MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 19 2019, 9:14 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Zachary J. Stock Curtis T. Hill, Jr.
Attorney at Law, P.C. Attorney General of Indiana
Indianapolis, Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dwight Teague, November 19, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-573
v. Appeal from the
Hendricks Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Mark A. Smith, Judge
Trial Court Cause No.
32D04-1608-F2-13
Vaidik, Chief Judge.
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Case Summary
[1] Dwight Teague was tried by a jury in absentia for drug charges stemming from
two controlled buys. When the jury found Teague guilty, defense counsel
stipulated that Teague was a habitual offender. The trial court sentenced
Teague to twenty years enhanced by six years for being a habitual offender.
[2] Teague now appeals, arguing that the trial court erred in admitting drugs from
one of the controlled buys and a video from the other controlled buy and that
we should vacate his habitual-offender adjudication and remand this case for a
new trial on the habitual-offender charge because he did not personally waive
his right to a jury trial on that charge. We find no error in the admission of the
drugs and video. However, we agree with Teague that he is entitled to a new
trial on the habitual-offender charge.
Facts and Procedural History
[3] In August 2016, a confidential informant (CI) working with the Hendricks
County United Drug Task Force set up a drug deal with Teague. On August
17, Teague and the CI made plans to meet in the parking lot of the Plainfield
Walmart. Task-force members met up with the CI at a briefing location, where
the CI was searched, fitted with an audio-video recording device, and given
$880 in buy money. John Maples, a detective with the task force, then drove
the CI to Walmart in an unmarked police car. While they were waiting for
Teague, Detective Maples activated the recording device. When a white car
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arrived at Walmart, the CI got out of the unmarked police car and “flag[ged]” it
down. Tr. p. 128. The CI then got into the backseat of the white car. The CI
was inside the white car for about five minutes. Detective Maples had the CI in
his view “the entire time.” Id. After about five minutes, the CI got out of the
white car and back into the unmarked police car. Once inside the car,
Detective Maples took the drugs from the CI and then deactivated and removed
the recording device from him. Detective Maples kept control of the recording
device. Id. at 133. Subsequent testing revealed that the substance was 11.56
grams of fentanyl.
[4] On August 30, 2016, the CI set up a second drug deal with Teague. This time,
they agreed to meet at a hotel “just off of 70 and 267” in Hendricks County. Id.
at 119. This buy, however, did not occur, as the task force planned on “try[ing]
to do a traffic stop and get [Teague] with the narcotics that way so [they] didn’t
have to” involve the CI. Id.; see also id. at 36 (explaining that the plan was to
make a traffic stop “if” an infraction occurred). Task-force members took up
positions near the hotel while Ben Pyatt, a captain with the Brownsburg Police
Department who often assisted the task force, parked his black Chevrolet Tahoe
in the median of I-70 and waited for Teague’s car to approach from
Indianapolis. Captain Pyatt was given a description of Teague as well as the
possible cars he might be driving. After waiting about two hours, Captain Pyatt
observed a car and a driver that fit the descriptions he was given. Captain Pyatt
noted that this car, which was traveling around 60 to 70 miles per hour, was
following the car in front of it “too closely,” in other words, “you could maybe
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squeeze one car between” the two cars. Id. at 165, 166; see Ind. Code § 9-21-8-
14(b) (“A person who drives a motor vehicle may not follow another vehicle
more closely than is reasonable and prudent, having due regard for the speed of
both vehicles, the time interval between vehicles, and the condition of the
highway.”). Captain Pyatt pulled onto I-70 and followed the car for several
miles. During this time, the car continued following the car in front of it too
closely. As the car “exited onto 267,” Captain Pyatt activated his lights and
pulled it over. Id. at 167. Captain Pyatt didn’t know that the driver of this car
was Teague until he walked up to it. When Captain Pyatt asked Teague to
come back to his Tahoe, he smelled marijuana. As the two of them sat in the
Tahoe, Captain Pyatt could still smell marijuana. After Teague admitted that
he had recently smoked marijuana, Captain Pyatt told him that he was going to
search his car and asked him to step out of the Tahoe so that he could check
him for weapons. Captain Pyatt exited the Tahoe and walked to the front
passenger side to open the door. There, Captain Pyatt saw Teague leaning over
the Tahoe’s center console “messing with something.” Id. at 169. As soon as
Teague exited the Tahoe, Captain Pyatt “reached to where [Teague] had been
messing” and found a bag that contained what he believed to be marijuana and
heroin. Id. The contents of the bag were later examined and found to contain
four smaller bags containing 3.52 grams of marijuana, 13.99 grams of heroin,
7.13 grams of heroin, and 0.35 grams of cocaine. Teague was arrested and
taken to jail, where his photo was taken.
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[5] Thereafter, the State charged Teague with Count I: Level 2 felony dealing in a
narcotic drug (heroin, August 30); Count II: Class B misdemeanor possession
of marijuana (August 30); and Count III: Level 2 felony dealing in a narcotic
drug (fentanyl, August 17). The State also alleged that Teague is a habitual
offender. Teague was released on bond.
[6] Before trial, Teague filed a motion to suppress the drugs found during the
August 30 traffic stop, arguing that “there was no valid reason to stop [his]
vehicle.” Appellant’s App. Vol. II p. 93. The trial court held a hearing on
Teague’s motion immediately before the jury trial was scheduled to begin on
the morning of January 9, 2018. Teague was not present at the beginning of the
hearing, and defense counsel told the court that Teague had just texted him that
he was on his way. During the hearing, Captain Pyatt and a task-force member
testified about the August 30 stop. The trial court denied Teague’s motion to
suppress. Tr. p. 45. When Teague still was not present at 9:05 a.m., the trial
court issued a warrant for his arrest. The court then conducted the jury trial in
his absence.
[7] During trial, Detective Maples testified that he wasn’t “close enough” to
identify Teague at Walmart on August 17. Id. at 133. However, he was later
able to identify Teague from the video taken from the CI’s recording device on
August 17 (Exhibit 3) and comparing that to the photo of Teague taken when
he was arrested on August 30. Detective Maples acknowledged that the date-
and-time stamp on the video was not correct but confirmed that the video was
taken on August 17, 2016. In addition, he noted that the date on the CD and
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the CD case both said August 17, 2016. Id. at 159-60. Detective Maples
explained that they “don’t ever adjust” the date-and-time stamp. Id. at 142; see
also id. at 155 (“I never go into those internal data bases and mess with date and
time because as far as with our investigation we know, we document how we
need it documented. Those we’ve never put in – we’ve never put too much
emphasis on – on that time stamp.”). Teague objected to the admission of
Exhibit 3 on the ground that the State did not properly authenticate the video
pursuant to the silent-witness theory. The trial court overruled his objection
and admitted the exhibit. Id. at 139.
[8] When the jury later informed the trial court that it had reached a verdict, the
court noted that defense counsel had previously indicated that he would
stipulate to the habitual-offender charge in the event the jury found Teague
guilty on one of the felony counts. The court said that it wanted to make sure
that there was “a clear record” that defense counsel was “stipulating on the
habitual count in the event there’s a guilty on either [Count I or III].” Id. at
218. Defense counsel confirmed that he would stipulate. Id. The trial court
then brought in the jury, who found Teague guilty of Counts I-III. The court
entered judgments of conviction on Counts I-III and, “[p]ursuant to counsel’s
stipulation,” found that Teague was a “habitual felony offender.” Id. at 219.
[9] About a year later, in December 2018, Teague was arrested on the warrant. At
the March 2019 sentencing hearing, the trial court sentenced Teague to twenty
years on Count I, enhanced by six years for being a habitual offender, and
concurrent sentences of 180 days on Count II and twenty years on Count III.
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[10] Teague now appeals.
Discussion and Decision
I. Admission of Drugs from August 30 Stop
[11] Teague first contends that the trial court erred in admitting the drugs from the
August 30 traffic stop because the stop was “an unreasonable seizure that
violated the protections of Article 1, Section 11 of the Indiana Constitution.”
Appellant’s Br. p. 9.
[12] It is “well settled that investigative stops, like traffic stops,” are subject to the
protections of Article 1, Section 11. Marshall v. State, 117 N.E.3d 1254, 1261-62
(Ind. 2019), cert. denied. Although police officers may stop a car when they
observe minor traffic violations, “they must do so under Article 1, Section 11’s
strictures.” Id. at 1262. When a defendant challenges the propriety of an
investigative stop under the Indiana Constitution, the burden falls to the State
to show that the police conduct “was reasonable under the totality of the
circumstances.” Id. (quotation omitted). We decide whether a stop was
reasonable under the totality of the circumstances by applying the three-
part Litchfield test, whereby we evaluate: (1) the degree of concern, suspicion, or
knowledge that a violation has occurred; (2) the degree of intrusion the method
of the search or seizure imposes on the citizen’s ordinary activities; and (3) the
extent of law-enforcement needs. Id.; Litchfield v. State, 824 N.E.2d 356, 361
(Ind. 2005).
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[13] On appeal, Teague focuses on the first Litchfield factor. That is, he argues that
Captain Pyatt “had no objective basis for his belief that the driver he stopped . .
. had committed a traffic violation.” Appellant’s Br. pp. 7-8. Teague
acknowledges Captain Pyatt’s testimony that he was driving 60 to 70 miles per
hour on I-70 and that there was just one car length between his car and the car
in front of it; however, he claims that Captain Pyatt had no explanation for
these estimates. We disagree.
[14] Captain Pyatt stopped Teague’s car pursuant to Indiana Code section 9-21-8-
14(b), which provides that “[a] person who drives a motor vehicle may not
follow another vehicle more closely than is reasonable and prudent, having due
regard for the speed of both vehicles, the time interval between vehicles, and the
condition of the highway.” Captain Pyatt, who had been a police officer for at
least fifteen years and had spent many of those years patrolling I-65, I-70, and I-
74, testified that Teague was driving around 60 to 70 miles per hour on I-70 and
that he was following the car in front of it “too closely.” Tr. p. 165. Captain
Pyatt explained that Teague was following so close that “you could maybe
squeeze one car between” Teague’s car and the car in front of it. Id. at 166
(emphasis added). Captain Pyatt not only gauged this distance from his
vantage point on the median, but he also followed Teague for several miles on
I-70, observing that Teague maintained the same speed and short distance. Id.
(Captain Pyatt testifying that when he followed Teague on I-70, they were
driving “between sixty and seventy mile an hour.”). Based on these facts,
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Captain Pyatt had a strong degree of concern or suspicion that Teague was
following too closely in violation of Section 9-21-8-14.
[15] As for the other two Litchfield factors, Teague concedes that the intrusion was
“relatively minor.” Appellant’s Br. p. 10. However, he argues that there was
“no immediate need for the stop given the sting operation in place.” Id. But
Teague doesn’t develop this argument or cite any authority for the proposition
that law enforcement must have further “need” for a traffic stop once they have
observed a traffic violation. We therefore conclude that the August 30 traffic
stop was reasonable under Article 1, Section 11.1 The trial court did not err in
admitting the drugs found during the stop.
II. Admission of Video from August 17 Buy
[16] Teague next contends that the trial court erred in admitting Exhibit 3—the
video from the August 17 buy—because it was not properly authenticated.
Indiana Evidence Rule 901(a) provides that “[t]o satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.” Photographs and videos can be authenticated through either a
1
Teague argues that this case is “very much like” Turner v. State, 862 N.E.2d 695 (Ind. Ct. App. 2007).
Appellant’s Br. p. 11. We disagree. In Turner, a police officer pulled over the defendant for speeding. The
officer, based on his training, estimated the defendant’s speed at fifty-five miles per hour; however, the officer
did not know the speed limit where he stopped the defendant. We found that the stop was not reasonable
under Article 1, Section 11 and held that evidence stemming from the stop was inadmissible. The problem in
Turner was that the police officer did not know the speed limit but pulled over the defendant for speeding.
That problem is not present here.
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witness’s testimony or, in instances in which no witness observed what a
photograph or video portrays, the silent-witness theory. McFall v. State, 71
N.E.3d 383, 388 (Ind. Ct. App. 2017); 13 Robert L. Miller, Jr., Indiana
Practice, Indiana Evidence § 901.209 (4th ed. Aug. 2019 update). Here, because
the CI did not testify at trial and none of the task-force members saw what
happened inside the white car, the State had to authenticate Exhibit 3 using the
silent-witness theory. See Mays v. State, 907 N.E.2d 128 (Ind. Ct. App. 2009)
(although the confidential informant did not testify at trial, the audio/video
recording of the controlled buy was admitted into evidence through the
detective pursuant to the silent-witness theory), trans. denied.
[17] In order to authenticate videos or photographs using the silent-witness theory,
there must be evidence describing the process or system that produced the
videos or photographs and showing that the process or system produced an
accurate result. Ind. Evidence Rule 901(b)(9); see also McFall, 71 N.E.3d at 388.
The authenticating witness is not required to testify that the photograph or
video is an accurate representation of the scene as it appeared in the photograph
or video and, indeed, often could not do so since they were not necessarily there
to observe the scene. Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014). Rather,
“Rule 901(b)(9) requires only that the process or system be described in such a
way as to allow the trier of fact to find that it is more likely than not that the
system produced an accurate result.” 13 Miller at § 901.209.
[18] Here, Detective Maples testified that the CI was fitted with an audio-video
recording device and that he activated the device while they were waiting in the
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Walmart parking lot. When the controlled buy was over and the CI got back
into the unmarked police car, Detective Maples deactivated the recording
device, removed it from the CI, and kept control of it. On appeal, Teague
doesn’t challenge these steps; rather, he claims, without citation to authority,
that the silent-witness theory compels “either that the dates match or that a
better explanation is put forward.” Appellant’s Br. p. 14. At trial, Detective
Maples acknowledged that the date-and-time stamp on the video did not match
the date of the controlled buy—August 17, 2016. However, he said that the
controlled buy indeed occurred on August 17, 2016—as indicated by the date
on the CD and the CD case. Detective Maples explained that he never
“mess[es] with” the internal settings of the recording equipment and that they
don’t “put too much emphasis on . . . [the] time stamp” because they document
the date and time in other ways. Tr. p. 155. Because these facts show that it
was more likely than not that the system produced an accurate result, the trial
court properly admitted Exhibit 3.
III. Habitual-Offender Enhancement
[19] Last, Teague contends that the trial court was required to hold a jury trial on
the habitual-offender charge because it did not get a personal waiver from him
(and in fact could not have done so since he was not present) of his right to a
jury trial on the habitual-offender charge.2 In Saylor v. State, 55 N.E.3d 354
2
The State does not object to Teague raising this issue on direct appeal.
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(Ind. Ct. App. 2016), reh’g denied, trans. denied, this Court held that when a
defendant pleads guilty to a habitual-offender charge, they must personally
waive their right to a jury trial on that charge. The State petitioned for
rehearing in Saylor, which we denied, and then sought transfer, which our
Supreme Court denied. The State acknowledges Saylor but argues that it was
wrongly decided. The State, however, has failed to persuade us that Saylor was
wrongly decided. Accordingly, because Teague did not personally waive his
right a jury trial on the habitual-offender charge, we vacate his habitual-offender
adjudication and remand this case for a new trial on that charge.
[20] Affirmed in part and vacated and remanded in part.
Riley, J., and Bradford, J., concur.
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