Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Oct 23 2014, 9:43 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL FRISCHKORN GREGORY F. ZOELLER Frischkorn Law LLC Attorney General of Indiana Fortville, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
FREEMAN PEOPLES, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-1403-CR-214 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Dennis D. Carroll, Judge Cause No. 48D01-9807-CF-167
October 23, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Freeman Peoples appeals the judgment of the trial court revoking his probation
and ordering him to serve a portion of his previously suspended sentence. Peoples argues
that the trial court erred when it admitted hearsay testimony during the probation
revocation hearing and that it did not have sufficient evidence to find that Peoples
violated his probation without said testimony. Finding no error, we affirm.
FACTS
In 2000, Peoples was found guilty of three counts of class A felony Dealing in
Cocaine. Peoples was sentenced to a total of forty years imprisonment with twenty-six
years executed and fourteen years suspended, ten of which were suspended to probation.
Peoples was released from prison in 2009 and began serving his probation term.
On November 27, 2012, Detective Clifford Cole of the Anderson Police
Department was contacted by a confidential informant who claimed that Peoples was
selling cocaine. Detective Cole met with the informant and conducted a controlled drug
buy during which the informant purchased what was later identified as cocaine from
Peoples. Detective Cole conducted two more controlled buys with the same informant
and Peoples on December 5, 2012, and December 17, 2012. On each occasion the
informant purchased a substance from Peoples that was later identified as cocaine by the
Indiana State Police Laboratory.
On January 22, 2014, the State filed a notice of probation violation in the trial
court alleging that Peoples had violated his probation by committing these alleged
crimes. The trial court held an evidentiary hearing on February 25, 2014. At this
2 hearing, Detective Cole testified that he had received the reports from the Indiana State
Police Laboratory and that these reports identified the substance sold by Peoples during
the controlled buys as cocaine.
Following a second hearing held on March 18, 2014, the trial court found by a
preponderance of the evidence that Peoples had violated his probation by dealing in
cocaine. Accordingly, the trial court revoked Peoples’s probation and ordered that he
serve twelve years of his previously-suspended sentence in the Indiana Department of
Correction and that he not be returned to probation. Peoples now appeals.
DISCUSSION AND DECISION
Peoples first argues that the trial court violated his due process rights under the
Fourteenth Amendment to the United States Constitution when it allowed Detective Cole
to testify regarding the identity of the substance purchased from Peoples. Peoples claims
that because the lab reports identifying the substance as cocaine were not admitted into
evidence, Detective Cole’s testimony regarding these lab reports was inadmissible
hearsay.
We review the trial court’s decision to admit or exclude evidence in a probation
revocation hearing for an abuse of discretion. Figures v. State, 920 N.E.2d 267, 271 (Ind.
Ct. App. 2010). An abuse of discretion occurs when the decision is clearly against the
logic and effect of the facts before the trial court. Id.
Initially, we note that Peoples failed to object to the admission of Detective Cole’s
testimony at trial. Failure to object at trial waives an issue for appeal except in cases of
3 fundamental error. Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014). “Fundamental
error is an error that makes a fair trial impossible” or constitutes a clearly blatant
violation of basic principles of due process. Clark v. State, 915 N.E.2d 126, 131 (Ind.
2009). The exception is extremely narrow and “reaches only errors that are so blatant
that the trial judge should have taken action sua sponte.” Knapp, 9 N.E.3d at 1281.
Despite his failure to object at trial, Peoples argues that we should reverse because
admission of Detective Cole’s hearsay testimony amounted to fundamental error.
The United States Supreme Court has held that the Due Process Clause of the
Fourteenth Amendment allows for procedures in probation revocation proceedings that
are more flexible than those required in criminal prosecutions. Morrissey v. Brewer, 408
U.S. 471, 489 (1972); Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). Furthermore, the
Indiana Rules of Evidence do not apply to probation proceedings. Ind. Evidence Rule
101(d). Consequently, hearsay is admissible as long as it is substantially trustworthy.
Smith v. State, 971 N.E.2d 86, 90 (Ind. 2012). In determining whether evidence is
substantially trustworthy, the trial court considers “whether the evidence reaches a certain
level of reliability[.]” Reyes, 868 N.E.2d at 441.
Here, Detective Cole testified that he received reports from the Indiana State
Police Laboratory that identified the substances purchased from Peoples as cocaine.
Peoples does not argue that the lab test results were inaccurate. Instead, he argues that
the State “did not establish that Detective Cole had the requisite training and experience
to accurately interpret the lab reports.” Appellant’s Br. p. 9.
4 Although ideally the trial court should explain on the record why the hearsay is
substantially trustworthy, it is not required to do so.1 Reyes, 868 N.E.2d at 442.
Detective Cole is an experienced Anderson Police officer assigned to the Madison
County Drug Task Force. Therefore, it is reasonable to presume that he is capable of
reading a lab report that identified a substance as cocaine. Peoples provides no basis for
challenging either Detective Cole’s ability to read the report or his credibility. Also, it is
important to note that Detective Cole was subject to extensive cross-examination by
Peoples, who did not raise the issue of Detective Cole’s ability to read and understand the
report. Tr. p. 15-31. Under these circumstances, we find that the trial court did not
commit fundamental error by permitting Detective Cole to testify about the lab report.
Peoples also claims that the State failed to establish a proper chain of custody for
the cocaine. Peoples notes that “Detective Cole did not testify that he personally sent the
substances to the Indiana State Police lab and, without additional information, the
reliability of the information provided by Detective Cole could not be ascertained.”
Appellant’s Br. p. 10-11.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Oct 23 2014, 9:43 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL FRISCHKORN GREGORY F. ZOELLER Frischkorn Law LLC Attorney General of Indiana Fortville, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
FREEMAN PEOPLES, ) ) Appellant-Defendant, ) ) vs. ) No. 48A02-1403-CR-214 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Dennis D. Carroll, Judge Cause No. 48D01-9807-CF-167
October 23, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Freeman Peoples appeals the judgment of the trial court revoking his probation
and ordering him to serve a portion of his previously suspended sentence. Peoples argues
that the trial court erred when it admitted hearsay testimony during the probation
revocation hearing and that it did not have sufficient evidence to find that Peoples
violated his probation without said testimony. Finding no error, we affirm.
FACTS
In 2000, Peoples was found guilty of three counts of class A felony Dealing in
Cocaine. Peoples was sentenced to a total of forty years imprisonment with twenty-six
years executed and fourteen years suspended, ten of which were suspended to probation.
Peoples was released from prison in 2009 and began serving his probation term.
On November 27, 2012, Detective Clifford Cole of the Anderson Police
Department was contacted by a confidential informant who claimed that Peoples was
selling cocaine. Detective Cole met with the informant and conducted a controlled drug
buy during which the informant purchased what was later identified as cocaine from
Peoples. Detective Cole conducted two more controlled buys with the same informant
and Peoples on December 5, 2012, and December 17, 2012. On each occasion the
informant purchased a substance from Peoples that was later identified as cocaine by the
Indiana State Police Laboratory.
On January 22, 2014, the State filed a notice of probation violation in the trial
court alleging that Peoples had violated his probation by committing these alleged
crimes. The trial court held an evidentiary hearing on February 25, 2014. At this
2 hearing, Detective Cole testified that he had received the reports from the Indiana State
Police Laboratory and that these reports identified the substance sold by Peoples during
the controlled buys as cocaine.
Following a second hearing held on March 18, 2014, the trial court found by a
preponderance of the evidence that Peoples had violated his probation by dealing in
cocaine. Accordingly, the trial court revoked Peoples’s probation and ordered that he
serve twelve years of his previously-suspended sentence in the Indiana Department of
Correction and that he not be returned to probation. Peoples now appeals.
DISCUSSION AND DECISION
Peoples first argues that the trial court violated his due process rights under the
Fourteenth Amendment to the United States Constitution when it allowed Detective Cole
to testify regarding the identity of the substance purchased from Peoples. Peoples claims
that because the lab reports identifying the substance as cocaine were not admitted into
evidence, Detective Cole’s testimony regarding these lab reports was inadmissible
hearsay.
We review the trial court’s decision to admit or exclude evidence in a probation
revocation hearing for an abuse of discretion. Figures v. State, 920 N.E.2d 267, 271 (Ind.
Ct. App. 2010). An abuse of discretion occurs when the decision is clearly against the
logic and effect of the facts before the trial court. Id.
Initially, we note that Peoples failed to object to the admission of Detective Cole’s
testimony at trial. Failure to object at trial waives an issue for appeal except in cases of
3 fundamental error. Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014). “Fundamental
error is an error that makes a fair trial impossible” or constitutes a clearly blatant
violation of basic principles of due process. Clark v. State, 915 N.E.2d 126, 131 (Ind.
2009). The exception is extremely narrow and “reaches only errors that are so blatant
that the trial judge should have taken action sua sponte.” Knapp, 9 N.E.3d at 1281.
Despite his failure to object at trial, Peoples argues that we should reverse because
admission of Detective Cole’s hearsay testimony amounted to fundamental error.
The United States Supreme Court has held that the Due Process Clause of the
Fourteenth Amendment allows for procedures in probation revocation proceedings that
are more flexible than those required in criminal prosecutions. Morrissey v. Brewer, 408
U.S. 471, 489 (1972); Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). Furthermore, the
Indiana Rules of Evidence do not apply to probation proceedings. Ind. Evidence Rule
101(d). Consequently, hearsay is admissible as long as it is substantially trustworthy.
Smith v. State, 971 N.E.2d 86, 90 (Ind. 2012). In determining whether evidence is
substantially trustworthy, the trial court considers “whether the evidence reaches a certain
level of reliability[.]” Reyes, 868 N.E.2d at 441.
Here, Detective Cole testified that he received reports from the Indiana State
Police Laboratory that identified the substances purchased from Peoples as cocaine.
Peoples does not argue that the lab test results were inaccurate. Instead, he argues that
the State “did not establish that Detective Cole had the requisite training and experience
to accurately interpret the lab reports.” Appellant’s Br. p. 9.
4 Although ideally the trial court should explain on the record why the hearsay is
substantially trustworthy, it is not required to do so.1 Reyes, 868 N.E.2d at 442.
Detective Cole is an experienced Anderson Police officer assigned to the Madison
County Drug Task Force. Therefore, it is reasonable to presume that he is capable of
reading a lab report that identified a substance as cocaine. Peoples provides no basis for
challenging either Detective Cole’s ability to read the report or his credibility. Also, it is
important to note that Detective Cole was subject to extensive cross-examination by
Peoples, who did not raise the issue of Detective Cole’s ability to read and understand the
report. Tr. p. 15-31. Under these circumstances, we find that the trial court did not
commit fundamental error by permitting Detective Cole to testify about the lab report.
Peoples also claims that the State failed to establish a proper chain of custody for
the cocaine. Peoples notes that “Detective Cole did not testify that he personally sent the
substances to the Indiana State Police lab and, without additional information, the
reliability of the information provided by Detective Cole could not be ascertained.”
Appellant’s Br. p. 10-11. However, “[t]here is a presumption of regularity in the
handling of exhibits by police officers. Thus, merely raising the possibility of tampering
is insufficient to make a successful challenge to the chain of custody.” Bell v. State, 881
N.E.2d 1080, 1084 (Ind. Ct. App. 2008) (citations omitted). As Peoples does nothing
more than raise the possibility of tampering, his chain of custody argument fails.
1 This is especially true in cases where, as here, no hearsay objection was made. 5 Finally, Peoples argues that the evidence was insufficient to sustain the trial
court’s judgment revoking his probation. “A probation hearing is civil in nature, and the
State must prove an alleged probation violation by a preponderance of the evidence.”
Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014).
Here, the trial court found that Peoples violated his probation by dealing in
cocaine. Because a probationer is required by statute not to commit any new crimes, id.
at 1268, the trial court revoked Peoples’s probation. Peoples argues that “[w]ithout the
hearsay testimony of Detective Cole that the substances were cocaine, the evidence
presented is not sufficient to establish by a preponderance of the evidence that
Peoples . . . [was] dealing in cocaine.” Appellant’s Br. p. 11. As Peoples’s sufficiency of
the evidence claim relies entirely on his failed attempt to show that the trial court
committed fundamental error in admitting hearsay testimony, this claim must fail as well.
The judgment of the trial court is affirmed.
KIRSCH, J., and ROBB, J., concur.