Sean Clover v. State of Indiana (mem. dec.)
03A05-1512-PC-2121
| Ind. Ct. App. | Nov 17, 2016Background
- Sean Clover was convicted by jury of two counts of dealing in cocaine (Class A felonies) based on two undercover buys (Aug 21 and Sept 5, 2008) and sentenced; convictions were affirmed on direct appeal.
- Post-conviction petition alleged ineffective assistance of trial and appellate counsel; the post-conviction court denied relief and Clover appeals only the trial counsel ineffective-assistance rulings.
- Key trial evidence: undercover officer Martin’s testimony and audio recordings of the Sept. 5 transaction; State’s Exhibit 12 (inaudible) and State’s Exhibit 28 (substitute, clearer CD) were used; lab results and buy-money photos corroborated the buys.
- Identification issue: after the Sept. 5 buy, a marked-unit traffic stop of Martin’s vehicle produced identification showing Clover was the seller; Clover argued the stop was a pretext to discover his identity.
- Major trial objections/in post-conviction claims: (1) counsel failed to move to suppress identification from alleged pretextual stop; (2) counsel failed to object to admission of Exhibit 28 on Confrontation Clause grounds; (3) counsel failed to move to exclude Clover’s statement about a Georgia warrant (Rule 404(b)); and (4) counsel failed to pursue alleged witness-separation/prosecutorial misconduct and impeachment related to alternate audio copies.
Issues
| Issue | Clover's Argument | State's Argument | Held |
|---|---|---|---|
| Failure to move to suppress ID from traffic stop (pretext stop/Fourth Amendment) | Stop was pretextual; counsel deficient for not moving to suppress identification evidence | Stop was supported by probable cause for traffic/equipment violations; pretext motive irrelevant under Whren | Denied — no deficient performance; stop lawful under Whren so suppression would fail |
| Failure to object to Exhibit 28 on Sixth Amendment Confrontation Clause grounds | Admission of substitute recording deprived Clover of confrontation and counsel should have objected | Trial counsel did object on foundation/chain grounds; even if Confrontation error occurred, admission was harmless beyond a reasonable doubt | Denied — error (if any) harmless; no prejudice shown from counsel’s conduct |
| Failure to move to suppress statement about Georgia warrant (Rule 404(b)/character) | Statement about warrant was prejudicial prior-bad-act evidence; counsel should have moved to exclude | Statement was distinct from charged drug acts, cumulative of other strong evidence, and motion likely would fail; counsel reasonably declined | Denied — counsel’s tactical choice reasonable; Clover failed to show motion would have succeeded or affected outcome |
| Failure to pursue alleged conspiracy/prosecutorial misconduct and to impeach with a newly produced audio copy | Prosecutor and officers improperly conferred with technician and fed false information; counsel failed to expose/impeach this conduct | Record shows no surreptitious contact influencing testimony; counsel moved for mistrial and preserved the issue; strategic choices reasonable | Denied — record does not support conspiracy/undue influence; counsel’s tactics not deficient or prejudicial |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes ineffective-assistance two-prong test)
- Whren v. United States, 517 U.S. 806 (pretextual-motive traffic stop upheld if objective probable cause exists)
- Koenig v. State, 933 N.E.2d 1271 (Confrontation Clause/cross-examination and harmless-error analysis)
- Delaware v. Van Arsdall, 475 U.S. 673 (limits on cross-examination and harmless-error framework)
- Hollowell v. State, 19 N.E.3d 263 (standard of review for post-conviction relief in Indiana)