Moore v. State

• Decision Date: 07 August 2007
• Docket Number: No. 49A04-0702-PC-89.,49A04-0702-PC-89.
• Parties: James MOORE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

872 N.E.2d 617

James MOORE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 49A04-0702-PC-89.

Court of Appeals of Indiana.

August 7, 2007.

Publication Ordered August 20, 2007.

Susan K. Carpenter, Public Defender of Indiana, Jonathan O. Chenoweth, Deputy

Public Defender, Indianapolis, IN, attorney for appellant.

Steve Carter, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General Indianapolis, IN, attorneys for appellee.

OPINION

CRONE, Judge.

Case Summary

James Moore appeals the denial of his amended petition for post-conviction relief. We affirm.

Issue

The issue is whether the post-conviction court erred in denying Moore's petition.

Facts and Procedural History

We set forth the following facts in Moore's direct appeal:

[F]or approximately two hours on the evening of February 3, 2000, Officer Pete Mungovan ("Officer Mungovan") of the Indianapolis Police Department conducted surveillance on the house at 422 N. Dearborn Avenue in Indianapolis. Officer Mungovan was parked one block south of the house and on the opposite side of the street. During the surveillance, Officer Mungovan witnessed four black males on the porch of the house, including Moore and his half-brother Robert Peden ("Peden"). Moore and two others approached cars in front of the house that had either stopped on their own or had been flagged down by the men. The men were also continuously in and out of the house. Officer Mungovan said that the men had about fifteen to twenty interactions with the cars during the two-hour surveillance period and that each lasted less than one minute.

While Officer Mungovan surveilled the house, Officer Ronald Santa ("Officer Santa") was [ob]taining a search warrant for the house. That same evening when the warrant was executed, the officers found five people in the house, including Moore, and two people in a car at the back of the house. The officers secured the area and began a search of the house. Officer Paul Buchman ("Officer Buchman"), the officer in charge of collecting the evidence, found four bags of cocaine lying on top of a drop-ceiling panel in a bathroom. He also found a digital scale and a box of sandwich bags in a small, black metal cabinet. The next day, the amount of cocaine in the four bags was determined to be 108.19 grams.

While Officer Buchman searched the house, Officer Santa, the lead officer in the investigation, read the search warrant and Miranda warnings to the detained occupants. Officer Santa briefly questioned all of the occupants and determined that the house belonged to Peden's mother, who was out of town. Peden stated that he and Moore were in charge of the house while Peden's mother was gone, and Moore himself stated that he was staying at the house with Peden. After their arrests, Officer Santa questioned Moore and Peden further, and both admitted that they had knowledge of the cocaine in the bathroom but both denied ownership of it. During questioning, Moore could not fully explain from where he obtained the $805.00 found in his pocket during a search incident to his arrest, all of which was in denominations of five, ten, and twenty dollar bills. Moore stated that he occasionally worked temporary jobs, but he failed to produce a paycheck stub or other evidence to prove the source of the money.

A jury found Moore guilty of Dealing in Cocaine, a Class A felony, and Possession of Cocaine, a Class C felony. The trial court merged the convictions and sentenced Moore to serve twenty (20) years imprisonment with a 287-day credit for time served.

Moore v. State, No. 49A02-0102-CR-99, slip op. at 2-4, 760 N.E.2d 253 (Ind.Ct. App. Dec. 19, 2001) (citation to transcript omitted). On direct appeal, Moore challenged the sufficiency of the evidence supporting his conviction, which we affirmed.

On August 2, 2006, Moore filed an amended petition for post-conviction relief. Moore asserted that his trial counsel rendered ineffective assistance in failing to file a motion to suppress on the basis that the information contained in the search warrant affidavit was insufficient to support a finding of probable cause. After a hearing, the post-conviction court denied Moore's petition on December 14, 2006. This appeal ensued.

Discussion and Decision

Moore challenges the denial of his petition for post-conviction relief. Our standard of review is well settled:

The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. A post-conviction court's findings and judgment will be reversed only upon a showing of clear error — that which leaves us with a definite and firm conviction that a mistake has been made. In this review, findings of fact are accepted unless clearly erroneous, but no deference is accorded conclusions of law.

Hoaks v. State, 832 N.E.2d 1061, 1063 (Ind.Ct.App.2005) (some citations omitted), trans. denied.

Specifically, Moore claims that his trial counsel was ineffective in failing to file a motion to suppress based on the alleged insufficiency of the search warrant affidavit. In addressing Moore's claim, we are guided by the following considerations:

Ineffective assistance of counsel claims are governed by the two part test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), reh'g denied. According to this test, [Moore] must first establish that his trial counsel's performance was deficient. To demonstrate deficient performance, [Moore] must show that his trial counsel's representation fell below an objective standard of reasonableness and that the errors were so serious that they resulted in a denial of [Moore's] Sixth Amendment right to counsel. Second, [Moore] must demonstrate that the deficient performance prejudiced his defense. In order to establish prejudice, [Moore] must show that there is a reasonable probability that, but for his trial counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

When considering a claim of ineffective assistance of counsel, a strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Evidence of isolated poor strategy, inexperience, or bad tactics will not support a claim of ineffective assistance of counsel . . . . [T]he decision of whether to file a particular motion is a matter of trial strategy, and, absent an express showing to the contrary, the failure to file a motion does not indicate ineffective assistance of counsel.

Glotzbach v. State, 783 N.E.2d 1221, 1224 (Ind.Ct.App.2003) (quotation marks and some citations omitted). "To prevail on an ineffective assistance of counsel claim based upon counsel's failure to file motions on a defendant's behalf, the defendant must demonstrate that such motions would have been successful." Wales v. State, 768 N.E.2d 513, 523 (Ind.Ct.App.2002), on reh'g, 774 N.E.2d 116, trans. denied.

"The state and federal constitutions guarantee that a court will not issue a search warrant without probable cause." Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind.1994).¹

Probable cause to search premises is established when a sufficient basis of fact exists to permit a reasonably prudent person to believe that a search of those premises will uncover evidence of a crime. The decision to issue the warrant should be based on the facts stated in the affidavit and the rational and reasonable inferences drawn therefrom.

Id. (citation omitted). "[T]he magistrate's task is `simply to make a practical, commonsense decision whether, given all the circumstances set forth before him . . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Gray v. State, 758 N.E.2d 519, 521 (Ind.2001) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). "Although we review de novo the trial court's substantial basis determination, we nonetheless afford significant deference to the magistrate's determination as we focus on whether reasonable inferences drawn from the totality of the evidence support that determination." State v. Spillers, 847 N.E.2d 949, 953 (Ind.2006) (citation and quotation marks omitted). Generally, all evidence obtained in searches and seizures later found to be unsupported by probable cause is inadmissible under state and federal law. Williams v. State, 528 N.E.2d 496, 499 (Ind.Ct.App.1988), trans. denied.²

When seeking a search warrant, the police must follow the warrant statute, Indiana Code Section 35-33-5-2, "which specifies the minimum information necessary to establish probable cause." Esquerdo, 640 N.E.2d at 1029 (footnote omitted). That statute provides in pertinent part,

(a) . . . [N]o warrant for search or arrest shall be issued until there is filed with the judge an affidavit:

(1) particularly describing:

(A) the house or place to be searched and the things to be searched for; or (B) particularly describing the person to be arrested;

(2) alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:

(A) the things as are to be searched for are there concealed; or

(B) the person to be arrested committed the offense; and

(3) setting forth the facts then in knowledge of the affiant or information based on hearsay, constituting the probable cause.

(b) When based on hearsay, the affidavit must either:

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