MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 28 2018, 10:32 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darah Mariah Kammerer, February 28, 2018
Appellant-Defendant, Court of Appeals Case No.
82A01-1708-CR-2015
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Plaintiff Judge
Trial Court Cause No.
82C01-1610-F2-5859
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 1 of 12
[1] Darah Kammerer appeals her convictions for Level 2 Felony Dealing in
Methamphetamine,1 Level 6 Felony Possession of a Controlled Substance, 2 and
Level 6 Felony Maintaining a Common Nuisance.3 She argues that the trial
court erred by admitting her statements to police into evidence, that her
sentence was inappropriate in light of the nature of the offenses and her
character, and that the trial court’s sentencing order should be corrected.
Finding no error, that the sentence was not inappropriate, and that the
sentencing order was unclear, we affirm and remand with instructions to clarify
the order as explained herein.
Facts
[2] On October 3, 2016, Evansville police officers executed a search warrant at a
residence owned by Matthew Elliott. After knocking and receiving no answer,
the police forcibly entered the house and found Elliott, Kammerer, and another
man and escorted them outside. During the search, officers found the
following:
• A pipe, scales, baggies, and a purse in the master bedroom, which was
used primarily by Kammerer. Inside the purse, officers discovered a bag
containing a substance used to cut methamphetamine and a document
listing numbers and weights.
1
Ind. Code § 35-48-4-1.1.
2
I.C. § 35-48-4-7.
3
Ind. Code § 35-45-1-5.
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 2 of 12
• A bag in the washing machine containing 37.06 grams of
methamphetamine and a cutting agent.
• A makeup bag, a wooden box, and scales in the kitchen. Inside the bag,
officers discovered several acetaminophen, oxycodone, and hydrocodone
pills and a bag with .09 grams of methamphetamine. Inside the box,
officers recovered another pipe with burnt residue.
[3] At the time of the search, Elliott and Kammerer were dating and Elliott allowed
Kammerer to stay at the house in exchange for methamphetamine. She kept
her things in the master bedroom and the purse and makeup bag belonged to
her. Kammerer supported herself by selling methamphetamine and buyers
would come to the house “a few times a day.” Tr. Vol. IV p. 38. The bag with
37.06 grams of methamphetamine and a cutting agent belonged to both
Kammerer and Elliott, but Elliott testified that Kammerer kept it and used it
more, and that he would normally ask her permission before taking anything
from it. Id. at 36, 47.
[4] During the search, police placed Kammerer in handcuffs and sat her in a lawn
chair across from the house. Detective Robert Schmitt then orally advised
Kammerer of the following:
You have the right to remain silent. If you do say anything, what
you say can be used against you in the court of law. You have
the right to consult with a lawyer and have that lawyer present
during any questioning. If you cannot afford a lawyer, one will
be appointed for you if you so desire. If you choose to talk, you
have the right to stop the interview at any time. Do you
understand these rights I’ve read to you? With these rights in
mind, do you wish to speak with me?
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 3 of 12
Tr. Vol. II p. 32. Kammerer responded that she understood her rights.
[5] Later that same afternoon,4 Detective Joshua Patterson interviewed Kammerer,
who was still sitting across from the house. They had the following exchange:
Q: . . . okay, have you been read any kind of Miranda rights
or anything?
A: Yes, I have.
Q: You have, do you understand those?
A: Yes.
Q: Okay, do you want me to, I’ll . . . go through them with
you again real quick. You have a right to remain silent.
Anything you say can be used in court. You have the right
to talk to an attorney and have them present with you
before any questioning if you wish, however; you can start
answering questions without a lawyer, and at any time you
can stop answering the questions for the purpose of
consulting a lawyer, okay. Do you understand that?
A: Yes, sir.
4
The record does not reveal the amount of time that passed between Detective Schmitt’s advisement and
Detective Patterson’s advisement. It appears that Detective Patterson gave his advisement while the search
was ongoing and the trial court concluded that the two advisements were “very close in time.” Tr. Vol. IV p.
105.
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 4 of 12
Q: Are you okay to talk to me right now, do you agree to talk
to me right now? Like I said, you can stop at any time if
you want to, okay?
A: Okay.
Id. at 14-15. After this exchange, Kammerer admitted to using
methamphetamine but denied knowing about any “substantial amount” of
drugs or who owned them. Tr. Vol. IV p. 108-11.
[6] On October 5, 2016, the State charged Kammerer with one count of Level 2
felony dealing in methamphetamine, two counts of Level 3 felony dealing in a
narcotic drug, and one count of Level 6 felony maintaining a common
nuisance. On January 19, 2017, the State dismissed one of the counts of
dealing in a narcotic drug. On May 1, 2017, Kammerer filed a motion to
suppress, among other things, her statements to Detective Patterson, which the
trial court denied on June 9, 2017. Kammerer’s jury trial took place on June 21
and 22, 2017. At trial, the State moved to introduce Kammerer’s statements to
Detective Patterson into evidence and the trial court admitted the statements
over Kammerer’s objections. On June 22, 2017, the jury found Kammerer
guilty of Level 2 felony dealing in methamphetamine, Level 6 felony possession
of a controlled substance, and Level 6 felony maintaining a common nuisance.
[7] Following a July 27, 2017, sentencing hearing, the trial court sentenced
Kammerer to concurrent terms of twenty years imprisonment for Level 2 felony
dealing in methamphetamine and eighteen months for each of the remaining
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 5 of 12
charges, for an aggregate twenty-year term. The trial court also ordered that the
sentence be served consecutively to another sentence in an unrelated cause.
Kammerer now appeals.
Discussion and Decision
I. Statements to Detective Patterson
[8] First, Kammerer contends that the trial court erred by admitting her statements
to Detective Patterson into evidence because they were made in violation of her
constitutional rights. The decision to admit or exclude evidence lies within the
discretion of the trial court and we will only reverse if its decision was clearly
against the logic and effect of the facts and circumstances before it or if the
court has misinterpreted the law. Carpenter v. State, 786 N.E.2d 696, 702-03
(Ind. 2003).
[9] Miranda warnings are used to secure a defendant’s constitutional right against
self-incrimination. Palilonis v. State, 970 N.E.2d 713, 732 (Ind. Ct. App. 2012);
see also Miranda v. Arizona, 384 U.S. 436, 461 (1966). If the State claims that a
defendant waived this right, the State bears the burden to prove beyond a
reasonable doubt that the waiver was voluntary, knowing, and intelligent. State
v. Keller, 845 N.E.2d 154, 161 (Ind. Ct. App. 2006). Among other things, the
State must establish that the defendant was adequately advised of his rights and
that he understood those rights prior to waiving them. Id. That advisement
must inform a defendant that:
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 6 of 12
he has the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning if he so
desires.
Miranda, 384 U.S. at 479. On appeal, this Court examines the advisement in
light of the totality of the circumstances. State v. Banks, 2 N.E.3d 71, 78 (Ind.
Ct. App. 2014).
[10] Detective Schmitt’s advisement was proper, but she counters that Detective
Patterson’s advisement was deficient and misled her about her rights, rendering
the first advisement “stale.” Appellant’s Br. p. 20 (citing United States v. Pruden,
398 F.3d 241, 246-47 (3rd Cir. 2005)). The record indicates that Detective
Patterson advised Kammerer that: (1) she had the right to remain silent, (2)
anything she said could be used against her in court, (3) she had the right to
speak to an attorney, and (4) she had a right to have an attorney present before
any questioning. Detective Patterson did not, however, expressly advise her
that, if she could not afford an attorney, one would be appointed for her prior to
any questioning and that she had the right to the presence of an attorney during
questioning.5 While Detective Patterson’s advisement was incomplete, under
the totality of the circumstances, these omissions are not fatal.
5
Kammerer also claims that Detective Patterson mischaracterized her right to stop answering questions at
any time because he initially stated that she could stop answering at any time for the purpose of consulting a
lawyer. However, she ignores the fact that, after confirming that she understood her rights and asking if she
wanted to talk, he stated, “Like I said, you can stop at any time if you want to, okay?” Tr. Vol. II p. 14-15.
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 7 of 12
[11] Our Supreme Court has held that a Miranda advisement
need not be repeated if the circumstances surrounding the
interruption or adjournment of the process have not deprived the
suspect of the opportunity to make an informed and intelligent
assessment of his interests involved in the interrogation. The
rationale is that if the interruption is part of a continual effort by
the police to gather information from the suspect, there can be
little doubt as to the suspect’s interests in the matter.
Shane v. State, 615 N.E.2d 425, 427 (Ind. 1993) (internal citations omitted).
[12] Kammerer confirmed that she understood her rights after speaking with
Detective Schmitt and prior to speaking with Detective Patterson. While the
precise length of time between the two advisements is unknown, both
advisements occurred in the same afternoon while police were searching the
house and Kammerer was sitting handcuffed across from the house. Because
the interruption between the advisements was part of a continual effort by
police to gather information, Kammerer was not deprived “of an opportunity to
make an informed and intelligent assessment of [her] interests,” and Detective
Patterson did not need to readvise her of her rights. Ogle v. State, 698 N.E.2d
1146, 1149 (Ind. 1998); see also Owens v. State, 431 N.E.2d 108, 110-11 (Ind.
1982) (holding that defendant did not need to be readvised of his Miranda rights
where he was fully advised and waived his rights twice days before and where,
prior to the interrogation, he was given a “general reminder” of those rights and
he confirmed that he was still aware of them).
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 8 of 12
[13] Moreover, a second, limited advisement does not necessarily undermine an
initial, proper advisement. See, e.g., Grey v. State, 273 Ind. 439, 444-45, 404
N.E.2d 1348, 1351-52 (1980) (holding that, despite evidence that subsequent
advisement was incomplete, evidence of prior complete warnings and
affirmations that defendant understood is sufficient to support a conclusion that
defendant was adequately advised of rights); Brown v. State, 271 Ind. 129, 132,
390 N.E.2d 1000, 1003 (1979) (holding that where the defendant received a full
Miranda warning in Kansas, appeared to understand it, and then received an
incomplete advisement of his rights en route to Indiana, the trial court could
infer a waiver of his Miranda rights). Under these circumstances, we find that
Kammerer was adequately advised of her rights. Therefore, the trial court did
not err by admitting her statements to Detective Patterson into evidence.
II. Appropriateness
[14] Next, Kammerer contends that the length of the sentence imposed by the trial
court is inappropriate in light of the nature of the offenses and her character
pursuant to Indiana Appellate Rule 7(B). We must “conduct [this] review with
substantial deference and give ‘due consideration’ to the trial court’s decision—
since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and
not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d
1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.
2013)) (internal citations omitted).
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 9 of 12
[15] Kammerer was sentenced on three convictions. She was convicted of a Level 2
felony, for which she faced a sentence of ten to thirty years, with an advisory
term of seventeen and one-half years. Ind. Code § 35-50-2-4.5. She received a
twenty-year term to be served concurrently with the other offenses. She was
also convicted of two Level 6 felonies, for each of which she faced a sentence of
six months to two and one-half years, with an advisory term of one year. I.C. §
35-50-2-7(b). She received an eighteen-month sentence on each count with both
to be served concurrently to each other and the other offense. Thus, the trial
court imposed an aggregate term of twenty years. Had the trial court imposed
maximum, fully consecutive terms on all counts, she would have received an
aggregate term of thirty-five years.
[16] With respect to the nature of the offenses, Kammerer supported herself by
selling methamphetamine out of her boyfriend’s house. The police discovered
scales, baggies, pills, and a bag with 37.06 grams of methamphetamine and a
cutting agent in the house. While Kammerer repeatedly characterizes her
crimes as a small, unsophisticated operation meant only to support her own
addiction, Elliott testified that multiple people came over several times a day to
buy methamphetamine and that, on at least one occasion, he witnessed
Kammerer sell an ounce of methamphetamine. Further, the amount of
methamphetamine involved was considerable—enough to last a typical user
five weeks, see tr. vol. IV p. 95 (Detective Patterson testifying that a typical
methamphetamine user takes one gram a day), and over three times the amount
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 10 of 12
required to raise an offense to a Level 2 felony, absent an enhancing
circumstance, see I.C. § 35-48-4-1.1(e).
[17] With respect to Kammerer’s character, she attributes her crimes to addiction
and insists that her history demonstrates that she is not dangerous. However,
the amount of drugs she had, coupled with Elliott’s testimony, indicates that
she was selling more than what she needed to feed her addiction. She also has
a considerable criminal history, spanning two states, including felony
convictions for possession of cocaine, and numerous misdemeanor convictions
for prostitution, theft by deception, and visiting a common nuisance. Further,
while out on bond for the present offenses, she was arrested again and pleaded
guilty to Level 4 felony possession of methamphetamine. While we
acknowledge that she expressed remorse in a letter to the trial court and that her
criminal history has a thirteen-year gap that she claims is a result of her
sobriety, her presentence report indicates that the first time she used
methamphetamine was in 2015 and she has not explained why she began using
a new drug after maintaining sobriety for more than a decade.
[18] In short, we do not find the sentence imposed by the trial court inappropriate in
light of the nature of the offenses or Kammerer’s character.
III. Sentence Clarification
[19] Finally, Kammerer argues that the written sentencing order does not clearly
reflect the trial court’s intent as expressed in the court’s oral sentencing
statement. “When oral and written sentencing statements conflict, we examine
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 11 of 12
them together to discern the intent of the sentencing court. We may remand
the case for correction of clerical errors if the trial court’s intent is
unambiguous.” Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App. 2010)
(internal citation omitted).
[20] In an oral statement, the trial court clearly stated that the charges were to be
served concurrently to each other and consecutively to Kammerer’s sentence in
another cause. Tr. Vol. II p. 61. However, in its written order, the trial court
checked both the “concurrently” and “consecutively” boxes next to each charge
and the description boxes merely list the numbered counts and the other cause
number. It is apparent the trial court was trying to order that the sentences
would run concurrently to one another and consecutively to the sentence in the
unrelated cause, but given the potential for misunderstanding, we remand so
that the order can be clarified.
[21] The judgment of the trial court is affirmed and remanded with instructions to
amend the sentencing order to show that Kammerer’s sentences in the present
case are to run concurrently with each other and consecutively to her sentence
in the other cause.
Riley, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1708-CR-2015 | February 28, 2018 Page 12 of 12
Darah Mariah Kammerer v. State of Indiana (mem. dec.)
Combined Opinion