MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Nov 17 2016, 7:45 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Sean Clover Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Sean Clover, November 17, 2016
Appellant-Petitioner, Court of Appeals Case No. 03A05-1512-PC-2121 v. Appeal from Bartholomew Superior Court. The Honorable Matthew D. Bailey, State of Indiana, Special Judge. Appellee-Respondent. Cause No. 03D01-1204-PC-2037
Garrard, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 1 of 13 [1] After Clover’s judgment of conviction and sentence for two counts of dealing in 1 2 cocaine, each as a Class A felony, were affirmed on direct appeal, Clover filed
a petition for post-conviction relief, alleging ineffective assistance of both trial
and appellate counsel, which was denied by the post-conviction court. Clover
now appeals.
[2] Clover, who was initially known by officers as Bobby Johnson, was involved in
two separate undercover drug buys occurring on August 21, 2008, and
September 5, 2008 in Columbus, Indiana. During his jury trial, the trial court
admitted State’s Exhibit 28 as a substitute for State’s Exhibit 12, which was an
inaudible recording of the September 5, 2008 transaction. Clover challenged
the admissibility of State’s Exhibit 28 on direct appeal, but the trial court’s
admission of the exhibit was affirmed. Clover also challenged the trial court’s
refusal to declare a mistrial based on Clover’s allegation of two instances of
prosecutorial misconduct at trial. The trial court’s decision not to declare a
mistrial was also affirmed on appeal. Likewise, Clover’s challenge of the
appropriateness of his sentence was rejected on appeal.
[3] Clover appeals from the denial of his petition for post-conviction relief. A
petitioner seeking post-conviction relief bears the burden of establishing
grounds for relief by a preponderance of the evidence. Hollowell v. State, 19
1 Ind. Code § 35-48-4-1 (2006). 2 Clover v. State, No. 03A04-2010-CR-675 (Ind. Ct. App. August 26, 2011), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 2 of 13 N.E.3d 263, 268-69 (Ind. 2014). A petitioner who appeals from the denial of
post-conviction relief, appeals from a negative judgment. Id. at 269. As such,
to prevail on appeal, the petitioner must show that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite that reached by the
post-conviction court. Id. The trial court’s findings of fact and conclusions of
law, entered in accordance with Indiana Post-Conviction Rule 1, section 6, will
be reversed only upon a showing of clear error—that which leaves us with a
definite and firm conviction that a mistake has been made. Id. We do not defer
to the post-conviction court’s legal conclusions. Id.
[4] Although Clover unsuccessfully presented the argument that he received
ineffective assistance of appellate counsel, he does not challenge the post-
conviction court’s ruling as to that issue on appeal. Instead, Clover contends
only that the post-conviction court’s denial of his claims of ineffective assistance
of trial counsel was clearly erroneous.
[5] When reviewing a claim of ineffective assistance of counsel, we follow the test
set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). Id. We must determine whether the petitioner established deficient
performance by counsel, and whether the petitioner established prejudice
resulting from counsel’s errors. Id. Although this test involves two separate
inquiries, a claim of ineffective assistance of counsel may be disposed of on
either part of the test. Dickens v. State, 997 N.E.2d 56, 65 (Ind. Ct. App. 2013),
trans. denied. Counsel’s performance is presumed effective, and a petitioner
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 3 of 13 must offer strong and convincing evidence to overcome this presumption.
Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002).
[6] Clover was represented at trial by attorney James Shoaf. Clover argues that
Shoaf should have filed a motion to suppress evidence of his identity on Fourth
Amendment grounds, contending that the traffic stop leading to the discovery
of his true identity was a pretext executed only to achieve that goal. Because
Clover does not raise a separate argument and analysis under Article 1, Section
11 of the Indiana Constitution, we consider only the Fourth Amendment
argument.
[7] This issue was considered and rejected by the United States Supreme Court in
Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
In Whren, police officers discovered two large bags of crack cocaine in the
hands of the passenger of a vehicle that was pulled over for a traffic violation.
The petitioners moved to suppress the evidence on the ground that the traffic
stop, which occurred in an area of the city where there was much drug activity,
was a pretext to investigate whether illegal drug activity was afoot. The
Supreme Court observed that temporary detention of individuals during a
traffic stop by police constitutes a seizure for purposes of the Fourth
Amendment, and, therefore, must be reasonable, which requires the police to
have probable cause to believe that a traffic violation has occurred. Id. at 810.
The Supreme Court held that even if police officers have another motivation for
detaining the individuals, there is no Fourth Amendment violation if the
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 4 of 13 officers have probable cause for the traffic stop. Id. at 819. If so, the evidence
discovered is admissible. Id.
[8] The facts of the present case lead to the same result. Prior to the September 5,
2008 transaction, Officer Martin, the undercover officer involved in the
controlled buys, arranged to have another officer, Columbus Police Department
Sergeant Morgan Horner, observe Martin’s vehicle and stop it for any minor
traffic violations. After the transaction was completed, Martin drove his car
toward Clover’s home. Sergeant Horner observed Martin’s vehicle swerve
within its lane and noticed that the vehicle had an equipment violation. Horner
initiated a traffic stop of Martin’s vehicle and, after obtaining identification
information from both Martin and Clover, did not issue a citation. Evidence of
Clover’s true identity was used at his trial.
[9] The evidence at trial established that Sergeant Horner had probable cause for
the traffic stop. The fact that he had the additional motivation to discover
Clover’s true identity does not invalidate the stop, or cause that evidence to be
inadmissible under Whren. Therefore, Shoaf did not render ineffective
assistance of counsel by failing to file a motion to suppress that evidence.
[10] Clover also claims that trial counsel was deficient by failing to object to the
admission of Exhibit 28 on grounds that it contained inadmissible evidence
which was damaging to Clover’s character, and its admission violated Clover’s
confrontation rights under the United States Constitution. Because Clover does
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 5 of 13 not present separate argument or analysis under the Indiana Constitution, the
only constitutional issue we address is his Sixth Amendment challenge.
[11] Shoaf objected to the admission of the exhibit at trial, challenging the
authenticity of the exhibit and its chain-of-custody. On direct appeal, Clover
argued that an improper foundation had been laid for the admission of the
exhibit. We held that even if the trial court abused its discretion by admitting
the exhibit, such error was harmless, as the recording was merely cumulative of
Officer Martin’s testimony about the September 5, 2008 transaction. Clover v.
State, No. 03A04-2010-CR-675, *1 (Ind. Ct. App. August 26, 2011), trans.
denied.
[12] Because Clover has not previously litigated the issue whether trial counsel was
ineffective by failing to object to Exhibit 28 on federal Confrontation Clause
grounds, we consider it here.
[13] One of the primary interests secured by the Confrontation Clause is the right of
cross-examination. Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010) (citing
Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)). A
defendant’s Sixth Amendment right to confront witnesses is, however, subject
to reasonable limitations placed at the discretion of the trial court. Id. (citing
Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674
(1986)). A finding that there were violations of the right of cross-examination
does not require reversal if the State can show beyond a reasonable doubt that
the error did not contribute to the verdict. Id. Because a defendant is entitled to
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 6 of 13 a fair trial, not a perfect trial, in a particular case, certain constitutional errors
may have been harmless in terms of their effect on the fact-finding process at
trial. Id. This harmless error analysis turns on factors we consider on appellate
review, such as the importance of the witness’ testimony in the State’s case,
whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and the overall strength of
the prosecution’s case. Id. (quoting Van Arsdall, 475 U.S. at 684, 106 S. Ct.
1431)). Our Supreme Court has applied the test and previously found that the
admission of a laboratory report without allowing the defendant an opportunity
to confront the creator of the report was harmless beyond a reasonable doubt
because of the defendant’s self-implicating statements to police. Koenig, 933
N.E.2d at 1274.
[14] On direct appeal, we already determined that admission of the exhibit, if
erroneous, was harmless error at best. Assuming, arguendo, that the trial court
erred by admitting Exhibit 28 without allowing Clover to confront the creator
of the exhibit, we conclude that such error was harmless beyond a reasonable
doubt.
[15] Martin testified about the procedure he used in creating the compact disc
recordings from the portable digital recorder used during the transaction. He
also testified that he, as an Indiana State Police Detective, was unfamiliar with
the practices of the Columbus Police Department in preserving recordings made
from their portable digital recorders. Columbus Police Department Officer
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 7 of 13 Jonathan Rohde explained that his department stores audio recordings on its
server rather than using compact discs. He could not recall if he was the officer
who downloaded the recording to the server.
[16] Officer Martin had already testified and was cross-examined about the two drug
transactions. The exhibit was merely cumulative of that testimony. Sergeant
Horner executed the traffic stop shortly after the September 5 transaction,
confirming that the individual Martin had purchased the cocaine from was
Clover. Both Martin and Horner identified Clover at trial. The lab results
confirmed that the substance Clover had sold to Martin on two separate
occasions was cocaine.
[17] Assuming that the exhibit was erroneously admitted, the error was harmless
beyond a reasonable doubt based on the record. As such, Clover has not
established prejudice from trial counsel’s failure to object on this ground, and
has not established that an objection if made, would have been successful.
[18] Clover also argues that a new trial is warranted because Exhibit 28 includes his
statement to Martin that even though he had a warrant for his arrest out of
Georgia, Clover did not expect to be extradited. Clover argues that his counsel
should have filed a motion to suppress on Indiana Rule of Evidence 404(b)
grounds because the evidence reflected poorly on his character.
[19] Prior to the admission of Exhibit 28, Martin had already testified about the two
drug transactions with Clover. The lab results, which were admitted, showed
that the substance Martin purchased from Clover was cocaine. Photographs of
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 8 of 13 the buy money used to purchase the cocaine from Clover were also admitted. It
is unlikely that the jury would have reached a different verdict had Clover’s
counsel objected to that evidence.
[20] Additionally, Shoaf’s failure to file a motion to suppress that evidence does not
entitle Clover to relief. Shoaf testified that he did not believe that a motion to
suppress evidence of Clover’s active warrant would have been granted. In order
to prevail on such a claim based on counsel’s failure to file a motion, the
petitioner must demonstrate that such a motion would have been successful.
Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct. App. 2007), trans. denied.
[21] Indiana Evidence Rule 404(b) protects a defendant from being convicted based
on unrelated prior bad acts. Garland v. State, 788 N.E.2d 425, 428 (Ind. 2003).
This is to prevent the jury from drawing a forbidden inference that the
defendant’s character is such that he has a propensity to engage in conduct of
the sort charged, and acted in conformity with that character on the occasion at
issue as charged. Id. at 429.
[22] During the traffic stop, Clover told Martin that he was subject to three months’
probation, and had a warrant for his arrest for moving from Georgia to Indiana.
He explained to Martin that he believed the basis of the warrant was not serious
enough to justify an arrest at that time or extradition to Georgia. There was no
evidence of the nature of the prior offense resulting in Clover’s probation in
Georgia, and his arrest warrant for violating his probation by moving from
Georgia to Indiana is different from the charged acts, dealing in cocaine.
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 9 of 13 [23] As such, Shoaf’s decision not to file a motion to suppress was a matter of trial
strategy. Given the compelling nature of the evidence against Clover, he has
not met his burden of establishing that the motion would have been granted, or
that but for Shoaf’s failure to file the motion to suppress, the result of the
proceedings would have been different.
[24] Clover also argues that his trial counsel was ineffective by failing to allege a
conspiracy to present false testimony by raising an alleged violation of the order
separating witness and raising alleged prosecutorial misconduct from this
violation. Clover claims that the deputy prosecutor and Detective Rohde
“surreptitiously contacted” technician Neal in violation of the court order and
“knowingly and intentionally gave him false statements in order to influence his
testimony.” Appellant’s Br. p. 14.
[25] The portion of the transcript Clover cites does not lend support to his argument.
On trial transcript page 239, the trial court made clear that during the break in
his testimony, Officer Martin was to have no contact with anyone in the
prosecutor’s office except for the legal assistant and then only regarding
scheduling issues. The trial court specifically reminded the State that Martin
was not to be in the prosecutor’s office at all prior to resuming his testimony.
There is no reference with respect to Detective Neal.
[26] During the trial, it was apparent that the recordings of the drug transactions had
clarity issues. State’s Exhibit 28 was admitted as a more clear recording of the
September 5, 2008 transaction. Detective Neal briefly testified on the first day
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 10 of 13 of trial about his experience with illegal substance investigations and the audio
and video devices used to record undercover transactions. He also testified
about the audio playback systems used in courtrooms. The trial court had
admitted State’s Exhibit 4, an audio recording, and State’s Exhibit 7, which was
a transcription from a recording. When Detective Neal attempted to play
State’s Exhibit 4 for the jury, it was apparent that the recording and
transcription differed. The trial court allowed a brief recess to let Detective
Neal find the correct starting time on the audio recording and for the parties to
reconcile the differences between the transcripts and recordings.
[27] While these issues were being addressed out of the presence of the jury, Shoaf
informed the trial court that he had spoken with Officer Rohde about the
difference in quality between the recording and the transcript. Officer Rohde
then testified and answered questions from the court and the parties about the
Columbus Police Department’s procedure used to download, copy, and
transcribe the recordings from the portable digital recording device. The deputy
prosecutor indicated that she intended to speak with Detective Neal about
clarity issues involving State’s Exhibit 12. When Detective Neal testified about
those issues, out of the presence of the jury, the trial court agreed that State’s
Exhibit 28 was more clear than State’s Exhibit 12. Detective Neal had not
listened to what Shoaf and the State were referring to as the original, but
testified that he had been told by the deputy prosecutor and Officer Rohde
about differences. Once the jury was reconvened, Detective Neal played
Exhibit 28 for the jury, but did not otherwise testify during the State’s case.
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 11 of 13 Detective Neal further testified during Clover’s case about possible reasons for
the differences in clarity and length of Exhibit 12 and Exhibit 28.
[28] The record does not support Clover’s argument that there was a surreptitious
meeting between the deputy prosecutor, Officer Rohde, and Detective Neal for
the purpose of giving him false information to influence his testimony. Indeed,
Detective Neal answered all questions presented to him by the trial court,
Shoaf, and the State. He testified that he did not know what the parties
considered to be the original recording and that he had not listened to an
original.
[29] It is apparent from the record that Detective Neal’s function at trial was to play
the recordings for the jury. He testified about his experience and the possible
causes of the defects in sound quality of some of the exhibits. The deputy
prosecutor and Officer Rohde’s discussions with Detective Neal to produce a
more audible version of the evidence for the jury does not rise to the level of
violating the order separating witnesses, and since conducted outside the
presence of the jury, did not influence the jury’s verdict. Consequently, Clover
has not established prejudice from trial counsel’s failure to present this
argument at trial.
[30] Next, Clover claims that his trial counsel was ineffective for failing to impeach
Detective Martin about another copy of the September 5, 2008 transaction
which he produced on the morning of the third day of trial at the request of an
assistant in the prosecutor’s office. The copy was then provided to the deputy
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 12 of 13 prosecuting attorney, who then provided the copy to Shoaf. Clover argues that
Shoaf should have questioned Detective Martin about Defendant’s Exhibit A,
impeaching his testimony.
[31] Shoaf chose to address the issue of the new recording of the September 5, 2008
transaction by way of a motion for mistrial. The trial court denied the motion
after hearing Shoaf’s vigorous argument, and after agreeing that the State’s
performance was subpar. The trial court’s decision was affirmed on direct
appeal. Therefore, Shoaf’s decision to attempt to gain a new trial for Clover
because of discovery issues involving that exhibit, instead of attempting to
impeach Detective Martin with that evidence, was a tactical decision. The
record reflects that Shoaf addressed the issue at trial and the issue was reviewed
on appeal. “Trial strategy is not subject to attack through an ineffective
assistance of counsel claim, unless the strategy is so deficient or unreasonable as
to fall outside the objective standard of reasonableness.” Benefield v. State, 945
N.E.2d 791, 799 (Ind. Ct. App. 2011) (quoting Autrey v. State, 700 N.E.2d 1140,
1141 (Ind. 1998)), trans. denied. Shoaf’s strategy was neither deficient nor
unreasonable.
[32] In light of the foregoing, we affirm the post-conviction court’s decision.
[33] Affirmed.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 13 of 13