Bennett v. State

20 N.E.3d 928 (Table)

Anessa B. BENNETT, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 20A05–1307–PC–339.

Court of Appeals of Indiana.

Sept. 30, 2014.

Stephen T. Owens, Public Defender of Indiana, Vickie Yaser, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Anessa B. Bennett appeals the post-conviction court's denial of her petition for post-conviction relief. Bennett raises five issues which we revise and restate as:

I. Whether her trial counsel and appellate counsel was ineffective; and

II. Whether the State withheld evidence from the defense in violation of Brady v. Maryland.¹

We affirm.

FACTS AND PROCEDURAL HISTORY

The relevant facts as discussed in Bennett's direct appeal follow:

On December 13, 2004, Officer Jose Miller of the Goshen Police Department (Officer Miller) conducted a controlled buy for methamphetamine between a confidential informant and Joseph Brown (Brown) at a residence in Glenwood Avenue in Goshen. After the deal was completed, Officer Miller field-tested the substance Brown had delivered and confirmed it was methamphetamine, weighing approximately 8.5 grams. In researching the information on the residence to get the search warrant for the home, it was determined that the residence belonged to Bennett and her husband, Raymond Bennett (Raymond) (collectively, the Bennetts).

The search warrant was executed the next day. Inside the residence, the Officers found five individuals: Brown, his girlfriend, and Bennett's three minor children. The Bennetts were not at home at the time of the execution of the search warrant; they were on a cruise that began on December 12 and had left the evening of December 10 for Michigan to await their flight to Florida. Brown, a friend of Bennett's, was asked to care for her children while they were on the cruise.

During their search of the garage's attic, the Officers found a surveillance camera directed at the driveway and connected to a television in the garage. The Bennetts' bedroom door was locked. After gaining entrance to the master bedroom, the Officers found a large clear plastic baggy containing a large amount of a powdery substance underneath the bed. On a stand, they found pieces of paper with names and numbers written on them. Underneath the papers, they noticed a clear plastic bag, containing a white powdery substance, later identified as methamphetamine, weighing 1.72 grams. Also, a wicker basket standing on a shelf on the same stand contained either a white powdery substance or a white powdery residue. In a drawer underneath the shelf, the Officers found clear plastic baggies, some of them containing a white powdery substance. One of the baggies was tested and found to contain methamphetamine. An electronic scale, foil, and a glass tube with burnt residue on it were also in the drawer. A plastic bag found in the drawer held three clear plastic baggies, each containing amphetamine with a combined weight of 10.54 grams.

A search of the garage revealed more methamphetamine. Inside a locked cabinet, the Officers found a plastic container that held several clear plastic baggies with a white powdery substance. The largest bag tested positive for methamphetamine and weighed 24.28 grams. There were nine smaller bags which had a combined weight of 30.22 grams. The substances in two of the smaller bags were tested and found to be methamphetamine. Another container in the cabinet contained plastic tubes with white powdery residue on the ends of the tubes. A second cabinet in the garage, when opened, held U.S. currency and four clear plastic bags, each containing a white powdery substance. Each of the plastic bags weighed more than 3 grams. The substance in two of the plastic bags was tested and found to be methamphetamine. A tool case with Raymond's name on it held tin foil, several clear plastic bags, and a bag of rubber bands. The Officers also found an electronic scale and a Nescafe container on a workbench. Opening the container, the Officers discovered it contained hollow pin tubes with a white powdery substance and other paraphernalia. A small spiral bound notebook held two bags, one containing a white powdery substance and the other containing a powdery residue.

Bennett v. State, No. 20A03–0709–CR–435, slip op. at 2–4 (Ind.Ct.App. May 20, 2008).

On April 22, 2005, the State charged Bennett with possession of methamphetamine weighing three grams or more with intent to deliver as a class A felony. Id. at 4. On May 12, 2005, trial counsel filed an appearance on behalf of Bennett. That same day, the court held a hearing and stated: “Ms. Bennett, you have Mr. Kauffman as your attorney. That sort of ends the controversy on your attorney status conference. Correct?” May 12, 2005 Transcript at 1. Bennett stated: “Correct.” Id.

On July 21, 2005, the court held another hearing, and Bennett's trial counsel stated:

Your Honor, this would be the same record made with Mr. Bennett's case. This was acceptance of plea. Anessa's informed me that she would like to go to trial. I would note for the record that I've talked to the Bennetts both and expressed to them the possibility of conflict by representing both of them, and they both have agreed that I would continue as their counsel in this matter in all four, if you would just total them up, the four cases that the Bennetts have together.

July 21, 2005 Transcript at 2. The court then clarified with Bennett that she was not pleading guilty and scheduled a trial.

After multiple hearings, the court eventually held a jury trial on July 16 and 17, 2007. Prior to voir dire, the court stated: “This is a joint trial. By agreement, we've had this discussion on at least a couple of occasions, Mr. and Mrs. Bennett, you have one lawyer representing both of you. That is by choice. Is that correct, ma‘am?” Trial Transcript at 2–3. Bennett stated: “Yes, your Honor.” Id. at 3. The court stated: “And it's also my understanding that you signed a waiver with your lawyer relating to the potential of a conflict of interest with respect to dual representation. Is that correct?” Id. Bennett answered: “Yes .” Id. The court asked Bennett's trial counsel whether the defense “to be employed is that not contesting there were drugs at the residence, but they were not these two defendants' drugs,” and trial counsel stated: “Yes.” Id. at 4.

At trial, during direct examination, Brown testified that he had known Bennett for thirteen or fourteen years, that he met Raymond about a year before he was arrested, and that he was arrested on December 13, 2004. Brown also testified regarding his involvement with methamphetamine and his statements to police.

During cross-examination, Bennett's trial counsel asked Brown if he knew how much to sell two bags of methamphetamine for, and Brown answered: “Well, I've sold meth before. I've sold reefer before through my years.” Id. at 225. Brown testified that he had been using methamphetamine prior to house sitting and had been up for several days, but did not remember when he started his binge. Brown also testified that he remembered telling Lieutenant Turner that he did not deal methamphetamine and that the statement was probably not true at the time. Brown testified that he was charged with dealing methamphetamine as a class A felony but ended up being convicted of dealing methamphetamine as a class B felony.

Bennett testified that her children were not supposed to be in the home when she was on vacation and that Jolene and Jody were supposed to take care of the children. Bennett also testified that the purpose of the surveillance camera was because one of their vehicles had been struck by an egg and someone stated that her son was involved.

The court instructed the jury on constructive possession, listed certain circumstances, and stated: “In each of these circumstances, there exists the probability that the presence and character of the controlled substances was noticed by the defendants.” Id. at 390. The jury found Bennett guilty as charged. Bennett, slip op. at 4.

On August 9, 2007, the court held a sentencing hearing. Bennett's trial counsel argued that mitigators included the facts that Bennett had minor children, this was Bennett's first felony conviction in the State of Indiana, and that she had successfully completed probation in the past. Bennett stated that she was court ordered “to addictions for my DUI that I had for alcoholism.” August 9, 2007 Transcript at 21. The court asked Bennett if there was “an addiction issue involving methamphetamine and [her] or any other illegal drugs,” and Bennett said: “No.” Id. at 22. The court identified certain aggravators and stated that “[t]he statements of counsel and the statements of Ms. Bennett will be considered mitigating circumstances.” Id. at 25.

That same day, the court entered an order which stated:

After hearing the arguments of counsel the Court finds aggravating circumstances to be as follows: Defendant's five (5) prior misdemeanor convictions; the fact that there were minor children present at the home when these offenses were committed, which minor children were in the care and custody of [Bennett and Raymond]. The Court notes [Bennett] has two (2) subsequent cases and the Court considers this to be an aggravating circumstance in addition to those previously mentioned. The Court notes that [Bennett's] five (5) misdemeanor cases basically resulted in probation which proved to be unsuccessful as a result of this conviction and the Court notes that [Bennett] apparently will not or cannot abide by Court orders. The Court also notes as an extreme aggravator [Bennett's] selection of a babysitter was a known drug user to take care of her children while she went on a cruise.

Petitioner's Exhibit 1 at 10–11. The court also noted that the “mitigating...