


Attorneys for Appellant

Robert W. Rock
Anderson, IN



Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Chris Worden
Deputy Attorney General
Indianapolis, IN



      IN THE
      INDIANA SUPREME COURT


BRIAN MEAGHER,
      Appellant (Defendant below),

      v.

STATE OF INDIANA,
      Appellee (Plaintiff below).


)
)     Supreme Court No.
)     48S00-9804-CR-247
)
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                APPEAL FROM THE MADISON COUNTY CIRCUIT COURT
      The Honorable Fredrick Spencer, Judge
      Cause No.  48C01-9709-CF-183



                              ON DIRECT APPEAL






                                April 3, 2000


SULLIVAN, Justice.

      Defendant Brian Meagher was convicted of  dealing  in  cocaine  within
1,000 feet of a public park.  He was adjudicated  a  habitual  offender  and
sentenced to 80 years.  He appeals his convictions on the  grounds  that  he
received  ineffective  assistance  of  counsel  and  that  the  trial  court
committed reversible  error  in  ruling  on  the  admissibility  of  certain
testimony.  Although we  find  no  ineffective  assistance  of  counsel  and
affirm the rulings of  the  trial  court,  we  find  that  the  trial  court
improperly enhanced Defendant=s sentence.

      This Court has  jurisdiction  over  this  direct  appeal  because  the
longest single sentence exceeds 50 years.  Ind. Const. art.  7,  '  4;  Ind.
Appellate Rule 4(A)(7).


                                 Background


      Suspecting that Defendant was selling a controlled substance from  his
apartment, Robert Peckinpaugh contacted Jack Brooks of  the  Madison  County
Drug Task Force in June,  1997,  and  offered  to  work  as  a  confidential
informant.  He informed Officer Brooks that he  could  arrange  to  purchase
crack cocaine from Defendant who, at the time, lived across the street  from
him.


      Peckinpaugh  arranged  for  three  separate   controlled   buys   from
Defendant.[1]  Each transaction transpired  in  a  similar  manner.   First,
Peckinpaugh arranged a drug purchase  from  Defendant.   He  then  contacted
Officer  Brooks  and  informed  him  of  the  arrangement.   Prior  to  each
transaction, Officer Brooks searched Peckinpaugh to ensure he had no  drugs,
money or weapons  on  his  person.   After  being  fitted  with  a  wireless
transmitter, Peckinpaugh received money from Officer Brooks to purchase  the
drugs  from  Defendant.   The  confidential  informant  then  proceeded   to
Defendant=s apartment and purchased crack  cocaine  from  Defendant.   After
the transaction and  upon  his  return,  Officer  Brooks  conducted  another
search at  which  time  Peckinpaugh  relinquished  the  cocaine  to  Officer
Brooks.

      During the second  and  third  transactions,  after  Peckinpaugh  gave
Defendant the money to purchase crack cocaine, Defendant left his  apartment
and paged someone  from  a  nearby  pay  phone.   Thereafter,  a  dark  blue
Cadillac pulled up in the alley.  Defendant  reached  into  his  pocket  and
handed something to  a  male  passenger  who  gave  Defendant  something  in
return.[2]  Defendant then delivered a zip-lock baggie with  several  pieces
of crack cocaine to Peckinpaugh.


      As a result of these controlled buys, the State charged Defendant with
two counts of dealing in cocaine within 1,000 feet of a  public  park,[3]  a
Class A felony; aiding,  inducing  or  causing  an  offense  of  dealing  in
cocaine,[4] a Class B felony; and maintaining a common nuisance,[5] a  Class
D felony.  The State also charged Defendant  as  a  habitual  offender.    A
jury convicted Defendant on all charges and then found that Defendant was  a
habitual offender.

      The trial court imposed the  maximum  sentence  for  each  dealing  in
cocaine count, and enhanced one of these sentences by  30  years  under  the
habitual offender statute resulting  in  an  80-year  sentence.   The  trial
court also sentenced Defendant to ten years for aiding  in  the  offense  of
dealing cocaine and three  years  for  maintaining  a  common  nuisance  and
ordered  those  sentences  to  be  served  concurrently  with  the   80-year
sentence.



                                 Discussion


                                      I

       Defendant  contends  that  he  was  denied  his  right  to  effective
assistance of counsel guaranteed by the federal and state constitutions.

      We evaluate  Sixth  Amendment  claims  of  ineffective  assistance  of
counsel  by  applying  the  two-prong  test  established  in  Strickland  v.
Washington, 466 U.S. 668 (1984).  See, e.g., Canaan  v.  State,  683  N.E.2d
227, 229 (Ind. 1997), cert. denied, 524 U.S. 906 (1998);  Lowery  v.  State,
640 N.E.2d 1031, 1041 (1994), cert.  denied,  516  U.S.  992  (1995).    The
first prong requires a defendant to demonstrate that  counsel=s  performance
fell below an objective standard of reasonableness in  light  of  prevailing
professional norms.  See id.  To satisfy the  second  prong,  the  defendant
must show that the deficient performance  was  so  prejudicial  as  to  deny
defendant a fair trial.  See Brown v. State, 698 N.E.2d 1132, 1139-40  (Ind.
1998), cert. denied, 119 S. Ct. 1367 (1999).  A defendant is denied  a  fair
trial only when a conviction occurs as the result  of  a  breakdown  in  the
adversarial process rendering the trial result unreliable.  See  Brown,  698
N.E.2d at 1140; Cooper v. State, 687 N.E.2d 350, 353 (Ind.  1997);  Marshall
v. State, 621 N.E.2d 308, 321 (Ind. 1993).


      Defendant contends that his counsel’s  performance  was  deficient  in
failing to object to statements made by  Officer  Brooks.   His  allegations
concerning Officer Brooks’s testimony are that: (1) defense  counsel  failed
to object to hearsay evidence when the officer recounted conversations  with
the confidential informant regarding the controlled  buys,[6]   (2)  defense
counsel failed to  object  to  hearsay  evidence  concerning  the  officer=s
validation  of  the  confidential  informant=s   photo   identification   of
Defendant,[7] and (3) defense  counsel  failed  to  object  to  the  State=s
leading  question  regarding  the  confidential  informant=s  motivation  to
participate with the Drug Task Force.[8]


      The second prong of  the  Strickland  test  may  be  determinative  of
Defendant=s allegations.  Strickland, 466 U.S. at 697 (“If it is  easier  to
dispose of an ineffectiveness claim on the  ground  of  lack  of  sufficient
prejudice, which  we  expect  will  often  be  so,  that  course  should  be
followed.”); Coleman v. State, 703 N.E.2d 1022, 1028 (Ind. 1998).   In  each
complained of instance, the confidential informant provided personal, first-
hand knowledge testimony.  First, the confidential informant explained  when
and how he contacted Officer Brooks after arranging each drug purchase  with
Defendant.   Second,  during  his  testimony,  the  confidential   informant
explained and confirmed his identification of Defendant in the photo  array.
  Finally,  the  informant  personally  testified  that  his  motivation  to
participate in the controlled buys stemmed from his concern that  his  nine-
year-old daughter was living across the street from a Acommon crack  house.@



      In light of the confidential informant=s testimony,  we  do  not  find
that Officer Brooks’s testimony was so prejudicial as to  deny  Defendant  a
fair  trial.   The  complained  of  evidence  was  at  most  cumulative  and
therefore insufficient to establish prejudice.   See  Timberlake  v.  State,
690 N.E.2d 243, 260 (Ind.  1997)  (holding  that  the  defendant  failed  to
demonstrate that he suffered prejudice due to counsel=s  failure  to  object
to various witness statements finding that the evidence was  cumulative  and
innocuous), cert. denied, 525 U.S. 1073  (1999).   Accordingly,  Defendant=s
ineffective assistance of counsel claim fails.









                                     II


      Defendant contends that the trial court committed reversible error  by
curtailing  his  cross-examination  of  the  confidential   informant   when
Defendant attempted to  expose  his  motivation  for  participating  in  the
controlled buys.


      A defendant=s Sixth Amendment right of confrontation requires  that  a
defendant  be  afforded  the  opportunity  to   conduct   effective   cross-
examination of state witnesses in order to test  their  believability.   See
Davis v. Alaska, 415 U.S. 308, 315-16 (1974); Coates v.  State,  534  N.E.2d
1087, 1095 (Ind. 1989); Munn v. State, 505 N.E.2d 782, 784-85  (Ind.  1987).
However, this right is subject to the sound discretion of the  trial  court,
which includes limiting repetitive and unduly harassing interrogation.   See
id;  see  also  Ind.  Evidence  Rule  611(a)  (AThe  court  shall   exercise
reasonable control over the mode and order of interrogating witnesses . .  .
so as to . . . protect witnesses from harassment or undue  embarrassment.@).
 As the Unites States Supreme Court explained in Delaware  v.  Van  Arsdall,
475 U.S. 673 (1986):
           The Confrontation Clause of the Sixth Amendment  guarantees  the
      right of an accused in a criminal prosecution "to be  confronted  with
      the witnesses against him."  The  right  of  confrontation,  which  is
      secured  for  defendants  in  state  as  well  as   federal   criminal
      proceedings, Pointer v. Texas, 380 U.S. 400 (1965), "means  more  than
      being allowed to confront the witness physically."  Davis  v.  Alaska,
      415 U.S. at 315.  Indeed, "  '[t]he  main  and  essential  purpose  of
      confrontation is to secure for the opponent the opportunity of  cross-
      examination.' "   Id. at 315-316 (quoting 5  J.  Wigmore,  Evidence  '
      1395, p. 123 (3d ed. 1940)) (emphasis  in  original).   Of  particular
      relevance here, "[w]e have recognized that the exposure of a  witness'
      motivation in testifying is a proper and  important  function  of  the
      constitutionally protected right of cross-examination."   Davis,  [415
      U.S.] at 316-17 (citing Greene v. McElroy, 360 U.S. 474, 496  (1959)).
      It does not follow, of course, that the Confrontation  Clause  of  the
      Sixth Amendment prevents a trial judge from  imposing  any  limits  on
      defense counsel's inquiry into the potential  bias  of  a  prosecution
      witness.  On the contrary, trial judges retain wide  latitude  insofar
      as the Confrontation Clause is concerned to impose  reasonable  limits
      on such cross-examination based on concerns about, among other things,
      harassment, prejudice, confusion of the issues, the  witness'  safety,
      or interrogation that is repetitive or only marginally relevant.

Id. at 678-79 (emphasis in original).  Only  a  clear  abuse  of  discretion
warrants reversal.   Coates, 534 N.E.2d at 1095.

      Defendant contends he wanted to expose  the  confidential  informant=s
dire financial status B the confidential informant=s inability to  meet  his
obligations B so as to reveal his motivation for working with the Drug  Task
Force.[9]    Defendant’s  offer  of   proof   described   the   confidential
informant=s attempt to sell property to his neighbor because he  needed  the
money to pay his utility bill.[10]  However, the State  introduced  evidence
that  the  confidential  informant  received  $50.00  as  payment  for   his
participation in each controlled buy.   Given  that  the  jury  was  already
presented with evidence that the  confidential  informant  may  have  had  a
financial interest in assisting the Drug  Task  Force,  it  was  within  the
discretion of the trial court  to  conclude  that  further  pursuit  of  his
financial status B particularly his inability to  pay  his  utility  bill  B
would have only served to unnecessarily harass  or  embarrass  the  witness.
As we noted in Thornton v. State, “[P]rohibition of  all  inquiry  into  the
possibility of motive and bias may violate  the  Confrontation  Clause,  but
trial courts are permitted to impose reasonable limits.”   712  N.E.2d  960,
964 (Ind. 1999).  Accord Van Arsdall, 475  U.S.  at  679.   Given  that  the
confidential  informant  testified  to  the  receipt  of  $50.00  for   each
controlled buy, the issue of motivation was already before  the  jury.   The
trial court did not abuse its discretion in excluding Defendant=s  proffered
evidence for motivation.

                                     III



      Defendant next contends that  the  trial  court  committed  reversible
error by permitting a police officer to  testify  that  the  male  passenger
identified in the blue Cadillac pled guilty to the  possession  of  cocaine.
Defendant claims that whether this person was convicted  for  possession  of
cocaine was not relevant to the outcome of his case.

       During  cross-examination  of   Officer   Brooks,   defense   counsel
questioned the officer regarding this individual=s arrest and  charges.   On
re-direct, the State inquired into the resolution  of  those  charges.   The
officer responded that the individual admitted to the possession of  cocaine
in open court.   Defendant  objected  arguing  that  the  State=s  re-direct
exceeded the scope of his cross-examination.[11]
      The scope and extent of re-direct  examination  is  within  the  sound
discretion of the trial court.  See Jones v.  State,  600  N.E.2d  544,  547
(Ind. 1992); Dooley v. State, 428 N.E.2d 1, 6 (Ind. 1981); Kalady v.  State,
462 N.E.2d 1299, 1309 (Ind. 1984).  Absent an abuse of that discretion,  the
trial court=s ruling will not be disturbed.   See  id.   Answering  any  new
matter raised during cross-examination is within  the  scope  of  re-direct.
See Jones, 600 N.E.2d at 547 (citing Kimp v. State, 546  N.E.2d  1193,  1195
(Ind. 1989), transfer denied.).  Further, when a party raises a  subject  on
cross-examination, it is permissible for the opposing party to  pursue  that
subject on re-direct examination.  See Kalady, 462 N.E.2d  at  1309  (citing
Woodford v. State, 273 Ind. 487, 405 N.E.2d 522 (Ind. 1980)).

      The trial court ruled that the State=s question  was  properly  within
the scope of re-direct  because  Defendant  had  raised  the  issue  of  the
individual=s arrest on cross-examination. We agree.  The State  only  sought
to  pursue  the  issue  once  it  was  introduced  by  Defendant.   We  have
previously held that a party may not open an issue and then seek to have  it
closed at the party’s convenience.  See Kalady, 462 N.E.2d at 1309;  Fortson
v. State, 269 Ind. 161, 170, 379 N.E.2d 147, 153  (1978);  Baker  v.  State,
267 Ind. 643, 645, 372 N.E.2d 1174, 1175 (1978).  We do not  find  that  the
trial court abused its discretion in permitting the testimony.

                                     IV


      Defendant contends that the trial  court=s  sentencing  statement  was
inadequate to support the  imposition  of  enhanced  sentences.   The  trial
court imposed enhanced sentences for Dealing in Cocaine[12] and  Maintaining
a Common Nuisance.[13]  However, Defendant contends  that  the  trial  court
failed  to  identify  any  aggravating   circumstances   to   justify   such
enhancements and as such, the sentence was improper.  We agree.

      In general, the legislature has prescribed standard sentences for each
crime, allowing the sentencing court  limited  discretion  to  enhance  each
sentence to reflect aggravating circumstances  or  reduce  the  sentence  to
reflect mitigating circumstances.  When the trial court imposes  a  sentence
other than the presumptive sentence, this Court will examine the  record  to
insure that the court explained its reasons for selecting  the  sentence  it
imposed.  See Archer v. State, 689  N.E.2d  678,  683  (Ind.  1997)  (citing
Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986), reh’g denied.)),  reh’g
denied.  The trial court=s statement of reasons must include  the  following
components:   (1)  identification  of  all   significant   aggravating   and
mitigating circumstances;  (2) the specific reasons that lead the  court  to
find the existence of  each  such  circumstance;  and  (3)  an  articulation
demonstrating that the mitigating and aggravating  circumstances  have  been
evaluated and balanced in determining the sentence.  See Mitchem  v.  State,
685 N.E.2d 671, 678 (Ind. 1997) (citing Jones v.  State,  675  N.E.2d  1084,
1086 (Ind. 1996)).

      Here, the sentencing statement is devoid of any  reasoning  justifying
an  enhanced  sentence.[14]    The  trial  court  failed  to  identify   any
significant aggravating circumstances or point to  any  specific  facts  and
reasons that might have led the trial court to  find  the  existence  of  an
aggravating circumstance.  The failure of the trial  court  to  explain  its
reasons for imposing enhanced sentences was improper. [15]


       Because  the  trial  court  found  no  significant   aggravating   or
mitigating circumstances, we conclude that  the  imposition  of  presumptive
sentences for each guilty offense is appropriate.  We  affirm  the  habitual
offender enhancement and the trial court=s finding  that  the  sentences  on
the four counts should be served concurrently.  Accordingly, we  now  impose
upon Defendant a sentence of 60 years. [16]







                                 Conclusion


      Defendant=s convictions are affirmed; however, the cause  is  remanded
to the trial court  to  amend  the  judgment  in  accordance  with  footnote
sixteen of this opinion.

SHEPARD, C.J., and DICKSON, BOEHM and RUCKER, JJ., concur.
-----------------------
      [1] These transactions took place on June 17, 18 and 23, 1997.

      [2] During  the  second  transaction,  a  female  driver  and  a  male
passenger arrived at Defendant’s apartment building in  the  blue  Cadillac.
During the third transaction, the same male passenger  served  as  the  sole
driver of the blue Cadillac who delivered a package to Defendant.


      [3] Ind. Code § 35-48-4-1(a), (b)(3)(B)(ii) (Supp. 1996).

      [4] Id. §§ 35-41-2-4 (1993) and 35-48-4-1(a).

      [5] Id. § 35-48-4-13(b) (1993).
      [6]  Here, Defendant directs us to two separate exchanges:
      (1)   Q:    What did [the informant] state to you at that time?
           A:    He stated that he had talked to [Defendant].  He  had  set
                 up a buy for later on in the afternoon.
(R. at 191.)
      (2)   Q:    And [the informant] wanted to set up another control buy?
           A:    Yes he did.  He said he had spoke to [Defendant] and  once
                 again he had another deal set up for the evening.
(R. at 239.)

      [7]  Defendant contests the following exchange:
         Q: And which picture did [the confidential informant] pick out?
       A:   He positively identified photo #3 as being the subject he  knew
           as [Defendant] who [sic] me purchased cocaine from.
         Q: And photo #3 is a photo of?
         A: [Defendant].
         Q: The defendant in this cause?
         A: Yes.
(R. at 261.)

      [8] The officer testified as follows:
       Q:   Officer the only other benefit that [the confidential informant]
           received aside from his fifty dollars ($50.00), would be  seeing
           a drug dealer off the streets.
         A: Yes sir.
(R. at 294.)
      [9] Defendant’s offer to prove included testimony of the  confidential
informant’s neighbor:
           Q:    [D]id [the  informant]  ever  personally  try  to  sell  a
           lawnmower to you?
           A:    Yes he did.
           Q:    Was this about in June of [1997]?
           A:    That would be real close.
           Q:    Did he indicate that he had need of money at that time?
           A:    Yes he did.
           Q:    Okay, did he say what he needed the money for?
           A:    Yes he wanted to know if I would be interested  in  buying
                 his lawnmower because  he  needed  the  money  to  pay  his
                 utilities.
           Q:    Did he indicate his utilities might be shut off?
           A:    Yeah.
           Q:    Had you knowledge at one point that he needed money  about
                 the time period because some friend[s] were coming in?
           A:    I let him do some painting in that front apartment because
                 he told me that he needed some extra money that  he  had  a
                 friend coming in from out of town and they were going to go
                 do a little partying.
      (R. at 521-22.)
      [10] Defendant also contends that he was not permitted to testify that
he asked his previous roommates to move out because they were selling  drugs
from his apartment.  Br. of Appellant, at  15-16.   However,  after  careful
review of the record, we find that Defendant was  afforded  the  opportunity
to testify to these very facts.  Additionally, Defendant complains  that  he
was not  permitted  to  ask  the  confidential  informant  whether  he  sold
Defendant his television.  However, during a defense  offer  to  prove,  the
confidential informant denied that this was the  case.   Further,  Defendant
testified that the  confidential  informant  “brought  stuff  over  [to  his
apartment] and traded with people for stuff. . . .”  (R. at 537.)  As  such,
we find these two allegations without merit.
      [11] During defense counsel’s cross-examination of the police officer,
the following colloquy took place:
      Q:    Did you arrest this occupant in this blue Cadillac?
      A:    Yes sir I did.
                             ***
      Q:    Were charges filed?
      A:    Yes sir.
      Q:    What charges were filed?
      A:    Possession of Cocaine, a Class B Felony, because it was enhanced
           within a thousand feet of a public park.
(R. at 270-71.)

      On re-direct, the State posed the following questions:
      Q:    Officer, defense counsel asked  you  a  question  regarding  the
           black male in the Cadillac  about  his  charges.   Was  there  a
           resolution of those charges?
      A:    Yes sir he admitted to possession of cocaine in court.
(R. at 289.)

      [12] Defendant was convicted of two counts of dealing in cocaine.  The
presumptive sentence for Dealing in Cocaine within 1,000 feet  of  a  public
park, a Class A, felony is 30 years with not more than 20  years  added  for
aggravating circumstances.  See Ind. Code §  35-50-2-4  (Supp.  1996).   The
trial  court  imposed  the  50-year  maximum  sentence   on   both   dealing
convictions.

      [13] The presumptive sentence for Maintaining  a  Common  Nuisance,  a
Class D felony, is one and one-half years with not more than  one  and  one-
half years added for aggravating circumstances.  See Ind. Code  §  35-50-2-7
(1993).  The trial court imposed the maximum three-year sentence.


      [14] We note that the trial court commented on the fact that Defendant
dealt cocaine within 1,000 feet of  a  public  park.   (R.  at  685.)    The
offense of dealing  in  cocaine  is  elevated  to  a  class  A  felony  when
committed within 1,000 feet of a public park.   See  Ind.  Code  '  35-48-4-
1(b)(3)(B)(ii).  As such, we consider the fact that Defendant dealt  cocaine
within 1,000 feet of a public  park  a  material  element  of  the  offense.
Accord Walker v. State, 668 N.E.2d 243, 244-46 (Ind. 1996) (by  implication)
(DeBruler, J., dissenting) (concurring with majority  that  dealing  cocaine
within 1,000 feet of a school constitutes a material element of the  crime),
reh’g denied.  AThe mere fact which comprises a material element of a  crime
may not also constitute an aggravating circumstance to support  an  enhanced
sentence, but the particularized individual circumstances may  constitute  a
separate aggravating circumstance.@  Townsend v.  State,  498  N.E.2d  1198,
1201 (Ind. 1986) (emphasis added); Ector v. State,  639  N.E.2d  1014,  1015
(Ind. 1994); Johnson v. State, 687  N.E.2d  345,  347  (Ind.  1997).   Here,
however, the trial court offered no particularized circumstance  with  which
to substantiate an enhanced sentence other than the mere recitation of  this
element B that is, the trial court failed to provide a reasoned  application
of detailed facts to an aggravating circumstance.


      [15]  The State acknowledges: “The State  recognizes  that  the  trial
court enhanced Defendant’s sentences for Dealing in Cocaine and  Maintaining
a Common Nuisance without indicating either during  the  sentencing  hearing
or in its order what aggravating circumstances it found.”  Br. of  Appellee,
at 11.

      [16] The ten-year presumptive sentence for Count I remains  unchanged.
Defendant’s individual sentences are revised  as  follows:   for  Count  II,
dealing in cocaine, a Class A felony, we impose  a  30  year  sentence;  for
Count III, dealing in cocaine, a  Class  A  felony,  we  impose  a  30  year
sentence; for Count IV, Maintaining a Common Nuisance, a Class D felony,  we
impose a one and one-half year sentence.  The habitual offender  enhancement
of 30 years is applied to Count II as ordered by the trial  court.   (R.  at
687.)   As such, Count II is enhanced to 60 years.

