Chizum v. State

16 N.E.3d 1041 (Table)

Travis L. CHIZUM, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 50A04–1311–CR–560.

Court of Appeals of Indiana.

July 30, 2014.

June E. Bules, Plymouth, IN, Attorney for Appellant.

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

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

Travis Chizum appeals his convictions for dealing in methamphetamine as a class B felony, possession of methamphetamine as a class D felony, possession of chemical reagents or precursors with intent to manufacture as a class D felony, and maintaining a common nuisance, a class D felony. Chizum raises two issues, which we revise and restate as:

I. Whether the court abused its discretion when it admitted evidence seized during the execution of a search warrant; and

II. Whether the prosecutor committed misconduct by intimidating witnesses prior to trial.

We affirm.

FACTS AND PROCEDURAL HISTORY

In January 2013, Plymouth Police Officer John Weir drove past 1008 North Plum Street in Plymouth, Indiana (the “Location”), and smelled the strong odor of ammonia emanating from a barn on the premises. Officer Weir had been working methamphetamine cases since 2005 and associated the odor with the manufacture of methamphetamine. Although Officer Weir would normally have called for other officers and performed a “knock and talk” at the Location, only two other officers were working because it was a Sunday, and accordingly he decided against doing so. Transcript at 74. Beginning on January 8, 2013, Officer Weir conducted surveillance on the barn, including logging license plate numbers of visiting vehicles and checking names to the pseudoephedrine purchase log. Due to his experience working methamphetamine cases, Officer Weir recognized many of the visitors.

On February 8, 2013, a vehicle was pulled over in which Brian Beeman was riding as a passenger. Beeman had a warrant out for his arrest and had drug paraphernalia in his possession when he was taken into custody. Beeman articulated to the arresting officer that, in exchange for not being cited for possession of paraphernalia, he would show the officer a location where there was “constant methamphetamine cooking” by Chizum and John Bobby. Appellant's Appendix at 26. Beeman told the officer “that he has been there and seen the old labs and that they cook up to 16 boxes a night.” Id. He stated that this was where he procured his methamphetamine. He then took the officer to the Location. This information was given to Officer Weir.

On February 27, 2013, Officer Weir prepared an Affidavit for Search Warrant (the “Affidavit”) containing the information provided by Beeman as well as the results of Officer Weir's surveillance of the Location and investigation resulting therefrom. The request was granted and a search warrant issued that same day. On March 7, 2013, the search warrant was executed.

On March 7, prior to the police executing the search warrant, Diane Watson and Jordan Bunton had visited the Marshall County Jail to see a couple of inmates and, upon leaving, they decided they wanted to get high and walked to the Location. While on the way there, they called and spoke with Chizum to make sure they could come over. When they arrived, Chizum and Adam Wagers were there, Watson paid forty dollars for approximately one-half of a gram of methamphetamine, and Wagers injected both Watson and Bunton with the drug. While Watson and Bunton were at the Location, Kim Frazier arrived. At some point, Chizum received a call or text on his cell phone, and shortly thereafter he gave Frazier the keys to the Location and told her to lock up when she left. Chizum then left the Location.

Within a few minutes of Chizum leaving there was a knock at the door, and when Wagers went to answer it he saw that it was the police and alerted the others. Wagers attempted to climb out of a window in the back of the Location but was apprehended by officers, and the three females were found hiding under a vehicle parked in the back of the Location. The police observed a strong odor of chemicals in the building, and they accordingly ensured there were no other people inside and vacated the building except for two Indiana State Police officers who were members of the Chemical Lab Team and have special training in dealing with and disposing of methamphetamine chemicals and labs.

At the Location, the police recovered a large quantity of methamphetamine related items. Specifically, police discovered plastic zip lock type baggies, a scale, a hollowed out pen taped with a glass tube used to smoke methamphetamine, empty pseudoephedrine boxes and blister packs, hypodermic needles, coffee filters, and a coffee grinder containing a white powdery residue. Also present were lye and sulfuric acid, Coleman fuel, cold packs, salt, and empty lithium battery casings, as well as “crasher bags,” which are plastic bags that are hung to allow the methamphetamine to filter from the liquid solvent. Transcript at 93, 112. There were at least twenty-three old hydrochloric gas generators and sixteen one-pot labs found. Also, a one-gallon pump type sprayer was found inside an oven, which was determined to be an active methamphetamme lab. The contents of a plastic bag containing a glass vial which housed a cloudy liquid tested positive for methamphetamme, and the contents of another plastic bag containing five coffee filters also tested positive for methamphetamme. In addition, Watson was found to be in possession of a plastic bag containing a substance that tested positive for methamphetamme.

On March 14, 2013, the State charged Chizum with Count I, dealing in methamphetamme as a Class B Felony; Count II, conspiracy to commit dealing in methamphetamme as a class B felony; Count III, possession of methamphetamme as a class D felony; Count IV, possession of chemical reagents or precursors with intent to manufacture a controlled substance as a class D felony; and Count V, maintaining a common nuisance, a class D felony. On July 15, 2013, Chizum filed a Notice of Alibi Defense, and on July 22, 2013, the State filed its Objection to Defendant's Notice of Alibi. On July 22, 2013, Chizum filed a motion to suppress, and on August 28, 2013, a hearing was held on the motion and the matter was taken under advisement. The trial court denied the motion to suppress on August 30,2013.

Also, on July 29, 2013, after Chizum filed his motion to suppress but prior to the hearing thereon, the State of Indiana filed an Amended Information. On August 29, 2013, the State filed a Notice of Intent to Introduce Laboratory Results. On September 11, 2013, the court held a hearing on the Notice of Alibi Defense and the State's Amendment of the Charging Information, and the court granted the State's motion to amend the charging information and also ordered that Chizum be allowed to submit evidence regarding the facts in the notice of alibi but that no alibi instruction would be read to the jury.

On September 23, 2013, Chizum filed a Verified Petition for Appointment of Special Prosecutor and a separate Motion to Dismiss for State Misconduct (the “Motion to Dismiss”). Chizum's Motion to Dismiss alleged that “[t]he prosecutor has obstructed [Chizum's] access to witnesses by following, harassing, threatening, and arresting several of [Chizum's] witnesses.” Appellant's Appendix at 43. On September 24, 2013, prior to the jury trial beginning, a hearing was held on the petition and Motion to Dismiss in which Tara Chizum, the sister of Chizum, testified via video camera from the Marshall County Jail due to being incarcerated. Tara testified regarding Prosecutor Nelson Chipman's interactions with her and other defense witnesses and the fact that certain defense witnesses had been recently arrested. The court denied both Chizum's petition and Motion to Dismiss.

That day, the court proceeded to hold a jury trial in which evidence consistent with the foregoing was presented. On September 25, 2013, the jury found Chizum guilty as charged. On October 16, 2013, the court sentenced Chizum to twenty years at the Department of Correction on Count I, dealing in methamphetamine, three years on Count III, possession of methamphetamine, three years on Count IV, possession of chemical reagents or precursors with intent to manufacture, and three years on Count V, maintaining a common nuisance, and ordered that the sentences be served concurrently.¹ Thus, Chizum received an aggregate sentence of twenty years. Additional facts will be provided below.

DISCUSSION

I.

The first issue is whether the court abused its discretion when it admitted evidence seized during the execution of the search warrant. Although Chizum originally challenged the admission of the evidence through a motion to suppress, he now challenges the admission of the evidence at trial. Thus, the issue is appropriately framed as whether the trial court abused its discretion by admitting the evidence. See Jefferson v. State, 891 N.E.2d 77, 80 (Ind.Ct .App.2008), trans. denied. We review the trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind.1997), reh'g denied . We reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App.1999), reh'g denied, trans. denied. We may affirm a trial court's decision to admit evidence seized as a result of the search based on any legal theory supported by the record. Edwards v. State, 724 N.E.2d 616 (Ind.Ct.App.2000), trans. denied.

Chizum raises a number of challenges to whether the search warrant was supported by probable cause. Specifically, Chizum argues...