Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Nov 25 2013, 5:49 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
MARJORIE LAWYER-SMITH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DORIAN STEPHENS, )
)
Appellant-Defendant, )
)
vs. ) No. 20A05-1304-CR-175
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART CIRCUIT COURT
The Honorable Terry C. Shewmaker, Judge
Cause No. 20C01-1104-FB-12
November 25, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this case, appellant-defendant Dorian Stephens argues that the State violated his
due process rights when it failed to produce its cooperating sources. The State used these
sources in its investigation of Stephens, who was ultimately charged with and convicted
of three counts of Dealing in a Narcotic,1 a class B felony, and one count of Money
Laundering,2 a class D felony. Stephens contends that these cooperating sources were
material witnesses and, therefore, the State’s failure to produce them constitutes a
violation of due process.
Additionally, both Stephens and the State point to an ambiguity in the sentencing
process, as the sentence the trial court announced in its oral sentencing statement differs
from the sentence set forth in the written sentencing order and Abstract of Judgment. In
addition, the State avers that the trial court incorrectly sentenced Stephens to an
additional twenty-year term because of Stephens’s status as an habitual offender.3
We affirm Stephens’s convictions, but remand the cause to the trial court for
sentencing clarification and correction.
FACTS
In March 2011, Undercover Officer 193 (UC 193) with the Elkhart County
Sheriff’s Department witnessed Stephens deliver heroin on three separate occasions. On
March 10, 2011, UC 193 was in a vehicle owned by a cooperating source. Another
1
Indiana Code § 35-48-4-1
2
Indiana Code § 35-45-15-5
3
Indiana Code § 35-50-2-8
2
cooperating source sat in the vehicle. From the front seat, UC 193 witnessed Stephens
deliver heroin to the cooperating source in exchange for money. On March 14, 2011, UC
193 was present to witness an exchange that one of the cooperating sources had arranged
with Stephens. Stephens stepped into the vehicle, and while UC 193 was present,
provided heroin in exchange for money. On March 21, 2011, UC 193 was again in the
backseat of the cooperating source’s vehicle when he witnessed a cooperating source
reach through the vehicle’s window to give Stephens money in exchange for heroin.
On April 4, 2011, the State charged Stephens with three counts of dealing in a
narcotic and one count of money laundering, and on June 7, 2011, the State amended the
charges to add an habitual offender count. Stephens’s trial was bifurcated. The jury
found him guilty on all four felony counts, and, during the second portion of the trial, the
trial court found him to be an habitual offender.
Directly preceding the trial, Stephens made an objection that the State was unable
to produce its two cooperating sources as witnesses, stating that the defense had not had
an opportunity to depose them. Stephens’s attorney stated that he was unsure whether the
defense would have called the cooperating sources as witnesses because he was unable to
depose them, as the State was unable to produce them despite a subpoena. Arguing that
the defense believed the cooperating sources to be material witnesses, the defense
objected to proceeding to trial without the sources. The State responded that it was
unable, despite its efforts, to locate the sources, and that it believed that it could make its
case without them, as it had an undercover police officer who had directly witnessed
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Stephens deliver narcotics. The State also pointed out that Stephens had been aware of
the fact that the cooperating sources were unavailable for months, and yet had not issued
a deposition subpoena for them until five days before the trial. The trial court overruled
Stephens’s objection, and ordered the trial to proceed.
At the sentencing hearing, the trial court orally sentenced Stephens to fifteen years
on each of the class B felony dealing in narcotics counts, to run concurrently, two years
on the class D felony, to run consecutively to the first three counts, and to twenty years
on the habitual offender enhancement, to run consecutively to the other counts for an
aggregate term of thirty seven years.4 However, both the Abstract of Judgment and the
written sentencing order reflect a different sentence of twenty years for the class B
felonies, to run concurrently, to two years and six months for the class D felony, to run
consecutively to the first three counts, and to twenty years for the habitual offender
enhancement, again to run consecutively to the other counts for an aggregate term of
forty-two and a half years.
Stephens now appeals.
4
As is discussed more fully below, the term imposed on an habitual offender finding constitutes an
enhancement of one of the underlying charges. It is improper for the trial court to order the term imposed
on the habitual offender finding as a separate consecutive sentence.
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DISCUSSION AND DECISION
I. Cooperating Sources
Stephens argues that his due process rights were violated when the trial court
overruled his objection and allowed the trial to commence when the State failed to
produce two cooperating sources.
In Indiana, the general policy is to prevent disclosure of a confidential informant’s
identity unless the defendant can demonstrate that disclosure is relevant and helpful to his
defense or is necessary for a fair trial. Shell v. State, 927 N.E.2d 413, 419 (Ind. Ct. App.
2010). The burden of demonstrating the need for disclosure rests with the defendant, and
bare speculation that the informant’s identity may prove useful is not enough to justify
disclosure. Mays v. State, 907 N.E.2d 128, 131 (Ind. Ct. App. 2009). A conviction may
be reversed where the police negligently withhold or destroy material evidence. Ortez v.
State, 165 Ind. App. 678, 333 N.E.2d 838, 841 (1975).
Here, Stephens has shown that the cooperating sources were material witnesses to
each of the drug transfers. Using the same analysis this Court employed in Burst v. State,
it is clear that the level of involvement the confidential sources had in this case
demonstrates their materiality. 499 N.E.2d 1140, 1146. The cooperating sources were
present at, and actively participated in, each of the transfers. Tr. p. 80, 92-93, 101, 103,
158, 167, 211, 220. They were the initial link to Stephens, and they facilitated the
transactions. Id. at 183, 80, 83, 101, 111.
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This Court has reversed convictions when the State actively takes part in putting
an informant beyond the defendant’s reach. Ortez v. State, 165 Ind. App. 678, 333
N.E.2d 838, 847 (1975). In Dorsey v. State, our Supreme Court reversed and remanded
the defendant’s case when the State purposefully helped its informant find his way to
California, and then disobeyed a court order for his production as a witness at trial. 245
Ind. 409, 260 N.E.2d 800, 418 (1970). Likewise, in Ortez, this Court reversed and
remanded the defendant’s criminal conviction where the police removed the informant
beyond the defendant’s reach, refused to produce him for deposition, and there was
evidence the State had maintained contact with the informant. Ortez, 333 N.E.2d at 694.
In Burst, this Court reviewed those decisions, and reversed another criminal conviction
when it found that the State had precluded a defendant from having the benefit of a
material informant’s testimony. Burst, 499 N.E2d at 1147. However, we also limited our
holding in Burst to the facts presented in that case, noting that:
We in no way wish to intimate that the State must babysit informants or
prepare a defendant’s case for him. In cases such as this one, however,
where the state actively makes its “special employee” unavailable to the
defendant and where the defendant demonstrates the materiality of the
“special employee” we must reverse and remand . . . .”
Id. It was clear that this Court’s determination was based on the State’s misconduct.
While Stephens has demonstrated that the cooperating sources were material
witnesses, there is no evidence in the record to show that the State acted in anything but
good faith. Indeed, the State made efforts to procure the cooperating sources, but was
unable to do so. Tr. p. 24, 137-38. Moreover, Stephens was aware for months before
6
trial that the sources were unavailable, and waited until about five days before trial to
subpoena them for deposition. Id. at 24. In other words, there is no evidence
demonstrating that the State purposefully removed these cooperating sources from
Stephens’s reach, and there is no evidence to suggest that the testimony of the
cooperating sources would have been favorable to Stephens. As discussed above, the
State believed that it could make its case without the cooperating sources. In fact, a jury
convicted Stephens on other evidence, including the eyewitness testimony of the
undercover police officer who directly witnessed Stephens deliver heroin to the
cooperating sources. As a result, we conclude that the trial court did not violate
Stephens’s due process rights when it overruled his objection and allowed the trial to
commence without the presence of the cooperating sources.
II. Sentencing
This Court, in reviewing sentences, will examine both the written and oral
sentencing statement to discern the findings of the trial court. McElroy v. State, 865
N.E.2d 854, 589 (Ind. 2007). We will not presume the accuracy of the oral statement, but
examine it alongside the written sentencing statement to assess the conclusions of the
trial court. Id. The court has the option of crediting the statement that accurately reflects
the sentence agreement or remanding for resentencing. Wiley v. State, 712 N.E.2d 434,
446 n.8 (Ind. 1999).
Here, both Stephens and the State point out that the sentence pronounced during
the oral sentencing statement and the sentence reflected in the written sentencing order
7
and Abstract of Judgment are different. At the sentencing hearing, the trial court orally
sentenced Stephens to fifteen years on each count of the class B felony of dealing in
narcotics, to run concurrently, to two years for the class D felony, to run consecutively to
the first three counts, and to twenty years for the habitual offender enhancement, to run
consecutively to the other counts, reflecting an aggregate sentence of thirty-seven years.
However, both the Abstract of Judgment and the written sentencing order reflect a
sentence of twenty years on the class B felony counts, to run concurrently, to two years
and six months on the class D felony, to run consecutively to the first three counts, and to
twenty years on the habitual offender count to run consecutively to the other counts,
reflecting an aggregating resentence of forty-two and one-half years. Such a disparity
does not amount to a simple clerical error, and in reviewing the oral and written
sentencing statements, this Court cannot discern which sentence the trial court meant to
impose.
The State also avers, and we agree, that the trial court erred when it imposed a
separate consecutive twenty-year term on the habitual offender count rather than
enhancing one of the felony convictions. As we pointed out above, our Supreme Court
has consistently held that the determination of habitual offender status cannot be treated
as a separate crime, but rather allows the trial court to enhance the sentence of an
underlying felony. Maul v. State, 467 N.E.2d 1197, 1199 (Ind. 1984). Thus, the trial
court erred when it imposed a separate consecutive sentence for the habitual offender
enhancement, and did not identify which felony it was enhancing.
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III. Conclusion
We conclude that Stephens was not deprived of his due process rights when the
trial court overruled his objection to moving forward with his trial although the State
could not produce the cooperating sources. We therefore affirm Stephens’s convictions.
However, we find that the trial court erred in sentencing Stephens when it 1) sentenced
Stephens differently in the oral and written sentencing statements and 2) provided for a
separate sentence in light of the habitual offender finding. Consequently, we remand this
cause to the trial court to clarify and correct the sentence.
The judgment of the trial court is affirmed in part, reversed in part, and remanded
for further proceedings consistent with this opinion.
NAJAM, J., and CRONE, J., concur.
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