Josue Avendano-Gomez v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Aug 09 2017, 5:42 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy D. Griner Curtis T. Hill, Jr.
Mishawaka, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Josue Avendano-Gomez, August 9, 2017
Appellant-Defendant, Court of Appeals Case No.
20A05-1701-CR-160
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry Shewmaker,
Appellee-Plaintiff Judge
Trial Court Cause No.
20C01-1507-F2-11
Vaidik, Chief Judge.
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Case Summary
[1] Josue Avendano-Gomez was convicted of seven counts of Level 2 felony
dealing in cocaine. On appeal, he argues that the trial court committed
fundamental error when it admitted the cocaine exhibits because the State failed
to establish a proper chain of custody, that the evidence is insufficient to
support his convictions even if the cocaine was properly admitted, and that the
trial court violated his Sixth Amendment rights by preventing him from putting
on a complete defense and by not allowing him to confront a complaining
witness. Finding no error in the admission of the cocaine, sufficient evidence,
and no violation of the Sixth Amendment, we affirm.
Facts and Procedural History
[2] The Elkhart County Interdiction and Covert Enforcement Unit uses undercover
officers and confidential sources to conduct controlled buys from known drug
dealers in the area. UC 374 is a member of this unit and has worked on over
300 drug investigations. When UC 374 is leading a controlled buy, he instructs
his confidential source to call the alleged drug dealer and suggest a time, place,
and quantity of drugs to purchase—all of these details have been provided to
the confidential source by UC 374. The controlled buys in this case were set up
in this manner.
[3] Once the details of the buy have been set, UC 374 searches the confidential
source and his automobile for any contraband—money, weapons, drugs, and
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anything illegal. When searching the confidential source, UC 374 instructs the
source to empty his pockets and then searches the source “from top to bottom
and [then] from the bottom to the top again.” Tr. Vol. II p. 49. UC 374 does
not strip search the source, but he turns the source’s pockets inside out, looks in
his mouth, and checks the source’s genitals by patting down his underwear and
using his fingers to “go around the underwear.” Id. at 191. UC 374 conducted
such searches of the confidential source before and after each of the seven
controlled buys in this case.
[4] After searching the confidential source, UC 374 searches the source’s
automobile. UC 374 begins with the driver’s seat and works in a clockwise
fashion through the interior of the automobile. Once he has finished searching
the interior, UC 374 searches the trunk and behind the side mirrors. He then re-
searches the interior of the automobile, starting in the backseat and working in
a counter-clockwise fashion, ending with the driver’s seat. The officer does not
remove the dashboard or the fascia underneath the dashboard. UC 374
conducted such searches of the confidential source’s car before and after each of
the relevant controlled buys, except for the first controlled buy because UC 374
and the confidential source drove to the buy location together in UC 374’s car.
[5] UC 374 also provides the confidential source with an audio- and video-
recording device. UC 374 has the ability to listen to the transaction live and
views the video later at the police station. Before the controlled buy, UC 374
checks the device to make sure that it is working and ensures that it is placed in
a location that the alleged drug dealer will not notice. After the buy, UC 374
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collects the device from the confidential source, receives a debrief from the
source as to what transpired, and reviews the audio and video at the police
station to ensure that the information the source told him was accurate. For
each of the relevant controlled buys, UC 374 provided the confidential source
with an audio- and video-recording device, and UC 374 or another officer
listened live to the transaction. After the buys, the confidential source debriefed
UC 374, and the officer later reviewed the audio and video at the police station
for accuracy.
[6] After a controlled buy, UC 374 takes the substance purchased by the
confidential source to the police station. “I’m going to check the weight. It’s
going to be drug tested, and after that it’s going to be put into the evidence
room. It’s going to be sealed and put into the evidence room.” Id. at 57. UC
374 also places his undercover number on the bag. “Every time I put
something into evidence I have to print the label and describe the day and time,
the accused, and my badge number and the case number.” Id. at 102.
However, when specifically discussing each of the controlled buys, UC 374 did
not state that he performed any of the above actions with the substances.
Rather, he testified that after each buy he took possession of the substances and
that they were “logged into evidence.” Id. at 82.
[7] In this case, UC 374 was introduced to the confidential source in September
2014, and the two began working together to set up controlled drug buys. The
confidential source provided UC 374 with the name and contact information
for a local cocaine dealer—Avendano-Gomez. Between October 1, 2014, and
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May 14, 2015, UC 374 had the confidential source conduct seven controlled
buys of cocaine from Avendano-Gomez.
[8] During the seventh controlled buy, Avendano-Gomez met the confidential
source in the parking lot of a local restaurant. Rather than follow their
traditional modus operandi of Avendano-Gomez getting into the confidential
source’s car, both men went into the restaurant. No undercover officer was
positioned inside the restaurant, but UC 374 was still able to listen live to what
was being said via the audio-recording device. The two men remained in the
restaurant for an extended period of time, eating a meal together. After exiting
the restaurant, Avendano-Gomez and the confidential source entered
Avendano-Gomez’s truck. The confidential source stayed in the truck for a few
minutes before getting into his own car and driving to the pre-determined
meeting point with UC 374. As with the first six controlled buys, he gave UC
374 a ball of black electrical tape that contained a white powdery substance.
UC 374 reviewed the video of the seventh controlled buy, and it was consistent
with the audio that he heard live while conducting surveillance on the
restaurant.
[9] Avendano-Gomez was later arrested and charged with seven counts of Level 2
felony dealing in cocaine. Before his trial commenced, Avendano-Gomez
requested that the State present the confidential source to be deposed. The
State complied with the request, but on the morning of the deposition, at
Avendano-Gomez’s request, his counsel canceled the deposition. According to
the State, Avendano-Gomez’s former counsel showed up to the deposition and
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said, “I’m really sorry. I just got done meeting with my client. He’s instructed
me not to proceed with this deposition.” Id. at 5. On November 14, 2016, the
morning the jury trial was scheduled to begin, Avendano-Gomez, represented
by new counsel, requested a continuance in order to depose the confidential
source. The State told the trial court that it was not calling the confidential
source as a witness and informed the court that Avendano-Gomez had
personally requested that the confidential source’s earlier deposition be
canceled. The trial court denied the request for a continuance, noting that
Avendano-Gomez had canceled the earlier deposition, that he could depose the
confidential source that evening, and that the case had been pending for almost
one-and-a-half years due to numerous continuances. Avendano-Gomez did not
accept the court’s offer to depose the confidential source later that day.
[10] During the trial, UC 374 testified about the details of all seven controlled buys.
He stated that after each controlled buy he met with the confidential source and
was presented with a white powdery substance, which was usually wrapped in a
ball of black electrical tape. UC 374 took possession of the substances and
stated that he “logged [each] into evidence.” Id. at 83. UC 374 also stated that
the exhibits were in the same or similar condition as when he logged them into
evidence. The State did not ask for any additional details. Based on UC 374’s
testimony, the State moved for each of the substances to be admitted as Exhibits
3, 6, 8, 10, 12, 14, and 16 (collectively “cocaine exhibits”). Avendano-Gomez
did not object, and the trial court admitted the cocaine exhibits.
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[11] While questioning UC 374 about the sixth controlled buy, the State examined
Exhibit 14 and realized that it had the other cocaine exhibits out of order and
that UC 374 had misidentified each of these exhibits and the controlled buy to
which the exhibit corresponded. The State then re-presented these exhibits to
UC 374 and asked him to match them to the correct controlled buy, which he
did. The State then moved to have the exhibits readmitted.1 Again, Avendano-
Gomez did not object to the admission of the exhibits. The trial court
readmitted the cocaine exhibits.
[12] The State also had two certified technicians with the Indiana State Police
Laboratory Division testify that the seven exhibits were tested and that each
exhibit weighed over ten grams and tested positive for cocaine, pure or
adulterated. Before each lab technician testified, Avendano-Gomez stipulated
to certain facts. Regarding the first technician’s testimony, he stipulated “to her
training and background and education. We’re stipulating that she performed
forensic testing on four substances in this case; and we’re stipulating that the
scale that she used to weigh the substances when they were tested was in good
proper working order.” Id. at 205. Defense counsel later added, “[W]e
stipulate to the - - the fact that each one of the samples was, in fact, tested as
cocaine and that the weight represented in each of the reports was accurate.”
1
For example, Exhibit 3 was originally admitted as the substance purchased during the October 1, 2014
controlled buy but was actually purchased during the May 14, 2015 controlled buy.
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Id. at 206. During the laboratory technician’s testimony about the lab reports,
defense counsel interjected:
Defense Counsel: We’ve already stipulated to the document,
Judge, and the - -
State: But I need - - I need to link it up to the amount.
Defense Counsel: We’ll stipulate to that too, that they link up
with the particular samples.
Id. at 211.
[13] Regarding the second laboratory technician, Avendano-Gomez stipulated to
“this witness’s training and background and education. His ability to test the
substances involved in this case. The fact that the scales were in good proper
working order for the three substances that he tested.” Id. at 240. Avendano-
Gomez also stipulated to the admission of the seven laboratory reports that
confirmed that the substances tested in this case were cocaine. Both technicians
testified that the cocaine exhibits were in the same condition as when they were
tested, and the lab reports described each exhibit as a “[s]ealed plastic bag”
containing a white powdery substance. Exs. 22–28. One of the lab technicians
stated that she was able to match up the relevant exhibit with the corresponding
report based on the labels UC 374 had affixed to the evidence bags containing
each substance.
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[14] The jury found Avendano-Gomez guilty on all seven counts, and the trial court
sentenced him to concurrent terms of twenty-six years, all executed at the
Indiana Department of Correction. Avendano-Gomez now appeals.
Discussion and Decision
[15] Avendano-Gomez raises three issues on appeal: (1) the trial court committed
fundamental error when it admitted the cocaine exhibits because the State failed
to establish a sufficient chain of custody for each exhibit; (2) the evidence is
insufficient to support the convictions; and (3) the trial court violated his Sixth
Amendment rights to present a complete defense and to cross-examine a
complaining witness.
I. Chain of Custody
[16] Avendano-Gomez argues that the cocaine exhibits should not have been
admitted because the State failed to establish a proper chain of custody for each
exhibit. “The purpose of requiring a continuous chain of custody from seizure
to admission at trial is to lay a proper foundation connecting the evidence with
the accused and to negate any substantial likelihood of tampering, loss,
substitution, or mistake.” Young v. State, 508 N.E.2d 24, 26 (Ind. 1987). When
the defendant challenges the chain of custody for fungible evidence, like
cocaine, a burden-shifting analysis is applied:
The State bears a higher burden to establish the chain of custody
of “fungible” evidence, such as blood and hair samples, whose
appearance is indistinguishable to the naked eye. To establish a
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proper chain of custody, the State must give reasonable
assurances that the evidence remained in an undisturbed
condition. However, the State need not establish a perfect chain
of custody, and once the State “strongly suggests” the exact
whereabouts of the evidence, any gaps go to the weight of the
evidence and not to admissibility. Moreover, there is a
presumption of regularity in the handling of evidence by officers,
and there is a presumption that officers exercise due care in
handling their duties.
Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002) (internal citations omitted). If
the State meets its burden of strongly suggesting the exact whereabouts of the
evidence, the defendant, to successfully challenge the chain of custody, “must
present evidence that does more than raise a mere possibility that the evidence
may have been tampered with.” Id.
[17] Avendano-Gomez contends that the State failed to strongly suggest the exact
whereabouts of the cocaine exhibits, arguing that no evidence was introduced
to show the exhibits’ location from the time UC 374 logged them into evidence
to the time they were tested at the state laboratory. But Avendano-Gomez did
not object at trial when the exhibits were admitted, and he acknowledges this
failure on appeal. We require a party to make an objection so that the court
and the opposing party are on notice that some aspect of the proceeding is being
done improperly, and either the court or the opponent is afforded the
opportunity to correct the alleged error. Therefore, when a defendant fails to
object at trial and raises a chain-of-custody argument for the first time on
appeal, the argument is waived unless the admission constitutes fundamental
error. Id. Fundamental error is an extremely narrow exception to our waiver
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rule, and the defendant is faced with the “heavy burden of showing that the
alleged errors are so prejudicial to the defendant’s rights as to make a fair trial
impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). “Fundamental error
is meant to permit appellate courts a means to correct the most egregious and
blatant trial errors that otherwise would have been procedurally barred, not to
provide a second bite at the apple for defense counsel who ignorantly,
carelessly, or strategically fail to preserve an error.” Id.
[18] We need not reach Avendano-Gomez’s fundamental-error argument because
we conclude that the cocaine exhibits were properly admitted. First,
Avendano-Gomez stipulated during trial that both laboratory technicians
performed forensic testing on “substances involved in this case.” Tr. Vol. II p.
240 (emphasis added); see also id. at 205 (“she performed forensic testing on four
substances in this case.”) (emphasis added). He argues that his stipulations
were only to the laboratory results and not to the source of the substances. But
Avendano-Gomez’s stipulations are not as narrowly tailored as he would have
us hold. His stipulations were related to the substances involved “in this case,”
not just for the substances presented at trial. The word “case” encompasses all
of the events that transpired, including the seven controlled buys as well as the
events at trial. The stipulations go beyond the laboratory results, and
Avendano-Gomez stipulated that the substances recovered by UC 374 after the
controlled buys were the same substances that the laboratory technicians tested.
Furthermore, Avendano-Gomez expanded the stipulation to include that the
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lab reports link up with the cocaine exhibits. These stipulations removed the
need for the State to present chain-of-custody evidence.
[19] We find that defense counsel’s failure to object both times that the cocaine
exhibits were admitted is further support of our reading of the stipulation.
Avendano-Gomez’s defense at trial was not that the chain of custody was
insufficient but rather that the State failed to definitively prove that the cocaine
came from Avendano-Gomez and not the confidential source. In other words,
Avendano-Gomez’s defense was focused on how the cocaine ended up in the
confidential source’s possession, not what happened to the cocaine after it was
given to UC 374. This defense strategy further bolsters our conclusion that the
stipulations served to eliminate the State’s chain-of-custody requirement.
[20] Even if we were to agree with Avendano-Gomez that his stipulation was
narrowly tailored to only the results of the laboratory testing, sufficient evidence
was presented to establish a chain of custody for the cocaine exhibits. While
testifying generally about controlled buys, UC 374 stated that whenever he
collects a substance from a confidential source, “I’m going to check the weight.
It’s going to be drug tested, and after that it’s going to be put into the evidence
room. It’s going to be sealed and put into the evidence room. . . . Every time I
put something into evidence I have to print the label and describe the day and
time, the accused, and my badge number and the case number.” Tr. Vol. II pp.
57, 102. UC 374 stated that each of the seven substances was “logged into
evidence” after the controlled buys, creating a reasonable inference that he
weighed, field tested, labeled, and sealed the substances in an evidence bag, and
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then placed the sealed bag into the evidence room. We presume regularity in
the handling of evidence by officers. Troxell, 778 N.E.2d at 814. When
presented with the cocaine exhibits at trial, UC 374 testified that he recognized
each exhibit based on the label that he created that was affixed to the evidence
bag. The label included the date and time the substance was recovered,
Avendano-Gomez’s name, UC 374’s badge number, and the case number. UC
374 also stated that each exhibit was in the same or substantially the same
condition as when he logged it into evidence.
[21] Additionally, both lab technicians testified that the cocaine exhibits were in the
same condition at trial as when they were tested, and each of the lab reports, the
admission of which Avendano-Gomez stipulated to, described each exhibit as a
“[s]ealed plastic bag” containing a white powdery substance. Exs. 22–28. One
of the lab technicians testified that she recognized the exhibits based on the
label UC 374 created and placed on the evidence bag. The jury was also
allowed to view and examine the exhibits, including UC 374’s labels. Given
that we presume regularity in the handling of evidence by police, that UC 374
testified that it is his habit to seal and label substances recovered from
controlled buys before logging them into evidence, and that the laboratory
reports described each exhibit as a “sealed plastic bag,” we conclude that
sufficient evidence was presented to establish a chain of custody. No error, let
alone fundamental error, was committed when the cocaine exhibits were
admitted at trial.
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II. Sufficiency of Evidence
[22] In his second argument, Avendano-Gomez contends that, even with the
cocaine exhibits, the evidence is insufficient to support his convictions. When
reviewing the sufficiency of the evidence, we neither reweigh the evidence nor
determine the credibility of witnesses; that role is reserved for the factfinder.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). “The evidence—even if
conflicting—and all reasonable inferences drawn from it are viewed in a light
most favorable to the conviction.” Id. A conviction will be affirmed “if there is
substantial evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.” Id.
[23] Avendano-Gomez claims that his convictions must be overturned because UC
374 did not properly search the confidential source before and after each buy
because he did not look inside the confidential source’s underwear. “A
controlled buy consists of searching the person who is to act as the buyer,
removing all personal effects, giving him money with which to make the
purchase,” and then sending him to make the purchase. Vaughn v. State, 13
N.E.3d 873, 888 (Ind. Ct. App. 2014), trans. denied. “Upon his return he is
again searched for contraband.” Id. Pat-down searches of a confidential source
are sufficient for a controlled buy, and officers are not required to strip-search
the confidential source. Wright v. State, 836 N.E.2d 283, 289 (Ind. Ct. App.
2005), trans. denied.
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[24] Before and after each of the seven controlled buys, UC 374 instructed the
confidential source to empty his pockets and then searched him “from top to
bottom and [then] from the bottom to the top again.” Tr. Vol. II p. 49. UC 374
also turned the confidential source’s pockets inside out, looked in his mouth,
and patted him down. UC 374 testified that he checked the confidential
source’s genitals by using his hands to pat down the confidential source’s
underwear and that he used his fingers to “go around his underwear.” Id. at
191. UC 374’s search of the confidential source was sufficient for a controlled
buy.
[25] Avendano-Gomez also argues that the search of the confidential source’s car
was insufficient because UC 374 did not search inside the dashboard or the
panel fascia under the dashboard. Avendano-Gomez does not cite to any legal
authority to support his argument, and we are not aware of any. Nevertheless,
we find that the strip-search logic articulated in Wright can be applied to
automobile searches. An officer is not required to disassemble the interior of an
automobile when conducting pre- and post-buy searches of a confidential
source’s automobile. UC 374 testified that he searched the confidential source’s
car before and after each controlled buy when the confidential source drove
himself to the buy location. UC 374 explained that when he conducted the
searches he started with the driver’s seat and worked his way through the
interior in a clockwise fashion. He then searched the trunk and behind the side
mirrors. UC 374 then searched the interior again, this time working in a
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counter-clockwise fashion, ending with the driver’s seat. UC 374’s search of the
confidential source’s car was sufficient for a controlled buy.
[26] Avendano-Gomez further contends that the evidence is insufficient because no
eyewitness testimony was offered to show that he possessed and transferred
cocaine to the confidential source during any of the controlled buys. “A
properly conducted controlled buy will permit an inference the defendant had
prior possession of a controlled substance.” Vaughn, 13 N.E.3d at 888. As
already stated, a controlled buy consists of pre- and post-buy searches of the
confidential source, giving money to the confidential source for the buy, and
sending the confidential source to the buy location. Officers do not have to
witness the transfer of drugs to create the inference that the defendant possessed
the drugs and gave them to the confidential source. Id. Officers need only to
witness the confidential source leave their custody and head directly to the
controlled-buy location and then leave the buy and head directly to the post-buy
location to create the necessary inference that the defendant sold the drugs to
the confidential source. Id.
[27] During five of the seven controlled buys (buys two through six), UC 374 and
other members of the Interdiction and Covert Enforcement Unit observed
Avendano-Gomez enter the confidential source’s car, stay inside the car for a
few minutes, and then leave. They followed the confidential source to the post-
buy location, where he provided UC 374 with a white powdery substance that
was later confirmed to be cocaine. For the other two controlled buys (buys one
and seven), UC 374 and his fellow officers observed the confidential source
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enter Avendano-Gomez’s truck, stay for a few minutes, and then exit the truck.
The officers then followed the confidential source to the post-buy location
where he handed UC 374 a white powdery substance that was later confirmed
to be cocaine.
[28] Avendano-Gomez further contends that the seventh controlled buy was not
properly controlled because no undercover officer was inside the restaurant
“with potentially many other people who could have transferred [the
confidential source] a controlled substance.” Appellant’s Br. p. 20; Appellant’s
Reply Br. p. 10. This is a request for us to reweigh the evidence. Officers are
not required to witness every aspect of a controlled buy to create the inference
that the confidential source purchased drugs from the defendant. Vaugh, 13
N.E.3d at 888. UC 374 listened live to the interaction between Avendano-
Gomez and the confidential source along with any possible interaction that the
confidential source might have had with other people inside the restaurant. UC
374 then reviewed the video of the controlled buy and reported that it was
consistent with the audio he had heard. Sufficient evidence was presented to
support each of Avendano-Gomez’s seven convictions for Level 2 felony
dealing in cocaine.
III. Sixth Amendment
[29] Avendano-Gomez raises two arguments that his Sixth Amendment rights were
violated: he was unable to present a complete defense and unable to confront a
complaining witness. Avendano-Gomez argues that the trial court’s denial of
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his request for a continuance so that he could depose the confidential source
prevented him from being able to present a complete defense. “Whether rooted
directly in the Due Process Clause of the Fourteenth Amendment or in the
Compulsory Process or Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants ‘a meaningful opportunity to
present a complete defense.’” Kubsch v. State, 784 N.E.2d 905, 923-24 (Ind.
2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)).
[30] Avendano-Gomez argues that because he was not able to depose the
confidential source he was not able to call the confidential source as a witness.
But Avendano-Gomez, while represented by different counsel, scheduled a
deposition of the confidential source that was then canceled at Avendano-
Gomez’s personal request. The morning his trial was scheduled to begin,
Avendano-Gomez sought a continuance to depose the confidential source. The
request for a continuance was denied, but the trial court permitted Avendano-
Gomez to depose the confidential source after the first day of trial. The court
even agreed to defense counsel’s request that Avendano-Gomez be present for
the deposition, stating that the deposition could be conducted at the jail where
Avendano-Gomez was in custody. However, defense counsel did not schedule
this deposition. Avendano-Gomez’s Sixth Amendment right to present a
complete defense was not violated.
[31] Avendano-Gomez also contends that his Sixth Amendment right to cross-
examine a complaining witness was violated because he was not given the
opportunity to cross-examine the confidential source. The Sixth Amendment
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provides, “In all criminal prosecutions, the accused shall enjoy the right to . . .
be confronted with the witnesses against him . . . .” The Confrontation Clause
“bars admission of out-of-court, testimonial statements in criminal trials unless
the declarant is unavailable to testify and the defendant had a prior opportunity
for cross examination.” Ramirez v. State, 928 N.E.2d 214, 217 (Ind. Ct. App.
2010) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)), trans. denied.
There is no confrontation issue here because the State never called the
confidential source to testify on its behalf, and the trial court sustained all
objections defense counsel made regarding any out-of-court statements made by
the confidential source.
[32] Affirmed.
Brown, J., and Pyle, J., concur.
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