MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Mar 29 2017, 10:18 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
David W. Stone, IV                                      Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana

                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Kraig Von Reese Brown,                                  March 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A04-1606-CR-1368
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Mark Dudley, Jr.,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        48C06-1401-FB-147



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017   Page 1 of 12
                                          Case Summary
[1]   At Kraig Brown’s trial for dealing in cocaine, a person who was in jail with

      Brown at the time was called to testify on Brown’s behalf. Under the advice of

      counsel and with the trial court’s approval, the witness invoked his Fifth

      Amendment privilege against self-incrimination. The jury convicted Brown.

      Brown now appeals, arguing that the trial court erred when it accepted the

      witness’s invocation of the privilege against self-incrimination and that, in any

      event, the evidence is insufficient to support his conviction. Finding no error

      and that there is sufficient evidence, we affirm.



                            Facts and Procedural History
[2]   On April 21, 2011, Jerrett Scott purchased cocaine and was later arrested for

      possession of cocaine by the Madison County Drug Task Force. In lieu of

      pressing charges, the Drug Task Force offered Scott a deal to work as a

      Confidential Informant (CI). The CI provided the Drug Task Force with

      Brown’s name and phone number and referred to Brown by his street name,

      “Manman.” Tr. p. 308. The CI stated that Brown was the dealer who had sold

      to him earlier that day. The Drug Task Force had the CI call Brown to set up

      another buy.

[3]   Before conducting a “controlled buy,” Drug Task Force officers conduct a pre-

      buy interview—they search the CI for any drugs, money, or weapons and

      explain the buying process. After the buy is completed, Drug Task Force


      Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017   Page 2 of 12
      officers conduct a post-buy interview—they search the CI for any additional

      drugs, money, or weapons and ask questions about the buy. On April 21, Drug

      Task Force Officer Mark Naselroad conducted the CI’s pre-buy and post-buy

      interviews and provided him with funds to purchase cocaine from Brown.

      During the buy, Drug Task Force officers lost sight of the CI and did not see

      Brown at the buy location. After purchasing the drugs, the CI immediately

      returned to Officer Naselroad’s undercover car and went through the post-buy

      interview.

[4]   The CI performed similar buys for the Drug Task Force on May 5 and May 18,

      going through the pre-buy and post-buy processes for each transaction with

      Officer Naselroad. At the May 5 buy, the CI met with Brown at a Motel 6.

      Officer Naselroad was positioned roughly one block from the motel and could

      not see the drug deal. Drug Task Force Officer Shaun Williams, however,

      provided additional surveillance from an undercover car parked in the motel’s

      parking lot. Officer Williams witnessed the CI walk into room 206 and exit the

      room a short time later. He watched the CI proceed directly from the motel

      room to Officer Naselroad’s car. The CI then gave Officer Naselroad the drugs

      he had just purchased. Officer Williams remained at the motel for a few

      minutes after the CI left and witnessed Brown also exit room 206.1




      1
       Brown maintains that Officer Williams testified that Brown came out of room 212 and not room 206.
      Appellant’s Br. pp. 14-15. Officer Williams testified that he witnessed an unidentified man walk through the
      motel’s parking lot and enter room 212. The man later opened his motel room door and stared at Officer
      Williams, who was still in his car. The unidentified man walked back into room 212 and was not seen again,
      nor was he present in the courtroom. See Tr. pp. 329-30. After Officer Williams testified that he saw Brown

      Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017            Page 3 of 12
[5]   At the May 18 buy, the CI met with Brown in a parking lot. The CI entered a

      van and exited a few minutes later. He proceeded directly from the van to

      Officer Naselroad’s undercover car and handed over the drugs he had just

      purchased. Drug Task Force officers conducting surveillance on the buy did

      not see Brown. After the buy, two officers followed the van and witnessed a

      male and female exit the van. The officers were not able to identify either

      individual.

[6]   After completing the third buy on May 18, Officer Naselroad presented the CI

      with a photo array of pictures of six different individuals, including Brown.

      Officer Naselroad asked the CI if the man who sold him drugs on April 21,

      May 5, and May 18 was in the photo array. The CI identified Brown as the

      dealer on all three dates, circled Brown’s picture, and placed his initials next to

      Brown’s photo. State’s Ex. 7. Brown was later arrested and charged with three

      felony counts of dealing in cocaine. Brown was housed in the Madison County

      Jail while awaiting his trial.


[7]   Before the start of Brown’s jury trial, the CI was transferred from the

      Department of Correction to the Madison County Jail. At the first day of trial,

      the CI testified that he knew Brown, referred to Brown as Manman, and

      identified Brown in the courtroom. The CI further stated that Brown was the




      and the CI leave room 206, the State asked, “Did you see anybody else come out of room 212?” Id. at 332.
      Officer Williams did not correct the prosecutor and answered, “[A]fter the CI came out I sat there like I said
      for approximately five (5) minutes or so before I observed Mr. Brown come out of the room.” Id. at 332-33.
      Read in context, it is clear that Officer Williams was testifying that Brown exited room 206 and not 212.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017               Page 4 of 12
      individual who had sold him cocaine on April 21, May 5, and May 18. He also

      confirmed that he had identified Brown in the photo array provided to him by

      Officer Naselroad.


[8]   At the start of the second day of the trial, Brown presented his attorney with a

      handwritten note from Howard Jones, another inmate at the Madison County

      Jail. The note stated:

              When [the CI] came into E-Block he told me he had been
              incarcerated for 5 years (since 2010/2011). He also said he
              didn’t know you but you looked familiar, thinking he’d shot dice
              with you before. He spoke to me about how the detectives had
              brought him to MCJ to possibly testify against someone. He
              stated that when he was called by the detectives he would tell
              them to “Eat sh*t.” Once he came back from questioning he
              talked about possibly modifying or having his sentence amended
              for an early release. I’m not sure if he really is from Anderson or
              Michigan like he told me. After he was called down to sign some
              papers on 3-21-16, he got on the phone and told the recipient he
              would be getting out within 2 to 6 months. I believe he cut a deal
              for early release to testify against you.


      Def. Ex. A (tendered during offer of proof but not admitted). Defense counsel

      alerted the trial court to the existence of the note and requested that Jones be

      called as a witness. Outside the presence of the jury, Jones was deposed and

      answered questions from both defense counsel and the State. Jones stated that

      he wrote the note for Brown, who he referred to as Manman. He wrote the

      note because, after his purported conversation with the CI, he talked to an

      inmate named “Sticky” (Jones did not know Sticky’s real name), who told

      Jones that the CI was there to testify against Brown. Jones then got ahold of
      Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017   Page 5 of 12
       Brown and told him about his alleged conversation with the CI and wrote the

       note for Brown to give to his attorney. See Tr. pp. 419-20, 424-26, 435-37.


[9]    The jury reconvened in the courtroom, and defense counsel recalled the CI to

       testify. The CI denied ever speaking with anyone about Brown’s case or saying

       that he did not recognize Brown. The CI stated that he did not know anyone

       named Howard Jones and had never met with Jones while in the Madison

       County Jail. He also explained, contrary to Jones’s note, that he had actually

       recognized Brown in the Madison County Jail and, as a result, requested a

       transfer to a different block to ensure that he and Brown would not cross paths.

[10]   Defense counsel then called Jones to testify, but before he could take the stand

       an attorney present on his behalf objected:

               I am representing defense’s next witness Howard Jones
               downstairs in two separate criminal causes. One of those causes
               involves charges substantially similar to this case. Basically a, a
               drug possession with, with potential intent to distribute. . . . I am
               instructing him to take the fifth in regard to this case in fear that
               somehow a door could be opened in which would result [sic] in
               him being examined with regard to the criminal charges pending
               against him and his involvement with those charges and our
               burden is merely to show that there is the risk of that some piece
               [sic] of testimony being elicited from him that would supply a
               link in the chain to his future prosecution. . . . [S]o we believe
               that that is a realistic if not fanciful [sic] based on the charges
               pending against him that they could probe into drug dealing
               activity, kidnapping activity revolved around drug dealing type
               allegations and extortion of another drug dealer.


       Id. at 495-96.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017   Page 6 of 12
[11]   Based on Jones’s deposition and his attorney’s objection, the trial court found

       that Jones had met his burden to invoke his Fifth Amendment privilege against

       self-incrimination. Jones responded to defense counsel’s first question by

       saying, “Based upon advice of counsel I respectfully decline to answer your

       questions and assert my Fifth Amendment.” Id. at 504. He was then dismissed

       as a witness.

[12]   Later, outside the presence of the jury, defense counsel made an offer of proof

       that had Jones testified, his testimony would have been consistent with his

       deposition testimony and the note that he wrote to Brown. The trial court

       accepted the offer, stating, “Court will also show the offer of proof that if

       [Jones] had not invoked the Fifth Amendment privilege his testimony would be

       consistent with [the note] and what he testified to earlier.” Id. at 513.


[13]   After the conclusion of the trial, the jury returned a verdict of not guilty on

       counts I and III (the April 21 and May 18 buys), but it found Brown guilty on

       count II (the May 5 buy). Brown now appeals.



                                 Discussion and Decision
[14]   Brown argues that the trial court erred when it granted Jones’s invocation of his

       Fifth Amendment privilege against self-incrimination and that the evidence is

       insufficient to support his conviction for dealing in cocaine on May 5.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017   Page 7 of 12
                                        I. Fifth Amendment
[15]   The Fifth Amendment to the United States Constitution extends to the States

       through the Fourteenth Amendment. Withrow v. Williams, 507 U.S. 680, 689

       (1993). The Fifth Amendment provides that no person “shall be compelled in

       any criminal case to be a witness against himself.” U.S. Const. amend. V. This

       protection not only applies to a criminal defendant in his own trial but also

       allows any witness “not to answer official questions put to him in any other

       proceeding, civil or criminal, formal or informal, where the answer might

       incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S.

       70, 77 (1973). The Fifth Amendment, however, does not create an unqualified

       privilege for a witness to remain silent. Salinas v. Texas, 133 S. Ct. 2174, 2182-

       83 (2013). “A witness’ constitutional right to refuse to answer questions

       depends on his reason for doing so, and courts need to know those reasons to

       evaluate the merits of a Fifth Amendment claim.” Id. at 2183 (citing Hoffman v.

       United States, 341 U.S. 479, 486-87 (1951)). “When confronted with a witness’s

       assertion of Fifth Amendment rights, the trial court must hold a hearing outside

       the presence of the jury.” Duso v. State, 866 N.E.2d 321, 325 (Ind. Ct. App.

       2007) (citing Ind. Code § 35-37-3-1).

[16]   We review a trial court’s acceptance of a witness’s invocation of the Fifth

       Amendment privilege against self-incrimination for an abuse of discretion. Id.

       “An abuse of discretion occurs when the trial court’s decision is against the

       logic and effect of the facts and circumstances before it.” Montgomery v. State,

       14 N.E.3d 76, 78 (Ind. Ct. App. 2014). “We do not reweigh the evidence, and

       Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017   Page 8 of 12
       we consider only the evidence most favorable to the judgment and the

       reasonable inferences drawn therefrom.” Hale v. State, 992 N.E.2d 848, 852

       (Ind. Ct. App. 2013).

[17]   Brown specifically argues that the risk that Jones would be prosecuted based on

       his testimony is “purely fanciful.” Appellant’s Br. p. 13. In other words, the

       court should not have granted Jones’s invocation of the self-incrimination

       privilege because the threat of Jones’s testimony being linked to his pending

       charges is virtually non-existent. This Court set forth in Duso the standard for

       assessing a witness’s assertion of the self-incrimination privilege:

               [I]n determining whether the answer might so incriminate the
               witness, the court is bound by the statement of the witness as to
               its effect unless it clearly appears from the examination and the
               circumstances before the court that the witness is mistaken in his
               conclusion that the answer will incriminate him, or that the
               witness’ refusal is purely contumacious. A witness is excused
               from answering if the answer would tend to furnish one link in
               the chain of evidence necessary to convict him of a criminal
               charge. The witness is not under any obligation to explain how
               the answer might tend to incriminate him as this would defeat
               the very object of the constitutional provision.


       866 N.E.2d at 325 (quoting Northside Sanitary Landfill, Inc. v. Bradley, 462

       N.E.2d 1321, 1325 (Ind. Ct. App. 1984)). In appraising the witness’s claim, the

       trial court “must be governed as much by [its] personal perception of

       peculiarities of the case as by the facts actually in evidence.” Northside Sanitary

       Landfill, 462 N.E.2d at 1326.



       Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017   Page 9 of 12
[18]   Here, had Jones testified, the State and defense attorney would have been

       allowed to inquire into Jones’s criminal history, including the charges pending

       against him. One of Jones’s charges was “substantially similar” to Brown’s

       charges for dealing in cocaine. Tr. p. 495; see Duso, 866 N.E.2d at 325. During

       his deposition, Jones referred to Brown as Manman, Brown’s street name. The

       State and the defense attorney would have been allowed to inquire into Jones’s

       relationships with both Brown and Sticky, see Ind. Evidence Rule 616, which

       could have opened a door to Jones’s pending charges. Based on the testimony

       Jones provided outside the presence of the jury and the reasons for invoking the

       Fifth Amendment privilege against self-incrimination, it was not clearly

       apparent that Jones’s attorney was mistaken in his conclusion that his answers

       could reasonably incriminate him. The trial court did not abuse its discretion

       when it accepted Jones’s invocation of his Fifth Amendment privilege against

       self-incrimination.2

[19]   We also agree with the State that even if the trial court had erred when it

       accepted Jones’s invocation of his Fifth Amendment privilege, the error would

       have been harmless. Error is harmless when, in light of all the evidence in the

       case, it is sufficiently minor so as not to affect the substantial rights of a party.

       Ind. Appellate Rule 66(A); see Lewis v. State, 34 N.E.3d 240, 248 (Ind. 2015).




       2
         After the trial court granted Jones’s invocation of his Fifth Amendment privilege, Brown’s attorney argued
       that Jones’s deposition testimony should be admitted into the record for the jury, but defense counsel did not
       pursue the issue after the State gave its rebuttal argument for not admitting the deposition. Defense counsel
       did not seek a ruling from the trial court, no ruling was issued, and this argument was not raised on appeal.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017             Page 10 of 12
       Jones’s testimony outside the presence of the jury was that the CI told him that

       he did not know Brown but they had maybe shot dice together. This testimony,

       on its face would be hearsay, see Ind. Evidence Rule 801, but it could be

       admitted to impeach the CI, see Ind. Evidence Rule 608. In other words,

       Jones’s statement would have been admissible not for its truth but rather to

       create doubt regarding the truthfulness of the CI’s prior testimony that he knew

       Brown. However, the CI’s testimony that he knew Brown was further

       supported by Officer Naselroad’s testimony that the CI identified Brown in a

       photo array, provided the Drug Task Force with Brown’s name and contact

       information, and knew Brown’s street name. Additionally, Officer Williams

       testified that on May 5 he witnessed Brown exit motel room 206 mere minutes

       after the CI exited the room. Given the additional evidence to corroborate the

       CI’s testimony that he knew Brown, any error in allowing Jones not to testify

       would have been harmless.


                               II. Sufficiency of the Evidence
[20]   Brown further contends that even if the trial court properly allowed Jones to

       invoke the Fifth Amendment, the evidence is insufficient to support his

       conviction. When reviewing the sufficiency of the evidence, we neither reweigh

       the evidence nor determine the credibility of the witnesses; that role is reserved

       for the factfinder. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). “The

       evidence—even if conflicting—and all reasonable inferences drawn from it are

       viewed in a light most favorable to the conviction.” Id. A conviction will be

       affirmed “if there is substantial evidence of probative value supporting each

       Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017   Page 11 of 12
       element of the crime from which a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt.” Id.


[21]   Specifically, Brown argues that “other than the testimony of [the CI] whom the

       jury did not find credible with respect to the other two buys, there is nothing to

       uphold the conviction beyond the fact that the defendant was at the motel.”

       Appellant’s Br. pp. 14-15. There is sufficient evidence to support the CI’s

       testimony that Brown had sold him cocaine on May 5. Officer Naselroad

       testified about the pre-buy and post-buy interview process and that he

       conducted these interviews with the CI on May 5. When the CI left Officer

       Naselroad’s car his only possession was the money the Drug Task Force had

       provided for him to purchase cocaine. The CI then entered room 206, as stated

       by Officer Williams, and left a few minutes later. The CI proceeded directly

       from room 206 to Officer Naselroad’s car, and his only possession upon arrival

       was cocaine. Officer Williams also testified that he witnessed Brown leave

       room 206 minutes after the CI exited. There is sufficient evidence beyond the

       CI’s testimony to support Brown’s conviction for dealing in cocaine on May 5.

[22]   Affirmed.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017   Page 12 of 12
