Kowalskey v. State
| Decision Date | 27 April 2023 |
| Docket Number | 22A-CR-1629 |
| Parties | Gabriel Kowalskey, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hendricks Superior Court The Honorable Stephenie D Lemay-Luken, Judge Trial Court Cause No. 32D05-2203-F2-6
ATTORNEY FOR APPELLANT Zachary J. Stock Carmel, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Robert M. Yoke Deputy Attorney General Indianapolis Indiana
[¶1] Gabriel Kowalskey ("Kowalskey") was convicted after a jury trial of dealing in methamphetamine[1] as a Level 2 felony, dealing in a substance represented to be a controlled substance[2] as a Level 6 felony, unlawful possession of a syringe[3] as a Level 6 felony, and identity deception[4] as a Level 6 felony, and he was found to be a habitual offender. The trial court sentenced him to an aggregate sentence of thirty-two years executed. On appeal, Kowalskey raises several issues for our review that we restate as:
[¶2] We affirm.
[¶3] At approximately 12:43 a.m. on March 12, 2022, Hendricks County Sheriff's Deputy Cole Smith ("Deputy Smith") initiated a traffic stop of a car because the window tint was darker than allowed by Indiana law. The tint was so dark that he "could not see any occupants inside the vehicle or identify the driver." Tr. Vol. II p. 175. The car turned into a McDonald's parking lot, pulling into the drive-thru lane. Deputy Smith used his intercom to instruct the driver, who was later identified as Billy Mackey ("Mackey"), to pull the car into a parking space. Mackey did so, and Deputy Smith exited his police vehicle and approached the rear passenger-side window of Mackey's car.
[¶4] When Deputy Smith reached the rear passenger window, he could not see how many people were inside the car and knocked on the window to get the occupants' attention. Someone inside the vehicle rolled the window down, and Deputy Smith was able to see that there were five occupants inside the car, Mackey, a front-seat passenger, and three passengers in the backseat. A man, later identified as Kowalskey, was seated in the middle of the three backseat passengers and was wearing a Pittsburgh Pirates shirt. Deputy Smith observed that all three passengers in the back seat had bloodshot, glassy eyes, and constricted pupils, which, based on his training and experience, was unusual for that time of night and an indicator of possible drug use. He also observed that the backseat passengers had coloring books and gel pens, which he associated with methamphetamine use because through his training and experience, it was a "common activity associated with methamphetamine use, both in the downside effect and while under the influence due to hyperactivity." Tr. Vol. II p. 178.
[¶5] Deputy Smith began speaking with Mackey and explained the reason for the stop-the tinted windows-but did not make a lot of eye contact with him due to Deputy Smith's focus on the back seat passengers. Deputy Smith then asked everyone in the car for their identification. Mackey provided his driver's license, and none of the passengers had identification, so Deputy Smith had them write their names and birth dates down on a note pad. Deputy Smith returned to his car to run Mackey's driver's license and left the notepad with the passengers. He determined that Mackey had a valid driver's license and returned to retrieve his notebook. Deputy Smith told Mackey that he needed to get his window tint inspected and would be giving him a warning. At that time, only one of the passengers had written down her information, and Kowalskey was holding the notebook. Deputy Smith repeated his request that all of the passengers write down their name and birth dates. Three of the passengers wrote down names and birth dates "immediately," but "Kowalskey seemed to struggle with" the task. Tr. Vol. II p. 181. Kowalskey wrote down a fictitious name, "Gerard Green," and a birthdate. Id. at 182-83. Another passenger, Madison Simpson ("Simpson"), wrote down the name of her sister, Jessica Simpson, and it was later discovered that Simpson had a warrant in Boone County. After receiving the information from the passengers, Deputy Smith returned to his police vehicle to try to identify them.
[¶6] Deputy Smith was able to identify the two other passengers who gave correct names. The name "Gerard Green" with the date of birth Kowalskey provided did not produce a valid return, and Deputy Smith noticed that Simpson did not look like the photograph that returned for Jessica Simpson. Id. He then spoke to Kowalskey to gather more information about his identity, and Kowalskey told him that "Gerard Green" was from Cincinnati, Ohio. Deputy Smith went back to his police vehicle to search the Ohio database for "Gerard Green," and again, there was no return for "Gerard Green." Deputy Smith then contacted dispatch to request that they conduct a search. Deputy Smith returned to Mackey's car and continued to try to identify Kowalskey, who maintained that he was "Gerard Green," and then returned to his police vehicle to continue to search.
[¶7] Dispatch was also unable to find "Gerard Green" with the birth date Kowalskey provided in either Indiana or Ohio, and Deputy Smith called for additional officers to respond to the scene because he believed that Kowalskey had lied about his identity. Hendricks County Sheriff's Deputy Robert Lenover ("Deputy Lenover") arrived to assist and watched the occupants of the car while Deputy Smith removed Kowalskey from the car. Kowalskey maintained that he was "Gerard Green," and Smith informed Kowalskey that he was being arrested. Deputy Smith performed a search incident to arrest and found "two wads of cash" totaling approximately $4,500. Id. at 185.
[¶8] While Deputy Smith searched Kowalskey, Deputy Lenover, who was a drug recognition expert, observed that Mackey showed "signs of possible narcotics usage, as well as impairment." Tr. Vol. II pp. 186; Tr. Vol. III p. 58. Deputy Lenover observed that the occupants of the car had constricted pupils, which was unusual for the time of night, and noted that there were "many butane torches" inside the car that are used to heat narcotics for smoking, inhaling, or injecting. Tr. Vol. III pp. 61, 63. The deputies determined that they would transport Mackey to a police station to conduct field sobriety tests due to the weather conditions.
[¶9] At approximately 1:34 a.m., Hendricks County Sheriff's Deputy Kyle Schaefer ("Deputy Schaefer") responded to the scene with his canine partner, Deaks. All the occupants were removed from the car, and Deputy Schaefer had Deaks conduct a "free-air sniff" around the car. Id. at 43. Deaks alerted to the odor of narcotics in the car, and the deputies then searched the car. In the trunk, they found a Pittsburgh Pirates bag, which matched the logo on the shirt that Kowalskey was wearing. Inside the bag, the deputies found Simpson's identification, Kowalskey's identification, several male clothing and male hygiene items, two boxes of new syringes, a loaded syringe, an envelope containing what later was determined to be 10.4 grams of methamphetamine, and an envelope containing over 100 pills with markings that indicated they were Xanax, but were later determined to be Clonazolam, which is not a controlled substance. In later testing, it was determined that Kowalskey's fingerprints were on the envelopes. Later, when Kowalskey was booked into jail, a further search was done, and one blue pill matching the pills found in the bag was discovered in Kowalskey's pocket.
[¶10] The State charged Kowalskey with (1) Level 2 felony dealing in methamphetamine, (2) Level 6 felony dealing in a substance represented to be a controlled substance, (3) Level 6 felony unlawful possession of a syringe, and (4) Level 6 felony identity deception and alleged that he was a habitual offender. On May 9 and 10, 2022, the trial court conducted a two-phase jury trial. At trial, Kowalskey objected to the admission of the evidence found during the search of the vehicle and on his person, arguing that the traffic stop was unlawfully extended prior to the dog sniff. Kowalskey did not raise any objection to the charging information, or to the final instructions or argue that there was a variance in the identity deception charge that caused him prejudice. At trial, Kowalskey argued to the jury that he did not commit identity deception because he "wrote down a fictitious name" but that he "wasn't trying to defraud anyone." Tr. Vol. IV p. 11. At the conclusion of the jury trial, the jury found Kowalskey guilty of all counts and of being a habitual offender. The trial court sentenced him to an aggregate sentence of thirty-two years executed. Kowalskey now appeals.
[¶11] Kowalskey argues that the trial court abused its discretion in admitting the evidence discovered during the search of the car and his person because, although the initial traffic stop was...
To continue reading
Request your trial