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Davis v. State

Court of Appeals of Indiana

December 19, 2019

Ricci Davis, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal from the Huntington Superior Court The Honorable Jennifer Newton, Judge Trial Court Cause No. 35D01-1511-PC-22

          Attorneys for Appellant Stephen T. Owens Public Defender of Indiana Jonathan O. Chenoweth Deputy Public Defender Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Tyler G. Banks Supervising Deputy Attorney General Indianapolis, Indiana

          Brown, Judge.

         [¶1] Ricci Davis appeals the denial of his petition for post-conviction relief. We affirm.

         Facts and Procedural History

         [¶2] The relevant facts as discussed in Davis's direct appeal follow:

Shortly before 11:00 p.m. on May 19, 2014, a man called the Huntington County Sheriff's Department on its non-emergency line and reported that he had a warrant and "was strung out on meth and to come get him and take it all out of his house." (Tr. p. 99). In response to the call, the Sheriff's Department dispatched the Huntington Police Department to 533 East Franklin Street, Huntington, Indiana, upon verification that the occupant thereof, Davis, had an active warrant.
Fifteen minutes after the police had first knocked on the door, Davis came downstairs, along with Thomas Hale (Hale) and Amanda (Casto). The officers escorted him outside, placed him in handcuffs, and administered his Miranda warnings. Davis indicated that he and Hale had been manufacturing methamphetamine on the second floor of the house. Davis further stated that when they heard the officers knocking on the door, Hale began hiding the supplies. Thus, Davis offered to accompany the officers inside to show them where everything was. For safety reasons, the officers would not allow Davis back into the house, but upon questioning as to whether there was an active lab that could pose any danger to the officers, Davis assured them that everything was safe.
As the officers climbed the staircase, they detected the "very distinct," "overwhelming chemical" odor associated with manufacturing methamphetamine. (Tr. pp. 247, 262). The odor was most potent in the upstairs bathroom, emanating from the toilet and the sink in particular. Once they confirmed that there was nobody else in the house, the officers went back outside to retrieve their protective gear. After obtaining consent to search the home from the landlord, several officers trained in dismantling methamphetamine labs entered the house to process the scene.
No active methamphetamine lab was discovered, nor did the police officers recover any finished methamphetamine product. However, spread throughout nearly every room of the house, the officers found evidence of all of the ingredients and other equipment necessary to manufacture methamphetamine, including: numerous empty boxes and blister packs that had contained pseudoephedrine pills; empty boxes and the water bladders from cold compresses and the ammonium nitrate that had been extracted therefrom; lithium batteries and empty battery packages; salt; several bottles of drain cleaner (lye); Liquid Fire (sulfuric acid); three empty one-gallon containers of Coleman fuel (an organic solvent); coffee filters; plastic tubing; funnels; Ziploc bags; side cutters (for stripping the lithium out of the batteries); gas masks; and latex gloves. The search also revealed a plastic bag containing a liquid substance; a bottle that had been used as a "one-pot" (first stage of methamphetamine manufacturing); at least six bottles that had been used as hydrochloric gas (HCL) generators (second stage of methamphetamine manufacturing), one of which was located on the upstairs toilet lid; a cast iron skillet coated in white powder; a pill crusher; several loose syringes; and "partial directions on a couple steps of manufacturing methamphetamine." (Tr. pp. 206, 211). Testing on the liquid substance indicated the presence of methamphetamine, but the sample was too diluted to run a confirmatory test.

Davis v. State, No. 35A02-1411-CR-804, slip op. at 2-5 (Ind.Ct.App. June 2, 2015) ("Davis I").

         [¶3] The State charged Davis with dealing in methamphetamine within 1, 000 feet of a youth program center as a class A felony. Id. at 5. In October 2014, the court held a jury trial. Id. During opening argument, Davis's trial counsel stated:

And in the end, in the final analysis you will be asked to make a decision and the decision will be to convict or is there sufficient evidence to convict Ricci Davis of manufacturing methamphetamine or in the alternative, is there sufficient evidence to convict him of the possession of two (2) or more ingredients for methamphetamine and to convict him of permitting his house and we call that Maintaining a Common Nuisance, permitting his house to be used for the manufacture of methamphetamine.
Ricci Davis isn't going to leave this trial without a conviction. That is clear. It's clear to me and it's clear to him. What we are going to ask you ladies and gentleman of the jury to determine what the conviction or convictions should actually be. And the Judge will guide you on that in final instructions.

Trial Transcript Volume II at 93.

         [¶4] During the State's evidence, Dathen Strine, a GIS / IT Technician for Huntington County, testified regarding the creation of maps and buffer zones and that on either side of a point of measurement would be a two and one-half foot margin of error for a total margin of error of five feet. He testified he created a map that measured the distance between Davis's residence and Trinity United Methodist Church. The court admitted the map as State's Exhibit 58, which indicates the distance as 970 feet. He stated that the distance could be as little as 965 feet and as great as 975 feet. He testified that he created a map that measured the distance between Davis's residence and the Boys & Girls Club as 940 feet with a total margin of error of five feet. The court admitted the map as State's Exhibit 59.

         [¶5] Outside the presence of the jury, the parties and the court discussed the admission of a disclaimer which states in part:

By using this site, I agree that I understand and am bound by the following conditions.
General. The information on this Web Site was prepared from a Geographic Information System established by Huntington County for their internal purposes only, and was not designed or intended for general use by members of the public. Huntington County, its employees, agents and personnel, makes no representation or warranty as to its accuracy, and in particular, its accuracy as to labeling, dimensions, contours, property boundaries, or placement or location of any map features thereon; nor to the accuracy of any other information contained thereon.
Disclaimer. Huntington County Digital Data is the property of Huntington County, Indiana © 2000 Huntington County, IN. All graphic data supplied by Huntington County has been derived from public records that are constantly undergoing change and is not warranted for content or accuracy. The county does not guarantee the positional or thematic accuracy of the data. . . . The data represents an actual reproduction of data contained in Huntington County's computer files. This data may be incomplete or inaccurate, and is subject to modifications and changes. . . .

Defendant's Exhibit A. The court sustained the prosecutor's objection to the disclaimer, stated that it would not allow the disclaimer into evidence, and stated: "It is a disclaimer of liability and that's what it is. It's not a declaration as far as accuracy." Trial Transcript Volume III at 516.

         [¶6] Davis's counsel tendered an instruction which stated that the jury could consider the included crimes of possession of chemical reagents or precursors with intent to manufacture controlled substances, possession of methamphetamine, or maintaining a common nuisance. The court refused to give the jury the instruction.

         [¶7] During closing argument, Davis's counsel stated:

[T]he elected prosecutor of Huntington County, ultimately gets to decide what charges are brought against the defendant . . . . And tin [sic] this case, ladies and gentlemen, boy did she reach for that brass ring. She went right for the A felony. She went right for the crime that has and is in the same category as aggravated rape and one spot less than murder. That's what she went for . . . which she's allowed to do. She has prosecutorial discretion. She can bring that charge if she wants but that means that she has to prove every element of that crime to you. It's not enough that she proves some other lesser crime. She has to prove that crime to you beyond a reasonable doubt. And I will submit to you, ladies and gentleman, that she has failed in that task.

Trial Transcript Volume IV at 587. Davis's counsel also stated:

So then they move on to this thousand (1000) feet issue. I don't dispute that those buildings, by the way, are youth program centers. Those are good and (INAUDIBLE) programs that they have out there. They are a great thing for the community. They should be maintained. But what do we have as far as distances. Well, we know they didn't go out there and measure manually. It's what they used to do by the way. They used to go out with one of those wheels that has the quickie things on it and every time you go a feet (sic), you get a foot. That is what they used to do. They don't do that anymore, apparently. They are content to have someone who sits downstairs in the same building to get on a computer and not type in addresses. He doesn't do that. He picks. He takes his mouse and clicks one spot and goes down. Then he clicks another spot and gets a distance. Now this has a margin of error. We know that. He testified that it is a five (5) foot margin of error. Of course, that is not verified. He stated they haven't verified that. It could be about anything. So we've got that margin of error. We've got the human margin of error. And then and this is the most important part, he has no idea how they get those . . . those distances. The head of the GIS website sat here and told you, "I don't know how they get those photos. I guess there is a plane or something and they must use a camera." That's how you are going to convict on an A felony? 'I guess there is a plan [sic] and there might be a camera?'

Id. at 597-598.

         [¶8] The jury found Davis guilty as charged. Davis I, slip op. at 5. After the jury was released, the court stated:

This is just for part of the record. I would like the record to indicate that neither the State nor the defendant had requested a lesser included offense upon the Class B felony, Dealing in Methamphetamine. Had it been submitted the Court would have given to it . . . neither party requested it.

Trial Transcript Volume V at 625. The court sentenced him to fifty years in the Department of Correction. Davis I, slip op. at 5.

         [¶9] On direct appeal, Davis argued that the trial court abused its discretion by failing to instruct the jury on lesser-included offenses of dealing in methamphetamine and excluding evidence regarding the accuracy of the State's measurement of distance between Davis's house and two youth program centers. Id. at 2. Davis also argued that his sentence was inappropriate in light of the nature of the offense and his character. Id. This Court affirmed. Id.

         [¶10] On November 17, 2015, Davis filed a petition for post-conviction relief and on June 6, 2018, counsel amended the petition to include three claims: (1) that the subsection under which he had been convicted was unconstitutionally vague; (2) that appellate counsel had provided ineffective assistance by not raising a vagueness claim; and (3) that trial counsel provided ineffective assistance by not tendering jury instructions on manufacturing methamphetamine as a class B felony and the State's burden to prove less than 1, 000 feet separated each youth program center from the exact center where methamphetamine had been made.

         [¶11] On January 7, 2019, the court held an evidentiary hearing. Attorney Andrew Teel testified that he was Davis's trial counsel with Attorney Don Swanson as co-counsel. He indicated that the general trial strategy was to try to convince the jury "if they were going to enter [a] conviction to convict on . . . some 'D' Felonies would have been possession of precursors . . . that sort of thing . . . rather than going all way for the . . . 'A' Felony." Post-Conviction Transcript Volume II at 7. When asked if he ever thought about tendering a jury instruction on a lesser offense of manufacturing as a class B felony, he answered:

I don't, uh, I-I think that had we been able to get the evidence of the disclaimer in, I think the answer would have been yes, um, and obviously you're trying to do anything you can to avoid 'A' felony, um, but given the-the facts that were in-in evidence by the time it came around to-to Instruction time, I don't believe, you know, that it was, uh, an option, at least in my mind, any longer.

Id. at 9. He indicated it was fair to say that he did not think that an instruction on the class B felony was supported by the evidence. He indicated that the decision on the lesser included offense was probably Attorney Swanson's decision.

         [¶12] Attorney Swanson testified that he represented Davis as lead counsel. When asked why he did not consider offering the jury an instruction on the lesser included offense of manufacturing as a class B felony, [1] he answered:

Because, uh, I feel that the Jury were - if you gave the Jury, uh, too much options you're creating excuses. Uh, I think that if, uh, if your [sic] delivering on a lesser included, it should be, a lesser included. Uh, Judge Heffelfinger appointed me in this case due to conflicts and the public defender appeal and, uh, I have about as much respect for him and he for me, uh, but, (laughing) that's, uh, he was- he was a very, uh, strict sentencing ...

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