Smith v. State

• Decision Date: 06 February 2013
• Docket Number: No. 84A04–1112–CR–637.,84A04–1112–CR–637.
• Citation: 981 N.E.2d 1262
• Parties: Walter E. SMITH, Jr., Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

981 N.E.2d 1262

Walter E. SMITH, Jr., Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 84A04–1112–CR–637.

Court of Appeals of Indiana.

Feb. 6, 2013.

Victoria L. Bailey, Beech Grove, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Walter E. Smith, Jr. (“Smith”) appeals his conviction for dealing in cocaine ¹ as a Class A felony. On appeal, Smith raises the following restated issues:

I. Whether the trial court committed reversible error when it refused to give Smith's tendered jury instruction.

II. Whether the trial court's scheduling of Smith's trial entitled Smith to discharge under Indiana Rule of Criminal Procedure 4(B).

III. Whether the trial court abused its discretion when it admitted evidence obtained during a traffic stop.

We affirm.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of June 17, 2011, Officer Brent Long (“Officer Long”),² a Patrol Division Officer and a K–9 Handler with the Terre Haute Police Department who was working criminal interdiction on I–70, initiated a traffic stop of a U–Haul truck that he observed repeatedly crossing the center lane and the right fog line. The driver of the U–Haul was identified as Smith. During the stop, Officer Long asked for assistance from Officer Matthew Carden (“Officer Carden”) and Officer Phillip Ralston (“Officer Ralston”), fellow officers who were also working criminal interdiction that evening. When Officers Carden and Ralston arrived a few minutes later, Smith was behind the U–Haul with Officer Long, who was writing him a warning. At Officer Long's request, Officer Ralston took over the duty of writing Smith's warning for “unsafe lane movement,” and Officer Carden began questioning Smith about where he was coming from and where he was going. Jury Tr. at 167–169, 259.³ Officers Carden and Ralston testified that Smith was extremely nervous and “sweating profusely.” Id. at 168, 261, 281. Both officers also testified that although they were in uniform and wearing bullet proof vests, neither of them was sweating that evening. Id. at 168, 262.

While Officers Ralston and Carden were performing their tasks, Officer Long got his “K–9 partner Shadow” out of the patrol car and walked Shadow around the exterior of Smith's U–Haul. Id. at 169, 262. Officer Carden testified that Officer Long walked Shadow along the driver's side of the U–Haul toward the back, and as he continued past the back on the passenger-side, “Shadow jerked his head back at that right rear corner and then started going up and down with [his] head back at that right rear corner and then started going up and down with [his] head right there at that corner.” Id. at 169–70. The U–Haul cargo area was secured by a locked padlock, and Smith stated that he did not have the key.

Officer Long returned Shadow to the patrol car, and because it was nighttime on the side of an interstate highway, the U–Haul was moved to a nearby Wal–Mart parking lot for safety reasons. Officer Ralston and another officer who arrived on the scene stayed with Smith. Meanwhile, Officers Carden and Long went to the drug task force office to obtain a search warrant for the U–Haul. Appellant's App. at 35. Officer Long applied for the search warrant through a telephonic hearing, which was conducted by Judge David Bolk. During that hearing, Officer Long testified to the facts supporting probable cause to search the U–Haul, and Judge Bolk granted the issuance of the warrant. Thereafter, Officers Long and Carden returned to the Wal–Mart parking lot.

Pursuant to the search warrant, the officers cut the padlock to obtain access to the U–Haul's cargo area and, once inside, found that it was only one-quarter full; it contained an arm chair in poor condition, a used “torpedo heater,” a table top with no legs, several boxes, and a plastic container. Jury Tr. at 182–83. Officer Ralston testified that the chair and heater “were junk.” Id. at 270. Officer Carden testified that, based on his training and experience, he believed he was looking at “a cover load,” i.e., items that conceal the true cargo and provide a story to legitimize the trip. Id. at 183. Behind the table top, the officers found a cardboard box with two brick-like packages wrapped in duct tape and vacuum sealed, which Officer Carden testified was consistent with how narcotics are packaged for transportation. Id. at 184, 186. The officers used a pocket knife to cut into the package and found a white, powdery substance, which was field-tested and showed the presence of cocaine. Id. at 189–90, 193. At trial, an Indiana State Police Crime Laboratory forensic scientist (“Forensic Scientist”) confirmed that the white substance was cocaine, and that one brick weighed 1001.0 grams and the other weighed 996.9 grams. Jury Tr. at 246–47; State's Ex. 19. Smith was arrested and charged with dealing in cocaine as a Class A felony, possession of cocaine as a Class C felony, and maintaining a common nuisance as a Class D felony. Appellant's App. at 17.

Smith filed a motion for a speedy trial pursuant to Indiana Criminal Rule 4(B)(1), and the trial court set the trial for September 27, 2011. Appellant's App. at 27–28. Twenty days prior to that trial date, Smith filed a motion to suppress the evidence obtained as a result of the search warrant. Id. at 33–51. In his motion, Smith did not question the legality of the initial stop of Smith's U–Haul; instead, he maintained that “[b]y extending the detention to conduct a drug dog sniff of the vehicle, [Officer Long] exceeded the scope of the original traffic stop without probable cause, or objectively reasonable articulated suspicion, thus violating the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Indiana Constitution.” Id. at 34. “A copy of the transcript [of the telephonic hearing] and [Officer Long's] report [of the stop were] attached [to the motion] and incorporated [t]herein by way of reference as Exhibits A and B respectively.” Id. at 33.

The suppression hearing was held on September 16, 2011, a date after which Officer Long had already been killed in the line of duty. Without Officer Long's testimony, the State introduced evidence about the stop and its timing through the testimony of Officers Ralston and Carden. Smith introduced evidence of the timing of the stop and the K–9 search through the transcript of Officer Long's sworn telephonic application for the warrant. Officer Ralston testified that Officer Long had started writing Smith's warning for unsafe lane movement, but that Officer Ralston had finished writing it. Suppression Hr'g at 15, 36, 38. The officers also testified regarding the timing of their arrival at the scene and the manner in which Officer Long took Shadow around the U–Haul. Id. at 12–13. After finding that Smith was not unduly detained, the trial court denied his motion to suppress.

Four days before the scheduled trial, Smith moved to exclude evidence and strike witnesses due to the State's belated discovery compliance. Appellant's App. at 81–83. A hearing was held on September 26, 2011, at which Smith argued that he would like additional time to take a deposition from both the Forensic Scientist and Detective Denzil Lewis of the Vigo County Drug Task Force. Sept. 26 Hr'g at 58. The trial court allowed Smith time to depose the witnesses and moved the trial date, explaining that it was a fair result for both the defendant and the State and “would get the issue of the speedy trial addressed.” Sept. 26 Hr'g at 63.

The trial court held another hearing on September 29, 2011, during which Smith stated that he had conducted the depositions but did not yet have the transcripts. Sept. 29 Hr'g at 1. Smith also stated his intent to get an independent chemical analysis of the substance found in the U–Haul; a test Smith estimated would take two weeks. Id. at 3. Later in the hearing, Smith stated he was not ready for trial, but moved for discharge pursuant to Criminal Rule 4. Sept. 29 Hr'g at 11–12. The trial court denied Smith's motion for discharge.

Voir dire began on October 3, 2011, and Smith's trial continued through October 5, 2011. During trial, Smith objected to Officer Carden's description of the initial traffic stop, contending “I don't think this officer has established the foundation in the law to justify the stop.” Jury Tr. at 163. The State responded, “Your honor, I think that at this point that the court, as [defense counsel] has said, already heard testimony on this, the State would rest on that hearing, that the court has already had and what was said on that.” Id. at 164. The trial court overruled Smith's objection. Smith later entered a continuing objection to the State introducing evidence of the contents of the U–Haul, maintaining “that's the fruits of improper stop and search.” Id. at 181. The trial court said to Smith, “[F]or economy, if you refer back to previous proceedings, I'm going to show all of those arguments incorporated by reference.” Id. When Smith objected to the State introducing evidence of the cocaine, the trial court again “incorporated previous arguments made in proceedings before th[e] court,” and overruled Smith's objection. Id. at 185.

At the close of trial, Smith tendered a jury instruction on the presumption of innocence. The State argued that Smith's tendered instruction was “adequately covered in other instructions.” Jury Tr. at 365. The trial court agreed with the State and declined to give the instruction. Instead, the trial court gave an instruction, which in relevant part stated, “You should attempt to fit the evidence to the presumption that the Defendant is innocent....” Appellant's App. at 138, 166.

Smith was found guilty of dealing in cocaine as a Class A felony, possession of cocaine as a Class C felony, and maintaining a common nuisance as a Class D felony. Jury...