Tyrone Grayson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 30, 2018
• Docket: 49A04-1709-PC-2302
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 30 2018, 9:13 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Tyrone Grayson Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Tyrone Grayson, July 30, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1709-PC-2302 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Shatrese M. Appellee-Plaintiff. Flowers, Judge The Honorable James K. Snyder, Commissioner Trial Court Cause No. 49G20-1607-PC-26978

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 1 of 11 [1] Tyrone Grayson (“Grayson”) appeals the Marion Superior Court’s denial of his

petition for post-conviction relief. Grayson argues that his trial counsel was

ineffective for failing to challenge the investigatory stop under Article 1, Section

11 of the Indiana Constitution.

[2] We affirm.

Facts and Procedural History [3] The following facts and procedural history of Grayson’s trial are taken from his

direct appeal:

On February 23, 2014, at approximately 5:20 a.m., Indianapolis Metropolitan Police Department Officer Jonathan Schultz (“Officer Schultz”) responded to a dispatch that an anonymous caller reported a person inside a silver or gray vehicle waving a firearm at Washington Point Apartments. When Officer Schultz arrived at the apartment complex, he saw a silver vehicle with its headlights off parked perpendicular to the parking spots. As the officer pulled into the parking lot and was driving toward the vehicle, the vehicle pulled into a parking space. The officer did not see any other silver or gray occupied vehicles in the parking lot.

Officer Schultz activated his rear emergency lights and parked his vehicle at an “angle towards where he was parked at, off to the side.” Then the officer, who was in full uniform and carrying a flashlight, approached the driver’s side of the vehicle. The driver identified himself as Grayson. Officer Schultz asked Grayson if he lived at the apartment complex, and Grayson stated that he did not but that his passenger did.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 2 of 11 Next, Officer Schultz mentioned the dispatch about a person waving a gun. As he continued his conversation with Grayson, through the open driver’s side window, Officer Schultz observed the butt of a firearm underneath the driver’s seat between Grayson’s feet. Officer Schultz asked if any firearms were in the vehicle, and Grayson stated that there were not, a statement that was clearly a lie, based on Officer Schultz’s personal observation.

At about this time, Officer Michael Wagner–Gilbert (“Officer Wagner–Gilbert”) who also responded to the dispatch, arrived on the scene and approached the passenger side of the vehicle. Officer Schultz then asked Grayson to step out of the vehicle. He asked Grayson if he had a permit to carry a firearm, and Grayson replied that he did not.

Officer Schultz asked if he could look through the vehicle, and Grayson gave the officers permission to search. Officer Schultz placed Grayson in handcuffs and walked him to the rear of the vehicle. Officer Wagner–Gilbert looked into the driver’s side of the vehicle and, like Officer Schultz, Officer Wagner–Gilbert saw the butt of the firearm underneath the driver’s seat. Officer Wagner–Gilbert removed the firearm from the vehicle and placed it in an evidence bag. After he determined that Grayson had prior felony convictions, Officer Schultz arrested Grayson for unlawful possession of a firearm by a serious violent felon. The passenger in Grayson’s vehicle was released at the scene.

Grayson was subsequently charged with Class B felony unlawful possession of a firearm by a serious violent felon. Prior to trial, Grayson filed a motion to suppress the firearm found during the warrantless search. A hearing was held on the motion on August 6, 2014. In his post-hearing memorandum, Grayson claimed that the officer lacked reasonable suspicion to conduct a Terry stop and that he was not advised of his Pirtle rights before the vehicle was searched. In its response to Grayson’s arguments, the State conceded that Grayson was in custody when Officer Schultz Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 3 of 11 “pulled his marked police vehicle up behind the silver vehicle that Grayson was operating.” However, the court concluded that the officer had reasonable suspicion to believe criminal activity had occurred, and Pirtle warnings were not necessary because Officer Schultz had probable cause to search the vehicle after seeing the handgun between Grayson’s feet.

Grayson’s bench trial was held on March 11, 2015. Grayson objected to the admission of the firearm for the reasons raised in the motion to suppress, and he also argued that the investigatory stop was unreasonable because it was based solely on an anonymous tip. Specifically, Grayson argued that the anonymous caller only reported a person waving a gun in a silver vehicle at the apartment complex and did not provide his or her name or address. The trial court overruled the objection and found Grayson guilty of Class B felony unlawful possession of a firearm by a serious violent felon. The trial court ordered him to serve twelve years executed in the Department of Correction.

Grayson v. State, 52 N.E.3d 24, 25–26 (Ind. Ct. App. 2016) (internal citations

omitted), trans. denied.

[4] On direct appeal, Grayson argued that the trial court abused its discretion when

it admitted into evidence the handgun discovered during a warrantless search of

his vehicle. He raised the issue under the Fourth Amendment protection against

warrantless searches and seizures, but did not raise the issue under Article 1,

Section 11 of the Indiana Constitution. This court concluded that Officer

Schultz had reasonable suspicion to conduct the investigatory stop. Therefore,

the trial court did not abuse its discretion when it admitted the handgun into

evidence at trial. Id. at 30.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 4 of 11 [5] On January 4, 2017, Grayson filed a pro se petition for post-conviction relief. In

his petition, Grayson argued that he was denied effective assistance of counsel

when his trial counsel failed to challenge the stop under Article 1, Section 11 of

the Indiana Constitution.

[6] At the post-conviction hearing held on March 3, 2017, Grayson’s trial counsel

testified that she should have raised Article 1, Section 11 of the Indiana

Constitution as a basis for suppressing the evidence, and that she did not have a

strategic reason for failing to raise the issue. See PCR Tr. p. 10. Appellate

counsel submitted an affidavit, which stated that had the Article 1, Section 11

argument been preserved, she “would have raised it on appeal.” Ex. Vol. I.,

Petitioner’s Ex. 1, p. 7. And she was of the opinion that “there can be no

legitimate or strategic reason for arguing against the admission of the evidence

in this case on Fourth Amendment grounds but not based on Article 1,

[Section] 11.” Id. at 8.

[7] On July 17, 2017, the post-conviction court issued its findings of facts and

conclusions of law. The court ultimately found:

[U]nder the totality of the circumstances, [. . .] Grayson has not met his burden, by a preponderance of the evidence, to show that, had [trial counsel] argued for suppression of the evidence under Article 1[,] Section 11, there is a reasonable probability that the result of the proceedings would have been different.

Appellant’s App. Vol. II, pp. 87–88. Accordingly, the post-conviction court

denied Grayson’s petition for post-conviction relief. Grayson now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 5 of 11 Standard of Review [8] The post-conviction petitioner bears the burden of establishing grounds for

relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,

562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a

petition for post-conviction relief, the petitioner stands in the position of one

appealing from a negative judgment. Id. On appeal, we neither reweigh

evidence nor judge the credibility of witnesses. Id. Therefore, to prevail,

Grayson must show that the evidence as a whole leads unerringly and

unmistakably to a conclusion opposite that reached by the post-conviction

court. Id.

[9] Where, as here, the post-conviction court made specific findings of fact and

conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we

must determine if the court’s findings are sufficient to support its judgment.

Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

N.E.2d 962. Although we do not defer to the post-conviction court’s legal

conclusions, we review the post-conviction court’s factual findings for clear

error. Id. Accordingly, we will consider only the probative evidence and

reasonable inferences flowing therefrom that support the post-conviction court’s

decision. Id.

[10] A claim of ineffective assistance of trial counsel here requires a showing that:

(1) Grayson’s trial counsel’s performance was deficient by falling below an

objective standard of reasonableness; and (2) that the deficient performance

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 6 of 11 prejudiced Grayson such that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Failure to satisfy

either of the two elements will cause the claim to fail. French v. State, 778

N.E.2d 816, 824 (Ind. 2002). And when it is easier to dispose of an

ineffectiveness claim on the lack of prejudice, then this is the course we should

follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011).

Discussion and Decision [11] Grayson argues that his trial counsel’s performance was deficient when she

failed to raise Article 1, Section 11 of the Indiana Constitution as a basis to

suppress evidence, and that he was prejudiced by the deficient performance. See

Appellant’s Br. at 18. 1

I. Ineffective Assistance of Trial Counsel

[12] Grayson is entitled to post-conviction relief only if raising an objection under

Article 1, Section 11 would result in “a reasonable probability that, but for

counsel’s [failing to raise Article 1, Section 11], the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. We need not consider

1 Grayson also argues that the post-conviction court erred in denying his relief by failing to address his Sixth Amendment confrontation claim. However, the issue was available at the time of Grayson’s direct appeal, and therefore, may not be raised in post-conviction proceedings. See Ind. Post-Conviction Rule 1(b) (stating post-conviction relief “is not a substitute for a direct appeal from the conviction and/or the sentence”).

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 7 of 11 whether trial counsel’s performance was deficient because we can dispose of

Grayson’s claim under the prejudice prong of Strickland.

[13] As we noted above, the trial court and our court rejected Grayson’s challenge to

the stop on Fourth Amendment grounds. Although the language of Article 1,

Section 11 of the Indiana Constitution tracks the Fourth Amendment verbatim,

Indiana courts have explicitly rejected the “expectation of privacy” as a test of

the reasonableness of a search and seizure. Litchfield v. State, 824 N.E.2d 356,

359 (Ind. 2005).

[14] Rather, the legality of a governmental search under the Indiana Constitution

turns on an evaluation of the reasonableness of the police conduct under the

totality of the circumstances. Id. (citing Moran v. State, 644 N.E.2d 536, 539

(Ind. 1994)). Although there may well be other relevant considerations under

the circumstances, the reasonableness of a search or seizure turns on a balance

of: (a) the degree of concern, suspicion, or knowledge that a violation has

occurred, (b) the degree of intrusion the method of the search and seizure

imposes on the citizen’s ordinary activities, and (c) the extent of law

enforcement needs. Id. at 361.

A. The Degree of Concern, Suspicion, or Knowledge

[15] Officer Schultz testified he received a dispatch regarding “a person in a [silver]

vehicle waiving [sic] a firearm.” Trial Tr. pp. 8–9. The dispatch also included

the address of the vehicle’s location. It was five o’clock in the morning,

Grayson’s vehicle was the only silver vehicle in the parking lot, and Grayson

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 8 of 11 was parked perpendicular to the marked parking spaces. When Officer Schultz

approached the vehicle, he was in full uniform, driving his marked police car,

and used a flashlight as he approached Grayson’s vehicle. Officer Schultz

testified that he saw the firearm “placed underneath the driver seat, in between

[] Mr. Grayson’s legs.” Id. at 17–18. Officer Schultz asked Grayson if there was

a firearm in the vehicle. Grayson lied and said there was not. Officer Schultz

then asked Grayson if he had a permit to carry a firearm, which Grayson stated

he did not. Seeing the gun in plain sight reasonably raised Officer Schultz’s

knowledge and suspicion that a violation had occurred. Further, Officer

Wagner-Gilbert also testified that upon arriving to the scene, he “observed [] a

gun handle sticking out from the bottom of the driver’s seat . . . between

[Grayson’s] legs.” Id. at 31. Based on this testimony, we conclude that the

officers had a reasonable degree of concern, suspicion, and knowledge that a

violation had occurred.

B. The Degree of Intrusion

[16] In the instant case, the degree of intrusion was minimal. As Officer Schultz

approached Grayson’s parked vehicle, the window was already down, which

allowed the handle of Grayson’s firearm to be seen in plain sight. The actual

intrusion of Officer Schultz’s search of the vehicle did not occur until after he

saw the handle of the gun. Upon seeing the gun, officer safety was implicated

and warranted Officer Schultz’s temporary detainment of Grayson while the

vehicle was searched.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 9 of 11 C. The Extent of Law Enforcement Needs

[17] Here, the police officers received a tip that an individual was waving a gun

around in his vehicle. The officers responded with the goal of protecting the

public from potential gun violence. The need to ensure public safety from gun

violence is paramount and is more than reasonable with regard to the extent of

law enforcement needs.

D. Totality of the Circumstances

[18] It is well-settled that “[a] healthy, civil society is most robust when it feels safe

and when that feeling of safety is validated through interaction with vigilant

and responsive law enforcement engaged in the important business of policing

neighborhoods within a community.” Brown v. State, 62 N.E.3d 1232, 1238

(Ind. Ct. App. 2016) (quoting R.H. v. State, 916 N.E.2d 260, 268 (Ind. Ct. App.

2009) (Mathias, J., concurring)), trans. denied. Officer Schultz reasonably

suspected that a violation had occurred, the degree of intrusion was minimal,

and protecting the public from gun violence is a paramount concern of law

enforcement. Therefore, under the totality of these circumstances, Officer

Schultz’s conduct was reasonable.

Conclusion [19] Accordingly, the outcome of Grayson’s case under Article 1, Section 11 of the

Indiana Constitution is the same as its federal counterpart, the Fourth

Amendment. Therefore, Grayson has failed to establish that he was prejudiced

by his trial counsel’s failure to raise an argument under the Indiana

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 10 of 11 Constitution, and his claim for ineffective assistance of counsel fails the

prejudice prong of Strickland and thus, as a whole. See French, 778 N.E.2d at 824

(Ind. 2002).

[20] For all of these reasons, we conclude that the post-conviction court did not err

in denying Grayson’s petition for post-conviction relief.

[21] Affirmed.

Riley, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1709-PC-2302 | July 30, 2018 Page 11 of 11