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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS M. THOMPSON JEFFREY A. MODISETT
Smith & Thompson Attorney General of Indiana
ANDREW L. HEDGES
Deputy Attorney General
COURT OF APPEALS OF INDIANA
WILLIAM I. THOMPSON, )
vs. ) No. 21A05-9710-CR-453
STATE OF INDIANA, )
APPEAL FROM THE FAYETTE CIRCUIT COURT
The Honorable Daniel Lee Pflum, Judge
Cause No. 21C01-9704-CF-78
December 16, 1998
OPINION - FOR PUBLICATION
Following a jury trial, William I. Thompson appeals his convictions for dealing in a
and criminal recklessness,See footnote
and his habitual offender enhancement.See footnote
raises three issues for our review, which we restate as:
I. Whether the trial court abused its discretion in refusing Thompson's request to
depose State witnesses at public expense.
II. Whether Thompson received ineffective assistance of counsel.
III. Whether the State presented sufficient evidence of Thompson's intent to
Thompson was stopped by plain clothes officers in an unmarked police car after the
officers witnessed his erratic driving.See footnote
While the officers were searching for registration
papers in Thompson's car, they found a pill bottle containing packets of heroin. Thompson
was arrested. Prior to trial, the judge denied Thompson's request to depose State witnesses,
other than eyewitnesses, at public expense. In addition, the judge denied Thompson's motion
to suppress the heroin because the motion was filed pro se even though counsel had been
appointed for Thompson. Although Thompson's counsel stated that he would object to the
introduction of the heroin evidence at trial, he did not do so. The evidence was admitted and
the jury found Thompson guilty on all counts. This appeal ensued.See footnote
Thompson contends that the trial court abused its discretion in refusing his request to
depose witnesses for the State at public expense. Decisions regarding discovery matters are
within the broad discretion of the trial court as part of its inherent power to guide and control
the proceedings. Van Cleave v. State, 517 N.E.2d 356, 365 (Ind. 1987); Norris v. State, 516
N.E.2d 1068, 1070 (Ind. 1987). There are two principal questions that a trial court must
consider in ruling on questions relating to discovery in a criminal trial: (1) is there a
sufficient designation of the items sought to be discovered; and (2) are the items sought
material to the defense. Jorgensen v. State, 574 N.E.2d 915, 917 (Ind. 1991). If the answers
to both questions are affirmative, the trial court must grant the discovery motion unless the
State makes a showing of paramount interest in nondisclosure. Id.
On appeal, Thompson argues that he requested funds to depose two State witnesses,
both of whom were police officers involved in the chain of custody of the heroin found in
Thompson's car. However, there is no evidence that Thompson specifically named these two
officers, prior to trial, as the persons he wished to depose. In addition, the record reveals no
evidence that Thompson demonstrated, prior to trial, how the evidence he expected to get
from the witnesses would be material to his defense. We find this court's decision in Fuquay
v. State, 689 N.E.2d 484 (Ind. Ct. App. 1997), trans. denied, instructive in this regard. In
Fuquay, the defendant requested public funds to take depositions, but his petition did not
state whom he intended to depose or the specific information he sought to discover. The
court held that because Fuquay failed to specifically show how he would benefit from taking
the depositions, he was not entitled to such discovery at the public's expense. Id. at 486 n.1.
As in Fuquay, Thompson failed to specify the persons he wished to depose and the
information he hoped to obtain. Therefore, as in Fuquay, there was no abuse of discretion
in the denial of Thompson's request for discovery at public expense.II.
Ineffective Assistance of Counsel
Thompson contends that his trial counsel provided him ineffective assistance because
of counsel's failure to object to the State's introduction of the heroin. To prevail on a claim
of ineffective assistance of counsel, a defendant must show that: (1) counsel's performance
fell below an objective standard of reasonableness; and (2) that counsel's performance
prejudiced the defendant. Smith v. State, 689 N.E.2d 1238, 1243 (Ind. 1997). In evaluating
the first element, we presume counsel is competent and the defendant must present clear and
convincing evidence to rebut this presumption. Id. Judicial scrutiny of counsel's
performance is highly deferential and should not be exercised through the distortions of
hindsight. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to
ineffectiveness of counsel. Bellmore v. State, 602 N.E.2d 111, 123 (Ind. 1992), reh. denied
(citing Strickland v. Washington, 466 U.S. 668 (1984)).
To establish the second element, prejudice, the defendant must show that counsel's
errors so undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just and reliable result. Smith, 689 N.E.2d at 1244. Thus,
a different outcome but for counsel's errors will not constitute prejudice if the ultimate result
reached was fair and reliable. Games v. State, 684 N.E.2d 466, 469 (Ind. 1997), modified,
690 N.E.2d 211. There is a preference for addressing the prejudice element first since the
object of an ineffectiveness claim is not to grade counsel's performance. Id. at 468.
Thompson argues that the outcome of his trial was unfair and unreliable because his
counsel failed to object to the State's introduction of the heroin evidence. Specifically,
Thompson argues that he was unlawfully arrested; therefore, the heroin found in his car was
inadmissible at trial. Thompson relies on Ind. Code § 9-30-2-2(b)(1) (1993), which
provides, in relevant part:
A law enforcement officer may not arrest . . . a person for a violation of an
Indiana law regulating the use and operation of a motor vehicle . . . unless at
the time of the arrest the officer is (1) wearing a distinctive uniform and a
badge of authority; or (2) operating a motor vehicle that is clearly marked as
a police vehicle[.]
The officers who stopped Thompson were neither driving a marked police car nor wearing
uniforms. Therefore, Thompson argues, the officers had no authority to arrest him and the
evidence seized as a result of that arrest is inadmissible. We do not agree. Thompson was
arrested and charged with criminal recklessness. The criminal recklessness statute is not a
law regulating the use and operation of a motor vehicle. Ind. Code § 35-42-2-2(b)(1) (Supp.
Instead, its purpose is to punish those whose personal conduct presents a substantial
risk of bodily harm to others. Id. Thompson was charged with a class A misdemeanor,
which results from committing a reckless act that includes the use of a vehicle. IC 35-42-2-
2(b)(1)(1). However, the addition of this element does not cause the criminal recklessness
statute to become a law regulating the use and operation of a vehicle. Instead, it merely
provides for a more serious penalty when the individual commits a reckless act while using
a vehicle. III.
The fact that the officers were neither in uniform nor driving a marked police vehicle
at the time of Thompson's arrest is of no moment. Thompson was not arrested for or charged
with violating a law regulating the operation and use of a motor vehicle. Because the officers
stopped Thompson based on his criminally reckless actions, there was a valid arrest and the
evidence found in Thompson's car as a result of that arrest is admissible. Therefore, the
failure of Thompson's trial counsel to object to the evidence did not render the result of the
trial unfair or unreasonable, and Thompson was not prejudiced by his trial counsel's actions.
Thompson's trial counsel provided him with effective assistance.
Sufficiency of the Evidence
Thompson contends that the evidence presented by the State was insufficient to
support the jury's finding that Thompson had the intent to deliver the heroin found in his car.
When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or
judge the credibility of the witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh.
denied. We look to the evidence and the reasonable inferences therefrom that support the
verdict. Id. The conviction will be affirmed if evidence of probative value exists from which
a jury could find the defendant guilty beyond a reasonable doubt. Id.
Thompson argues that the State presented no evidence that Thompson possessed the
drugs with the intent to deliver them. We do not agree. Intent, being a mental state, can only
be established by considering: the behavior of the relevant actor; the surrounding
circumstances; and the reasonable inferences to be drawn from them. Hazzard v. State, 642
N.E.2d 1368, 1369 (Ind. 1994). Evidence of the illegal possession of a relatively large
quantity of drugs is sufficient to sustain a conviction for possession with intent to deliver.
Id. at 1369-70. The State presented evidence that a pill bottle containing eight foil-wrapped
packets of heroin was found in Thompson's car. A narcotics officer testified that the amount
of heroin found in Thompson's possession was not consistent with personal use. Too, the
officer stated that foil packaging was customarily used by dealers. In addition, Thompson
testified that he did not use heroin because he was in a methadone program. This is
sufficient evidence from which the jury could infer that Thompson possessed the heroin with
the intent to deliver it.
KIRSCH, J., and ROBB, J., concur.
1 Ind. Code § 35-48-4-1(a)(2)(C) (1993).
2 Ind. Code § 35-42-2-2 (b)(1) (1993).
3 Ind. Code § 35-50-2-8 (1993).
4 One of the officers testified that immediately before they stopped Thompson, he had almost rear-ended a car
that was stopped in order to allow a pedestrian to cross the street.
5 During the pendency of this appeal, Thompson filed a pro se Writ of Habeas Corpus with this court. We treat
writs of habeas corpus, which attack the validity of a conviction or sentence, as petitions for post-conviction
relief. Indiana Post-Conviction Rule 1(1)(c). This court does not consider PCR petitions; rather, the court
where petitioner was convicted or sentenced does. P-C.R. 1(2). Thus, we deny Thompson's writ. Moreover,
Thompson raised additional issues in the writ that he wishes this court to consider on appeal. We refuse to
address those issues. Thompson sought to quash this direct appeal from his conviction, on the basis that his
appellate counsel was uncooperative and had no contact with Thompson. That motion to quash was denied
by this court on June 3, 1998, and we will not consider any additional issues raised by Thompson in an attempt
to evade that order.
6 IC 35-42-2-2(b)(1) provides, in relevant part: "A person who recklessly, knowingly, or intentionally performs
an act that creates a substantial risk of bodily injury to another person commits criminal recklessness[.]"
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