Lockett v. State
| Decision Date | 17 May 2012 |
| Docket Number | No. 02A03–1107–CR–376.,02A03–1107–CR–376. |
| Parties | Jermaine M. LOCKETT, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Allen Superior Court; The Honorable Wendy W. Davis, Judge; Cause No. 02D04–1009–FA–46.
Tyler D. Helmond, Voyles Zahn Paul & Hogan, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Jermaine M. Lockett appeals his convictions and the sentences imposed for dealing in cocaine, as a Class A felony, and possession of marijuana, as a Class A misdemeanor, following a jury trial. Lockett presents four issues for review, which we restate as:
1. Whether the trial court abused its discretion when it denied Lockett's motion for a mistrial due to juror misconduct.
2. Whether the trial court abused its discretion when it denied his motion to dismiss under Criminal Rule 4(B).
3. Whether the trial court abused its discretion when it identified aggravators in support of Lockett's sentence.
4. Whether Lockett's sentence is inappropriate in light of the nature of the offenses and his character.
We affirm.
In the early morning hours of August 26, 2010, Officer Douglas Weaver of the Fort Wayne Police Department was conducting surveillance, on foot, in a “high drug and crime area” in Fort Wayne. Transcript at 159. After watching from a vacant lot in the area for almost an hour, the officer noticed that a “[l]arge amount of vehicular and pedestrian traffic was coming to and from the [sic] 3715 Oliver Street.” Id. at 161. Two males standing in front of the residence would make contact with the pedestrians and vehicle occupants who arrived. The males would look back and forth down the street before approaching a vehicle that was parked just north of the residence between 3715 and 3709 Oliver Street, and they would again look back and forth down the street before returning to the residence. The men would enter the house with those people, who left the house again shortly.
Lockett was one of the two men walking back and forth to the house. Several times Officer Weaver observed Lockett approach a green Oldsmobile that was parked in front of the residence. Lockett always approached the passenger side of the Oldsmobile while the second man stayed back a few feet, looking up and down the street. Lockett would reach into the passenger front window each time, but the doors never opened and Lockett never sat in the vehicle.
At one point Officer Weaver saw Lockett retrieve an item from the front passenger side, place the item in Lockett's front pocket, remove another item, and put the removed item in his right hand. When Lockett began to walk away from the Oldsmobile, Officer Weaver approached and instructed Lockett to show his hands. Instead, Lockett began to walk around the back of the Oldsmobile toward the driver's side. When Officer Weaver again ordered Lockett to show his hands, Lockett threw the item from his right hand over the Oldsmobile toward the sidewalk. Officer Weaver then ordered Lockett to the ground.
When Officer Weaver looked into the Oldsmobile he observed “two clear plastic baggies with a green, leafy substance inside them in plain view on the center con[sole in] the front seat area of the vehicle.” Id. at 166–67. Based on his training and experience, the officer believed the leafy substance to be marijuana. Officer Weaver then checked the sidewalk in the direction where he had seen Lockett throw something to the ground. There he found a small clear plastic baggie containing a white chalky substance, which the officer believed to be cocaine.
Officer Weaver arrested Lockett. In the search incident to arrest, officers who had arrived to assist found in Lockett's front right pocket a larger clear plastic back that also contained “the same off[-]white rocky substance that [Officer Weaver] believed to be cocaine.” Id. at 168. Officers also found two additional bags in Lockett's small front right pants pocket and $187 in cash on him. And, in a later search of the vehicle, officers found a scale, a pocket knife, and a small container holding a brown substance.
Officers transported Lockett to the police station, where they placed him alone in an investigation room, although they monitored him from another room. They observed him remove an item from his shoe and then place his hand “down the back of his pants toward his buttocks.” Id. at 171. When Officer Weaver then entered the investigation room, he asked about the item Lockett had removed. Lockett answered that he had placed it in his anus. A subsequent search of Lockett's anus disclosed a small clear baggie containing what later tested to be cocaine. Officers found an additional baggie in Lockett's sock and $460 cash under the sole of his shoe.
Testing of the contents of the plastic baggies found on Lockett and in his vehicle showed that they contained cocaine base. The contents of the bags weighed 1.65 grams, 7.84 grams, .28 gram, 1.14 grams, and .89 grams respectively. Tests also showed that the green leafy substance found in Lockett's car was marijuana and weighed 1.6 grams.
The State charged Lockett with dealing in cocaine, as a Class A felony, and possession of marijuana, as a Class A misdemeanor. The trial court appointed Gregory Fumarolo as defense counsel. Fumarolo represented Lockett at a pre-trial conference on November 15, 2010, when the December 1 trial date was confirmed. However, Lockett and Fumarolo also alerted the trial court that the two had differences of opinion regarding Lockett's representation. And on November 30, Fumarolo filed a motion to withdraw. The trial court conducted a hearing the same day, after which the court granted the motion to withdraw and, on its own motion, vacated the December 1 trial date. On December 2, public defender Michelle Fennessy Kraus appeared for Lockett. The court reset the trial date for March 24, 2011.
On March 18, 2011, Lockett filed a motion to dismiss the charges for violation of his right to a speedy trial. He also moved for an order in limine as to drug evidence collected at the police station. The court denied the motion to dismiss and, over Lockett's objection, continued the trial date to June 15, 2011.
The jury trial commenced on June 15. The trial court admitted the drug evidence over Lockett's objection. During trial Lockett also filed a motion for a mistrial on the ground that one of the jurors had been sleeping. After questioning the juror, the trial court denied the motion, and the trial resumed. The jury found Lockett guilty of both counts as charged. On July 19, Lockett filed a pro se “[m]otion to [w]ithdraw [c]ounsel.” Appellant's App. at 5. On July 15, the court convened for sentencing, but Lockett insisted that he did not want Kraus to represent him. As a result, and due to Lockett's behavior at the hearing, the trial court continued the sentencing hearing. On July 25 the court reconvened for sentencing and, following argument by counsel, entered judgment of conviction on the verdicts and sentenced Lockett to forty-five years for dealing in cocaine and one year for possession of marijuana, to be served concurrently. Lockett now appeals.
Lockett first contends that the trial court should have granted his motion for a mistrial because a juror fell asleep during trial. “[J]uror misconduct is in the first instance a question for the trial court and the decision to grant or deny a mistrial is a matter committed to the trial court's discretion, reviewable solely on the issue of abuse of discretion.” Smith v. State, 432 N.E.2d 1363, 1367 (Ind.1982) (citations omitted). Id. at 1367–68 (internal quotation marks and citation omitted). Id . at 1368 (citation omitted).
We first consider whether Lockett has shown that a juror was actually inattentive. Lockett made a timely objection and requested a mistrial when he observed that Juror 36 was asleep during testimony crucial to the defense. 1 Lockett relies on testimony by the trial court reporter and the trial court bailiff regarding their observations of Juror 36 to show that that juror was actually inattentive. The court reporter testified that Juror 36's eyes were closed for at least fifteen minutes and that he was perfectly still each time she looked at him during the testimony of two chemists. And the trial court bailiff testified that he had seen Juror 36's eyes closed during a two-or three-minute period when both attorneys were having a sidebar with the trial court about the sleeping juror.
But the trial court also questioned Juror 36 after Lockett moved for a mistrial:
Court: ... We've noticed [you] closing your eyes and dozing a little bit. We don't know if you're actually dozing or if that's just the way you listen. My question is, after being here, at the close of the evidence, you can render a true and accurate verdict?
Court: Thank you. Thank you so much. Anything else?
Ms. Kraus [for defense]: You have heard everything?
Juror 36: Yes, ma‘am.
Ms. Kraus: All right. Would you agree that you've—and I'm not trying to pick. I'm just trying to represent my client. It has appeared that your eyes have been closed at least for approximately 15...
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