Jones v. State Of Ind.

• Decision Date: 06 December 2010
• Docket Number: No. 48A04-1003-CR-161,48A04-1003-CR-161
• Parties: STEPHEN RAY JONES, JR., Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Indiana Appellate Court

STEPHEN RAY JONES, JR., Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 48A04-1003-CR-161

COURT OF APPEALS OF INDIANA

FILED: December 6, 2010

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:

JOHN T. WILSON

Anderson, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

GEORGE P. SHERMAN

Deputy Attorney General Indianapolis, Indiana

APPEAL FROM THE MADISON SUPERIOR COURT

The Honorable Thomas Newman, Jr., Judge

Cause No. 48D03-1001-FD-25

MEMORANDUM DECISION-NOT FOR PUBLICATION

BROWN, Judge Stephen Ray Jones, Jr., appeals the revocation of his probation. Jones raises one issue, which we revise and restate as follows:

I. Whether the trial court abused its discretion by admitting probable cause affidavits;

II. Whether the court violated Jones's due process rights in revoking his probation; and

III. Whether the court abused its discretion in ordering Jones to serve the previously-suspended portion of his sentence in the Indiana Department of Correction.

We affirm.

The relevant facts follow. On November 24, 2008, the State charged Jones with possession of marijuana as a class D felony. On July 16, 2009, Jones pled guilty as charged and, pursuant to a plea agreement, the court imposed a total sentence of three years, with six months executed and the balance to be served on formal probation.

On August 15, 2009, Anderson Police Officer Naselroad initiated a traffic stop of a vehicle in which Jones was a passenger. Officer Naselroad noticed a strong odor of marijuana coming from the inside of the vehicle. Sergeant John Branson, who was a "K-9 supervisor and patrol [officer]," was called to the scene of the traffic stop to perform a "K-9 sniff." Transcript at 15-16. Sergeant Branson performed an exterior search of the vehicle with his police dog, and the dog alerted on both the passenger's side and driver's side of the vehicle. Officer Naselroad discovered in the vehicle a "white powdery substance rock" and a "small blue pill," which were field tested by Anderson Police Department Officer Matt Guthrie and identified to be cocaine and ecstasy, respectively. Transcript at 25. Officer Naselroad also located a small amount of green plant material along with some seeds on the center of the rear passenger seat which field tested positive for marijuana. The officers placed Jones under arrest for drug violations.

On October 19, 2009, the State filed a petition for violation of probation which alleged that Jones violated his probation when he was arrested on August 15, 2009, and later charged with possession of cocaine and possession of a controlled substance, each as class D felonies. On December 8, 2009, the court held an initial hearing at which Jones denied the allegations in the State's petition and the court scheduled an evidentiary hearing for January 19, 2010.

On January 18, 2010, Anderson Police Detective Clifford Cole received information regarding a package which was en route from California to Anderson, Indiana, and may have contained illegal narcotics, and located the package at a Fed Ex location. Sergeant Branson performed a K-9 sniff of the package, and the dog alerted. Detective Cole obtained a search warrant for the package and found approximately four pounds of marijuana inside. Police took "most of the marijuana out" of the package, put "approximately one pound back in," and "repackaged the package." Transcript at 28. Police set up surveillance around the residence to which the package was addressed, and then a police officer delivered the package to the residence. Approximately ten minutes after the package was delivered, Jones and another man left the residence with thepackage and drove away in a vehicle. After "about a half a block down the road," Jones "entered a separate vehicle and drove off." Id. at 29. Detective Cole observed Jones pull into a gas station. Police officers approached Jones's vehicle, discovered that his license was suspended, and placed Jones under arrest. A subsequent search of the vehicle revealed a "small plastic bag of green plant material that weighed approximately six (6) grams and field tested positive for marijuana." Id. at 30. Police also found that Jones had approximately $628 in his possession.

On January 26, 2010, the State filed an amended notice of probation violation which alleged, in addition to those allegations in the original October 19, 2009 petition, that Jones "[o]n/about 1/19/10"¹ committed new criminal offenses of dealing in marijuana as a class D felony and possession of marijuana. Appellant's Appendix at 17.

On February 17, 2010, the court held an evidentiary hearing at which the State presented evidence including two probable cause affidavits, one prepared by Detective Cole and the other prepared by Officer Naselroad, and the testimony of Sergeant Branson, Officer Guthrie, and Detective Cole. The court found by a preponderance of the evidence that Jones violated conditions of his probation, revoked Jones's probation and suspended sentence, and ordered Jones to serve the previously-suspended portion of his sentence in the Indiana Department of Correction. Additional facts will be provided as necessary.

I.

The first issue is whether the trial court abused its discretion in admitting two probable cause affidavits at the evidentiary hearing. Generally, we review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh'g denied. We reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh'g denied, trans. denied.

Jones argues that the admission of the affidavits denied his due process right to confront and cross examine all witnesses against him. Jones further argues that "the trial court improperly admitted a probable cause affidavit during his probation revocation hearing...." Appellant's Brief at 8. Jones argues that he was denied "his right to confront Officer [Naselroad] as to the reliability of the affidavit" related to his arrest on August 15, 2009, and "his right of confrontation of the officers who made the stop" on January 18, 2010. Id. at 9-10. Jones also argues that the trial court "did not explain why the hearsay is reliable on the record to support good cause," id. at 10, and that "[t]here was no showing of reliability of any of the hearsay evidence proffered by the State." Id. at 11. The State argues that the probable cause affidavits prepared by Officer Naselroadand Detective Cole were substantially trustworthy and that the court did not abuse its discretion in admitting the affidavits.

Initially, we observe that Sergeant Branson testified that on August 15, 2009, after his police dog alerted on both sides of the vehicle in which Jones had been a passenger, he assisted Officer Naselroad with a search of the vehicle and that Officer Naselroad had taken drug items into custody. Officer Guthrie testified that he performed a "field kit for methamphetamine and cocaine" at the scene of the stop on August 15, 2009, and that he "field tested the rock first which tested positive for cocaine" and that he then "tested the small blue pill which tested positive for methamphetamine ecstasy." Transcript at 24-25. In addition, Detective Cole testified that, following a controlled delivery and subsequent surveillance on January 18, 2010, police officers approached and arrested Jones at a gas station and a search of the vehicle Jones was driving revealed material which field tested positive for marijuana.

Our review of the evidence presented at the evidentiary hearing shows that, even if the probable cause affidavits challenged by Jones had not been admitted into evidence, the testimony of the three officers regarding Jones's offenses on August 15, 2009 and January 18, 2010 was sufficient to support the revocation of Jones's probation. The relevant information in the affidavits related to the alleged probation violations was merely cumulative of the police officers' testimony. See Decker v. State, 704 N.E.2d 1101, 1104 (Ind. Ct. App. 1999) (noting that even if the test results were inadmissible ashearsay evidence, the evidence was merely cumulative of other testimony and that there is no ground for reversal if hearsay evidence erroneously admitted is merely cumulative), trans. dismissed.

Further, we cannot say that the court abused its discretion in admitting the probable cause affidavits prepared by Officer Naselroad and Detective Cole. The rules of evidence do not apply to probation proceedings. Ind. Evidence Rule 101(c)(2). However, the due process clause applies to probation revocation hearings. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007) (citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756 (1973)), reh'g denied; see also Figures v. State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010) (noting that "due process principles applicable in probation revocation hearings, also codified at Indiana Code section 35-38-2-3(e), afford the probationer 'the right to confront and cross-examine adverse witnesses'"). "But there is no right to probation: the trial court has discretion whether to grant it, under what conditions, and whether to revoke it if conditions are violated." Id. (citation omitted). "It should not surprise, then, that probationers do not receive the same constitutional rights that defendants receive at trial." Id. (citation omitted). The due process right applicable in probation revocation hearings allows for...