Lewis v. State, 46A03-1004-CR-200
| Decision Date | 30 June 2011 |
| Docket Number | No. 46A03-1004-CR-200,46A03-1004-CR-200 |
| Parties | BYRON G. LEWIS, 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:
MICHELLE L. SHIRK
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE LAPORTE SUPERIOR COURT
The Honorable Kathleen B. Lang, Judge
Byron G. Lewis appeals his convictions and thirty-year sentence for three counts of Class A felony dealing in cocaine. Lewis contends that the trial court abused its discretion by denying his motion for a mistrial, there is insufficient evidence to sustain his convictions, and the trial court erred by failing to enter an adequate sentencing statement. We conclude that the trial court did not abuse its discretion by denying his motion for a mistrial and that the evidence is sufficient to sustain his convictions. Further, although the trial court failed to enter an adequate sentencing statement, we exercise our authority to review sentences under Indiana Appellate Rule 7(B) and decline to revise Lewis's advisory sentence. Finally, as the sentencing order and chronological case summary indicate that Lewis was sentenced to three concurrent thirty-year terms, the abstract of judgment should be corrected to indicate this as well. We therefore affirm and remand for correction to the abstract of judgment.
David Walsh was a confidential informant for the Michigan City Police Department Narcotics Task Force. On April 15, 2009, Walsh participated in three controlled buys of crack cocaine from Lewis. Each buy occurred within 1000 feet of Hansen Playground and Blue Chip Casino Hotel. Before and after each buy, detectives with the task force met Walsh at a predetermined location and searched him and his vehicle for money, weapons, or contraband. They also provided him with prerecorded buy money and equipped his vehicle with a recording device. Walsh was under continuous surveillance to, from, and during each buy.
For the first buy, Walsh called Lewis to buy twenty dollars of crack cocaine. Walsh then drove to Lewis's mother's house on E Street and pulled into an area behind the house. Lewis came out of the house, stepped into the passenger side of Walsh's vehicle, and made a call to "score the narcotics." Tr. p. 37. Walsh gave Lewis twenty dollars of prerecorded buy money, and Lewis left the vehicle on foot. When Lewis returned with crack cocaine about ten minutes later, he stepped back into Walsh's vehicle, took a portion of the crack cocaine for himself, and gave the rest to Walsh. After Lewis exited the vehicle, Walsh drove back to meet the detectives. Walsh gave the crack cocaine to the detectives.
The second and third buys were similar to the first buy. The only differences were that Walsh drove Lewis down an alley before giving him the buy money and that Walsh drove Lewis back to his mother's house after getting the crack cocaine.
The State charged Lewis with three counts of Class A felony dealing in cocaine. A jury trial was held in January 2010. During Walsh's direct examination, Lewis interrupted to deny that Walsh ever bought cocaine from him. He also interjected at the end of Walsh's testimony by repeatedly asking the trial court if he could ask Walsh questions that defense counsel declined to ask. The court explained that he could not ask questions himself because he was represented by counsel.
After Walsh's testimony and outside the presence of the other jurors, a juror told the trial court and the parties that she recognized Lewis's voice from an altercation that occurred at her workplace, Blue Chip Casino, where someone had stolen food. She was not directly involved in the altercation but overheard it. She explained that because attrial Lewis "just keeps arguing and talking when he shouldn't" and because "when security [at the casino] was trying to talk to him too, he wouldn't listen either," the juror believed that Lewis was the person who had stolen food. Id. at 84. She stated that her recognition of Lewis might cause her to be biased.
When the State questioned the juror, she clarified that the altercation occurred about six weeks before trial. Lewis responded, "I was in jail." Id. at 86. The State then informed the juror that Lewis was incarcerated at the time:
Id. at 86-87. Defense counsel then questioned the juror:
Id. at 87, 88. The trial court and the juror had the following exchange:
Id. at 90. The juror then indicated that Lewis could not have been the person at Blue Chip Casino.
The trial court said that it would instruct the jury that the juror thought she recognized Lewis as the person at Blue Chip Casino but that she was mistaken. Defense counsel moved to have the jury discharged. The court did not grant the request and instead instructed the jury:
[O]ne of your fellow jury members has followed the strict rules of the Court and the trial and indicated to the bailiff that she may know one of the parties. And because of that, the juror was b[r]ought into court and questioned by the Judge and by the parties on both sides. She indicated that she observed a confrontation involving the defendant at her place of employment. And after being questioned by the Court and the attorneys she indicated that it could not and was not possibly that it was the defendant that she observed at her place of employment. And also following then the procedure that it's very important that there's no bias and that you're not influenced either way toward the State or the defendant. We've talked a lot about that so far since you've been here today. And so the record is clear, I'm going to ask each one of you individually if the information that wasjust brought forward, which you may not even have known about, would influence you in any way.
Id. at 93. The court questioned each juror if the information would cause any bias. Each juror responded no.
The video recordings taken from Walsh's vehicle were played for the jury. When Lewis testified in his own defense, he admitted being the person in each of the three videos that stepped into Walsh's vehicle, took Walsh's money, returned to the vehicle with crack cocaine, broke off a piece for himself, and gave Walsh the rest. But he denied dealing drugs to Walsh.
The jury found Lewis guilty as charged. In sentencing Lewis to thirty years, the trial court stated:
The Court, considering the information in the presentence investigation report the arguments of counsel and evidence submitted finds as follows: It is ordered, adjudged and decreed by the Court that the defendant, Byron G. Lewis shall be committed [to] the Department of Correction for classification and confinement for a determinate period of 30 years.
Id. at 264; see also Appellant's App. p. 62 ().1
Lewis now appeals.
Lewis contends that the trial court abused its discretion by denying his motion for a mistrial, there is insufficient evidence to sustain his convictions, and the trial court erred by failing to enter an adequate sentencing statement.
Lewis contends that the trial court abused its discretion by denying his motion for a mistrial because the statements made by the juror who thought she recognized him caused the jury to be prejudiced.
The ruling on a motion for a mistrial is left to the sound discretion of the trial court as that court is in the best position to assess the circumstances of an error and...
To continue reading
Request your trial