*1 grounds. such object fail to sel to have the victim should motive to kill for his Kutscheid, Appellant here not supra. excluded. assistance of counsel. denied effective of coun of effectiveness Our review independently first is affirmed. two-pronged: sel is we The trial court to see alleged instance each examine DeBRULER, SHEPARD, C.J., profession prevailing it fell below
whether preju norms; the total we then assess al KRAHULIK, JJ., concur. DICKSON and substandard accruing from counsel's dice it so any, if to see whether
performance, the re as to render the outcome
affected Kutscheid v. State
sult unreliable. See 1235; Ind., v.
(1992),
N.E.2d
Smith
Ind.,
"To
(1989),
State performance in failure show substandard an must show that object, appellant an
to made, sustained." have been objection, if would DOLLIVER, Appellant, Larry A. cheid, supra at 1239. Kuts v. however, Here, objection, Indiana, Appellee. STATE hearsay, not have if on would even based No. 30S00-9012-CR-823. law holds Indiana case been sustained. victim of a murder hearsay remarks Indiana. Supreme Court of the victim's to demonstrate are admissible inflicted prior injuries explanation of Sept. 1992. v. State Drummond
defendant. See 742; Ind.,
(1984), Heck v. State Ind., 446 and Thomas 552 N.E.2d Ind., 825. 553 N.E.2d we stated: Thomas Drummond, authority
"Under to admitted
supra, this evidence was appellant mind of
show the state of Al toward the decedent.
his attitude by some
though the statements hearsay as to the in fact were
witnesses prior injuries, the the victim's
source of made in con- statements were
deceased's injuries personal with severe
junction to have been demonstrated
and were appellant's ac explanation
made situa- highly volatile
tions in a short-term circumstances, can-
tion. Under lips of the decedent seal the
not proceed before
permit appellant not that he had premise
jury on her death." prior victim
abused
Id. at re- testimony of Linda Duarte's prior abuse concerning appellant's
marks have been admissible
accordingly would hearsay in the face of case even
the instant counsel; it thus from defense
objections coun- performance for
was not substandard
determine whether or not the sentence im- posed manifestly was unreasonable.
Facts pertinent facts in the case are that approximately 9:00 a.m. on January Pendleton, the State Police Post Indiana, received an phone call. Detective Ken Houck took the call. Houck recognize did not the caller's voice and the identify himself, caller did not proceed- but ed to tell Houck that a man the name of selling Dolliver was cocaine. The gave approxi- unidentified caller Houck the mate location of the trailer in which Dolliv- er lived and being described Dolliver as approximately years old with brown hair weighing and pounds. approximately The caller also told Houck that Dolliver had prison been at the Pendleton Reformato- ry prior on two occasions. The caller then told Houck that the caller's sister in- was volved in this matter and that Dolliver was Davis, Hull, John L. Karin L. Pritzke & ___ing "f up" people's a lot of lives. He Davis, Greenfield, appellant. for further told Houck that Dolliver was sell- Linley Pearson, Atty. Gen., E. Michael trailer, ing from his and that he travelled Worden, Deputy Gen., Gene Atty. India- Cadillac, around in a and also drove a four- napolis, appellee. for Additionally, wheel drive truck. the caller told Houck ex-girl that the caller's friend KRAHULIK, Justice. drugs heavy" was into "kind of and that the caller had found out that it Larry A. (Appellant-Defendant) Dolliver "m_ __r-f____ing same guy" got who had seeks reversal of his posses- convictions for girl ten his friend in trouble and caused the deliver, sion of cocaine with pos- intent to up. two them to break The caller also session marijuana deliver, with intent to work, told Houck that Dolliver didn't but maintaining nuisance, a common pos- merely drugs. Finally, sold the caller stat- session of a schedule IV controlled sub- ed that his sister had been at the trailer the stance with intent to deliver. juryA found night before and that Dolliver had a lot of him guilty of all four counts and also deter- drugs in his trailer. No identification of mined that he was an habitual offender. the sister establishing or information her The trial court sentenced him to concurrent aas credible or reliable informant was totalling years. sentences given. asked for or The caller never stated presents Dolliver two issues for our re- personally had been in the resi- view which we restate as follows: denee of personally Dolliver or that he had (1) Whether the trial court erred fail- using selling seen Dolliver either drugs or ing grant to requests Dolliver's and, finally, the caller continued to refuse suppression evidence, identify any to himself in manner. (2) Whether 80-year sentence conversation, Following manifestly unreasonable. investigated by running Dolliver a Because we hold that the trial court search, driver's license which revealed Dol- failing erred in grant address, Dolliver's motions liver's security social number that, therefore, Dolliver is date of birth. He also confirmed that Dol- trial, entitled to a had, fact, new we do not need to liver felony of a convicted generally as the discovered car and on officers who were and that other admitted into person, Dolliver considered him to be Dolliver's were evi- familiar with objections criminal. No surveillance of and after professional dence over Dolliver's trailer was conducted and no informa- had denied Dolliver's motions to the court indicating any tion unusual was obtained suppress such evidence. *3 trailer amount of traffic to or from the premised suppress The motions to were drug confirm that
which would tend to
recording
anony-
on the fact that a
being transacted from Dolliver's
sales were
mous
call to Houck had been
residence.
and,
request,
made
at Dolliver's
tran-
investiga-
Following
two-day
one or
this
contention,
scribed. Dolliver's
both
tion,
County
contactedthe Hancock
Houck
suppress
appeal,
motions to
and in this
given
office and was
a re-
Prosecutor's
recording dramatically
tape
the
that
quest for
warrant form to fill out.
search
alleged in
affida-
clashes with the facts
the
prepared
presented
the form and
it to
He
by Trooper
request
Houck to
prepared
vit
A
County
the Hancock
Court.
search war-
turn,
argues
In
Dolliver
search warrant.
rant was issued and was executed on Janu-
pursuant
the search conducted
to this
that
4,
ary
the
in violation of
Fourth
warrant was
troopers
and other state
When Houck
Amendment to the United States Constitu-
1
11 of the Indiana
warrant,
tion and Article Section
not at
served the
Dolliver was
home,
and,
present
after
but his sister was
of this violation of
Because
Constitution.
warrant,
being
permit-
the
presented with
rights, Dolliver contends
constitutional
his
that
search the trailer. Mari-
ted the officers to
as
the
of the trailer search
evidence
cocaine,
keys,
as well as
juana and
lockbox
personal search
as the auto search and
well
during
in
trailer
the search.
were found
the
suppressed.
agree.
should be
We
taking place,
was
Dolliver
While the search
pull
into his drive-
returned and started
Invalidity
the
Warrant
Search
seeing
immedi-
way,
the officers
but
(1922),
91,
193 Ind.
In
v.
Callender
State
fol-
ately
out and left. He was
backed
817,
held that evidence
138 N.E.
this Court
Trooper
initially
lowed
Whitaker who
constitutionally in
gained as a result of a
vehicle,
eventually
sight
lost
but
property
would
valid search and seizure
he
to be the one
stopped a vehicle
believed
subsequent prosecu
in a
not be admissible
residence. Whitaker
he had seen at the
approxi
predated by
tion. This decision
pres-
on the
arrested
Dolliver based
mately
years
the United States
illegal drugs found in the Dolliver
ence of
(1961),
Mapp v.
opinion of
Ohio
car
during the search. Dolliver's
trailer
6 LEd.2d
U.S.
81 S.Ct.
Pen-
to the State Police Post at
towed
was
to exclude evi
required the states
which
Indiana,
dleton,
hours later
and five to six
the Fourth
in violation of
dence obtained
of the car was con-
search
a warrantless
States Constitu
Amendment to the United
ducted, during
additional
were
which
consist
cases have been
tion. These two
in
Cocaine was also found
found
the car.
ently
by this Court
followed
during
booking
pockets
in Dolliver's
result of an unconsti
gained as a
evidence
County
After
Hancock
Jail.
process at the
re
seizure. We most
search and
tutional
of his
booking, Dolliver was advised
in
recognized
principle
this
cently
Benefiel
questioning, and
rights prior to
Miranda
Ind.,
(1991),
cert.
v. State
but, nevertheless,
lawyer;
requested a
-
-,
U.S.
den.
interrogation
re-
continued the
Houck
Everroad
v.
LEd.2d
This
from Dolliver.
a statement
ceived
Ind.,
this unsubstantiated During suppression hearing, vit. testified that he was unaware that the tele
phone
being taped,
conversation was
he made "mistakes". Houck's testi
that
Ilegal Search
Effects of
truthful,
mony may very well have been
urges
recognize
that we
in preparing
but his lack of mens rea
apply
"good
exception
faith"
carved out
change
affidavit cannot
the fact that the
by the United States
flagrantly misrepresented
affidavit so
States v. Leon
468 U.S.
United
knowledge
nature of Houck's
so as to ren
82 LEd.2d
reh'g.
S.Ct.
den.
judge's
der the
issuance of a warrant based
468 U.S.
ognized applicability the limited of the Conclusion "good exception holding faith" in that: We, therefore, hold that the trial court
Suppression appro- denying sup- therefore remains an erred in Dolliver's motions to priate remedy magistrate judge if the or press such evidence should not and that issuing by a warrant was misled infor- during admitted the trial. This have been requires mation in an affidavit that the affiant error that Dolliver's convictions be Consequently, or Dolliver's conviec- knew was false would have known reversed. except for reckless dis- was false his re- and this cause is tions are reversed regard of the truth. for a new trial. to the trial court manded 468 U.S. at at 3421. The S.Ct. SHEPARD, C.J., and and DeBRULER urges judge that the trial should be DICKSON, JJ., concur. the sole determiner of whether or not good preparing Houck had acted in faith in dissents, GIVAN, J., separate with Although agree with this the affidavit. opinion. general proposition, we also must fulfill GIVAN, Justice, dissenting. appellate and deter- our role as an tribunal majority respectfully I dissent from the in- mine the record reveals whether January opinion. The facts are: On anonymous between the tele- consistencies phone allegations call and the of fact sworn Ken Police Detective Indiana State best, that, an by reveal a reckless Houck received Dolliver, appellant stating Larry disregard preparation of the truth in the call MeCordsville, case, lived near The facts contained in this in this who the affidavit. dealing drugs and described the search was force us to conclude that record caller also stated he drove. The vehicles as a warrant this case was obtained girl caller's that Dolliver had furnished the of an affidavit that Houck either result had ob- drugs and that she friend with false or would have known was knew was However, large driveway. quantities served in his resi- drove into the he im- dence. mediately proceeded out and backed down him, pursued the street. Officers arrested information recited in This was an affida- him, impounded his vehicle. An inven- by vit made Officer Houck to obtain a tory search of the vehicle was conducted search warrant. The affidavit also con- items certain removed therefrom. tained a statement that the affiant believed the information of the informant to be ac- Appellant claims the trial court erred personal knowledge curate because his own failing grant his motions to was that: based on what he claimed to be the invalidi- description location of "The the resi- ty of the search warrant. He claims the exactly way dence the residence warrant search was invalid because the appeared and was location stat- affidavit made Officer Houck to obtain post ed it was in. The office confirmed the warrant contained false information. that a A. Dolliver lived at the points He out the affidavit states that 800[,] #1 trailer located at RR. Box officer's information came from "a reliable McCordsville. At the residence I ob- and confidential informant" when fact and truck that served Cadillac gained the officer knew that he his infor- caller stated he had. Dolliver has know anonymous telephone mation from an call. sign employment. Caller stated [sic] approx. years he was old and his The affidavit is made on a form which 5-16-50[,] yrs. D.0.B. old. A crimi- progsecu- Officer Houck obtained from the
nal records check was made on Dolliver
tor's office. The statement that the infor-
prior
and it was learned that he had
mation came from a reliable and confiden-
burglary
(8)
for safe
and three
part
printed
tial informant is
form.
arrest[s]
possession
dealing
controlled
question
There is no
that Officer Houck
*6
substances. A check with the Indiana
should have been more careful
in the use of
parole
Parole Office showed he was on
in
printed
the
form and should have corrected
possession marijuana.
85 for
A
of
check the statement
that his information
came
with other local law enforcement showed from{a reliable and confidential
informant.
drug
Dolliver was
known
dealer and all However, an examination of the affidavit
high
around criminal since he was in
entirety clearly
its
discloses that the officer
school. Dolliver has
under
investi-
attempt
judge
made no
to induce the
to
gation
past
in the recent
for narcotics
upon
issue the warrant based
the state-
attempted conspiracy
to commit mur-
by
ments made
the informant. The latter
It
der.
was also believed that he was
part
quoted
of the affidavit
above was
recently
also
arrested
another state
entirely upon
investiga-
based
the officer's
transporting
pounds
for
marijuana
of
appellant
having
tion of
after
received the
(This
in his vehicle.
info. was not con-
anonymous call.
firmed.)
my experience
It has been
support
position, appellant
of his
cites
experience
persons
the
of others that
background
with the criminal
like
Dolliv-
(1964)
among
his cases Aguilar
v. Texas
84 S.Ct.
good
U.S.
L.Ed.2d
our
candidates and could
er[']s
[sic]
very
dealing
well be
controlled sub-
Spinelli v. United States
393 U.S.
584, 21
following
stances. Based on the
89 S.Ct.
LEd.2d 637 and Ill
[sic]
provided by
information and information
inois v. Gates
462 U.S.
respectfully request
a concerned citizen I
LEd.2d
527. The facts in Gates
a search warrant be issued
the resi-
for
remarkably
are
similar to the facts
dence of
Dolliver."
There,
police
case at bar.
the
received an
anonymous
advising
letter
them of the
The search warrant was issued and offi-
drug
his wife.
activities of Gates and
large quantity
cers found a
of
letter,
po
upon
anonymous
Based
the
the
drug paraphernalia
appellant's
resi-
investigation
lice
independent
dence. While officers were still at the resi-
conducted an
search,
carrying
appellant
they
dence
out
the
which resulted in information which
They
used
rigorous applica
to obtain a search warrant.
also
seldom could survive a
appended
the
their af-
letter to
tion of either of
Spinelli prongs.
the
Yet,
fidavit for the warrant.
tips,
particularly
supple
when
by independent police investiga
mented
The Illinois Circuit Court ordered the evi-
tion, frequently contribute to the solution
gained by
sup-
dence
the search warrant
'perfect
of otherwise
crimes.""
Id. at
pressed
ground
the
on
that the affidavit
237-38,
2331-32,
it of
DEPARTMENT OF EMPLOYMENT
All
assessing
penalty.
the maximum
al.,
SERVICES,
Ap
AND
et
TRAINING
required
passing
is
of the trial court in
pellees-Defendants.
if
presumptive
sentence is that more than a
EXTRUSIONS,
CUSTOM
imposed,
the court must
sentence
to be
Appellant-Plaintiff,
mitigating
aggravating
consider the
aggravat
circumstances
and articulate the
ing
support
the in
cireumstances which
THE INDIANA
REVIEW BOARD OF
Fry
creased sentence.
v. State
DEPARTMENT
OF EMPLOYMENT
Ind.,