MICAH D. PERRYMAN, Appellant-Petitioner,
STATE OF INDIANA, Appellee-Respondent
[Copyrighted Material Omitted]
APPEAL FROM THE ELKHART CIRCUIT COURT. The Honorable David T. Ready, Judge. Cause No. 20C01-0802-PC-3.
ATTORNEYS FOR APPELLANT: STEPHEN T. OWENS, Public Defender; JOHN A. ENGLAND, Deputy Public Defender, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; MICHAEL GENE WORDEN, Deputy Attorney General, Indianapolis, Indiana.
BROWN, Judge. VAIDIK, C.J., and NAJAM, J., concur.
Micah D. Perryman appeals the post-conviction court's denial of his petition for post-conviction relief. Perryman raises two issues which we consolidate and restate as whether the court erred in denying his petition for post-conviction relief. We affirm.
FACTS AND PROCEDURAL HISTORY
Between approximately 8:00 p.m. and 10:00 p.m. on May 4, 2003, Elkhart City Police Corporal Brian Schroth supervised a controlled drug buy from a residence at 210 W. Washington Street in Elkhart, which was a property rented by Perryman. Corporal Schroth searched the confidential informant (" C.I." ) and gave him twenty dollars. Corporal Schroth, Corporal Dave Baskins, and the C.I. arrived at the residence, the C.I. entered the residence, and Perryman and Michelle Weekly were present inside. Perryman asked the C.I. what he wanted, and the C.I. said that he wanted " 20," which indicated that he wanted crack cocaine worth twenty dollars. 2006 Transcript at 273. Weekly then went to the bedroom and retrieved a bag, handed the bag to Perryman, and Perryman handed crack cocaine to the C.I. The C.I. was in the residence for approximately one to two minutes, exited the residence, and went straight to the vehicle containing Corporal Schroth and handed the crack cocaine to him.
As a result of the information and items gathered, the police obtained a search warrant. At approximately 10:00 p.m. on May 5, 2003, the police executed the search warrant. Perryman, Brandy Bowen, and Weekly were present during the execution of the warrant. The police discovered two bags containing individually wrapped rocks of crack cocaine in an air duct. One of the baggies had thirty-five individually wrapped rocks of crack cocaine. The police found approximately sixteen grams of crack cocaine, twenty grams of marijuana, and a marijuana blunt cigar containing approximately 1.7 grams of marijuana. On May 9, 2003, the State charged Perryman with: Count I, possession of cocaine in excess of three grams as a class A felony; Count II, dealing in cocaine as a class B felony; Count III, maintaining a common nuisance as a class D felony; and Count IV, possession of marijuana as a class A misdemeanor. On January 12, 2004, Perryman's counsel filed a motion to suppress all items seized by law enforcement officials and any communications made by Perryman with law enforcement officers. Perryman's counsel argued that the affidavit for the search warrant was largely dependent upon the unreliable information provided by the C.I. and was not supported by probable cause.
On February 27, 2004, the State filed a Notice of Intent to Offer I.R.E. 404(b) Evidence which stated: " It is anticipated that as part of his defense, [Perryman] will argue or present evidence that the cocaine was possessed, not with the intent to deliver, but for his personal use." Petitioner's Exhibit 5. The State asserted that it was permitted to offer evidence relating to the
controlled buy of cocaine and the subsequent search under Evidence Rule 404(b) to show proof of motive, intent, or absence of mistake or accident. Perryman's counsel objected and made an oral motion in limine, which the court overruled.
Prior to the beginning of trial, the State moved to dismiss Counts II and III, and the court granted the motion. A jury found Perryman guilty of possession of cocaine and marijuana. Perryman v. State, 830 N.E.2d 1005, 1007 (Ind.Ct.App. 2005). At sentencing, the trial court found Perryman's criminal history, his status as a probationer at the time of the offense, and the amount of drugs found in the residence as aggravating circumstances. Id. The court declined to place any weight on the mitigating circumstances suggested by Perryman, imposed a sentence of fifty years on the class A felony and one year on the class A misdemeanor, and ordered the sentences to be served concurrent with each other. Id.
On direct appeal, this court reversed based upon improper voir dire . Id. at 1011. On March 21, 2006, prior to the start of his second trial and through new counsel, Perryman filed a Motion to Suppress or in the Alternative Motion to Reconsider and argued that the information provided by Corporal Schroth did not come from first-hand knowledge that a crime had been committed, that Corporal Schroth did not personally observe any illegal activity inside the residence, that the information came solely from the observations related by the C.I. to the officers, and that the evidence obtained as a result of the illegally issued search warrant should be suppressed and excluded from evidence at the trial. On March 23, 2006, the trial court held a hearing on the renewed Motion to Suppress, which it subsequently denied on March 27, 2006, the first day of Perryman's second jury trial. Perryman v. State, No. 20A03-0609-CR-408, slip op. at 4 (Ind.Ct.App. April 9, 2007), trans. denied. Meanwhile, an entry dated March 23, 2006, in the chronological case summary indicates that the State still intended to offer information consistent with the 404(b) motion filed in the first trial. On March 28, 2006, Perryman was again found guilty of possession of cocaine in excess of three grams with the intent to deliver and possession of marijuana. Id. On May 18, 2006, the court sentenced Perryman to fifty years in the Department of Correction on the possession of cocaine conviction and to a one-year concurrent sentence on the possession of marijuana conviction. Id.
On appeal, Perryman argued that the trial court improperly denied his motion to suppress evidence. Id. at 4. Specifically, Perryman asserted that the evidence seized from his residence was obtained in violation of Ind. Code § 35-33-5-2(b) and that the search warrant was based upon hearsay. Id. The court found that Perryman did not object at trial to the admission of evidence obtained as a result of the warrant and held that, waiver notwithstanding, Perryman's hearsay argument failed on its own accord. Id. at 5-6. Specifically, the court held:
We have previously held that an affidavit based on the statements of officers engaged in the investigation and shown to be based upon their actual knowledge, is not deficient, despite its hearsay character. Redden[ v. State, 850 N.E.2d 451, 461 (Ind.Ct.App. 2006), trans. denied]. Our review of the affidavit in this case shows great detail as to the circumstances of the controlled drug buy performed at Perryman's residence, culminating the knowledge of the C.I. and at least three police officers. Therefore, we can find no error in the trial court's
decision to admit the evidence obtained as a result of this affidavit.
Perryman also argued that the State failed to present sufficient evidence that he possessed cocaine in excess of three grams with the intent to deliver in that he was not in actual possession of more than three grams of cocaine because a majority of the drugs found in his residence were in an air duct, not on his person. Id. at 6. This court held:
[W]e conclude that the record contains more than sufficient evidence that Perryman had constructive possession of the crack cocaine recovered from a vent in his basement during the execution of the search warrant. Even though his possession of the cocaine may not have been exclusive at all times, as the C.I. encountered both Perryman and his girlfriend, Weekly, during the controlled drug buy, the record clearly supports Perryman's knowledge of the contraband. At trial, the C.I. testified that during the controlled buy, he witnessed Weekly retrieve a large bag of cocaine rocks and then hand the bag to Perryman. Thereafter, the C.I. testified that he observed Perryman extract a $20.00 rock from the bag before directly giving it to him. Thus, there is no question that Perryman exercised control over this amount of crack cocaine. In addition, however, the record shows that following the controlled drug buy and issuance of the search warrant, police officers found nearly twelve grams of crack cocaine in a vent in Perryman's basement. Although not on his person, this crack cocaine was located in a house that Perryman paid rent on, and was separated into thirty-five bags, like the $20.00 bag sold to the C.I. Consequently, despite the fact that Perryman was not caught physically holding more than three grams of cocaine, we conclude that a trier of fact could easily infer that Perryman had knowledge of the presence of the crack cocaine throughout his residence. Accordingly, we hold that the State presented sufficient evidence to convict Perryman of possession of cocaine in excess of three grams with the intent to deliver.
Id. at 7-8.
On August 26, 2008, Perryman filed a motion to reconstruct the record. On September 10, 2009, the court held a hearing on Perryman's motion. At the hearing, Perryman questioned the prosecutor in his 2006 trial regarding multiple sidebar conferences that did not appear in the transcript of the trial, and the prosecutor indicated that he did not recall the contents of the sidebar discussions. On December 7, 2009, the court entered an order stating that Perryman failed to provide any evidence or establish how the record may be supplemented and deemed the record complete in contemplation of Perryman's petition for post-conviction relief.
On June 24, 2010, Perryman filed a petition for post-conviction relief. On October 3, 2011, Perryman filed an amendment to his petition for post-conviction relief. In his petition and the amendment, Perryman alleged that he received ineffective assistance of trial counsel because counsel failed to argue that the controlled buy lacked proper controls, failed to argue that the evidence of the controlled buy was outside of the scope of the evidence outlined in the State's Notice of Intent, failed to file a limiting jury instruction on how the jury should use the evidence of the controlled buy, failed to investigate and present evidence regarding special consideration given to Weekly, and failed to interview Bowen and call her as a witness. Perryman also alleged that the trial court's
recording system was of poor quality and routinely would not pick up discussions.
On December 6, 2012, the court held a hearing on Perryman's petition. The judge for Perryman's prior trials, Judge George W. Biddlecome, and the court reporter, testified regarding the recording system. Perryman's trial counsel, the prosecutor, Perryman, and Weekly also testified. Bowen testified that she was arrested with Perryman and Weekly on May 5, 2003, arrived at Perryman's house that morning, and hung out with Weekly. Bowen testified that a man she knew as Twin arrived in the early afternoon and gave some baggies containing marijuana to Weekly and that Weekly took the baggies into another room when Perryman was not home. Bowen also testified that Perryman came home around 8:30 or 9:00 p.m., that she was never interviewed by Perryman's trial counsel, and that she would have testified at ...