ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW M. BARKER KAREN FREEMAN-WILSON
Noblesville, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
JAMES MICHAEL WILKINSON, ) ) Appellant-Defendant, ) ) vs. ) No. 29A02-0004-CR-228 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
James Michael Wilkinson appeals his conviction after a jury trial of driving while
suspended for life as an habitual traffic violator. He raises four issues
on appeal, which we restate as:
1. Whether the trial court properly admitted evidence obtained pursuant to a police officers random computer check of the license plate numbers of cars parked at a convenience store;
2. Whether the prosecutor improperly prejudiced the jury by listing in opening argument the prior convictions necessary to support a lifetime license suspension;
3. Whether Wilkinson was properly notified that his driving privileges had been suspended for life; and
4. Whether Wilkinsons trial counsel was ineffective for failing object to certain evidence or to renew certain objections.
We affirm. See footnote
Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999). Wilkinson asserts the
computer search of license plate numbers violates that standard because it allows police
officers to pick the targets of their investigations on their own without regard
to observed violations of the law. . . . This unbridled discretion
allows officers to determine the course of their investigation on the appearance of
a vehicle, the appearance of a driver, or the location of a vehicle,
all without articulable or reasonable suspicion. (Br. of the Appellant at 8.)
He asserts the procedure could therefore lead to pretextual stops.
We share Wilkinsons concern that this procedure could lead to pretextual stops, and we question whether random checks of license plates in convenience store parking lots represent an efficient use of the limited resources of law enforcement agencies. Regardless, we must decline to hold the random license plate check was a search.
Neither party directs us to Indiana authority directly addressing a random computer check of license plate numbers. However, we have held, without explicitly addressing whether the random check was a search, that a traffic stop was justified by a computer check indicating the plate was not on the car to which it was registered. Smith v. State, 713 N.E.2d 338 (Ind. Ct. App. 1998), trans. denied 726 N.E.2d 303 (Ind. 1999). The Smith decision did not indicate whether the officer had a reason for initiating the computer check, nor did it otherwise explain the circumstances surrounding the check. Instead, it addressed only the validity of the subsequent traffic stop:
Upon conducting a computer check, [the officer] had reasonable suspicion to believe that Smiths vehicle had a mismatched license plate, and as such, could be stolen or retagged. [The officers] traffic stop was valid and comported with the mandates of the Fourth Amendment.
Id. at 342.
Decisions from other states that have addressed this question appear to find consistently that a suspicionless check of license plate numbers is not an improper search. See, e.g., People v. Brand, 390 N.E.2d 65 (Ill. App. Ct. 1979). Brand was driving twenty miles per hour in an area where the speed limit was forty-five. There was no posted minimum speed limit, and the officer did not see Brand committing a violation. The officer made a radio inquiry concerning the license plates and was told the plates were registered for a car the model year of which was unknown. The officer testified that was unusual. Id. at 66. The officer stopped Brand and found his license was suspended.
The court determined Brand was not subjected to an improper search:
A search connotes prying into hidden places to observe items which are concealed; there is no search attendant to viewing an object which is open to view. In the present case, all the police officer did was view the defendants car license plate, which was in plain sight; he then checked the registration of the plates to determine if it was proper. Since it is unlawful to operate a vehicle on the roadway without proper registration, the officers conduct was not inappropriate in this regard.
Id. at 67 (citations omitted). While the license plate check was not
improper, the court went on to find the police improperly stopped Brand because
Brands reduced rate of speed did not provide reasonable suspicion Brand was violating
any law. In the case before us, by contrast, the check revealed
a clear violation of law and gave rise to more than just a
suspicion that something was unusual.
Similarly, in State v. Donis, 723 A.2d 35 (N.J. 1998) the court determined a random computer check of the license plate numbers of passing cars was not a search. The court reasoned that because license plate information was publicly displayed and a state statute authorized use of vehicular license information for law enforcement purposes, drivers privacy rights were not implicated and no articulable suspicion of criminal conduct was required. There, as here, the police stopped the driver based on the physical description, received via computer check, of the registered owner of the car. The stop was held valid and did not constitute an unreasonable seizure because the officer reasonably believed there was a "general match" between the appearance of the driver and the description received via the computer check. Id. at 41.
Like the officer in Donis, the officer in the case before us had reasonable suspicion to stop Wilkinson by virtue of the evidence obtained through the computer check indicating Wilkinson was driving the car. The computer check returned a description of Wilkinson that the officer characterized as a physical description of whats on your drivers license, such as height, weight, hair and eye color. (R. at 163.) The officer testified that he had a clear view of the person who drove the truck away from the convenience store and that the driver of the car closely matched the height and weight and hair color. See footnote Id. at 164. A stop is valid if there is an objectively justifiable reason for it, whether or not the police officer would have otherwise made the stop but for ulterior suspicions or motives. Smith, 713 N.E.2d at 342. The officer had information to the effect that Wilkinson, the driver to whom the truck was registered, presently had a suspended license.
Our courts have generally found that when there is evidence a crime has taken place, police may stop an individual who fits the description of the violator. See, e.g., Samaniego v. State, 553 N.E.2d 120 (Ind. 1990). We cannot say the trial court abused its discretion in admitting evidence obtained pursuant to the stop of Wilkinson.
2. Prosecutorial Misconduct
Wilkinson asserts prosecutorial misconduct in the form of references by the State in its opening argument to Wilkinsons status as an Habitual Traffic Violator See footnote when he was arrested. Wilkinson offers no authority to support the proposition that it is fundamental error for a prosecutor to refer, in a prosecution for driving while suspended as an habitual traffic violator, to the fact the defendant had been previously convicted of being an habitual traffic violator.
It is well established that explaining to the jury in opening argument what the evidence will show is not error. See, e.g, Cox v. State, 696 N.E.2d 853, 859 (Ind. 1998). Wilkinson does not explain why the State would be precluded from revealing to the jury that evidence would be offered as to this element of the offense with which Wilkinson was charged. Accordingly, we cannot characterize as prosecutorial misconduct the States references to Wilkinsons license suspension.
3. Notification of Suspension See footnote
Wilkinson asserts the Bureau of Motor Vehicles (BMV) mailed a notice of lifetime suspension to him at an address that was not current, apparently because the notice was sent to the address on his operators license record and not his vehicle registration record. Wilkinsons argument on this issue appears to be that he was not properly notified of his lifetime suspension because the BMV did not follow the procedures required by statute when an HTV suspension of ten years is imposed. Under Ind. Code § 9-30-10-5, the ten year statute, the BMV must mail a notice of suspension to the violators last known address. Wilkinson acknowledges the statute under which he was convicted includes no such requirement for notification of lifetime suspensions, see Ind. Code § 9-30-10-17, but argues this court should require such notice because without applying the same requirement to the lifetime suspension, individuals are denied their due process that is guaranteed under the ten (10) year suspension statutes. (Br. of the Appellant at 17.)
We have required as sufficient proof of a lifetime suspension only that a defendant knew or should have known that his driving privileges were forfeited, Austin v. State, 700 N.E.2d 1191, 1192 (Ind. Ct. App. 1998), trans. denied 726 N.E.2d 308 (Ind. 1999). We recently addressed the knowledge requirement of Ind. Code § 9-30-10-17 in Pierce v. State, 737 N.E.2d 1211 (Ind.. Ct. App. 2000). There, Pierce argued there was insufficient evidence he knew of the prior conviction as an HTV that was the basis for his lifetime suspension. We explained the absence of an explicit knowledge requirement in that code section:
Presumably, this is because with a conviction, unlike with a BMV-generated suspension or adjudication, the defendant is necessarily more directly involved. A defendant who has been convicted of being an habitual traffic offender and whose license has accordingly been suspended for life has almost certainly appeared in court, entered a plea of guilty or been convicted after a trial in which he participated, and been sentenced by the trial court to a lifetime suspension.
737 N.E.2d at 1214.
Wilkinson was convicted in 1988 after a guilty plea of operating a vehicle while an habitual traffic offender, and his sentence included a lifetime suspension (R. at 315). The trial court could have reasonably inferred from this evidence of Wilkinsons conviction and sentence that Wilkinson knew of his lifetime suspension, and we cannot say the trial court erred in its determination that this element of Wilkinsons offense was satisfied.
4. Ineffective Assistance of Counsel
Finally, Wilkinson asserts ineffective assistance of trial counsel in the form of counsels failure to object to an insufficiently redacted driving record. See footnote
To prevail on a claim of ineffectiveness of counsel, an appellant must show he was denied a fair trial when the conviction resulted from a breakdown in the adversarial process which rendered the result unreliable. Schiro v. State, 533 N.E.2d 1201, 1205-06 (Ind. 1989). The appellant must show that the identified acts or omissions of counsel were outside the wide range of professionally competent assistance consistent with the prevailing professional norms, and that there is a reasonable probability but for counsel's error the result of the proceedings would have been different. Haggenjos v. State, 493 N.E.2d 448, 451 (Ind. 1986). The appellant must overcome a presumption that counsel has prepared and executed his client's defense effectively. Schiro, 533 N.E.2d at 1206. The reviewing court does not speculate on what might have been the most advantageous strategy, and isolated bad tactics or inexperience do not necessarily amount to ineffective assistance of counsel. Id.
The State offered into evidence two versions of Wilkinsons BMV record: a complete record, and a redacted one from which had been excluded any mention of the offenses that resulted in the finding Wilkinson was an HTV. The redacted record was passed to the jury. Wilkinson first asserts, without citation to authority, that he was prejudiced because the jury saw the size and length of Exhibit 3, the un-redacted portions of Mr. Wilkinsons record . . . the jury could impermissibly have relied upon the difference in size between Exhibits 3 and 4 to come to the conclusion that Mr. Wilkinsons criminal history was extensive. . . . (Br. of the Appellant at 13.)
Wilkinsons full record was only eight pages longer than the redacted record. Because the pages that were redacted measure only a tiny fraction of an inch, (Br. of Appellee at 13), the jury presumably could not tell there was a substantial difference between the two exhibits. Wilkinson has not demonstrated the result of the trial would have been different had his counsel objected, and we therefore cannot say counsel was ineffective for failure to object to the redacted record.
Wilkinson further asserts that despite the redaction his record contained prejudicial information which should not have been allowed to be viewed by the jury. (Br. of the Appellant at 13.) He points to an entry on the redacted record of SUSP ID under which appears the number 18. (R. at 273.) He contends it is clear by the number under Susp ID that Mr. Wilkinson had at least eighteen prior traffic incidents, and the jury could infer that each one resulted in a suspension. (Br. of the Appellant at 13.) Nothing in the trial testimony indicated there was significance to the number 18, and it is not apparent that the title SUSP ID would indicate to the lay reader its meaning. Wilkinson has not shown he was prejudiced by the driving record entry, and counsel was not ineffective for failing to object to it.
MATHIAS, J., and ROBB, J., concur.