MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                         Sep 08 2017, 7:29 am

the defense of res judicata, collateral                                   CLERK
estoppel, or the law of the case.                                     Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Peter D. Todd                                            Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana
                                                         Katherine M. Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel R. Rose,                                          September 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1703-CR-641
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1610-F4-48



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017       Page 1 of 11
                                             Case Summary
[1]   Following a jury trial, Daniel R. Rose (“Rose”) was convicted of (1) Unlawful

      Possession of a Firearm by a Serious Violent Felon, as a Level 4 felony; 1 (2)

      Possession of Methamphetamine, as a Level 4 felony;2 and (3) Possession of

      Marijuana, as a Class B misdemeanor.3 Rose now appeals, raising a single

      issue which we restate as whether the trial court erred in restricting his cross-

      examination of a witness and thereby deprived him of a fair trial.


[2]   We affirm.



                                  Facts and Procedural History
[3]   On September 29, 2016, the Elkhart County Interdiction and Covert

      Enforcement Unit (“ICE Unit”) was conducting surveillance related to a

      possible firearm transaction and began observing a truck driven by Douglas

      Flick (“Flick”) in which Rose was a passenger. At some point, Flick and Rose

      met with Courtney Fox (“Fox”) and got into a vehicle that she had been

      driving. In doing so, Rose brought a black backpack with him. Flick sat in the

      driver’s seat, Fox was in the front passenger seat, and Rose sat behind Fox.


[4]   Flick began driving and the vehicle was followed by Sergeant Jack Oldroyd

      (“Sergeant Oldroyd”) of the Elkhart Police Department who was assigned to


      1
          Ind. Code § 35-47-4-5(c).
      2
          I.C. §§ 35-48-4-6.1(a), -(c)(2).
      3
          I.C. § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017   Page 2 of 11
      the ICE Unit. Sergeant Oldroyd observed Flick commit two traffic violations

      and subsequently initiated a traffic stop. As Sergeant Oldroyd approached the

      vehicle, Rose leaned to the left as though he was reaching for something. Rose

      then bent forward and reached toward the floor in front of him. Rose’s actions

      appeared furtive and Sergeant Oldroyd called for backup.


[5]   An eventual search of the vehicle revealed several items of contraband. There

      was a 9mm handgun under the front passenger seat as well as a zippered case

      that contained methamphetamine and marijuana in red-striped Ziploc baggies.

      To the left of where Rose had been sitting, there was a black backpack that

      contained 9mm ammunition and empty baggies of the same red-striped style.


[6]   In addition to these items, law enforcement located a red bag that Flick claimed

      as his. The bag contained another handgun and methamphetamine. Fox also

      relinquished fifty Oxycontin pills. Additionally, law enforcement located a

      woman’s jacket in the backseat, under the black backpack, that contained

      nearly thirty grams of methamphetamine.


[7]   The State charged Rose with possessing the contraband located under Fox’s

      seat and a jury found Rose guilty. Rose now appeals.



                                 Discussion and Decision
[8]   Rose argues that the trial court erred in prohibiting him from eliciting certain

      testimony and that the error deprived him of the right to a fair trial under the



      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017   Page 3 of 11
      United States Constitution.4 “A trial court has broad discretion in ruling on the

      admissibility of evidence and we will disturb the court’s ruling only where it is

      shown the court abused that discretion. ‘But where, as here, a constitutional

      violation is alleged, the proper standard of appellate review is de novo.’”

      Leonard v. State, 73 N.E.3d 155, 168 (Ind. 2017) (citation omitted) (quoting

      Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013), cert. denied).


[9]   The Due Process Clause of the Fourteenth Amendment to the United States

      Constitution guarantees criminal defendants the right to a fair trial, and the

      basic elements of a fair trial are defined largely through provisions of the Sixth

      Amendment. See Strickland v. Washington, 466 U.S. 668, 684-85 (1984). Among

      a defendant’s Sixth Amendment rights is the right of confrontation that serves

      the essential purpose of securing the opportunity to conduct cross-examination.

      Davis v. Alaska, 415 U.S. 308, 315 (1974). Moreover, the Fourteenth

      Amendment and the Sixth Amendment collectively “guarantee[] criminal

      defendants ‘a meaningful opportunity to present a complete defense.’” Crane v.

      Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S.

      479, 485 (1984)). That is, a criminal defendant has “the basic right to have the

      prosecutor’s case encounter and ‘survive the crucible of meaningful adversarial

      testing.’” Id. at 690-91 (quoting United States v. Cronic, 466 U.S. 648, 656

      (1984)); see also Strickland, 466 U.S. at 685 (“[A] fair trial is one in which

      evidence subject to adversarial testing is presented to an impartial tribunal for



      4
          Rose makes no argument under the Indiana Constitution.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017   Page 4 of 11
       resolution of issues defined in advance of the proceeding.”). Nonetheless, “[a]

       criminal defendant does not enjoy an unlimited constitutional right to offer

       exculpatory evidence.” Hubbard v. State, 742 N.E.2d 919, 922 (Ind. 2001).

       Rather, when


               the defendant’s Sixth Amendment right to present a defense
               collides with the State’s interest in promulgating rules of evidence
               to govern the conduct of its trials, the merits of the respective
               positions must be weighed, [and] the State’s interest must give
               way to the defendant’s rights if its rules are “mechanistically”
               applied to deprive the defendant of a fair trial.


       Id. (quoting Huffman v. State, 543 N.E.2d 360, 375 (Ind. 1989), overruled in part

       on other grounds, Street v. State, 567 N.E.2d 102 (Ind. 1991)).


[10]   At trial, the primary defense theory was that Fox put the contraband under her

       seat. While conducting cross-examination, Rose sought to elicit testimony

       concerning Fox’s relationship with law enforcement, including her work as a

       confidential informant. Rose also sought to elicit testimony that when Sergeant

       Oldroyd initiated the traffic stop, Fox called an officer from the ICE Unit on

       her cellphone—an officer who later responded to the scene and testified against

       Rose. When the State objected to these lines of cross-examination, Rose argued

       that the testimony would cast doubt on Fox’s credibility and be indicative of

       bias, particularly because Fox was not immediately arrested for possessing the

       pills and was not questioned about the methamphetamine in the woman’s

       jacket for which no one was ever charged. The trial court sustained the State’s

       objection, concluding that the testimony was not relevant under the totality of

       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017   Page 5 of 11
       the circumstances. In doing so, the trial court also expressed concern that “the

       harm that could result to the . . . witness on the stand [was] substantially greater

       than any benefit that c[ould] be derived from the defense asking the witness to

       disclose, public[ly], who she spoke with during th[e] stop.” Tr. Vol. III at 77.


[11]   “The partiality of a witness is subject to exploration at trial, and is always

       relevant as [to] discrediting the witness and affecting the weight of his

       testimony.” Davis, 415 U.S. at 316 (quotation marks omitted). Indeed, “the

       exposure of a witness’ motivation in testifying is a proper and important

       function of the constitutionally protected right of cross-examination.” Id.

       Moreover, “without knowing [a] witness’ status as an informant, ‘the jury

       d[oes] not have the necessary information from which to make a meaningful

       evaluation’” of the witness’ credibility. Standifer v. State, 718 N.E.2d 1107, 1110

       (Ind. 1999) (quoting Janner v. State, 521 N.E.2d 709, 716 (Ind. Ct. App. 1988)).


[12]   Here, Rose was entitled to elicit testimony concerning Fox’s work as a

       confidential informant, a role that bore on her credibility as a State witness.

       Thus, the closure of these lines of questioning offended Rose’s right of cross-

       examination. Nevertheless, when a trial court limits cross-examination in

       violation of this right, a “conviction will be sustained only if the error is

       harmless beyond a reasonable doubt.” McCorker v. State, 797 N.E.2d 257, 266

       (Ind. 2003); see also McCarthy v. State, 749 N.E.2d 528, 534 (Ind. 2001).


               Whether the trial court’s error is harmless depends on several
               factors including “the importance of the witness’ testimony in the
               prosecution’s case, whether the testimony was cumulative, the

       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017   Page 6 of 11
               presence or absence of evidence corroborating or contradicting
               the testimony of the witness on material points, the extent of
               cross-examination otherwise permitted, and, of course, the
               overall strength of the prosecution’s case.”


       Standifer, 718 N.E.2d at 1111 (quoting Delaware v. Van Arsdall, 475 U.S. 673,

       684 (1986)).


[13]   In arguing that the error rendered his trial fundamentally unfair, Rose likens

       this case to Chambers v. Mississippi, 410 U.S. 284 (1973), wherein a defendant

       had been prohibited from eliciting testimony that a third party had confessed,

       on several occasions, to committing the murder for which the defendant was on

       trial—potential evidence that the United States Supreme Court deemed critical

       enough to warrant a new trial. Here, however, the testimony Rose sought to

       elicit was not as critical nor did Fox play a vital role in the prosecution of the

       case. Disregarding all testimony from Fox, the evidence indicates that law

       enforcement saw Rose bring a black backpack into the vehicle. When Sergeant

       Oldroyd initiated the traffic stop, Rose made furtive movements to the left—

       toward the area the backpack was found—and then toward the floor in front of

       him. Police found the handgun, methamphetamine, and marijuana in the area

       where Rose had reached, and the drugs were located in plastic baggies of the

       same style as those in the black backpack, which also contained ammunition.

       The drugs found elsewhere in the vehicle were in different kinds of baggies.


[14]   Ultimately, this case turned on whether Rose concealed the contraband. At

       trial, Rose had ample opportunity to cross-examine a witness who testified that


       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017   Page 7 of 11
       because of the configuration of the area underneath the seat and the presence of

       trash wedged from the front, a front-seat passenger would be unable to slide the

       handgun and zippered case to the back of the under-seat area. Rose also

       elicited testimony regarding the potentially exculpatory position of the

       handgun, which was located with the grip closer to the front of the seat. There

       was also potentially exculpatory testimony that Fox had access to the vehicle

       and that Flick had recently loaned the vehicle to several others. Additionally,

       Rose elicited testimony that he did not leave his residence with a backpack and

       he testified to leaning to the left only to retrieve his wallet.


[15]   In light of the strength of the State’s case independent of Fox’s testimony as

       well as the extent to which Rose was able to meaningfully cross-examine the

       testimony central to the prosecution, we conclude that the limitation of cross-

       examination amounted to error that was harmless beyond a reasonable doubt. 5



                                                  Conclusion
[16]   Although Rose’s right of cross-examination was violated when the trial court

       limited inquiry into the potential bias of a State witness, the error was harmless

       beyond a reasonable doubt and therefore Rose was not deprived of a fair trial.


       5
         In addition to arguing that the trial court erred in limiting cross-examination concerning Rose’s status as an
       informant, Rose argues that he was improperly restrained from eliciting testimony concerning “the specifics
       of the plea agreement she secured related to her involvement in this case.” Appellant’s Br. at 10. However,
       the trial record indicates that Rose’s counsel knew that the agreement related to methamphetamine charges
       Fox faced prior to the instant traffic stop and there is no indication—through an offer of proof or otherwise—
       that Fox received any benefit related to the instant case. Nonetheless, for the reasons discussed herein, we
       conclude that any error in the curtailment of cross-examination concerning Fox’s credibility was harmless
       beyond a reasonable doubt.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017            Page 8 of 11
[17]   Affirmed.


       Altice, J., concurs.
       Baker, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017   Page 9 of 11
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Daniel R. Rose,                                          Court of Appeals Case No.
                                                                20A03-1703-CR-641
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Baker, Judge, dissenting.


[18]   I respectfully dissent. I agree with the majority that Rose should have been

       permitted to elicit testimony regarding Fox’s work as a confidential informant

       and her relationship with law enforcement. I respectfully disagree that the

       ruling prohibiting this evidence from admission was harmless error.


[19]   I acknowledge the evidence in the record regarding Rose’s backpack and his

       movements in the vehicle after the traffic stop was initiated. In my view, this

       evidence does not rise to the extremely high bar required to conclude that the

       erroneous limitation of Fox’s cross-examination was harmless beyond a

       reasonable doubt.



       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017   Page 10 of 11
[20]   Witness bias is always relevant and important, especially in a case such as this

       where the evidence of the defendant’s guilt is not overwhelming and where the

       key witness has an undisclosed relationship with law enforcement. The jury

       should have been permitted to assess Fox’s credibility in light of her status as a

       confidential informant. Likewise, it should have been permitted to consider the

       overall situation and Rose’s guilt or innocence given the relationship between

       Fox and the law enforcement community. It may well have been the case that

       the jury would have convicted Rose anyway, but I cannot reach that conclusion

       beyond a reasonable doubt. Therefore, I would reverse and remand for a new

       trial.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1703-CR-641 | September 8, 2017   Page 11 of 11
