Giavonda Chandler v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2016
• Docket: 02A04-1606-CR-1460
• Status: Published

Opinion

MEMORANDUM DECISION FILED Dec 21 2016, 7:48 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David L. Joley Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Giavonda Chandler, December 21, 2016

Appellant-Defendant, Court of Appeals Case No. 02A04-1606-CR-1460

v. Appeal from the Allen Superior Court State of Indiana, The Hon. Wendy Davis, Judge The Hon. David M. Zent, Magistrate Appellee-Plaintiff. Trial Court Cause No. 02D04-1511- CM-4574

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016 Page 1 of 10 Case Summary [1] Early on a morning in November of 2015, two Fort Wayne Police Officers

responded to a report of a disturbance with shots fired from either a black

Cadillac or a pickup truck. When the officers encountered a vehicle matching

the reported description one block away and driving away from the scene, they

stopped it. Appellant-Defendant Giavanda Chandler and a passenger were

ordered from the vehicle at gunpoint, patted down for weapons, and

handcuffed. When one officer attempted to secure the vehicle, he noticed a

handgun sticking out of a purse on the driver’s seat. Once it was determined

that Chandler was not licensed to carry a handgun, officers placed her under

arrest. A search of Chandler’s person revealed a plastic baggie containing

marijuana, and a search of her purse uncovered a marijuana cigarette. The

State charged Chandler with Class A misdemeanor carrying a handgun without

a license and Class B misdemeanor marijuana possession, and the trial court

found her guilty as charged. Chandler contends that the trial court abused its

discretion in admitting evidence (1) regarding the course of the officers’

investigation and (2) seized as a result of the officers’ stop of her vehicle and

searches of her person and her purse. Because we conclude that Chandler has

waived her argument with regard to course-of-the-investigation testimony and

that evidence was not seized from her in violation of her constitutional rights,

we affirm.

Facts and Procedural History Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016 Page 2 of 10 [2] At approximately 4:00 a.m. on November 29, 2015, Fort Wayne Police Officers

Jason Fuhrman and David Bush responded to a report of a disturbance in the

1600 block of Elmrow Street. Both officers were informed en route that shots

had been fired by the occupants of either a black Cadillac or a pickup truck.

Officer Fuhrman, who was only three blocks away when he received the report,

approached and observed a black Cadillac STS driving away from the area.

The STS was approximately one block away from the scene of the disturbance.

[3] As Officer Bush approached, driving toward the STS, the STS signaled a turn

down a roadway on which Officer Fuhrman was approaching but ended up

continuing through the intersection. Eventually, both officers fell in behind the

STS and initiated a stop. Both officers remained shielded behind their vehicles’

doors, drew their weapons, and ordered the driver of the STS to emerge.

Chandler emerged from the driver’s side, and the officers ordered her to walk

back to the patrol cars, where they handcuffed her and patted her down for

weapons. The officers followed the same procedure for the passenger.

[4] While Officer Fuhrman was checking the passenger for weapons, Officer Bush

approached the STS, on which Chandler and the passenger had left the front

doors open. Officer Bush observed a large handbag on the driver’s seat with a

handgun clearly visible inside. The officers determined that Chandler did not

possess a handgun license and arrested her. During a search of Chandler’s

person, the officers located a small plastic bag of marijuana. The officers also

conducted an inventory search of the STS before towing it and found a

marijuana cigarette in Chandler’s handbag.

Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016 Page 3 of 10 [5] Later the same day (November 29, 2015), the State charged Chandler with

Class A misdemeanor carrying a handgun without a license and Class B

misdemeanor marijuana possession. On April 15, 2016, the trial court found

Chandler guilty as charged and sentenced her to 180 days of incarceration for

each count, to be served concurrently. On May 25, 2016, the trial court denied

Chandler’s motion to correct error.

Discussion and Decision [6] Both of Chandler’s arguments are that the trial court abused its discretion in

admitting certain evidence. The admissibility of evidence is within the sound

discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App.

2002), trans. denied. We will only reverse a trial court’s decision on the

admissibility of evidence upon a showing of an abuse of that discretion. Id. An

abuse of discretion may occur if the trial court’s decision is clearly against the

logic and effect of the facts and circumstances before the court, or if the court

has misinterpreted the law. Id. The Court of Appeals may affirm the trial

court’s ruling if it is sustainable on any legal basis in the record, even though it

was not the reason enunciated by the trial court. Moore v. State, 839 N.E.2d

178, 182 (Ind. Ct. App. 2005), trans. denied. We do not reweigh the evidence

and consider the evidence most favorable to the trial court’s ruling. Hirshey v.

State, 852 N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016 Page 4 of 10 I. Course-of-the-Investigation Evidence [7] Chandler contends that the trial court abused its discretion in admitting course-

of-the-investigation evidence tending to show why Officers Fuhrman and Bush

stopped her Cadillac, treated the stop as high-risk, etc. In this appeal, Chandler

asserts that the course-of-the-investigation testimony was inadmissible hearsay

that violated her constitutional right to confront those witnesses against her.

However, the basis on which Chandler now claims that the testimony was

erroneously admitted, i.e., it tends to show why the officers acted in the manner

they did, is the very basis on which she conceded it was admissible below.

Because Chandler is making an argument inconsistent with the one made

below, she has waived the issue for appellate consideration. The purpose of the

contemporaneous objection rule is to promote a fair trial by preventing a party from

sitting idly by and appearing to assent to an offer of evidence or ruling by the court

only to cry foul when the outcome goes against him. Purifoy v. State, 821 N.E.2d

409, 412 (Ind. Ct. App. 2005), trans. denied (citation omitted). By assenting to the

offer of evidence below on the ground that she now challenges, Chandler has

waived this argument.

Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016 Page 5 of 10 II. Article 1, Section 11 of the Indiana Constitution [8] Chandler also contends that the trial court abused its discretion in admitting all

of the evidence seized from her as a result of the stop and search. Article 1,

Section 11, of the Indiana Constitution1 provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

[9] The Indiana Supreme Court has noted that

[w]hile almost identical in wording to the federal Fourth Amendment, the Indiana Constitution’s Search and Seizure clause is given an independent interpretation and application. Mitchell v. State, 745 N.E.2d 775, 786 (Ind. 2001); Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999); Moran v. State, 644 N.E.2d 536, 540 (Ind. 1994). To determine whether a search or seizure violates the Indiana Constitution, courts must evaluate the “reasonableness of the police conduct under the totality of the circumstances.” Litchfield v. State, 824 N.E.2d 356, 359 (Ind. 2005) (citing Moran, 644 N.E.2d at 539). “We believe that the totality of the circumstances requires consideration of both the degree of intrusion into the subject’s ordinary activities and the basis upon which the officer selected the subject of the search or seizure.” Id. at 360. In Litchfield, we summarized this evaluation as follows:

1 Chandler also argues on appeal that her rights pursuant to the Fourth Amendment to the United States Constitution were violated. Chandler’s argument at trial, however, was limited to an alleged violation of the Indiana Constitution. Chandler may not now raise this ground on appeal. “A party may not object on one ground at trial and raise a different ground on appeal.” White v. State, 772 N.E.2d 408, 411 (Ind. 2002).

Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016 Page 6 of 10 In sum, although we recognize there may well be other relevant considerations under the circumstances, we have explained reasonableness of a search or seizure as turning on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizens’ ordinary activities, and 3) the extent of law enforcement needs.

Id. at 361.

Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005).

[10] Investigatory stops invoke the Article 1, Section 11 protections of the Indiana Constitution. Rutledge v. State, 426 N.E.2d 638, 642 (Ind. 1981). An individual’s right of free movement under Article 1, Section 11 is not absolute, for society has a right to protect itself. Williams v. State, 261 Ind. 547, 551, 307 N.E.2d 457, 460 (Ind. 1974). In balancing these factors, our courts gauge the reasonableness of an investigatory stop by striking “‘a balance between the public interest [behind the investigation] and the individual’s right to personal security free from arbitrary interference from law officers.’” Platt v. State, 589 N.E.2d 222, 225 (Ind. 1992) (alteration in original) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L .Ed. 2d 607 (1975)). An investigatory stop of a citizen by a police officer does not violate that citizen’s constitutional rights if the officer has a reasonably articulable suspicion of criminal activity. Lampkins v. State, 682 N.E.2d 1268, 1271 (Ind. 1997) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); United States v. Hatch, 827 F. Supp. 536, 541 (N.D. Ind. 1993)). Reasonable suspicion is a “somewhat abstract” concept that is not readily reduced to a “neat set of legal rules.” United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 151 L .Ed. 2d 740 (2002). As the Court of Appeals has written on the topic,

Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016 Page 7 of 10 A police officer may briefly detain a person for investigatory purposes without a warrant or probable cause if, based upon specific and articulable facts together with rational inferences from those facts, the official intrusion is reasonably warranted and the officer has a reasonable suspicion that criminal activity “may be afoot.”

Combs v. State, 851 N.E.2d 1053, 1057 (Ind. Ct. App. 2006).

State v. Renzulli, 958 N.E.2d 1143, 1146 (Ind. 2011).

[11] Here, the officers were provided information regarding an alleged shooting by

police dispatch, the source of which information was not divulged at trial.

Consequently, we shall assume that the source was an anonymous tip.

The trustworthiness of hearsay from an informant can be established in a number of ways, including where (1) the informant has given correct information in the past; (2) independent police investigation corroborates the informant’s statements; (3) some basis for the informant’s knowledge is shown; or (4) the informant predicts conduct or activities by the suspect that are not ordinarily easily predicted. Scott v. State, 883 N.E.2d 147 (Ind. Ct. App. 2008). Where a tip from a confidential informant is “completely lacking in indicia of reliability and the record offers no evidence that the confidential informant was reliable[,] the tip [is] ... inadequate” to establish reasonable suspicion. Johnson v. State, 659 N.E.2d 116, 119 (Ind. 1995).

Teague v. State, 891 N.E.2d 1121, 1128-29 (Ind. Ct. App. 2008), trans. denied.

[12] Under the circumstances of this case, we conclude that the police had a

reasonably high degree of concern that Chandler’s vehicle had been involved in

a shooting. Officers initially responded to a report of a disturbance and were Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016 Page 8 of 10 soon thereafter informed that it was believed that shots had been fired from a

black Cadillac or pickup truck. Although there is no indication that either the

officers or dispatch knew the identity of the tipster, the evolving nature of the

information provided to the officers over a short period of time leads to an

inference that the tipster was a witness at the scene, with dispatch passing along

information to the officers as it was received.

[13] Of greater importance, the officers were able to corroborate the information

relayed to them almost immediately. Officer Fuhrman was three blocks away

from the reported scene of the shooting when he responded, encountering a

black Cadillac a block away from the scene traveling away from it. It should

also be noted that the Cadillac signaled a turn onto a street occupied by Officer

Bush but did not complete the turn. It may be inferred that Chandler decided

not to complete her turn upon observing Officer Bush in his fully-marked police

vehicle. Finally, the events at issue occurred at 4:00 a.m., when traffic is likely

to be very light, thereby greatly lessening the chances that police would stop a

vehicle based on mistaken identity. The time of day; the fact that Chandler’s

vehicle matched the description; the seeming attempt to evade the police; the

proximity to, and travel away from, the scene of the alleged shooting; and the

very short time that elapsed before Chandler’s vehicle was seen provided

officers with sufficient specific information to corroborate the tip and

reasonably believe that her Cadillac STS was the one that had been involved in

the alleged shooting.

Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016 Page 9 of 10 [14] Also considering the circumstances, the degree of intrusion into Chandler’s

activities was not inappropriately severe. Officers, reasonably believing that

they were stopping a vehicle from which shots had just been fired, employed

procedures for a high-risk stop. While protecting themselves, the officers

ensured first that the visible passengers were not armed and dangerous and then

verified that no other possible shooters remained in the Cadillac. It was Officer

Bush in the process of securing the vehicle who noticed the handgun in plain

sight in Chandler’s purse. Only after determining that Chandler was not

licensed to possess a handgun were further searches conducted incident to the

arrests of her and her passenger.

[15] Finally, the needs of law enforcement were great. Officers were responding to a

report of a disturbance with shots fired, possibly to confront a person who had

already fired a weapon, was fleeing the scene, and was likely still armed. The

need to respond quickly to a report of shots fired in order to protect the public

and authorities is obvious. Under the circumstances, the officers’ actions in

stopping Chandler’s vehicle—and afterwards—were reasonable. Chandler has

failed to establish that her rights pursuant to Article 1, Section 11 were violated.

[16] The judgment of the trial court is affirmed.

Vaidik, C.J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A04-1606-CR-1460 | December 21, 2016 Page 10 of 10