Devon L. Hunter v. State of Indiana (mem. dec.)
2017 Ind. App. LEXIS 104
| Ind. Ct. App. | 2017Background
- Devon L. Hunter was tried for three counts of dealing in cocaine (Class A felonies), one count of possession of cocaine (Class B felony), and one count of maintaining a common nuisance (Class D felony) based on three controlled buys and a later traffic stop that discovered cocaine in his vehicle.
- Controlled buys occurred on Nov. 20, 21, and 25, 2013; a confidential informant (CI) wore recording devices and transacted with Hunter near an elementary school. A January 15, 2014 stop on school property produced additional cocaine in Hunter’s car.
- At trial the State admitted video exhibits of two buys (Exhibits 2 and 8) and an audio recording of a phone call arranging a buy (Exhibit 4) over Hunter’s foundation objections; the jury convicted on all counts after Hunter failed to appear on the final day.
- Hunter appealed, arguing (1) improper admission of the recordings for lack of foundation, (2) double jeopardy violation because the maintaining-a-common-nuisance conviction duplicated evidence supporting the dealing and possession convictions, and (3) the trial court erred by not finding as mitigation that incarceration would unduly hardship his children.
- The Court of Appeals found Hunter waived the foundation objections (or, in any event, any error was harmless and some objections were waived by Hunter’s own use of the exhibits), concluded the maintaining-a-common-nuisance conviction violated Indiana double jeopardy principles and vacated that conviction, and rejected Hunter’s mitigation claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of video Exhibits 2 & 8 | State: exhibits were properly admitted and cumulative of testimony | Hunter: CI did not lay foundation that videos accurately depicted buys | Waived by Hunter for inadequate trial objection; any error harmless and further waived when Hunter replayed videos on cross; admissions cumulative |
| Admissibility of audio Exhibit 4 | State: CI identified the recording and voices; foundation adequate | Hunter: CI did not testify the recording was a true/accurate representation | Waived (defense raised different trial objection); admission harmless and cumulative |
| Double jeopardy (common nuisance) | State: offenses distinct | Hunter: maintaining common nuisance duplicates evidentiary facts used for dealing and possession convictions | Convictions for dealing and possession plus maintaining common nuisance pose a reasonable possibility jury relied on same facts; vacate the nuisance conviction |
| Mitigating factor: hardship to children | Hunter: incarceration would unduly hardship his children and is mitigating | State: no special circumstances shown; trial court discretion | No abuse of discretion; trial court considered but reasonably declined to find undue hardship as mitigation |
Key Cases Cited
- Nicholson v. State, 963 N.E.2d 1096 (Ind. 2012) (standard for reviewing admissibility of evidence)
- Knapp v. State, 9 N.E.3d 1274 (Ind. 2014) (foundation required for demonstrative/video evidence)
- Lehman v. State, 730 N.E.2d 701 (Ind. 2000) (foundational requirements for noncustodial audio recordings)
- Purvis v. State, 829 N.E.2d 572 (Ind. Ct. App. 2005) (erroneously admitted evidence is harmless if cumulative)
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (actual-evidence test for double jeopardy under Indiana Constitution)
- Lee v. State, 892 N.E.2d 1231 (Ind. 2008) (clarification of "reasonable possibility" standard in actual-evidence test)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (standard of review for sentencing and mitigation findings)
- Reaves v. State, 586 N.E.2d 847 (Ind. 1992) (defendant’s use of evidence can waive objection to its admission)