Brian L. Harrison v. State of Indiana
2015 Ind. App. LEXIS 357
Ind. Ct. App.2015Background
- On Jan. 28, 2013, a Pontiac crashed; driver Brian L. Harrison and passenger Jason Gee fled into nearby woods; police found an active small fire and an early-stage methamphetamine lab in the Pontiac.
- Items recovered included crushed pseudoephedrine (24.31 g), an ammonia tank, Heet (solvent), syringes, tubing, jar, scale, spoon, Harrison’s wallet/ID, and a ringing mobile phone in the console.
- Harrison was arrested and charged with Class B felony manufacturing (dealing) methamphetamine, Class D felonies for possession of anhydrous ammonia and possession of precursors with intent to manufacture, and a Class A misdemeanor for paraphernalia; he admitted habitual-offender status.
- At trial the State introduced a recorded jail call in which Harrison said he had "ammonia in my lungs," references to Harrison’s nickname "Bam Bam," and testimony recounting a jail call between Harrison’s ex-girlfriend and another inmate; the court refused an alibi instruction and read the pattern precursors instruction.
- The jury convicted on all counts; Harrison received an aggregate sentence (including a consecutive habitual-offender term). He appealed raising sufficiency, lesser-included offenses, evidentiary and instructional claims.
Issues
| Issue | State's Argument | Harrison's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support manufacturing methamphetamine | Circumstantial evidence (precursors, lab setup, Harrison’s ID/phone in car, flight) supports conviction even without finished product | No finished product found; needed proof of possession/manufacture | Affirmed: evidence sufficient to show manufacturing begun (early-stage lab) |
| Whether possession of ammonia and precursors are lesser-included offenses of manufacturing | Offenses are distinct when finished product exists or independent crimes shown | Possession of precursors and ammonia necessarily precede manufacturing and thus are lesser-included | Reversed convictions for possession of ammonia and precursors as lesser-included; vacate those counts |
| Admissibility of data from phone found in abandoned car | Phone was abandoned when Harrison fled; no Fourth Amendment protection; admissible | Warrantless search of phone violated constitution | Affirmed: phone abandoned during lawful flight; admission not erroneous |
| Admission of recorded jail calls and hearsay/confrontation issues | Jail calls and Harrison’s own statements admissible; other hearsay harmless/cumulative | Jail-call statements (including others’ statements) were hearsay/testimonial and violated Confrontation Clause | Most admissions upheld as non-prejudicial or admissible; one out-of-court hearsay (Hatfield–Pointer) was erroneous but harmless; jail call with Harrison admissible |
| Jury instructions (precursors definition and alibi instruction) | Pattern precursors instruction correctly states statutory law; no alibi support in record | Instruction on statutory definition impermissibly invaded jury’s role; requested alibi instruction should have been given | Affirmed: precursors instruction proper; alibi instruction properly refused (no record support) |
| Prosecutor reading prior appellate opinion in closing | Counsel may argue law and may read precedent if identified as such | Impermissible to read case law to jury | Affirmed: reading Dawson was permitted and the court instructed jury that arguments are not evidence |
| Use of nickname "Bam Bam" at trial | Nickname was relevant to identity/ownership; not unduly prejudicial | Nickname was irrelevant and prejudicial | Affirmed: waiver of some objections and nickname admissible to establish identity/ownership |
Key Cases Cited
- McHenry v. State, 820 N.E.2d 124 (App. Ct.) (standard for sufficiency review)
- Vanzyll v. State, 978 N.E.2d 511 (App. Ct.) (manufacturing does not require completed final product)
- Bush v. State, 772 N.E.2d 1020 (App. Ct.) (possession of precursors can be lesser-included of manufacturing where no completed batch exists)
- Iddings v. State, 772 N.E.2d 1006 (App. Ct.) (manufacturing and precursor possession are independent where finished product recovered)
- Campbell v. State, 841 N.E.2d 624 (App. Ct.) (abandoned property doctrine; abandonment negates Fourth Amendment protection)
- King v. State, 985 N.E.2d 755 (App. Ct.) (admissibility of jail telephone recordings)
- Dawson v. State, 786 N.E.2d 742 (App. Ct.) (definition/application of "manufacture" in context of crushed precursor pills)
- McAbee v. State, 770 N.E.2d 802 (Ind.) (nickname admissible to prove identity)