MEMORANDUM DECISION
                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D), this                    Nov 17 2016, 7:45 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                 CLERK
                                                               Indiana Supreme Court
purpose of establishing the defense of res judicata,              Court of Appeals
                                                                    and Tax Court
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Sean Clover                                              Gregory F. Zoeller
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Sean Clover,                                            November 17, 2016

Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        03A05-1512-PC-2121
        v.                                              Appeal from Bartholomew Superior
                                                        Court.
                                                        The Honorable Matthew D. Bailey,
State of Indiana,                                       Special Judge.
Appellee-Respondent.                                    Cause No. 03D01-1204-PC-2037




Garrard, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016   Page 1 of 13
[1]   After Clover’s judgment of conviction and sentence for two counts of dealing in
                    1                                                                              2
      cocaine, each as a Class A felony, were affirmed on direct appeal, Clover filed

      a petition for post-conviction relief, alleging ineffective assistance of both trial

      and appellate counsel, which was denied by the post-conviction court. Clover

      now appeals.


[2]   Clover, who was initially known by officers as Bobby Johnson, was involved in

      two separate undercover drug buys occurring on August 21, 2008, and

      September 5, 2008 in Columbus, Indiana. During his jury trial, the trial court

      admitted State’s Exhibit 28 as a substitute for State’s Exhibit 12, which was an

      inaudible recording of the September 5, 2008 transaction. Clover challenged

      the admissibility of State’s Exhibit 28 on direct appeal, but the trial court’s

      admission of the exhibit was affirmed. Clover also challenged the trial court’s

      refusal to declare a mistrial based on Clover’s allegation of two instances of

      prosecutorial misconduct at trial. The trial court’s decision not to declare a

      mistrial was also affirmed on appeal. Likewise, Clover’s challenge of the

      appropriateness of his sentence was rejected on appeal.


[3]   Clover appeals from the denial of his petition for post-conviction relief. A

      petitioner seeking post-conviction relief bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Hollowell v. State, 19




      1
          Ind. Code § 35-48-4-1 (2006).
      2
          Clover v. State, No. 03A04-2010-CR-675 (Ind. Ct. App. August 26, 2011), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016         Page 2 of 13
      N.E.3d 263, 268-69 (Ind. 2014). A petitioner who appeals from the denial of

      post-conviction relief, appeals from a negative judgment. Id. at 269. As such,

      to prevail on appeal, the petitioner must show that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite that reached by the

      post-conviction court. Id. The trial court’s findings of fact and conclusions of

      law, entered in accordance with Indiana Post-Conviction Rule 1, section 6, will

      be reversed only upon a showing of clear error—that which leaves us with a

      definite and firm conviction that a mistake has been made. Id. We do not defer

      to the post-conviction court’s legal conclusions. Id.


[4]   Although Clover unsuccessfully presented the argument that he received

      ineffective assistance of appellate counsel, he does not challenge the post-

      conviction court’s ruling as to that issue on appeal. Instead, Clover contends

      only that the post-conviction court’s denial of his claims of ineffective assistance

      of trial counsel was clearly erroneous.


[5]   When reviewing a claim of ineffective assistance of counsel, we follow the test

      set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

      674 (1984). Id. We must determine whether the petitioner established deficient

      performance by counsel, and whether the petitioner established prejudice

      resulting from counsel’s errors. Id. Although this test involves two separate

      inquiries, a claim of ineffective assistance of counsel may be disposed of on

      either part of the test. Dickens v. State, 997 N.E.2d 56, 65 (Ind. Ct. App. 2013),

      trans. denied. Counsel’s performance is presumed effective, and a petitioner



      Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016   Page 3 of 13
      must offer strong and convincing evidence to overcome this presumption.

      Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002).


[6]   Clover was represented at trial by attorney James Shoaf. Clover argues that

      Shoaf should have filed a motion to suppress evidence of his identity on Fourth

      Amendment grounds, contending that the traffic stop leading to the discovery

      of his true identity was a pretext executed only to achieve that goal. Because

      Clover does not raise a separate argument and analysis under Article 1, Section

      11 of the Indiana Constitution, we consider only the Fourth Amendment

      argument.


[7]   This issue was considered and rejected by the United States Supreme Court in

      Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).

      In Whren, police officers discovered two large bags of crack cocaine in the

      hands of the passenger of a vehicle that was pulled over for a traffic violation.

      The petitioners moved to suppress the evidence on the ground that the traffic

      stop, which occurred in an area of the city where there was much drug activity,

      was a pretext to investigate whether illegal drug activity was afoot. The

      Supreme Court observed that temporary detention of individuals during a

      traffic stop by police constitutes a seizure for purposes of the Fourth

      Amendment, and, therefore, must be reasonable, which requires the police to

      have probable cause to believe that a traffic violation has occurred. Id. at 810.

      The Supreme Court held that even if police officers have another motivation for

      detaining the individuals, there is no Fourth Amendment violation if the



      Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016   Page 4 of 13
       officers have probable cause for the traffic stop. Id. at 819. If so, the evidence

       discovered is admissible. Id.


[8]    The facts of the present case lead to the same result. Prior to the September 5,

       2008 transaction, Officer Martin, the undercover officer involved in the

       controlled buys, arranged to have another officer, Columbus Police Department

       Sergeant Morgan Horner, observe Martin’s vehicle and stop it for any minor

       traffic violations. After the transaction was completed, Martin drove his car

       toward Clover’s home. Sergeant Horner observed Martin’s vehicle swerve

       within its lane and noticed that the vehicle had an equipment violation. Horner

       initiated a traffic stop of Martin’s vehicle and, after obtaining identification

       information from both Martin and Clover, did not issue a citation. Evidence of

       Clover’s true identity was used at his trial.


[9]    The evidence at trial established that Sergeant Horner had probable cause for

       the traffic stop. The fact that he had the additional motivation to discover

       Clover’s true identity does not invalidate the stop, or cause that evidence to be

       inadmissible under Whren. Therefore, Shoaf did not render ineffective

       assistance of counsel by failing to file a motion to suppress that evidence.


[10]   Clover also claims that trial counsel was deficient by failing to object to the

       admission of Exhibit 28 on grounds that it contained inadmissible evidence

       which was damaging to Clover’s character, and its admission violated Clover’s

       confrontation rights under the United States Constitution. Because Clover does




       Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016   Page 5 of 13
       not present separate argument or analysis under the Indiana Constitution, the

       only constitutional issue we address is his Sixth Amendment challenge.


[11]   Shoaf objected to the admission of the exhibit at trial, challenging the

       authenticity of the exhibit and its chain-of-custody. On direct appeal, Clover

       argued that an improper foundation had been laid for the admission of the

       exhibit. We held that even if the trial court abused its discretion by admitting

       the exhibit, such error was harmless, as the recording was merely cumulative of

       Officer Martin’s testimony about the September 5, 2008 transaction. Clover v.

       State, No. 03A04-2010-CR-675, *1 (Ind. Ct. App. August 26, 2011), trans.

       denied.


[12]   Because Clover has not previously litigated the issue whether trial counsel was

       ineffective by failing to object to Exhibit 28 on federal Confrontation Clause

       grounds, we consider it here.


[13]   One of the primary interests secured by the Confrontation Clause is the right of

       cross-examination. Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010) (citing

       Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)). A

       defendant’s Sixth Amendment right to confront witnesses is, however, subject

       to reasonable limitations placed at the discretion of the trial court. Id. (citing

       Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674

       (1986)). A finding that there were violations of the right of cross-examination

       does not require reversal if the State can show beyond a reasonable doubt that

       the error did not contribute to the verdict. Id. Because a defendant is entitled to


       Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016   Page 6 of 13
       a fair trial, not a perfect trial, in a particular case, certain constitutional errors

       may have been harmless in terms of their effect on the fact-finding process at

       trial. Id. This harmless error analysis turns on factors we consider on appellate

       review, such as the importance of the witness’ testimony in the State’s case,

       whether the testimony was cumulative, the presence or absence of evidence

       corroborating or contradicting the testimony of the witness on material points,

       the extent of cross-examination otherwise permitted, and the overall strength of

       the prosecution’s case. Id. (quoting Van Arsdall, 475 U.S. at 684, 106 S. Ct.

       1431)). Our Supreme Court has applied the test and previously found that the

       admission of a laboratory report without allowing the defendant an opportunity

       to confront the creator of the report was harmless beyond a reasonable doubt

       because of the defendant’s self-implicating statements to police. Koenig, 933

       N.E.2d at 1274.


[14]   On direct appeal, we already determined that admission of the exhibit, if

       erroneous, was harmless error at best. Assuming, arguendo, that the trial court

       erred by admitting Exhibit 28 without allowing Clover to confront the creator

       of the exhibit, we conclude that such error was harmless beyond a reasonable

       doubt.


[15]   Martin testified about the procedure he used in creating the compact disc

       recordings from the portable digital recorder used during the transaction. He

       also testified that he, as an Indiana State Police Detective, was unfamiliar with

       the practices of the Columbus Police Department in preserving recordings made

       from their portable digital recorders. Columbus Police Department Officer

       Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016   Page 7 of 13
       Jonathan Rohde explained that his department stores audio recordings on its

       server rather than using compact discs. He could not recall if he was the officer

       who downloaded the recording to the server.


[16]   Officer Martin had already testified and was cross-examined about the two drug

       transactions. The exhibit was merely cumulative of that testimony. Sergeant

       Horner executed the traffic stop shortly after the September 5 transaction,

       confirming that the individual Martin had purchased the cocaine from was

       Clover. Both Martin and Horner identified Clover at trial. The lab results

       confirmed that the substance Clover had sold to Martin on two separate

       occasions was cocaine.


[17]   Assuming that the exhibit was erroneously admitted, the error was harmless

       beyond a reasonable doubt based on the record. As such, Clover has not

       established prejudice from trial counsel’s failure to object on this ground, and

       has not established that an objection if made, would have been successful.


[18]   Clover also argues that a new trial is warranted because Exhibit 28 includes his

       statement to Martin that even though he had a warrant for his arrest out of

       Georgia, Clover did not expect to be extradited. Clover argues that his counsel

       should have filed a motion to suppress on Indiana Rule of Evidence 404(b)

       grounds because the evidence reflected poorly on his character.


[19]   Prior to the admission of Exhibit 28, Martin had already testified about the two

       drug transactions with Clover. The lab results, which were admitted, showed

       that the substance Martin purchased from Clover was cocaine. Photographs of

       Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016   Page 8 of 13
       the buy money used to purchase the cocaine from Clover were also admitted. It

       is unlikely that the jury would have reached a different verdict had Clover’s

       counsel objected to that evidence.


[20]   Additionally, Shoaf’s failure to file a motion to suppress that evidence does not

       entitle Clover to relief. Shoaf testified that he did not believe that a motion to

       suppress evidence of Clover’s active warrant would have been granted. In order

       to prevail on such a claim based on counsel’s failure to file a motion, the

       petitioner must demonstrate that such a motion would have been successful.

       Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct. App. 2007), trans. denied.


[21]   Indiana Evidence Rule 404(b) protects a defendant from being convicted based

       on unrelated prior bad acts. Garland v. State, 788 N.E.2d 425, 428 (Ind. 2003).

       This is to prevent the jury from drawing a forbidden inference that the

       defendant’s character is such that he has a propensity to engage in conduct of

       the sort charged, and acted in conformity with that character on the occasion at

       issue as charged. Id. at 429.


[22]   During the traffic stop, Clover told Martin that he was subject to three months’

       probation, and had a warrant for his arrest for moving from Georgia to Indiana.

       He explained to Martin that he believed the basis of the warrant was not serious

       enough to justify an arrest at that time or extradition to Georgia. There was no

       evidence of the nature of the prior offense resulting in Clover’s probation in

       Georgia, and his arrest warrant for violating his probation by moving from

       Georgia to Indiana is different from the charged acts, dealing in cocaine.


       Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016   Page 9 of 13
[23]   As such, Shoaf’s decision not to file a motion to suppress was a matter of trial

       strategy. Given the compelling nature of the evidence against Clover, he has

       not met his burden of establishing that the motion would have been granted, or

       that but for Shoaf’s failure to file the motion to suppress, the result of the

       proceedings would have been different.


[24]   Clover also argues that his trial counsel was ineffective by failing to allege a

       conspiracy to present false testimony by raising an alleged violation of the order

       separating witness and raising alleged prosecutorial misconduct from this

       violation. Clover claims that the deputy prosecutor and Detective Rohde

       “surreptitiously contacted” technician Neal in violation of the court order and

       “knowingly and intentionally gave him false statements in order to influence his

       testimony.” Appellant’s Br. p. 14.


[25]   The portion of the transcript Clover cites does not lend support to his argument.

       On trial transcript page 239, the trial court made clear that during the break in

       his testimony, Officer Martin was to have no contact with anyone in the

       prosecutor’s office except for the legal assistant and then only regarding

       scheduling issues. The trial court specifically reminded the State that Martin

       was not to be in the prosecutor’s office at all prior to resuming his testimony.

       There is no reference with respect to Detective Neal.


[26]   During the trial, it was apparent that the recordings of the drug transactions had

       clarity issues. State’s Exhibit 28 was admitted as a more clear recording of the

       September 5, 2008 transaction. Detective Neal briefly testified on the first day


       Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 10 of 13
       of trial about his experience with illegal substance investigations and the audio

       and video devices used to record undercover transactions. He also testified

       about the audio playback systems used in courtrooms. The trial court had

       admitted State’s Exhibit 4, an audio recording, and State’s Exhibit 7, which was

       a transcription from a recording. When Detective Neal attempted to play

       State’s Exhibit 4 for the jury, it was apparent that the recording and

       transcription differed. The trial court allowed a brief recess to let Detective

       Neal find the correct starting time on the audio recording and for the parties to

       reconcile the differences between the transcripts and recordings.


[27]   While these issues were being addressed out of the presence of the jury, Shoaf

       informed the trial court that he had spoken with Officer Rohde about the

       difference in quality between the recording and the transcript. Officer Rohde

       then testified and answered questions from the court and the parties about the

       Columbus Police Department’s procedure used to download, copy, and

       transcribe the recordings from the portable digital recording device. The deputy

       prosecutor indicated that she intended to speak with Detective Neal about

       clarity issues involving State’s Exhibit 12. When Detective Neal testified about

       those issues, out of the presence of the jury, the trial court agreed that State’s

       Exhibit 28 was more clear than State’s Exhibit 12. Detective Neal had not

       listened to what Shoaf and the State were referring to as the original, but

       testified that he had been told by the deputy prosecutor and Officer Rohde

       about differences. Once the jury was reconvened, Detective Neal played

       Exhibit 28 for the jury, but did not otherwise testify during the State’s case.


       Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 11 of 13
       Detective Neal further testified during Clover’s case about possible reasons for

       the differences in clarity and length of Exhibit 12 and Exhibit 28.


[28]   The record does not support Clover’s argument that there was a surreptitious

       meeting between the deputy prosecutor, Officer Rohde, and Detective Neal for

       the purpose of giving him false information to influence his testimony. Indeed,

       Detective Neal answered all questions presented to him by the trial court,

       Shoaf, and the State. He testified that he did not know what the parties

       considered to be the original recording and that he had not listened to an

       original.


[29]   It is apparent from the record that Detective Neal’s function at trial was to play

       the recordings for the jury. He testified about his experience and the possible

       causes of the defects in sound quality of some of the exhibits. The deputy

       prosecutor and Officer Rohde’s discussions with Detective Neal to produce a

       more audible version of the evidence for the jury does not rise to the level of

       violating the order separating witnesses, and since conducted outside the

       presence of the jury, did not influence the jury’s verdict. Consequently, Clover

       has not established prejudice from trial counsel’s failure to present this

       argument at trial.


[30]   Next, Clover claims that his trial counsel was ineffective for failing to impeach

       Detective Martin about another copy of the September 5, 2008 transaction

       which he produced on the morning of the third day of trial at the request of an

       assistant in the prosecutor’s office. The copy was then provided to the deputy


       Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 12 of 13
       prosecuting attorney, who then provided the copy to Shoaf. Clover argues that

       Shoaf should have questioned Detective Martin about Defendant’s Exhibit A,

       impeaching his testimony.


[31]   Shoaf chose to address the issue of the new recording of the September 5, 2008

       transaction by way of a motion for mistrial. The trial court denied the motion

       after hearing Shoaf’s vigorous argument, and after agreeing that the State’s

       performance was subpar. The trial court’s decision was affirmed on direct

       appeal. Therefore, Shoaf’s decision to attempt to gain a new trial for Clover

       because of discovery issues involving that exhibit, instead of attempting to

       impeach Detective Martin with that evidence, was a tactical decision. The

       record reflects that Shoaf addressed the issue at trial and the issue was reviewed

       on appeal. “Trial strategy is not subject to attack through an ineffective

       assistance of counsel claim, unless the strategy is so deficient or unreasonable as

       to fall outside the objective standard of reasonableness.” Benefield v. State, 945

       N.E.2d 791, 799 (Ind. Ct. App. 2011) (quoting Autrey v. State, 700 N.E.2d 1140,

       1141 (Ind. 1998)), trans. denied. Shoaf’s strategy was neither deficient nor

       unreasonable.


[32]   In light of the foregoing, we affirm the post-conviction court’s decision.


[33]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A05-1512-PC-2121 | November 17, 2016 Page 13 of 13
