Samtwan Hobby v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be FILED

regarded as precedent or cited before any Jun 04 2020, 9:24 am

court except for the purpose of establishing CLERK

the defense of res judicata, collateral Indiana Supreme Court

Court of Appeals

and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE

Ellen M. O’Connor Josiah Swinney

Marion County Public Defender Agency Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Samtwan Hobby, June 4, 2020

Appellant-Defendant, Court of Appeals Case No.

19A-CR-765

v. Appeal from the Marion Superior

Court

State of Indiana, The Honorable Richard

Appellee-Plaintiff Hagenmaier, Commissioner

Trial Court Cause No.

49G21-1709-F4-33069

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020 Page 1 of 9

[1] Samtwan Hobby appeals his convictions for one count of Level 4 felony dealing

in cocaine 1 and two counts of Level 5 felony dealing in cocaine. 2 He raises one

issue on appeal, which we restate as whether the trial court abused its discretion

when it limited the questions Hobby could ask witnesses regarding a corrective

action request and a forensic scientist’s resignation from the Indianapolis-

Marion County Forensic Services Agency (“Crime Lab”). We affirm.

Facts and Procedural History

[2] In the summer of 2017, Todd Bevington, a special agent with the United States

Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), was assigned

to the Indianapolis field office. The Indianapolis Metropolitan Police

Department (“IMPD”) asked Special Agent Bevington to assist them in a drug

investigation. The IMPD wished to have a confidential informant conduct

controlled buys of narcotics. However, the IMPD did not wish to use a local

informant because of concern that the informant’s safety would be jeopardized.

Bevington introduced the IMPD to R.E., 3 an informant from Virginia he had

used in the past.

1

Ind. Code § 35-48-4-1(c).

2

Ind. Code § 35-48-4-1(a).

3

We refer to the confidential informant by her initials because the State indicated at trial that she could

potentially be called as a witness in approximately ten open federal cases.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020 Page 2 of 9

[3] R.E. traveled to Indianapolis and participated in three controlled buy

operations where Hobby was the target. The first occurred on August 3, 2017,

the second on August 9, 2017, and the third on August 11, 2017. Each

controlled buy followed the same procedure. Before the buy, IMPD Sergeant

Gregory Kessie would search R.E. and her car to make sure R.E. did not have

any illegal drugs in her possession. Sergeant Kessie would then give R.E.

marked bills to use when she purchased narcotics. Sergeant Kessie also

equipped R.E. with a recording device prior to each buy, and officers surveilled

Hobby’s house during each buy. R.E. would drive to Hobby’s house. She

would go inside Hobby’s house and purchase cocaine from Hobby. After each

buy, R.E. would meet with Sergeant Kessie at a predetermined location, and

she would turn over the drugs to him. He would also search her and her vehicle

again. Sergeant Kessie would photograph the drugs and store them in heat-

sealed plastic envelopes until the Crime Lab took possession of them. Forensic

scientists at the Crime Lab tested the items, and their tests confirmed the

substances were cocaine.

[4] Police officers arrested Hobby on August 14, 2017. The State charged Hobby

with one count of Level 4 felony dealing in cocaine, three counts of Level 5

felony dealing in cocaine, three counts of Level 6 felony possession of cocaine, 4

4

Ind. Code § 35-48-4-6.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020 Page 3 of 9

and one count of Class B misdemeanor possession of marijuana. 5 The State

also alleged Hobby was eligible for an habitual offender enhancement. 6

[5] In discovery, the State produced a corrective action request (“CAR”) dated

November 2, 2017. The CAR stated that Matthew Whitt, a forensic scientist in

the Crime Lab, routinely failed to follow proper procedures when he analyzed

blood alcohol content samples. He adjusted an external control value by using

a technique outside of the lab’s standard operating procedure and he did not

document doing so in his lab reports. Whitt resigned from his position with the

Crime Lab shortly before the CAR was issued. Whitt was also the forensic

scientist who originally tested and confirmed that the substance R.E. bought in

the second controlled buy was cocaine. On February 14, 2019, Ryan Farrell,

another forensic scientist at the Crime Lab, retested the substance originally

tested by Whitt. The retest indicated that the substance was cocaine.

[6] Prior to trial, the State filed a motion in limine asking the court to prohibit

Hobby from asking any questions regarding the details of Whitt’s employment

with the Crime Lab and questions about the CAR. The trial court denied the

State’s motion stating, “I’m gonna allow the defense to inquire about [the

CAR]. If the [forensic scientists] don’t know about it, then they can just say I

don’t know.” (Tr. Vol. II at 37.) The court held a jury trial on February 21 and

5

Ind. Code § 35-48-4-11.

6

Ind. Code § 35-50-2-8.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020 Page 4 of 9

22, 2019. Prior to trial, the State dismissed the three possession of cocaine

charges, one of the Level 5 dealing in cocaine charges, and the Class B

misdemeanor possession of marijuana charge.

[7] During trial, forensic scientist Dustin Crawford testified that the Crime Lab

utilized a peer review process whereby a forensic scientist’s work was reviewed

and approved by another chemist before a formal report was generated. On

cross-examination, Hobby began to reference the CAR, and the State objected.

The court held a sidebar conference. At the conclusion of the conference, the

court stated, “Well, since it’s only an allegation (indiscernible) I’m going to

limine that out. So, I don’t want that brought into this case.” (Id. at 231.)

Hobby then requested to make an offer of proof outside the presence of the jury.

During the offer of proof, Crawford testified that he was aware Whitt resigned,

but he was not aware of the specifics surrounding his resignation.

[8] Hobby then attempted to ask Crawford questions regarding the CAR, but

Crawford indicated that he was not familiar with the CAR. The court

designated the CAR as Court’s Exhibit A and explained to the parties that the

jury would not be able to view the document:

I am ruling right now that, uh, this witness has no personal

knowledge of this from the, uh, Court’s Exhibit A . . . it does

appear that this involved, uh, blood alcohol content and, uh, I

just think it’s too remote. If you continue to question him and

get, uh, I don’t know, answers and I’m not sure then you’re

interjecting prejudicial evidence, uh, into the record through . . .

your own questions. That is my ruling.

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(Id. at 239.) The court further stated, “And my ruling right now is that you’re—

as far as this witness you’re, uh, this line of questioning is not going to be

allowed. It’s not relevant, it’s prejudicial (indiscernible).” (Id. at 240.) The

jury returned to the courtroom, and Hobby’s trial resumed.

[9] After Crawford finished testifying, Ryan Farrell testified that the substance R.E.

bought in the second controlled buy was originally tested by another forensic

scientist, and the forensic scientist who originally tested the substance no longer

worked at the Crime Lab. Hobby then asked if the forensic scientist who

originally tested the substance “resigned under suspicion[.]” (Tr. Vol. III at 2.)

The State objected, and the trial court sustained the State’s objection.

[10] The jury returned verdicts of guilty on the remaining charges against Hobby.

Hobby admitted that he qualified for the habitual offender enhancement. The

court imposed an enhanced sixteen-year sentence for the Level 4 felony dealing

in cocaine conviction, with eight years ordered to be served in the Indiana

Department of Correction, two years to be served in Community Corrections,

and six years suspended. The court also imposed six-year sentences for each of

the Level 5 felony dealing in cocaine convictions. The trial court ordered the

sentences to be served concurrently.

Discussion and Decision

[11] Hobby argues the trial court abused its discretion by limiting his questioning of

Crawford and Farrell about Whitt and the CAR. Hobby contends he should

Court of Appeals of Indiana | Memorandum Decision 19A-CR-765 | June 4, 2020 Page 6 of 9

have been allowed to question the Crime Lab scientists about those topics

because “a chemist who would alter data and work outside of established

protocol on one type of testing could do the same on any category of analysis.”

(Appellant’s Br. at 13-14.) Further, Hobby argues such questioning would have

cast doubt on the effectiveness of the peer review process because the peer

review process did not timely catch Whitt’s errors.

[12] We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Blankenship v. State, 5 N.E.3d 779, 782 (Ind. Ct. App. 2014). “A

trial court abuses its discretion only if its decision is clearly against the logic and

effect of the facts and circumstances before the court.” Id. A criminal

defendant enjoys “the right to ask pointed and relevant questions in an attempt

to undermine the opposition’s case, as well as the opportunity to test a witness’

memory, perception, and truthfulness.” Howard v. State, 853 N.E.2d 461, 465

(Ind. 2006). Nonetheless, “[t]he trial judge has discretion to determine the

scope of cross-examination and only a clear abuse of that discretion warrants

reversal.” Carter v. State, 505 N.E.2d 798, 800 (Ind. 1987).

[13] The State argues the trial court properly curtailed Hobby’s cross-examination

related to Whitt and the CAR because such questions were not relevant and

were unfairly prejudicial. As we have explained before:

Evidence is relevant when it has any tendency to prove or

disprove a consequential fact. This liberal standard for relevancy

sets a low bar. The trial court enjoys wide discretion in deciding

whether that bar is cleared. Relevant evidence is admissible

unless any applicable rule or statute provides otherwise.

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Poortenga v. State, 99 N.E.3d 691, 695 (Ind. Ct. App. 2018) (internal citations

and quotation marks omitted). Additionally, Indiana Evidence Rule 403

provides that relevant evidence may be excluded “if its probative value is

substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence.” Whitt did not testify at trial, and he played a

small role in the investigation. He tested only the substance R.E. bought in the

second transaction, not the substances she bought in the first and third

transactions.

[14] While the CAR indicates Whitt resigned following revelations about how he

analyzed blood alcohol content, the State did not present blood alcohol

evidence in Hobby’s case. Rather, the State was required to prove the

substance Hobby sold R.E. was cocaine. See Ind. Code § 35-48-4-1 (“A person

who knowingly or intentionally . . . delivers . . . cocaine or a narcotic drug . . .

commits dealing in cocaine or a narcotic drug[.]”). Farrell re-tested the

substance Whitt originally tested. Farrell determined the substance was cocaine

and testified at trial. The Crime Lab’s peer review process was only relevant to

the extent it shed light on the tests conducted by Crawford and Farrell, and the

court allowed Hobby to ask Farrell questions during cross-examination about

the Crime Lab’s peer review process. The alleged failure of the peer review

process to ferret out Whitt’s improper blood alcohol testing in other unrelated

cases was too remote to be relevant. See Hicks v. State, 690 N.E.2d 215, 220

(Ind. 1997) (“proffered evidence may be irrelevant because it is too remote”).

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[15] Also, Crawford testified during Hobby’s offer of proof that the instrument used

to determine blood alcohol content was different from the instrument used to

identify illicit substances and that the staff kept the instruments in separate parts

of the Crime Lab. Therefore, it would have been unfairly prejudicial to the

State if Hobby had asked questions implying Whitt did not follow proper

procedure in testing the suspected cocaine because Whitt did not follow proper

procedure in performing blood alcohol content tests. See Newland v. State, 126

N.E.3d 928, 932 (Ind. Ct. App. 2019) (holding court did not abuse its discretion

by not allowing defendant to cross-examine witness regarding the facts and

circumstances surrounding witness’s prior theft convictions).

Conclusion

[16] The trial court did not abuse its discretion in limiting Hobby’s questions about

Whitt and the CAR because such questions were not relevant to whether

Hobby sold cocaine to a confidential informant and would have unfairly

prejudiced the State. Therefore, we affirm.

[17] Affirmed.

Robb, J., and Vaidik, J., concur.

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