Opinion
23A-CR-2532
06-21-2024
Edward Lee Bowling, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Ivan A. Arnaez Evansville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Pike Circuit Court The Honorable Jeffrey L. Biesterveld, Judge Trial Court Cause No. 63C01-2104-F2-125
ATTORNEY FOR APPELLANT Ivan A. Arnaez Evansville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Altice, Chief Judge.
Case Summary
[¶1] Following a jury trial, Edward Lee Bowling was convicted of Level 2 felony dealing in methamphetamine and Level 6 felony maintaining a common nuisance. On appeal, Bowling challenges an order in limine that protected the identity of a confidential informant (the CI) from being disclosed at trial. He contends that the order violated his due process rights and constituted an abuse of discretion.
[¶2] We affirm.
Facts &Procedural History
[¶3] On April 28, 2021, state and local law enforcement officers executed a search warrant at a rural property in Pike County, where Bowling lived in an RV camper near a garage and a storage shed. The warrant was issued in part based on information recently obtained from the CI about Bowling trafficking methamphetamine into Pike County from out of state and being responsible for about 90% of the methamphetamine coming into the county. The CI informed investigators that Bowling was planning a trip to Mississippi to pick up more methamphetamine. Later, on a recorded phone call between the CI and Bowling on April 27, Bowling stated that he was still in Mississippi, would be back sometime the next day, and would call the CI upon his return.
Dustin Thompson, a known methamphetamine user, had informed local police about seven months earlier that Bowling supplied about 75% of the methamphetamine in the county, that Bowling dealt in ounces, and that Thompson had personally purchased from Bowling in the past.
[¶4] Officers executed the search warrant about thirty minutes to an hour after Bowling returned to the property. Bowling, his brother, and another man were detained during the search. Bowling's ex-wife, with whom he had traveled to Mississippi, had left the property after dropping off Bowling.
[¶5] Inside the camper, officers recovered multiple baggies of methamphetamine that appeared "packaged ready for sell [sic]." Transcript Vol. II at 52. Bowling's wallet, containing over $1,900 in cash, was found on the kitchen table "right beside" a plastic container with a "decent size" bag of methamphetamine, a mixture of loose pills, and two marijuana joints. Id. at 172. Bowling also had a small baggie of methamphetamine in his pocket.
[¶6] Most of the methamphetamine recovered during the search was from inside the shed and did not appear "prepped for sale yet." Id. at 53. Specifically, a Ziplock bag containing 41.23 grams of methamphetamine crystals was found in the back of the shed zipped inside a small soft-sided cooler that was enclosed in a metal trash can. Also found inside the cooler was a receipt with Bowling's name on it dated April 10, 2021. Additional methamphetamine and drug paraphernalia were also recovered from this location. And in a separate garage, officers recovered a Walmart bag full of unused syringes.
[¶7] In sum, officers collected nearly 75 grams of methamphetamine on the property, which according to local law enforcement was "a high amount of methamphetamine ... for Pike County." Id. at 159. Some of the contraband recovered from the camper and the shed was sent to the Indiana State Police (ISP) Laboratory for testing. All six items tested positive for methamphetamine with a total weight of 63.04 grams.
[¶8] After Bowling was Mirandized at the scene, he admitted that he had that "little bit" in the camper and was "ashamed of it." Exhibit 17 (first video clip). Petersburg Police Department Deputy Scott Arnold then asked about "all the other meth," and Bowling responded, "what other meth?" When Deputy Arnold conveyed that there was "a lot of it," Bowling looked down, shook his head in apparent despair, and said, "man oh man . . . it's not good." Id.
[¶9] Bowling was taken to jail where he agreed to give a recorded statement to Deputy Arnold and ISP Trooper Paul Stoltz. During the statement, Bowling acknowledged that the substance from the shed would field test positive for methamphetamine but described its quality as "junk . . . nothing like it used to be." Id. (second video clip). Bowling also stated that he was regularly delivering methamphetamine to others for a man named Bobby and would receive a kickback of $300 each time from Bobby. When asked where the methamphetamine found in the shed came from, Bowling responded, "I know for a fact it had to come from [Bobby]." Exhibit 18 (fourth video clip). Bowling acknowledged that his actions were illegal and that he was a methamphetamine dealer.
[¶10] The State charged Bowling with Level 2 felony dealing in methamphetamine in an amount of 10 or more grams (Count I), Level 3 felony possession of methamphetamine of 28 or more grams (Count II), and Level 6 felony maintaining a common nuisance (Count III). Bowling posted bond after a few months and the case stagnated for nearly two years with many continuances obtained by the defense.
[¶11] On April 18, 2023, the State filed the motion in limine that is at issue in this appeal. The State asked the trial court for an order "directing the defendant, witnesses and counsel not to elicit or otherwise encourage the identity of the [CI] and/or an opinion regarding the [CI] in the presence of the jury without first having obtained leave of Court outside the presence of the jury." Appendix at 51. At the final pretrial hearing on July 31, 2023, Bowling's counsel indicated that the motion looked "pretty standard" and that he had no objection to it. Transcript Vol. II at 6. The court granted the State's motion.
[¶12] On August 15, 2023, at the beginning of his three-day jury trial, Bowling sought clarification regarding whether the order in limine was limited to identification of the CI. That is, Bowling agreed that there would be no references to the identity of the CI, but he argued that he should be able to attack the foundation for the search warrant at trial and delve into "the information [the CI] provided to the police and - and the veracity of that information or the reliability of that information." Id. at 14-15. The trial court clarified that its preliminary order was limited to the nondisclosure of the CI's identity.
[¶13] Over the State's objections during Bowling's opening statement to the jury, the trial court permitted Bowling to discuss the CI - without identifying him - and the information supporting the search warrant. Bowling concluded his statement, again over an unsustained objection: "[T]he State wants you to [] rely on the veracity of an unnamed secret confidential informants. That they're going to hide from you during this trial. And I think you need to ask, in your mind, question why isn't the State calling this CI informant. What do they have to hide?" Id. at 35.
[¶14] Bowling made an oral motion to suppress at the end of the first day of trial, and the trial court held a suppression hearing the next morning outside the jury's presence. After the trial court upheld the validity of the search and denied the motion to suppress, the State argued that the probable cause affidavit and the search warrant should be admitted into evidence at trial because Bowling had opened the door by suggesting to the jury that the State was unethically hiding or concealing the CI's identity. Bowling had no objection to the admission of the probable cause affidavit and the search warrant, but defense counsel explained to the trial court:
The State of Indiana has made a trial strategy decision not to reveal the identity of the [CI]. The safety issue is protectual (sic). I'm not sure why they made that trial strategy decision. That's up to them. But if they want an empty seat CI that's their decisions. But I plan on taking advantage of that in my defense.
***
The - the only thing I want to make sure of - I mean. State has been trying, from the beginning to handcuff and even straitjacket the defense regarding this CI.... [M]y client certainly can talk about the CI as he has when he testified [during the suppression hearing] without identifying him in relation to the defense. I think the State is wanting you to order that we just can't bring up the CI at all.. [W]e know what my client's getting at. That while he was gone uh, someone . put that methamphetamine in a storage facility. And he certainly has a right to use that as a defense.Id. at 140-41.
[¶15] When the trial resumed after the suppression hearing, the probable cause affidavit and search warrant were admitted into evidence, and Bowling was permitted to vigorously cross-examine Deputy Arnold about the CI. Bowling also testified in his own defense and revealed that he was sure he knew the identity of the CI based off discovery. Bowling then testified about numerous phone calls that the CI made to him while Bowling was on vacation, as well as calls from the CI's mother and sister. Bowling testified that the CI lied to police about the purpose of Bowling's travel to Mississippi. Bowling also claimed that the receipt that police found with the methamphetamine in the shed had been in the glove box of a car he had loaned to the CI's mother before the Mississippi trip. Although Bowling acknowledged that he had dealt methamphetamine in the past to make ends meet, he testified that he had stopped dealing weeks prior to his Mississippi vacation and that the methamphetamine found during the search of the shed and RV had not been procured by him. As for his incriminating statements after his arrest, Bowling claimed that he was referring only to his past dealing and not the drugs found during the search.
Though the CI's identity was never revealed to the jury, Bowling's suspicions as to identity were confirmed when the State admitted into evidence a recording of one of the phone calls between Bowling and the CI.
[¶16] During closing argument, Bowling's defense focused heavily on the CI and the State's decision to keep his identity from the jury. Bowling suggested to the jury that the CI, who knew when Bowling would be returning from his trip, planted the methamphetamine and the receipt inside the shed to "keep his criminal butt out of jail." Transcript Vol. III at 36. Bowling concluded his argument as follows:
You had a desperate [CI], who wanted to stay out of jail. The State is hiding him from you. They're hiding him. They're not hiding him because [Bowling's] going to cap him off, because he doesn't know who he is. They know who he is. I know who he is.... Everybody in this room knows who this [CI] is except you. The State has made that trial strategy. And it certainly kneecaps . our defense if I can't cross-examine. I can't ask the kind of questions I'd love to ask him. Because the State made that decision. You have to think in your mind. Why did the State decide not to call the [CI]? What is the true reason they decided not to call [him]? It certainly isn't for his safety. There has to be another reason.Id. at 39.
[¶17] The jury ultimately found Bowling guilty as charged. At sentencing on October 3, 2023, the trial court vacated the judgment of conviction on Count II, as a lesser included offense of Count I, and sentenced Bowling to concurrent terms of twenty years in prison on Count I and two years on Count III.
[¶18] Bowling now appeals. Additional information will be provided below as needed.
Discussion & Decision
[¶19] Bowling sets out the issue on appeal as follows:
Is Due Process violated when an Order in Limine prevents the defendant from calling the [CI] because of Government privilege to protect his safety and keep his identity secret when there is no proof of actual threat and the defendant knew his identity such that the defendant cannot call said informant to establish via examination the "informant planted the drugs defense"?Appellant's Brief at 8. In his lengthy and meandering argument, Bowling suggests that the order in limine was an abuse of discretion because the State failed to establish any actual threat to the CI and that the order stripped Bowling of his right to present a defense. Bowling asserts that the order in limine "did not allow [him] to call the [CI] at all hence no examination at all to present a defense since that would be disclosure of identity by law." Id. at 17 (emphasis in original).
[¶20] One of the fundamental problems with Bowling's appellate argument is that he is appealing a preliminary ruling by the trial court, not a ruling made at trial. It is well established that "[r]ulings on motions in limine are not final decisions and, therefore, do not preserve errors for appeal." Swaynie v. State, 762 N.E.2d 112, 113 (Ind. 2002); see also Azania v. State, 730 N.E.2d 646, 651 (Ind. 2000) ("[A] trial court's preliminary, pre-trial ruling is not a proper issue for appellate review."). "Absent either a ruling admitting evidence accompanied by a timely objection or a ruling excluding evidence accompanied by a proper offer of proof, there is no basis for a claim of error." Azania, 730 N.E.2d at 651.
[¶21] Here, Bowling did not object to the State's motion in limine, let alone seek an evidentiary ruling on the matter at trial. In fact, Bowling affirmatively stated at the pretrial hearing that he had no objection to the State's motion in limine. Then on the morning of the first day of trial, while acknowledging that he had "agreed to" not disclose the CI's identity at trial, Bowling sought clarification from the trial court regarding the breadth of the order in limine. Transcript Vol. II at 14. Bowling asserted that he had "no intention of agreeing to a motion in limine where we can't discuss the [CI] and the information he provided to the police and - and the veracity of that information or the reliability of that information." Id. at 14-15. The State argued that such information would be irrelevant, but the trial court made clear that its "preliminary [] order [was] that the name of the [CI] not be disclosed." Id. at 16. In other words, the trial court agreed with Bowling that the order in limine addressed only identifying information.
[¶22] Then at no point during the trial did Bowling ask the trial court to reconsider the preliminary, pretrial order or seek to call the CI as a witness. Rather, Bowling chose a trial strategy that involved challenging the CI's credibility through the testimony of other witnesses, suggesting that the CI planted the methamphetamine in the shed, and arguing to the jury that the State had hidden the CI from the jury and had not called him as a witness to avoid cross-examination by the defense. Over repeated objections from the State, the trial court allowed Bowling to pursue his chosen strategy throughout trial.
[¶23] Bowling's claim that the trial court's order in limine somehow prevented him from presenting his defense that the drugs were planted by the CI and from calling the CI as a witness lacks merit.
[¶24] Judgment affirmed.
Bradford, J. and Felix, J., concur.