MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 30 2018, 9:13 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Tyrone Grayson Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tyrone Grayson, July 30, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1709-PC-2302
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff. Flowers, Judge
The Honorable James K. Snyder,
Commissioner
Trial Court Cause No.
49G20-1607-PC-26978
Mathias, Judge.
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[1] Tyrone Grayson (“Grayson”) appeals the Marion Superior Court’s denial of his
petition for post-conviction relief. Grayson argues that his trial counsel was
ineffective for failing to challenge the investigatory stop under Article 1, Section
11 of the Indiana Constitution.
[2] We affirm.
Facts and Procedural History
[3] The following facts and procedural history of Grayson’s trial are taken from his
direct appeal:
On February 23, 2014, at approximately 5:20 a.m., Indianapolis
Metropolitan Police Department Officer Jonathan Schultz
(“Officer Schultz”) responded to a dispatch that an anonymous
caller reported a person inside a silver or gray vehicle waving a
firearm at Washington Point Apartments. When Officer Schultz
arrived at the apartment complex, he saw a silver vehicle with its
headlights off parked perpendicular to the parking spots. As the
officer pulled into the parking lot and was driving toward the
vehicle, the vehicle pulled into a parking space. The officer did
not see any other silver or gray occupied vehicles in the parking
lot.
Officer Schultz activated his rear emergency lights and parked his
vehicle at an “angle towards where he was parked at, off to the
side.” Then the officer, who was in full uniform and carrying a
flashlight, approached the driver’s side of the vehicle. The driver
identified himself as Grayson. Officer Schultz asked Grayson if
he lived at the apartment complex, and Grayson stated that he
did not but that his passenger did.
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Next, Officer Schultz mentioned the dispatch about a person
waving a gun. As he continued his conversation with Grayson,
through the open driver’s side window, Officer Schultz observed
the butt of a firearm underneath the driver’s seat between
Grayson’s feet. Officer Schultz asked if any firearms were in the
vehicle, and Grayson stated that there were not, a statement that
was clearly a lie, based on Officer Schultz’s personal observation.
At about this time, Officer Michael Wagner–Gilbert (“Officer
Wagner–Gilbert”) who also responded to the dispatch, arrived on
the scene and approached the passenger side of the vehicle.
Officer Schultz then asked Grayson to step out of the vehicle. He
asked Grayson if he had a permit to carry a firearm, and Grayson
replied that he did not.
Officer Schultz asked if he could look through the vehicle, and
Grayson gave the officers permission to search. Officer Schultz
placed Grayson in handcuffs and walked him to the rear of the
vehicle. Officer Wagner–Gilbert looked into the driver’s side of
the vehicle and, like Officer Schultz, Officer Wagner–Gilbert saw
the butt of the firearm underneath the driver’s seat. Officer
Wagner–Gilbert removed the firearm from the vehicle and placed
it in an evidence bag. After he determined that Grayson had prior
felony convictions, Officer Schultz arrested Grayson for unlawful
possession of a firearm by a serious violent felon. The passenger
in Grayson’s vehicle was released at the scene.
Grayson was subsequently charged with Class B felony unlawful
possession of a firearm by a serious violent felon. Prior to trial,
Grayson filed a motion to suppress the firearm found during the
warrantless search. A hearing was held on the motion on August
6, 2014. In his post-hearing memorandum, Grayson claimed that
the officer lacked reasonable suspicion to conduct a Terry stop
and that he was not advised of his Pirtle rights before the vehicle
was searched. In its response to Grayson’s arguments, the State
conceded that Grayson was in custody when Officer Schultz
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“pulled his marked police vehicle up behind the silver vehicle
that Grayson was operating.” However, the court concluded that
the officer had reasonable suspicion to believe criminal activity
had occurred, and Pirtle warnings were not necessary because
Officer Schultz had probable cause to search the vehicle after
seeing the handgun between Grayson’s feet.
Grayson’s bench trial was held on March 11, 2015. Grayson
objected to the admission of the firearm for the reasons raised in
the motion to suppress, and he also argued that the investigatory
stop was unreasonable because it was based solely on an
anonymous tip. Specifically, Grayson argued that the
anonymous caller only reported a person waving a gun in a silver
vehicle at the apartment complex and did not provide his or her
name or address. The trial court overruled the objection and
found Grayson guilty of Class B felony unlawful possession of a
firearm by a serious violent felon. The trial court ordered him to
serve twelve years executed in the Department of Correction.
Grayson v. State, 52 N.E.3d 24, 25–26 (Ind. Ct. App. 2016) (internal citations
omitted), trans. denied.
[4] On direct appeal, Grayson argued that the trial court abused its discretion when
it admitted into evidence the handgun discovered during a warrantless search of
his vehicle. He raised the issue under the Fourth Amendment protection against
warrantless searches and seizures, but did not raise the issue under Article 1,
Section 11 of the Indiana Constitution. This court concluded that Officer
Schultz had reasonable suspicion to conduct the investigatory stop. Therefore,
the trial court did not abuse its discretion when it admitted the handgun into
evidence at trial. Id. at 30.
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[5] On January 4, 2017, Grayson filed a pro se petition for post-conviction relief. In
his petition, Grayson argued that he was denied effective assistance of counsel
when his trial counsel failed to challenge the stop under Article 1, Section 11 of
the Indiana Constitution.
[6] At the post-conviction hearing held on March 3, 2017, Grayson’s trial counsel
testified that she should have raised Article 1, Section 11 of the Indiana
Constitution as a basis for suppressing the evidence, and that she did not have a
strategic reason for failing to raise the issue. See PCR Tr. p. 10. Appellate
counsel submitted an affidavit, which stated that had the Article 1, Section 11
argument been preserved, she “would have raised it on appeal.” Ex. Vol. I.,
Petitioner’s Ex. 1, p. 7. And she was of the opinion that “there can be no
legitimate or strategic reason for arguing against the admission of the evidence
in this case on Fourth Amendment grounds but not based on Article 1,
[Section] 11.” Id. at 8.
[7] On July 17, 2017, the post-conviction court issued its findings of facts and
conclusions of law. The court ultimately found:
[U]nder the totality of the circumstances, [. . .] Grayson has not
met his burden, by a preponderance of the evidence, to show
that, had [trial counsel] argued for suppression of the evidence
under Article 1[,] Section 11, there is a reasonable probability
that the result of the proceedings would have been different.
Appellant’s App. Vol. II, pp. 87–88. Accordingly, the post-conviction court
denied Grayson’s petition for post-conviction relief. Grayson now appeals.
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Standard of Review
[8] The post-conviction petitioner bears the burden of establishing grounds for
relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,
562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a
petition for post-conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. On appeal, we neither reweigh
evidence nor judge the credibility of witnesses. Id. Therefore, to prevail,
Grayson must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction
court. Id.
[9] Where, as here, the post-conviction court made specific findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we
must determine if the court’s findings are sufficient to support its judgment.
Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947
N.E.2d 962. Although we do not defer to the post-conviction court’s legal
conclusions, we review the post-conviction court’s factual findings for clear
error. Id. Accordingly, we will consider only the probative evidence and
reasonable inferences flowing therefrom that support the post-conviction court’s
decision. Id.
[10] A claim of ineffective assistance of trial counsel here requires a showing that:
(1) Grayson’s trial counsel’s performance was deficient by falling below an
objective standard of reasonableness; and (2) that the deficient performance
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prejudiced Grayson such that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Failure to satisfy
either of the two elements will cause the claim to fail. French v. State, 778
N.E.2d 816, 824 (Ind. 2002). And when it is easier to dispose of an
ineffectiveness claim on the lack of prejudice, then this is the course we should
follow. Trujillo v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011).
Discussion and Decision
[11] Grayson argues that his trial counsel’s performance was deficient when she
failed to raise Article 1, Section 11 of the Indiana Constitution as a basis to
suppress evidence, and that he was prejudiced by the deficient performance. See
Appellant’s Br. at 18. 1
I. Ineffective Assistance of Trial Counsel
[12] Grayson is entitled to post-conviction relief only if raising an objection under
Article 1, Section 11 would result in “a reasonable probability that, but for
counsel’s [failing to raise Article 1, Section 11], the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. We need not consider
1
Grayson also argues that the post-conviction court erred in denying his relief by failing to address his Sixth
Amendment confrontation claim. However, the issue was available at the time of Grayson’s direct appeal,
and therefore, may not be raised in post-conviction proceedings. See Ind. Post-Conviction Rule 1(b) (stating
post-conviction relief “is not a substitute for a direct appeal from the conviction and/or the sentence”).
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whether trial counsel’s performance was deficient because we can dispose of
Grayson’s claim under the prejudice prong of Strickland.
[13] As we noted above, the trial court and our court rejected Grayson’s challenge to
the stop on Fourth Amendment grounds. Although the language of Article 1,
Section 11 of the Indiana Constitution tracks the Fourth Amendment verbatim,
Indiana courts have explicitly rejected the “expectation of privacy” as a test of
the reasonableness of a search and seizure. Litchfield v. State, 824 N.E.2d 356,
359 (Ind. 2005).
[14] Rather, the legality of a governmental search under the Indiana Constitution
turns on an evaluation of the reasonableness of the police conduct under the
totality of the circumstances. Id. (citing Moran v. State, 644 N.E.2d 536, 539
(Ind. 1994)). Although there may well be other relevant considerations under
the circumstances, the reasonableness of a search or seizure turns on a balance
of: (a) the degree of concern, suspicion, or knowledge that a violation has
occurred, (b) the degree of intrusion the method of the search and seizure
imposes on the citizen’s ordinary activities, and (c) the extent of law
enforcement needs. Id. at 361.
A. The Degree of Concern, Suspicion, or Knowledge
[15] Officer Schultz testified he received a dispatch regarding “a person in a [silver]
vehicle waiving [sic] a firearm.” Trial Tr. pp. 8–9. The dispatch also included
the address of the vehicle’s location. It was five o’clock in the morning,
Grayson’s vehicle was the only silver vehicle in the parking lot, and Grayson
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was parked perpendicular to the marked parking spaces. When Officer Schultz
approached the vehicle, he was in full uniform, driving his marked police car,
and used a flashlight as he approached Grayson’s vehicle. Officer Schultz
testified that he saw the firearm “placed underneath the driver seat, in between
[] Mr. Grayson’s legs.” Id. at 17–18. Officer Schultz asked Grayson if there was
a firearm in the vehicle. Grayson lied and said there was not. Officer Schultz
then asked Grayson if he had a permit to carry a firearm, which Grayson stated
he did not. Seeing the gun in plain sight reasonably raised Officer Schultz’s
knowledge and suspicion that a violation had occurred. Further, Officer
Wagner-Gilbert also testified that upon arriving to the scene, he “observed [] a
gun handle sticking out from the bottom of the driver’s seat . . . between
[Grayson’s] legs.” Id. at 31. Based on this testimony, we conclude that the
officers had a reasonable degree of concern, suspicion, and knowledge that a
violation had occurred.
B. The Degree of Intrusion
[16] In the instant case, the degree of intrusion was minimal. As Officer Schultz
approached Grayson’s parked vehicle, the window was already down, which
allowed the handle of Grayson’s firearm to be seen in plain sight. The actual
intrusion of Officer Schultz’s search of the vehicle did not occur until after he
saw the handle of the gun. Upon seeing the gun, officer safety was implicated
and warranted Officer Schultz’s temporary detainment of Grayson while the
vehicle was searched.
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C. The Extent of Law Enforcement Needs
[17] Here, the police officers received a tip that an individual was waving a gun
around in his vehicle. The officers responded with the goal of protecting the
public from potential gun violence. The need to ensure public safety from gun
violence is paramount and is more than reasonable with regard to the extent of
law enforcement needs.
D. Totality of the Circumstances
[18] It is well-settled that “[a] healthy, civil society is most robust when it feels safe
and when that feeling of safety is validated through interaction with vigilant
and responsive law enforcement engaged in the important business of policing
neighborhoods within a community.” Brown v. State, 62 N.E.3d 1232, 1238
(Ind. Ct. App. 2016) (quoting R.H. v. State, 916 N.E.2d 260, 268 (Ind. Ct. App.
2009) (Mathias, J., concurring)), trans. denied. Officer Schultz reasonably
suspected that a violation had occurred, the degree of intrusion was minimal,
and protecting the public from gun violence is a paramount concern of law
enforcement. Therefore, under the totality of these circumstances, Officer
Schultz’s conduct was reasonable.
Conclusion
[19] Accordingly, the outcome of Grayson’s case under Article 1, Section 11 of the
Indiana Constitution is the same as its federal counterpart, the Fourth
Amendment. Therefore, Grayson has failed to establish that he was prejudiced
by his trial counsel’s failure to raise an argument under the Indiana
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Constitution, and his claim for ineffective assistance of counsel fails the
prejudice prong of Strickland and thus, as a whole. See French, 778 N.E.2d at 824
(Ind. 2002).
[20] For all of these reasons, we conclude that the post-conviction court did not err
in denying Grayson’s petition for post-conviction relief.
[21] Affirmed.
Riley, J., and May, J., concur.
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Tyrone Grayson v. State of Indiana (mem. dec.)
Combined Opinion