Howard v. State
| Decision Date | 23 November 2004 |
| Docket Number | No. 79A02-0403-CR-238.,79A02-0403-CR-238. |
| Citation | 818 N.E.2d 469 |
| Parties | Troy E. HOWARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Gregg S. Theobald, Lafayette, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.
Troy Howard ("Howard") was convicted of Class A felony dealing in methamphetamine,1 Class C felony dealing in a Schedule IV controlled substance,2 Class D felony operating a vehicle while an habitual traffic violator,3 Class B misdemeanor false informing,4 and found to be an habitual substance offender5 in Tippecanoe Superior Court.
Howard appeals, raising the following consolidated and restated issues for review:
Concluding the trial court did not abuse its discretion, the trial court was not required to ask jurors whether they had questions, and Howard did not receive an improper double enhancement, we affirm.
On May 28, 2002, various law enforcement agencies were conducting a seat belt enforcement zone near the intersection of Main and Kossuth Streets in Lafayette. Tippecanoe County Sheriff's Deputy Richard Walker ("Deputy Walker") was stationed at the east end of this enforcement zone and was responsible for alerting officers at the west end of the enforcement zone to drivers who were not wearing seat belts. The officers at the west end would then direct the driver of the vehicle in question to pull over and issue a citation.6
At 12:45 p.m., Deputy Walker observed Howard driving a BMW without the use of his seat belt. Deputy Walker radioed his observation to Lafayette Police Department Patrolman Ronald Dombkowski ("Officer Dombkowski"). Officer Dombkowski then noticed the BMW approaching and Howard attempting to fasten his seat belt. Officer Dombkowski then directed Howard to pull over in a nearby parking lot.
When Officer Dombkowski approached Howard's vehicle, he asked Howard for his license and registration. Howard gave Officer Dombkowski a registration form, stated he neither had his wallet nor identification on him, identified himself as "Todd D. Howard," and stated he did not know his social security number. Tr. p. 127. Finally, when Officer Dombkowski asked Howard for his date of birth, Howard paused for several seconds and said, 7 Tr. p. 129.
Officer Dombkowski then noticed Howard had a knife hooked to his pants pocket and asked Howard to step from his vehicle so he could remove the knife. When Howard stepped from his vehicle, Officer Dombkowski noticed the outline of a wallet in Howard's back pocket and obtained Howard's wallet, which contained an identification card with Howard's picture, correct name, and correct date of birth on it.
Officer Dombkowski placed Howard under arrest for false informing and performed a check on Howard's identifying information. This check revealed that Howard's driver's license was suspended because of Howard's habitual traffic violator status. Officer Dombkowski also discovered that the license plate on the BMW was registered to a different car in a different person's name. Furthermore, a check of the BMW's vehicle identification number indicated Howard did not own the vehicle.
After arresting Howard and despite Howard's pleas to have a friend drive the BMW home, Officer Dombkowski impounded and performed an inventory search of the BMW. This search revealed six baggies containing 6.23 grams of methamphetamine, one empty baggie with residue, and ninety-four Valium pills.
On May 29, 2002, Howard was charged with Class A felony dealing in methamphetamine, Class A felony possession of methamphetamine, Class C felony dealing in a Schedule IV controlled substance, Class C felony possession of a Schedule IV controlled substance, Class D felony operating a vehicle while an habitual traffic violator, Class B misdemeanor false informing, and alleged to be an habitual substance offender.
On November 12, 2003, Howard filed a motion to suppress, alleging (1) the seat belt enforcement zone in which he was pulled over did not meet the requirements of State v. Gerschoffer, 763 N.E.2d 960 (Ind.2002), and (2) the inventory search of his vehicle was unconstitutional. Appellant's App. p. 23. The trial court denied Howard's Motion to Suppress on November 25, 2003.
At the beginning of Howard's jury trial, Howard moved to dismiss his charge of Class D felony operating while an habitual traffic violator. Howard asserted the charge constituted an improper double enhancement because the convictions upon which the Bureau of Motor Vehicles based Howard's November 12, 1992 habitual traffic violator suspension were the same convictions supporting the State's habitual substance offender allegation. The trial court denied Howard's Motion to Dismiss.
The trial court gave the following preliminary jury instruction:
The Indiana Rules of Evidence allow the court to permit jurors to submit questions to be asked of witnesses to clarify the [witness'] testimony. You may do so in this case by putting your questions in writing and submitting them to me after the lawyers have completed their examination of the witness.
Late in the trial, Howard moved for a mistrial pursuant to Evidence Rule 614(d), asserting the trial court was required to ask jurors if they had questions before excusing each witness and failed to do so.
On December 3, 2003, the jury found Howard guilty of Class A felony dealing in methamphetamine, the lesser-included offense of Class D felony possession of methamphetamine, Class C felony Dealing in a Schedule IV controlled substance, the lesser-included offense of Class D felony possession of a Schedule IV controlled substance, Class D felony operating a vehicle while an habitual traffic violator, and Class B misdemeanor false informing. Howard then waived his right to a jury for his habitual substance offender determination and was found to be an habitual substance offender on January 5, 2004.
On January 26, 2004, the trial court sentenced Howard to thirty-five years for his Class A felony dealing in methamphetamine conviction, which was enhanced by five years due to his habitual substance offender adjudication. The trial court then suspended eighteen years of Howard's sentence, ordered two years of Howard's executed sentence to be served on work release, and ordered the remainder of Howard's sentence to be served in the Department of Correction.
The trial court also sentenced Howard to concurrent terms of six years for his Class C felony dealing in a Schedule IV controlled substance conviction, two years for his Class D felony operating while an habitual traffic violator conviction, and one-hundred and eighty days for his Class B misdemeanor false informing conviction. The trial court finally merged Howard's lesser-included offenses. Howard now appeals.
Howard challenges the trial court's admission of evidence obtained from his search and seizure on the basis that (1) the seat belt enforcement zone that led to his arrest was not reasonable and (2) the search of his person and vehicle were improper.
A trial court has broad discretion when determining whether evidence is admissible, and will only be reversed upon a showing of an abuse of that discretion. Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Id. An abuse of discretion also occurs when the trial court has misinterpreted the law. Carpenter v. State, 786 N.E.2d 696, 703 (Ind.2003).
Howard asserts the seat belt enforcement zone that led to his arrest was unreasonable pursuant to the Indiana Constitution under Gerschoffer. In Gerschoffer, our supreme court discussed the permissibility of sobriety checkpoints that detained motorists without a suspicion of criminal activity. 763 N.E.2d at 964. In noting that there are circumstances in which such checkpoints are permissible, Gerschoffer established several factors that must be present in order to conduct suspicionless stops. Id. at 964-71.
However, Gerschoffer is not applicable here because the seat belt enforcement zone in the case at bar did not randomly detain motorists without a reasonable suspicion of criminal activity but only detained motorists who were observed driving without the proper use of their seat belt.
As Officer Dombkowski stated:
We do not perform any roadblocks or anything of that nature. We were just simply standing on the sidewalk, visually inspecting people as they drove by, whether or not they were wearing their seat belt. If they were not wearing their seat belt, they would have been flagged down.
Such activity is clearly permissible under the Indiana Constitution. Baldwin v. Reagan stated:
trans. denied ("It is well-settled that a police officer may briefly...
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