Heyen v. State

936 N.E.2d 294

Kelvin HEYEN, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

No. 84A04-1002-CR-134.

Court of Appeals of Indiana.

Oct. 28, 2010.

Mark Everett Watson, Terre Haute, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Kelvin Heyen (Heyen), appeals his conviction for dealing in methamphetamine, a Class B felony,Ind.Code § 35-48-4-1.1 and for being an habitual offender, I.C. § 35-50-2-8.

We affirm.

ISSUES

Heyen raises five issues for our review, which we restate as the following six:

(1) Whether the trial court abused its discretion in admitting certain evidence;

(2) Whether the trial court erred in denying his motion at trial to reveal the identity of the confidential informant;

(3) Whether the evidence was sufficient to convict Heyen of dealing in methamphetamine and his habitual offender enhancement;

(4) Whether Heyen received ineffective assistance of trial counsel;

(5) Whether the trial court erred by not affording more weight to certain mitigators; and

(6) Whether his sentence is appropriate in light of his character and the nature of his offense.

FACTS AND PROCEDURAL HISTORY

On April 24, 2007, Detective Karen Cross (Detective Cross), an officer with the Vigo County Sheriff's Department and a member of the Vigo County Drug Task Force, arranged a controlled methamphetamine buy from Heyen with the help of confidential informant # 174 (CI) at a predetermined location. Before the controlled buy, Detective Paul Hartzler (Detective Hartzler) searched the CI and the CI's car, which revealed that he did not have any contraband on him, and then wired him with an audio video recorder. The Detectives gave the CI $50, which had been photocopied, and instructed him to purchase half a gram of methamphetamine. Detectives then followed the CI to 3071 Old Paris Road in West Terre Haute, Indiana. While under audio video surveillance, the CI exchanged the money provided by the Detectives for a baggie containing a white substance, which later tested to be .38 grams of methamphetamine.

After the controlled buy, Detective Cross reviewed the videotape and identified Heyen as the person talking with the CI. Additionally, Detective Cross completed a background investigation on Heyen and discovered that he had prior felony convictions relating to controlled substances. Based on this information, Detective Cross set forth the facts underlying the request for an arrest warrant:

2. Affiant and Detectives met with [CI] on April 24, 2007 at a predetermined location[.] [CI] agreed and signed an agreement to assist the detectives in purchasing methamphetamine from [Heyen]. [CI] was searched and the vehicle which was going to be driven was also searched, nothing was located. [CI] was given an amount of photocopied drug task force buy money and a wire transmitter. Detectives followed the informant to the area of 3071 Old Paris Road in West Terre Haute. This is the known address for [Heyen] and [P.C.]. The [c]onversation was monitored by detectives for security. The [CI] returned to the predetermined staging area and gave affiant a plastic bag containing an off white substance. The [CI] and vehicle were searched and no other drugs or money was located.

3. Affiant returned to the Vigo County Drug Task [F]orce Office and weighed and field tested the contents in the plastic bag. The substance had a gross preliminary weight of .45 grams and had a positive field test result for the presence of methamphetamine.

4. Affiant reviewed the video tape and identified [Heyen] as the male in the video that the conversation and transactiontook place with [in] the garage area at the residence of 3071 Old Paris Road.

(Appellant's App. p. 4).

On August 13, 2007, the State filed an Information charging Heyen with Count I, dealing in methamphetamine, a Class B felony, I.C. § 35-48-4-1.1 and Count II, an habitual substance offender, I.C. § 35-50-2-10. On December 1, 2009, the State amended the habitual substance offender charge to an habitual offender charge. On December 15-16, 2009, a two-day jury trial was held. The jury found Heyen guilty as charged. On January 27, 2010, a sentencing hearing was held and the trial court sentenced Heyen to ten years for Count I and enhanced the sentence by fourteen years because of the habitual offender finding for a total of twenty-four years.

Heyen now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Admission of Evidence

Heyen first argues that the trial court abused its discretion when it admitted certain evidence during the trial. Specifically, he contends that the arrest warrant was supported, in part, by hearsay statements of the CI and that the affidavit did not establish the credibility of the CI. Thus, he contends, the methamphetamine should not have been admitted at trial.

Our standard of review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind.Ct.App.2002), trans. denied. We review the admission of evidence for an abuse of the trial court's discretion. Taylor v. State, 891 N.E.2d 155, 158 (Ind.Ct.App.2008), trans. denied. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the trial court. Id. We do not reweigh the evidence and we consider conflicting evidence in a light most favorable to the trial court's ruling. Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007). We also consider uncontroverted evidence in the defendant's favor. Id.

A court may issue warrants only upon probable cause. I.C. § 35-33-5-1; see U.S. Const. 4th amend., Ind. Const. article I, § 11. Indiana's warrant statute, Indiana Code section 35-33-5-2, provides, in pertinent part, that a judge generally may not issue a search or arrest warrant without an affidavit that: (1) particularly describes the house or place to be searched and the things to be searched for; (2) alleges substantially the offense in relation thereto and that the affiant believes and has good cause to believe that the things as are to be searched for are there concealed; and (3) sets forth the facts then in knowledge of the affiant or information based on hearsay, constituting probable cause.

In this case, Detective Cross was not attempting to rely on hearsay information from the CI. The affidavit was devoid of such information and additionally made no attempt to establish the CI's reliability. Rather, in its arrest warrant, the State relied solely upon the personal observations of Detectives Cross and Hartzler during the controlled drug buy. In Flaherty v. State, 443 N.E.2d 340, 341 (Ind.Ct.App.1982), we explained the mechanics of a controlled buy:

A controlled buy consists of searching the person who is to act as the buyer, removing all personal effects, giving him money with which to make the purchase, and then sending him into the residence in question. Upon his return he is again searched for contraband. Except forwhat actually transpires within the residence, the entire transaction takes place under the direct observation of the police. They ascertain that the buyer goes directly to the residence and returns directly, and they closely watch all entrances to the residence throughout the transaction.

So long as the "controls are adequate, the affiant's personal observation of a controlled buy may be sufficient as grounds for finding probable cause." Methene v. State, 720 N.E.2d 384, 390 (Ind.Ct.App.1999). Under such circumstances, even where the informant is not reliable, a court may accept the personal observations of the attesting officer as establishing probable cause. Flaherty, 443 N.E.2d at 341.

Detective Hartzler testified that he searched the CI and his vehicle prior to giving the CI photocopied buy money and sending him to make the purchase. Additionally, Detective Hartzler placed an audio video recording device on the CI that recorded the transaction. Detectives Cross and Hartzler followed the CI to Heyen's known residence at 3071 Old Paris Road in West Terre Haute, Indiana. During the entire drug buy, the CI was under audio video surveillance. After the controlled buy, the CI did not make contact with anyone else, went back to his car and met the Detectives at a staging location where Detective Cross was present while Detective Hartzler searched the vehicle and the CI. The CI was found to be in possession of a baggie with a white substance in it. Prior to seeking the arrest warrant, Detective Cross reviewed the videotape of the controlled buy provided by the CI.

We conclude that the facts presented in the affidavit were sufficient to establish probable cause to obtain an arrest warrant. Under these facts and circumstances, the trial court did not abuse its discretion when it admitted the evidence in question, because the underlying arrest warrant that recovered the evidence was valid.

To the extent that Heyen now argues that the evidence used was stale, as several months had passed from the day of the controlled buy and the time the State filed charges, we find the argument to be without merit. While it is true that stale information cannot support a finding of probable cause, that rule applies to the time from the commission of the crime to the time that the information is presented to a magistrate in order to obtain a search warrant so that the evidence of the conduct is still in the place to be searched. Ramsey v. State, 853 N.E.2d 491, 503 (Ind.Ct.App.2006), trans. denied. The rule does not apply to the timing of the State's decision to file charges. Id. To hold otherwise would be to vitiate statutes of limitations. Id. Therefore, Heyen's claim that the evidence was stale must fail.

II. Identity of the CI

Next, Heyen...