MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 14 2018, 9:19 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew Bernlohr Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
J. T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Lavon Ackles, December 14, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-846
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Alicia A. Gooden,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G21-1612-F2-46192
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Robert Ackles (Ackles), appeals his conviction for one
Count of dealing in a narcotic drug, a Level 2 felony, Ind. Code § 35-48-4-
1(a)(2); two Counts of possession of a narcotic drug, Level 3 felonies, I.C. § 35-
48-4-6(d); and one Count of possession of a marijuana, a Class B misdemeanor,
I.C. § 35-48-4-11(a)(1).
[2] We affirm.
ISSUE
[3] Ackles presents one issue on appeal, which we restate as the following:
Whether the trial court abused its discretion by denying Ackles’ pretrial motion
to compel the State to disclose the identity of its confidential informant.
FACTS AND PROCEDURAL HISTORY
[4] Between November 1, 2016, and November 3, 2016, Detective Patrick Bragg
(Detective Bragg) and Detective Andrew Deddish (Detective Deddish) of the
Indianapolis Metropolitan Police Department (IMPD), met with a confidential
informant for the “purposes of attempting to purchase methamphetamine from
a male known as ‘Black’ from a residence located “at 1260 King Ave,
Indianapolis, IN 46222.” (Appellant’s App. Vol. II, p. 106). Prior to the buy,
the confidential informant was searched and furnished with “buy money.”
(Appellant’s App. Vol. II, p. 106). The detectives then followed the confidential
informant to the residence located at 1260 King Avenue. Other assisting
detectives strategically parked their vehicles at points to observe the transaction.
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Detective Bragg observed the confidential informant speaking with a man
known to him as Ackles and known to the confidential informant as “Black.”
(Appellant’s App. Vol. II, p. 106). “After approximately 2 minutes, Detective
Bragg and Deddish observed . . . Ackles use a key to open the front door” of the
1260 King Avenue residence. (Appellant’s App. Vol. II, p. 106). Ackles was
inside the house for about “30 seconds,” and when he exited, he “approached
the confidential informant.” (Appellant’s App. Vol. II, p. 106). The
confidential informant thereafter left and met the detectives at a pre-determined
location without making any stops along the way. Reiterating the events of the
controlled buy, the confidential informant informed the detectives that a male,
known to “him/her” as Black, unlocked the front door of the residence and
retrieved “a quantity of methamphetamine in exchange for the IMPD buy
money.” (Appellant’s App. Vol. II, p. 106).
[5] Between November 8, 2016, and November 10, 2016, Detective Bragg met with
the confidential informant to conduct a second controlled buy from Ackles.
After a search, the detectives equipped the confidential informant with buy
money and “an audio transmitting device.” (Appellant’s App. Vol. II, p. 106).
Detectives Bragg and Deddish, and other detectives, followed the confidential
informant to Ackles’ residence at 1260 King Avenue to conduct a surveillance
of the drug transaction. This time, the confidential informant was welcomed
into the residence by an “unknown individual.” (Appellant’s App. Vol. II, p.
108). After approximately five minutes, the confidential informant left Ackles’
house and met the detectives at a predetermined location and gave the
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detectives a “quantity of methamphetamine” that he had purchased from
Ackles. (Appellant’s App. Vol. II, p. 108).
[6] Between November 26, 2016, and November 28, 2016, Detective Bragg met
with the confidential informant to conduct a third controlled buy from Ackles.
As before, the confidential informant was provided with drug money and
outfitted with a wire intercept device. Consistent with the first and second
controlled buys, the detectives followed the confidential informant to Ackles’
residence. The confidential informant was inside Ackles’ house for
approximately eleven minutes, and after the confidential informant left, he/she
met the detectives at a prearranged location. At the location, the confidential
informant stated that Ackles had given him a quantity of methamphetamine in
exchange for the buy money.
[7] On November 29, 2016, Detective Bragg requested a No-Knock Search
Warrant to search the residence at 1260 King Avenue for drugs, buy money,
firearms, and other related items. In the supporting affidavit, Detective Bragg
repeated the three controlled buys and averred that the confidential informant
had seen Ackles with “a firearm and wearing a bullet resistant vest in the past.”
(Appellant’s App. Vol. II, p. 110). Detective Bragg added that during
“controlled buy[s] #2 and #3, the confidential informant stated that . . . Ackles
. . . had a firearm on his lap and two other firearms were observed on separate
tables in the residence.” (Appellant’s App. Vol. II, p. 110). In further support,
Detective Bragg attested that Ackles is “currently on parole” and his “arrest
poses a threat to law enforcement” since he was “more likely to employ
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dangerous measures to avoid apprehension.” (Appellant’s App. Vol. II, p.
110).
[8] On the same day, a magistrate issued the warrant. Prior to the execution of the
warrant and the arrival of other officers and the SWAT team, Detective Bragg
and Detective Deddish conducted a surveillance of Ackles’ home for about two
hours. During that period, the detectives saw two males walk up to the porch
of the 1260 King Avenue residence. The SWAT team arrived at the same time
the men were arriving and ordered the men to lay on the ground. Upon seeing
that, Detective Bragg and Detective Deddish exited their undercover vehicle
and followed the SWAT team inside the house. Ackles and another male were
found inside and escorted out of the house. Although it was about sixty-one
degrees outside, Ackles requested Detective Deddish to hand him a grey
sweatshirt that was on a recliner. When Detective Deddish lifted the
sweatshirt, there was a “Glock .27 pistol” underneath. (Tr. Vol. II, p. 197).
During the search, mail addressed to Ackles was found inside the home. In
several locations inside Ackles’ home, the officers found several controlled
substances which included suboxone, buprenorphine, oxycodone,
hydrocodone, methamphetamine, twenty-two grams of marijuana, and twenty-
eight grams of heroin.
[9] On December 2, 2016, the State filed an Information, charging Ackles with
Count I, dealing in a narcotic drug, a Level 2 felony; Counts II-III, possession
of a narcotic drug, Level 3 felonies, Count IV, possession of methamphetamine,
a Level 5 felony; and Count V, possession of marijuana, a Class B
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misdemeanor. The State also filed an habitual offender charge alleging that
Ackles had accumulated at least two prior unrelated felony convictions.
[10] On August 30, 2017, prior to his trial, Ackles filed a Motion to Reveal the
Identity of the Confidential Informant. Ackles argued that without the identity
of the confidential informant, he was unable to prepare his defense. On the
same day, the State filed its response, arguing that the informant’s role was
minimal in achieving the No-Knock Search Warrant. Specifically, the State
argued, that while it had utilized a confidential informant in the “three
controlled buys that led to the search warrant, [] those buys were not criminally
charged.” (Appellant’s App. Vol. II, p. 94). Further, the State argued that it
did not intend to subpoena the confidential informant to testify against Ackles.
[11] On September 12, 2017, a hearing was conducted on Ackles’ motion. After the
parties’ arguments, the trial court then took the matter under advisement. On
September 22, 2017, the trial court denied Ackles’ motion to compel discovery.
[12] On February 27, 2018, through February 28, 2018, the trial court conducted a
bifurcated jury trial. The first phase of the trial involved all charges except the
habitual offender charge. At the close of the evidence, the jury found Ackles
guilty of Count I, dealing in a narcotic drug, a Level 2 felony; Counts II and III,
possession of a narcotic drug, Level 3 felonies; and Count V, possession of a
marijuana, a Class B misdemeanor. During the second phase, a bench trial was
conducted since Ackles had waived his right to a jury trial. During the hearing,
the State presented evidence of Ackles’ prior unrelated felony convictions in
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relation to the habitual offender charge. At the close of the evidence, the trial
court adjudicated Ackles as a habitual offender.
[13] On March 21, 2018, the trial court conducted a sentencing hearing. The trial
court merged Count III with Count I and then ordered Ackles to serve
seventeen years in the Department of Correction. That sentence was enhanced
by six years due to the habitual offender finding. Also, the trial court sentenced
Ackles to six years for Count II, and 180 days for Count V. Ackles’ sentences
were to run concurrently, for an aggregate sentence of twenty-three years.
[14] Ackles now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[15] Ackles contends that the trial court abused its discretion in denying his pretrial
motion to compel the State to disclose the identity of its confidential informant.
[16] Even before we address Ackles’ claim, we note that “a party waives an issue on
appeal by making no mention at trial of the grounds asserted on appeal.” Cadiz
v. State, 683 N.E.2d 597, 598 (Ind. Ct. App. 1997). Ackles has therefore waived
his claim for review. Ackles did not file an interlocutory appeal from the trial
court’s adverse ruling. Also, during the first phase of Ackles’ trial, the trial
court proceeded without any objections on grounds relating to the confidential
informant’s identity or why that disclosure remained important in the
preparation of Ackles’ defense. Waiver aside, we address his claim.
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[17] In Beville v. State, 71 N.E.3d 13, 19 (Ind. 2017), our supreme court recently held
that
Indiana generally withholds the disclosure of evidence that
reveals an informant’s identity for at least two important policy
reasons—preventing retaliation against informants and ensuring
individuals come forward with information to help law
enforcement. The informer’s privilege, however, is not absolute:
if the accused seeks disclosure, the burden is on him to
demonstrate that disclosure is relevant and helpful to his defense
or is necessary for a fair trial. To meet this burden, the defendant
must also show that he is not merely speculating that the
information may prove useful. If the defendant overcomes his
burden, the burden shifts to the State to present evidence showing
that disclosure is not necessary to the defendant’s case or that
disclosure would threaten its ability to recruit or use [confidential
informants] in the future. Then, with both sides’ evidence, the
trial court must determine whether disclosure is appropriate by
balancing the public interest in encouraging a free flow of
information to the authorities with the defendant’s interest in
obtaining disclosure to prepare his defense. The trial court
should not disclose an informant’s identity to permit a mere
fishing expedition.
(citations and quotation marks omitted).
[18] At the evidentiary hearing, Ackles’ attorney argued that there “was no
compelling need to keep the identity of the informant secret as there has been
no real evidence” that there was a “safety issue.” (Tr. Vol. II, p. 13). Ackles’
attorney continued to argue, “[S]o what we’re asking the [c]ourt to do is order
the State to reveal the confidential informant’s identity to us for the purpose of
discovery so that we can conduct complete discovery on behalf of Mr. Ackles.”
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(Tr. Vol. II, p. 15). On appeal, Ackles argues that the confidential informant’s
role was “neither marginal nor incidental. [It was] central. In withholding the
[confidential informant’s] identity, the trial court abused its discretion and
utterly and materially damaged [his] ability to defend himself.” (Appellant’s
Br. p. 9). The State argues that Ackles’ arguments on appeal are the type of
arguments disfavored by Indiana’s general policy preventing disclosure of an
informant’s identity, and his contentions do not establish how he was
prejudiced by the trial court’s refusal to order disclosure of the confidential
informant’s identity.
[19] Turning to the record, we note that the basis of the No-Knock Search Warrant
for Ackles’ residence at 1260 King Avenue was the information contained in
Detective Bragg’s probable cause affidavit. In Methene v. State, 720 N.E.2d 384,
387 (Ind. Ct. App. 1999), we explained the process of a controlled buy:
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 into the
residence in question. Upon his return he is again searched for
contraband. Except for what actually transpires within the
residence, the entire transaction takes place under the direct
observation of the police. They ascertain that the buyer goes
directly to the residence and returns directly, and they closely
watch all entrances to the residence throughout the transaction.
So long as the “controls are adequate, the affiant’s personal observation of a
controlled buy may be sufficient as grounds for finding probable cause.” Id. at
390.
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[20] Although a confidential informant was used to effectuate the controlled buys of
methamphetamine in November 2016, Detective Bragg outlined sufficient
details in the probable cause affidavit that the controlled buys were valid.
Therefore, we find that the informant’s identity had little relevance because
probable cause to search was not simply based on the uncorroborated
statements or credibility of the confidential informant. Instead, Detective Bragg
stated that he personally observed the controlled buys which provided him
probable cause to search Ackles’ residence. Simply put, the confidential
informant’s statements and/or credibility did not play a substantial role in the
issuance of the No-Knock Search Warrant.
[21] As stated, the informer’s privilege, however, is not absolute: if the accused seeks
disclosure, the burden is on him to demonstrate that disclosure is relevant and
helpful to his defense or is necessary for a fair trial. Beville, 71 N.E.3d at 19. To
meet this burden, the defendant must also show that he is not merely
speculating that the information may prove useful. Id. Here, Ackles did not
meet his burden to show how disclosure of the confidential informant’s identity
would have been relevant and helpful to his defense or was necessary for a fair
trial. While Ackles argues that the informant provided material information
underlying the search warrant affidavit and that without the informant’s
identity, he was unable to prepare his defense, the confidential informant had
little relevance because probable cause to search was not simply based on the
uncorroborated statements or credibility of the confidential informant. As such,
Ackles’ request for disclosure appears to have been simply a fishing expedition,
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and that does not suffice. Ackles did not meet his burden, and therefore the
trial court did not abuse its discretion in denying his pretrial motion to compel
the State to disclose the identity of its confidential informant.
CONCLUSION
[22] Based on the foregoing, we conclude that the trial court did not abuse its
discretion in denying Ackles’ pretrial motion to compel the discovery of the
informant’s identity.
[23] Affirmed.
[24] Vaidik, C. J. and Kirsch, J. concur
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