailing and to support this conclusion we cite our previous descriptions of the thorough measures undertaken in this regard by the law enforcement officers involved. Hawkins also claims the digital recording used to...
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