Attorneys for Appellant
Robert W. Rock
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
INDIANA SUPREME COURT
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
APPEAL FROM THE MADISON COUNTY CIRCUIT COURT
The Honorable Fredrick Spencer, Judge
Cause No. 48C01-9709-CF-183
ON DIRECT APPEAL
April 3, 2000
Defendant Brian Meagher was convicted of dealing in cocaine within 1,000 feet of
a public park. He was adjudicated a habitual offender and sentenced to
80 years. He appeals his convictions on the grounds that he received
ineffective assistance of counsel and that the trial court committed reversible error in
ruling on the admissibility of certain testimony. A
lthough we find no ineffective
assistance of counsel and affirm the rulings of the trial court, we find
that the trial court improperly enhanced Defendant=s sentence.
This Court has jurisdiction over this direct appeal because the longest single sentence
exceeds 50 years. Ind. Const. art. 7,
' 4; Ind. Appellate Rule
Suspecting that Defendant was selling a controlled substance from his apartment, Robert Peckinpaugh
contacted Jack Brooks of the Madison County Drug Task Force in June, 1997,
and offered to work as a confidential informant. He informed Officer Brooks
that he could arrange to purchase crack cocaine from Defendant who, at the
time, lived across the street from him.
Peckinpaugh arranged for three separate controlled buys from Defendant.
Each transaction transpired
in a similar manner. First, Peckinpaugh arranged a drug purchase from Defendant.
He then contacted Officer Brooks and informed him of the arrangement.
Prior to each transaction, Officer Brooks searched Peckinpaugh to ensure he had no
drugs, money or weapons on his person. After being fitted with a
wireless transmitter, Peckinpaugh received money from Officer Brooks to purchase the drugs from
Defendant. The confidential informant then proceeded to Defendant=s apartment and purchased crack
cocaine from Defendant. After the transaction and upon his return, Officer Brooks
conducted another search at which time Peckinpaugh relinquished the cocaine to Officer Brooks.
During the second and third transactions, after Peckinpaugh gave Defendant the money to
purchase crack cocaine, Defendant left his apartment and paged someone from a nearby
pay phone. Thereafter, a dark blue Cadillac pulled up in the alley.
Defendant reached into his pocket and handed something to a male passenger
who gave Defendant something in return.
Defendant then delivered a zip-lock baggie
with several pieces of crack cocaine to Peckinpaugh.
As a result of these controlled buys, the State charged Defendant with two
counts of dealing in cocaine within 1,000 feet of a public park,
Class A felony; aiding, inducing or causing an offense of dealing in cocaine,
a Class B felony; and maintaining a common nuisance,
a Class D felony.
The State also charged Defendant as a habitual offender. A
jury convicted Defendant on all charges and then found that Defendant was a
The trial court imposed the maximum sentence for each dealing in cocaine count,
and enhanced one of these sentences by 30 years under the habitual offender
statute resulting in an 80-year sentence. The trial court also sentenced Defendant
to ten years for aiding in the offense of dealing cocaine and three
years for maintaining a common nuisance and ordered those sentences to be served
concurrently with the 80-year sentence.
Defendant contends that he was denied his right to effective assistance of counsel
guaranteed by the federal and state constitutions.
We evaluate Sixth Amendment claims of ineffective assistance of counsel by applying the
two-prong test established in
Strickland v. Washington, 466 U.S. 668 (1984). See,
e.g., Canaan v. State, 683 N.E.2d 227, 229 (Ind. 1997), cert. denied, 524
U.S. 906 (1998); Lowery v. State, 640 N.E.2d 1031, 1041 (1994), cert. denied,
516 U.S. 992 (1995). The first prong requires a defendant to
demonstrate that counsel=s performance fell below an objective standard of reasonableness in light
of prevailing professional norms. See id. To satisfy the second prong,
the defendant must show that the deficient performance was so prejudicial as to
deny defendant a fair trial. See Brown v. State, 698 N.E.2d 1132,
1139-40 (Ind. 1998), cert. denied, 119 S. Ct. 1367 (1999). A defendant
is denied a fair trial only when a conviction occurs as the result
of a breakdown in the adversarial process rendering the trial result unreliable.
See Brown, 698 N.E.2d at 1140; Cooper v. State, 687 N.E.2d 350, 353
(Ind. 1997); Marshall v. State, 621 N.E.2d 308, 321 (Ind. 1993).
Defendant contends that his counsels performance was deficient in failing to object to
statements made by Officer Brooks. His allegations concerning Officer Brookss testimony are
that: (1) defense counsel failed to object to hearsay evidence when the officer
recounted conversations with the confidential informant regarding the controlled buys,
counsel failed to object to hearsay evidence concerning the officer=s validation of the
confidential informant=s photo identification of Defendant,
and (3) defense counsel failed to object
to the State=s leading question regarding the confidential informant=s motivation to participate with
the Drug Task Force.
The second prong of the
Strickland test may be determinative of Defendant=s allegations.
Strickland, 466 U.S. at 697 (If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.); Coleman v. State,
703 N.E.2d 1022, 1028 (Ind. 1998). In each complained of instance, the
confidential informant provided personal, first-hand knowledge testimony. First, the confidential informant explained
when and how he contacted Officer Brooks after arranging each drug purchase with
Defendant. Second, during his testimony, the confidential informant explained and confirmed his
identification of Defendant in the photo array. Finally, the informant personally testified
that his motivation to participate in the controlled buys stemmed from his concern
that his nine-year-old daughter was living across the street from a Acommon crack
In light of the confidential informant
=s testimony, we do not find that Officer
Brookss testimony was so prejudicial as to deny Defendant a fair trial.
The complained of evidence was at most cumulative and therefore insufficient to establish
prejudice. See Timberlake v. State, 690 N.E.2d 243, 260 (Ind. 1997) (holding
that the defendant failed to demonstrate that he suffered prejudice due to counsel=s
failure to object to various witness statements finding that the evidence was cumulative
and innocuous), cert. denied, 525 U.S. 1073 (1999). Accordingly, Defendant=s ineffective assistance
of counsel claim fails.
Defendant contends that the trial court committed reversible error by curtailing his cross-examination
of the confidential informant when Defendant attempted to expose his motivation for participating
in the controlled buys.
A defendant=s Sixth Amendment right of confrontation requires that a defendant be afforded
the opportunity to conduct effective cross-examination of state witnesses in order to test
their believability. See Davis v. Alaska, 415 U.S. 308, 315-16 (1974); Coates
v. State, 534 N.E.2d 1087, 1095 (Ind. 1989); Munn v. State , 505 N.E.2d
782, 784-85 (Ind. 1987). However, this right is subject to the sound
discretion of the trial court, which includes limiting repetitive and unduly harassing interrogation.
See id; see also Ind. Evidence Rule 611(a) (AThe court shall exercise
reasonable control over the mode and order of interrogating witnesses . . .
so as to . . . protect witnesses from harassment or undue embarrassment.@).
As the Unites States Supreme Court explained in Delaware v. Van Arsdall,
475 U.S. 673 (1986):
The Confrontation Clause of the Sixth Amendment guarantees the right of an accused
in a criminal prosecution "to be confronted with the witnesses against him."
The right of confrontation, which is secured for defendants in state as well
as federal criminal proceedings, Pointer v. Texas, 380 U.S. 400 (1965), "means more
than being allowed to confront the witness physically." Davis v. Alaska, 415
U.S. at 315. Indeed, " '[t]he main and essential purpose of confrontation
is to secure for the opponent the opportunity of cross-examination.' "
Id. at 315-316 (quoting 5 J. Wigmore, Evidence ' 1395, p. 123 (3d
ed. 1940)) (emphasis in original). Of particular relevance here, "[w]e have recognized
that the exposure of a witness' motivation in testifying is a proper and
important function of the constitutionally protected right of cross-examination." Davis, [415 U.S.]
at 316-17 (citing Greene v. McElroy, 360 U.S. 474, 496 (1959)). It
does not follow, of course, that the Confrontation Clause of the Sixth Amendment
prevents a trial judge from imposing any limits on defense counsel's inquiry into
the potential bias of a prosecution witness. On the contrary, trial judges
retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness' safety, or interrogation that is repetitive or
only marginally relevant.
Id. at 678-79 (emphasis in original). Only a clear abuse of discretion
warrants reversal. Coates, 534 N.E.2d at 1095.
Defendant contends he wanted to expose the confidential informant
=s dire financial status B
the confidential informant=s inability to meet his obligations B so as to reveal
his motivation for working with the Drug Task Force.
of proof described the confidential informant=s attempt to sell property to his neighbor
because he needed the money to pay his utility bill.
State introduced evidence that the confidential informant received $50.00 as payment for his
participation in each controlled buy. Given that the jury was already presented
with evidence that the confidential informant may have had a financial interest in
assisting the Drug Task Force, it was within the discretion of the trial
court to conclude that further pursuit of his financial status B particularly his
inability to pay his utility bill B would have only served to unnecessarily
harass or embarrass the witness. As we noted in Thornton v. State,
[P]rohibition of all inquiry into the possibility of motive and bias may violate
the Confrontation Clause, but trial courts are permitted to impose reasonable limits.
712 N.E.2d 960, 964 (Ind. 1999). Accord Van Arsdall, 475 U.S. at
679. Given that the confidential informant testified to the receipt of $50.00
for each controlled buy, the issue of motivation was already before the jury.
The trial court did not abuse its discretion in excluding Defendant=s proffered
evidence for motivation.
Defendant next contends that the trial court committed reversible error by permitting a
police officer to testify that the male passenger identified in the blue Cadillac
pled guilty to the possession of cocaine. Defendant claims that whether this
person was convicted for po
ssession of cocaine was not relevant to the outcome
of his case.
During cross-examination of Officer Brooks, defense counsel questioned the officer regarding this individual=s
arrest and charges. On re-direct, the State inquired into the resolution of
those charges. The officer responded that the individual admitted to the possession
of cocaine in open court. Defendant objected arguing that the State=s re-direct
exceeded the scope of his cross-examination.
The scope and extent of re-direct examination is within the sound discretion of
the trial court.
See Jones v. State, 600 N.E.2d 544, 547 (Ind.
1992); Dooley v. State, 428 N.E.2d 1, 6 (Ind. 1981); Kalady v. State,
462 N.E.2d 1299, 1309 (Ind. 1984). Absent an abuse of that discretion,
the trial court=s ruling will not be disturbed. See id. Answering
any new matter raised during cross-examination is within the scope of re-direct.
See Jones, 600 N.E.2d at 547 (citing Kimp v. State, 546 N.E.2d 1193,
1195 (Ind. 1989), transfer denied.). Further, when a party raises a subject
on cross-examination, it is permissible for the opposing party to pursue that subject
on re-direct examination. See Kalady, 462 N.E.2d at 1309 (citing Woodford v.
State, 273 Ind. 487, 405 N.E.2d 522 (Ind. 1980)).
The trial court ruled that the State
=s question was properly within the scope
of re-direct because Defendant had raised the issue of the individual=s arrest on
cross-examination. We agree. The State only sought to pursue the issue once
it was introduced by Defendant. We have previously held that a party
may not open an issue and then seek to have it closed at
the partys convenience. See Kalady, 462 N.E.2d at 1309; Fortson v. State,
269 Ind. 161, 170, 379 N.E.2d 147, 153 (1978); Baker v. State, 267
Ind. 643, 645, 372 N.E.2d 1174, 1175 (1978). We do not find
that the trial court abused its discretion in permitting the testimony.
Defendant contends that the trial court=s sentencing statement was inadequate to support the
imposition of enhanced sentences. The trial court imposed enhanced sentences for Dealing
and Maintaining a Common Nuisance.See footnote However, Defendant contends that the
trial court failed to identify any aggravating circumstances to justify such enhancements and
as such, the sentence was improper. We agree.
In general, the legislature has prescribed standard sentences for each crime, allowing the
sentencing court limited discretion to enhance each sentence to reflect aggravating ci
reduce the sentence to reflect mitigating circumstances. When the trial court imposes
a sentence other than the presumptive sentence, this Court will examine the record
to insure that the court explained its reasons for selecting the sentence it
imposed. See Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing
Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986), rehg denied.)), rehg denied.
The trial court=s statement of reasons must include the following components:
(1) identification of all significant aggravating and mitigating circumstances; (2) the specific
reasons that lead the court to find the existence of each such circumstance;
and (3) an articulation demonstrating that the mitigating and aggravating circumstances have been
evaluated and balanced in determining the sentence. See Mitchem v. State, 685
N.E.2d 671, 678 (Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084, 1086
Here, the sentencing statement is devoid of any reasoning justifying an enhanced se
The trial court failed to identify any significant aggravating circumstances or
point to any specific facts and reasons that might have led the trial
court to find the existence of an aggravating circumstance. The failure of
the trial court to explain its reasons for imposing enhanced sentences was improper.
Because the trial court found no significant aggravating
or mitigating circumstances, we conclude that the imposition of presumptive sentences for each
guilty offense is appropriate. We affirm the habitual offender enhancement and the
trial court=s finding that the sentences on the four counts should be served
concurrently. Accordingly, we now impose upon Defendant a sentence of 60 years.
Defendant=s convictions are affirmed; however, the cause is remanded to the trial court
to amend the judgment in accordance with footnote sixteen of this opinion.
SHEPARD, C.J., and DICKSON, BOEHM and RUCKER, JJ., concur.
These transactions took place on June 17, 18 and 23, 1997.
During the second transaction, a female driver and a male passenger arrived
at Defendants apartment building in the blue Cadillac. During the third transaction,
the same male passenger served as the sole driver of the blue Cadillac
who delivered a package to Defendant.
Ind. Code § 35-48-4-1(a), (b)(3)(B)(ii) (Supp. 1996).
Id. §§ 35-41-2-4 (1993) and 35-48-4-1(a).
Id. § 35-48-4-13(b) (1993).
Here, Defendant directs us to two separate exchanges:
(1) Q: What did [the informant] state to you at that time?
A: He stated that he had talked to [Defendant]. He had set up
a buy for later on in the afternoon.
(R. at 191.)
(2) Q: And [the informant] wanted to set up another control buy?
A: Yes he did. He said he had spoke to [Defendant] and once
again he had a
nother deal set up for the evening.
(R. at 239.)
Defendant contests the following exchange:
Q: And which picture did [the confidential informant] pick out?
A: He positively identified photo #3 as being the subject he knew as [Defendant]
who [sic] me purchased cocaine from.
Q: And photo #3 is a photo of?
Q: The defendant in this cause?
(R. at 261.)
The officer testified as follows:
Q: Officer the only other benefit that [the confidential informant] received aside from
his fifty dollars ($50.00), would be seeing a drug dealer off the streets.
A: Yes sir.
(R. at 294.)
Defendants offer to prove included testimony of the confidential informants neighbor:
Q: [D]id [the informant] ever personally try to sell a lawnmower to you?
A: Yes he did.
Q: Was this about in June of ?
A: That would be real close.
Q: Did he indicate that he had need of money at that time?
A: Yes he did.
Q: Okay, did he say what he needed the money for?
A: Yes he wanted to know if I would be interested in buying his
ecause he needed the money to pay his utilities.
Q: Did he indicate his utilities might be shut off?
Q: Had you knowledge at one point that he needed money about the
time period because some friend[s] were coming in?
A: I let him do some painting in that front apartment because he told
me that he needed some extra money that he had a friend coming
in from out of town and they were going to go do a
(R. at 521-22.)
Defendant also contends that he was not permitted to testify that he
asked his previous roommates to move out because they were selling drugs from
his apartment. Br. of Appellant, at 15-16. However, after careful review
of the record, we find that Defendant was afforded the opportunity to testify
to these very facts. Additionally, Defendant complains that he was not permitted
to ask the confidential informant whether he sold Defendant his television. However,
during a defense offer to prove, the confidential informant denied that this was
the case. Further, Defendant testified that the confidential informant brought stuff over
[to his apartment] and traded with people for stuff. . . .
(R. at 537.) As such, we find these two allegations without merit.
During defense counsels cross-examination of the police officer, the following colloquy took
Q: Did you arrest this occupant in this blue Cadillac?
A: Yes sir I did.
Q: Were charges filed?
A: Yes sir.
Q: What charges were filed?
A: Possession of Cocaine, a Class B Felony, because it was enhanced within a
thousand feet of a public park.
(R. at 270-71.)
On re-direct, the State posed the following questions:
Q: Officer, defense counsel asked you a question regarding the black male in the
Cadillac about his charges. Was there a resolution of those charges?
A: Yes sir he admitted to possession of cocaine in court.
(R. at 289.)
Defendant was convicted of two counts of dealing in cocaine. The
presumptive sentence for Dealing in Cocaine within 1,000 feet of a public park,
a Class A, felony is 30 years with not more than 20 years
added for aggravating circumstances. See Ind. Code § 35-50-2-4 (Supp. 1996).
The trial court imposed the 50-year maximum sentence on both dealing convictions.
The presumptive sentence for Maintaining a Common Nuisance, a Class D felony,
is one and one-half years with not more than one and one-half years
added for aggravating circumstances. See Ind. Code § 35-50-2-7 (1993). The
trial court imposed the maximum three-year sentence.
We note that the trial court commented on the fact that Defendant
dealt cocaine within 1,000 feet of a public park. (R. at 685.)
The offense of dealing in cocaine is elevated to a class
A felony when committed within 1,000 feet of a public park. See
Ind. Code ' 35-48-4-1(b)(3)(B)(ii). As such, we consider the fact that Defendant
dealt cocaine within 1,000 feet of a public park a material element of
the offense. Accord Walker v. State, 668 N.E.2d 243, 244-46 (Ind. 1996)
(by implication) (DeBruler, J., dissenting) (concurring with majority that dealing cocaine within 1,000
feet of a school constitutes a material element of the crime), rehg denied.
AThe mere fact which comprises a material element of a crime may
not also constitute an aggravating circumstance to support an enhanced sentence, but the
particularized individual circumstances may constitute a separate aggravating circumstance.@ Townsend v. State,
498 N.E.2d 1198, 1201 (Ind. 1986) (emphasis added); Ector v. State, 639 N.E.2d
1014, 1015 (Ind. 1994); Johnson v. State, 687 N.E.2d 345, 347 (Ind. 1997).
Here, however, the trial court offered no particularized circumstance with which to
substantiate an enhanced sentence other than the mere recitation of this element B
that is, the trial court failed to provide a reasoned application of detailed
facts to an aggravating circumstance.
The State acknowledges: The State recognizes that the trial court enhanced
Defendants sentences for Dealing in Cocaine and Maintaining a Common Nuisance without indicating
either during the sentencing hearing or in its order what aggravating circumstances it
found. Br. of Appellee, at 11.
The ten-year presumptive sentence for Count I remains unchanged. Defendants individual sentences
are revised as follows: for Count II, dealing in cocaine, a Class
A felony, we impose a 30 year sentence; for Count III, dealing in
cocaine, a Class A felony, we impose a 30 year sentence; for Count
IV, Maintaining a Common Nuisance, a Class D felony, we impose a one
and one-half year sentence. The habitual offender enhancement of 30 years is
applied to Count II as ordered by the trial court. (R. at
687.) As such, Count II is enhanced to 60 years.