MEMORANDUM DECISION
[1] Tony Kelvin Campbell, Jr., appeals following convictions of Level 3 felony dealing in a narcotic drug
1
and Level 6 felony operating a vehicle while suspended as a habitual traffic offender,
2
the finding he is a habitual offender,
3
and the revocation of the probation he was serving for convictions of Level 4 felony possession of a firearm by a serious violent felon
4
and Level 6 felony domestic battery.
5
Campbell raises five issues on appeal, which we consolidate, reorder, and restate as:
1. Whether the trial court erred by denying Campbells motion to reveal the identity of a confidential informant;
2. Whether, under the silent witness rule, the trial court abused its discretion by admitting into evidence audio-video recordings taken by a confidential informant during controlled buy operations;
3. Whether the trial court erred in denying Defendants motion to strike evidence related to the first count of Level 3 felony dealing in a narcotic drug after the trial court entered a directed verdict on that count; and
4. Whether the trial court abused its discretion by refusing to grant a mistrial because a police officer testified in violation of an order in limine.
We affirm.
Facts and Procedural History
[2] On March 28, 2016, the trial court sentenced Campbell under cause number 27D01-1412-F4-27 (“F4-27”) to a seven-year term for committing the crimes of Level 4 felony possession of a firearm by a serious violent felon and Level 6 felony domestic battery. The trial court ordered one and one-half years executed and suspended the remaining five and one-half years to probation.
[3] In May 2017, the Grant County Prosecutors Office agreed not to pursue a “low level dealing” charge against a female offender if she agreed to assist the Joint Effort Against Narcotics (“J.E.A.N.”) team, a multi-agency taskforce that included members of both the Marion Police Department and the Grant County Sheriffs Department. (Tr. Vol. II at 209.) On May 17, 2017, the offender-turned-confidential-informant (“CI”) agreed to participate in a controlled drug buy operation and met with members of the J.E.A.N. team at the Grant County Jail. Initially, a female jail staff member searched the CI to make sure the CI did not have any narcotics or other prohibited items in her possession before participating in the controlled buy operation. Sergeant Josh Zigler of the Marion Police Department then observed the CI call “Tony” and arrange the time and price of a drug transaction. (Id. at 173.) The J.E.A.N. taskforce equipped the CI with equipment to audio and video record the transaction. Sergeant Zigler also gave the CI $375 in marked bills and drove her to a convenience store where the transaction was to take place.
[4] Officers were covertly stationed around the store to surveil the location, and the CI purchased cigarettes and soda inside the store while she waited for the dealer to arrive. The officers observed the CI get into the backseat of a gold Saturn. Two unidentified individuals were in the vehicles front seats, but Campbell was not in the car. The CI rode in the gold Saturn for a short distance and exchanged the money, soda, and cigarettes for “a chunk of grey compressed powder,” later identified as heroin. (Id. at 177.). After the CI exited the vehicle, she met Sergeant Zigler in the parking lot of a Chinese restaurant and handed Sergeant Zigler the heroin. Sergeant Zigler returned the CI to the jail, where she was searched a second time. He also took possession of the audio-video recording taken by the CI and uploaded it to a secured server that could be accessed only by members of the J.E.A.N. taskforce.
[5] The dealer gave the CI a lower quantity of narcotics than she had agreed to purchase, and so she arranged to meet Campbell the next day at a house on Harmon Street in Marion, Indiana, to purchase an additional two grams of heroin for $250. Like in the first controlled buy operation, the J.E.A.N. taskforce equipped the CI with equipment to audio and video record the transaction. This included a purse with a camera hidden in a secret compartment the CI could not access. Sergeant Zigler drove the CI to an area near the house on Harmon Street, and then he exited the vehicle. The CI drove the vehicle the rest of the way to the house. She then went inside the house and purchased narcotics from Campbell. The hidden camera recorded Campbells full face and some of his tattoos. Afterward, the CI met Sergeant Zigler at a predetermined rendezvous point, and she gave him “a knotted bag” with “a grey pressed powder in the bag,” which was later identified as heroin. (Id. at 183.) Sergeant Zigler also took possession of the audio-video equipment and uploaded the footage to a secured server.
[6] On May 19, 2017, the J.E.A.N. taskforce served a search warrant at the Harmon Street house and discovered mail addressed to Campbell that had been sent to the house. Officer Wesley McCorkle, an officer with the Marion Police Department who was also working as a member of the J.E.A.N. taskforce, surveilled the house immediately prior to execution of the search warrant. He observed Campbell enter a vehicle and drive away. Officer McCorkle knew Campbell did not have a valid drivers license, and he radioed for another officer to stop the vehicle. Officer McCorkle assisted with the traffic stop and arrested Campbell.
[7] The State charged Campbell under cause number 27D01-1705-F3-11 (“F3-11”) with two counts of Level 3 felony dealing in a narcotic drug and a notice of intent to seek an enhanced penalty based upon a previous conviction of dealing in cocaine. The State also filed a notice of intent to seek an enhanced penalty on the ground that Campbell is a habitual offender. On May 30, 2017, the State additionally charged Campbell with Level 6 felony operating a vehicle while a habitual traffic violator. Prior to trial, the trial court granted Campbells motion in limine prohibiting the State from introducing evidence of Campbells criminal history. The trial court also denied Campbells motion to reveal the identity of the confidential informant.
[8] The trial court then held a two-day jury trial in February 2020. Sergeant Zigler testified regarding his participation in the controlled buy operations and execution of the search warrant at the Harmon Street address. Sergeant Zigler explained that, during execution of the search warrant, the officers found “mail documents that had Mr. Campbells name and address on them” in the residence being searched. (Id. at 185.) He also testified the officers discovered “a probation slip that showed Mr. Campbells name on it.” (Id.) Outside the presence of the jury, Campbell objected that Sergeant Ziglers mention of finding the probation slip was an impermissible reference to prior criminal conduct by Campbell and moved for a mistrial. The trial court denied Campbells motion for a mistrial. The trial court offered to admonish the jury, but Campbell declined the offer on the basis that an admonishment would only draw more attention to the testimony about the probation slip. At the conclusion of the States case-in-chief, Campbell moved for directed verdicts on each of the two dealing charges. The trial court initially denied Campbells motions for directed verdicts, but the trial court reconsidered its decision overnight and entered a directed verdict with respect to the May 17, 2017, dealing charge the next day. The trial court explained its rationale for reconsidering the directed verdict:
In reexamining Count 1, the first buy, it just offends the Courts sense of justice. You have no image of anyone who could be identified as Tony Campbell. The only two images you have are from two witnesses who did not appear in this courtroom to be cross-examined. To convict the Defendant on Count 1, I believe you have to go further than just what you see when we consider normally a silent witness. You have to go on the credibility of the CIs statements as to whose [sic] on the phone and whats being said. Thats just not how justice works. So I reconsidered my ruling on Count 1 and the Defendants motion for a directed verdict, and Im going to grant that motion for a directed verdict. Were only going to deal with Count 2 and Count 3.
(Tr. Vol. III at 16-17.) Campbell moved to strike the evidence associated with the May 17, 2017, buy operation in light of the directed verdict on that count. The trial court denied Campbells motion to strike and described its reasoning:
Ive in the past directed verdicts on occasion, Ive instructed the jury theyre no longer going to be required to render a verdict on this count or that count, but Ive never stricken from the record evidence that was present. I think the Court would be in a position then of picking and choosing whats relevant and not relevant, and I dont think I should get into that. Thats not my role to separate the evidence. So, while I understand your request, and I would not show the video from buy one to the jury again, or allow that, Im not going to specifically strike any evidence from the record.
(Id. at 23-24.)
[9] The jury returned verdicts of guilty on each of the remaining counts. Campbell then admitted the habitual offender enhancement applied to him and the elevation of his dealing offense to a Level 3 felony was appropriate because of a prior conviction of dealing in a narcotic drug. The trial court held a consolidated hearing on September 7, 2021, regarding whether Campbell violated the conditions of his probation in F4-27 and what Campbells sentence should be in F3-11. The trial court found Campbell violated the conditions of his probation with respect to F4-27 by committing the criminal offense of dealing in a narcotic drug and ordered him to serve the previously suspended five-and-a-half years of that sentence. In F3-11, the trial court imposed a sentence of fifteen years on the charge of Level 3 felony dealing in a narcotic drug, enhanced by twelve years because of the habitual offender finding. The trial court also sentenced Campbell to two years for Level 6 felony operating a motor vehicle while suspended, but the court ordered this sentence to run concurrent with his sentence for Level 3 felony dealing in a narcotic drug. Thus, the trial court imposed an aggregate sentence of twenty-seven years in F3-11 and ordered that sentence be served consecutive to the time Campbell was ordered to serve as a result of his probation violation.
Discussion and Decision
1. Motion to Reveal Identity of Confidential Informant
[10] Campbell contends the trial court erred by denying his motion to reveal the identity of the CI. In the motion, Campbell asserted:
Disclosure of the informants identity ․ is material, relevant, [and] necessary for the preparation of the defense and to a fair trial because the [sic] has been a history in the past of the informant stealing Drug Task Force money, stealing drugs during the course of other buys, possible in-appropriate relationship with a former Detective[6] and witness in the present case, the informant could have possibly planted evidence to gain status and benefits for herself in investigations and prosecutions of her.
(App. Vol. II at 136.) In response, the State argued the CIs testimony was unnecessary because the State intended to rely solely on the audio-video recordings of the drug transactions and the supporting testimony of the officers involved in the investigation. The State advanced: “All that is going on here is that the defense wants to find a way to impeach a witness who is not testifying and to cast negative character aspersions on the CI and officers in a way prohibited by the rules relating to character evidence.” (Id. at 138.) After a hearing, the trial court denied the motion.
[11] We review a trial courts decision on discovery matters for an abuse of discretion. Suarez v. State, 947 N.E.2d 500, 502 (Ind. Ct. App. 2011). “Thus, we will reverse only where the trial court has reached an erroneous conclusion which is clearly against the logic and effect of the facts of the case.” Id. We assess the propriety of a criminal defendants discovery request by considering the request in light of a three-part standard laid out by our Indiana Supreme Court:
(1) if there is a sufficient designation of the items sought to be discovered (particularity), and (2) if the items sought to be discovered are material to the defense (relevance), (3) then the trial court must grant the request unless the State makes a sufficient showing of its “paramount interest” in non-disclosure.
Beville v. State, 71 N.E.3d 13, 18 (Ind. 2017) (citing Dillard v. State, 274 N.E.2d 387, 392 (Ind. 1971), and referring to the tripartite test as the “Dillard test”) (emphasis in original). However, Indiana also recognizes the informers privilege. Id. at 19. If the State properly invokes the informers privilege, then the Dillard test is inapplicable. Id. at 20. The informers privilege “generally withholds the disclosure of evidence that reveals an informants identity for at least two important policy reasons—preventing retaliation against informants and ensuring individuals come forward with information to help law enforcement.” Id. at 19. Nonetheless, the defendant may overcome the informers privilege by showing that disclosure is relevant and helpful to his defense or necessary for a fair trial. Id. The defendant is required to “show that he is not merely speculating that the information may prove useful,” and the State is given the opportunity to show “that disclosure is not necessary to the defendants case or that disclosure would threaten its ability to recruit or use CIs in the future.” Id.
[12] In the case at bar, the informers privilege applies because Campbell explicitly asked the State to reveal the CIs identity. See State v. Jones, 169 N.E.3d 397, 400-01 (Ind. 2021) (“Today, we hold that, as a matter of law, an informants identity is inherently revealed through their physical appearance at a face-to-face interview. Thus, when a defendant requests such an interview ․ the State has met its threshold burden to show the informers privilege applies.”), rehg denied. The CIs identity was relevant to Campbells defense because the CI participated in the drug transaction. See Smith v. State, 829 N.E.2d 64, 69 (Ind. Ct. App. 2005) (“Initially we note that because the confidential informants actively participated in the drug transaction ․ they are material witnesses.”)
[13] Nonetheless, Campbell still failed to overcome the informers privilege because he did not show how disclosure of the CIs identity would have been helpful to his defense or necessary for a fair trial. To the extent Campbells defense rested on the untrustworthiness of the CI, Campbell was able to elicit from Sergeant Zigler testimony regarding the CIs criminal activities. Sergeant Zigler explained the CI agreed to participate in two controlled buy operations to avoid prosecution for dealing narcotics. He also testified the CIs location at the time of trial was unknown and there were active warrants seeking the CIs arrest. In addition, Sergeant Zigler admitted he was not sure if the CI “pinched off the dope” (i.e., kept some of the heroin for herself) before delivering the package of narcotics to him. (Tr. Vol. II at 211.) Sergeant Zigler also testified the CI drove even though her drivers license was suspended.
[14] Moreover, the States case did not rest on the CIs credibility. Video evidence of the second buy captured glimpses of Campbells face and tattoos and recorded a conversation between the CI and Campbell regarding the sale of drugs. Therefore, the trial court did not abuse its discretion in denying Campbells motion because the informers privilege protects the CIs identity and because her identity is not germane to the question of whether Campbell sold her heroin. See Schlomer v. State, 580 N.E.2d 950, 953-54 (Ind. 1991) (holding trial court did not err in denying defendants motion to reveal confidential informants identity to protect the informant from retaliation and because transactions were purposely structured so informant would not have to testify at trial).
2. Admission of Evidence
[15] Campbell also contends the trial court erred in admitting video taken by the CI under the silent witness rule, and he asserts the trial court erred in denying his motion to strike the evidence presented by the State with respect to the first count of Level 3 felony dealing in a narcotic drug after the trial court entered a directed verdict on that count. We review a trial courts admission of evidence for an abuse of discretion. Mack v. State, 23 N.E.3d 742, 750 (Ind. Ct. App. 2014), trans. denied. “A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court or if the court misapplies the law.” Id.
2.1 Admission of Evidence Under Silent Witness Rule
[16] Campbell argues the trial court abused its discretion by allowing video footage of the controlled buys into evidence. He argues the State failed to lay an adequate foundation for admission of the video footage. Indiana Rule of Evidence 901(a) provides: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” One way to satisfy this requirement is through the so-called “silent witness theory.” Stott v. State, 174 N.E.3d 236, 246 (Ind. Ct. App. 2021). “In order to authenticate videos under the ‘silent-witness theory,’ there must be evidence describing the process or system that produced the videos and showing that the video is an accurate representation of the events in question.” McFall v. State, 71 N.E.3d 383, 385 (Ind. Ct. App. 2017). The proponent of the video evidence need only show the evidence is competent and authentic “to a relative certainty.” Knapp v. State, 9 N.E.3d 1274, 1282 (Ind. 2014) (emphasis in original), cert. denied, 574 U.S. 1091, 135 S. Ct. 978 (2015). The proponent “is not required to exclude every reasonable possibility of tampering, but rather must only provide reasonable assurance that an exhibit has passed through various hands in an undisturbed condition.” Kindred v. State, 524 N.E.2d 279, 298-99 (Ind. 1988).
[17] Here, Sergeant Zigler testified officers turned the hidden camera on before each of the controlled buys. He explained the hidden camera was sewn into the purse and could not be accessed by the CI. He took possession of the video after each buy and uploaded it to a secure server that could be accessed only by members of the J.E.A.N. taskforce. Sergeant Zigler also testified that he reviewed the video evidence of the two buys submitted as States Exhibit 2 before the exhibits introduction at trial, and States Exhibit 2 was a true and accurate copy of the original videos Sergeant Zigler saw when he uploaded the videos to the controlled server. Thus, the State put forth sufficient evidence of State Exhibit 2s authenticity, and the trial court did not abuse its discretion in admitting the evidence.
7
See Mays v. State, 907 N.E.2d 128, 132 (Ind. Ct. App. 2009) (holding trial court did not abuse its discretion in admitting audio-video evidence of controlled buy operations even though the confidential informant did not testify because State laid adequate foundation of the evidences authenticity), trans. denied.
2.2 Denial of Motion to Strike
[18] Campbell also claims the trial court abused its discretion in denying his motion to strike the evidence the State presented with respect to the first count of dealing in a narcotic drug after granting a directed verdict on that count. He asserts:
If the counts had been severed, and the same evidence were submitted on Count 1, that evidence would never have been admissible in the second trial in support of Count 2. The motion in limine prohibiting evidence of other wrongdoings effectively would have blocked that evidence from coming forth. The evidence likely would not have been admitted for proof of motive, opportunity, intent, preparation, etc. under Rules of Evidence 404(b)(2). The evidence from Count 1, particularly with an acquittal, would not be admissible under Indiana Rules of Evidence 609.
(Appellants Br. at 19.)
[19] However, even considering the directed verdict on the first dealing count, Campbell has not shown the evidence from the first controlled buy operation was inadmissible. “A motion to strike is the proper remedy ․ when the objectionable nature of the evidence did not become apparent until after it was admitted.” Blinn v. State, 487 N.E.2d 462, 464 (Ind. Ct. App. 1986). Indiana Rule of Evidence 402 provides that evidence is relevant if it has any tendency to make a fact of consequence more or less probable, and Indiana Rule of Evidence 403 states 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.”
[20] The two transactions were part of the same, continuing drug buying operation. The transactions occurred near one another in time, and the first drug transaction was the impetus for initiating the second transaction. The CI participated in the first controlled buy after speaking with an individual named “Tony,” and she called “Tony” again to set up the second transaction. (Tr. Vol. II at 179.) She met with Campbell the next day for the second buy because she did not receive the quantity of drugs she bargained to receive in the first buy. While “[e]vidence of a crime, wrong, or other act is not admissible to prove a persons character in order to show that on a particular occasion the person acted in accordance with the character,” the evidence is admissible for “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Ind. R. Evid. 404(b). To the extent evidence of the May 17, 2017, drug transaction is evidence of a bad act by Campbell, it was relevant to explain why Campbell intended to meet with the CI on May 18, 2017. Therefore, the trial court did not abuse its discretion in refusing to strike evidence associated with the first drug transaction because that transaction was relevant and connected to the second drug transaction. See Thevenot v. State, 121 N.E.3d 679, 685 (Ind. Ct. App. 2019) (holding evidence of a conviction of domestic violence was admissible to prove defendants retaliatory motive for committing another act of domestic violence against the same victim).
3. Motion for Mistrial
[21] Next, Campbell asserts the trial court erred when it denied his motion for mistrial after Sergeant Zigler testified about finding probation paperwork with Campbells address listed as the residence that was the subject of the search warrant. A mistrial is an extreme remedy that should only be granted when no other action can be expected to remedy the situation. Jarrett v. State, 160 N.E.3d 526, 535 (Ind. Ct. App. 2020), trans. denied. “The denial of a motion for a mistrial rests within the sound discretion of the trial court, and we review the trial courts decision only for an abuse of discretion.” Id. at 534-35. “To prevail on appeal from the denial of a motion for a mistrial, the appellant must demonstrate the statement or conduct in question was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected.” Brittain v. State, 68 N.E.3d 611, 620 (Ind. Ct. App. 2017), trans. denied. We assess the gravity of the peril “based upon the probable persuasive effect of the misconduct on the jurys decision rather than upon the degree of impropriety of the conduct.” Id.
[22] As the State acknowledged at trial, Sergeant Ziglers mention of the probation slip was inappropriate. (See Tr. Vol. II at 186) (STATE: “Uh, the first of all its my error not giving the witness more direction, a follow up question.”) (errors in original). However, Sergeant Zigler did not go into detail regarding the circumstances of Campbells probation. Moreover, the inappropriate comment was an isolated statement made during a two-day jury trial, the State did not reference it during its closing statement or at any other point in the presence of the jury, and the evidence against Campbell was substantial. Thus, the comment did not put Campbell in a position of grave peril. See Lucio v. State, 907 N.E.2d 1008, 1011 (Ind. 2009) (holding witnesss statement in violation of a motion in limine that defendant met his co-conspirator in jail did not place the defendant in a position of grave peril because it “was fleeting, inadvertent, and only a minor part of the evidence against the defendant”).
[23] The appropriate remedy was a limiting instruction. See Glover v. State, 179 N.E.3d 526, 534 (Ind. Ct. App. 2021) (holding trial courts admonishment to jury not to consider testimony that the defendant had previously served time in jail was sufficient to cure any error), trans. denied. Yet, Campbell declined the trial courts offer to give such an instruction. Therefore, the trial court did not abuse its discretion in denying Campbells motion for a mistrial.
8
See Smith v. State, 140 N.E.3d 363, 374 (Ind. Ct. App. 2020) (holding trial court did not abuse its discretion in denying motion for a mistrial after the victim made impermissible reference to a protective order), trans. denied.
Conclusion
[24] The trial court did not abuse its discretion when it denied Campbells motion to reveal the CIs identity. The informers privilege protected the State from having to reveal the CIs identity, and Campbell did not make an adequate showing that revelation of the CIs identity would have been helpful to his defense or necessary for a fair trial. The trial court also did not abuse its discretion in admitting audio-video evidence of the controlled buy transactions because the State put forth enough evidence to establish a reasonable certainty that the videos were what they purported to be. Moreover, the trial court did not abuse its discretion in denying Campbells motion to strike evidence associated with the May 17, 2017, controlled buy operation because that evidence was relevant to explaining the May 18, 2017, controlled buy. The trial court also did not abuse its discretion in denying Campbells motion for a mistrial because Sergeant Ziglers reference to a probation slip with Campbells name on it did not put Campbell in a position of grave peril. Therefore, we affirm the trial court.
[25] Affirmed.
FOOTNOTES
1
. Ind. Code § 35-48-4-1.
2
. Ind. Code § 9-30-10-16.
3
. Ind. Code § 35-50-2-8.
4
. Ind. Code § 35-47-4-5.
5
. Ind. Code § 35-42-2-1.3
6
. This appears to be a reference to Officer Wesley McCorkle. Campbell alleged in argument before the trial court that Officer McCorkle had an inappropriate relationship with an informant and, as a consequence thereof, he is no longer employed as a police officer. However, any testimony the CI might have been able to provide regarding Officer McCorkles departure from the Marion Police Department would have been barred because the trial court granted the States motion in limine prohibiting:Any mentioning, eliciting testimony and/or reference to any past relationships and/or sexual contact of any witness with a “confidential informer,” regardless of whether it was the “confidential informer” in this case, and of any sexual conduct of the “confidential informer” in this case.(App. Vol. II at 142.) Moreover, Officer McCorkles role in the investigation at issue was limited, and his alleged sexual improprieties would not have been relevant to whether Campbell committed the charged crimes. See Palmer v. State, 654 N.E.2d 844, 848 (Ind. Ct. App. 1995) (holding trial court did not err in prohibiting defendant from questioning police officer regarding the officers drug use and suspension from the police force because evidence did not show the officer was under the influence at trial or at the time of the occurrence testified to, or that the drug use substantially affected the officers ability to perceive, remember, or testify).
7
. In addition, Campbell states: “Assuming, arguendo, that the admission of the video was permissible, it simply should have been admitted on, ‘Heres the video, watch it and form your own conclusions.’ The State can then argue what the video shows, but thats it; the police narrative should be excluded.” (Appellants Br. at 35.) However, our Indiana Supreme Court has held lay opinion testimony by officers characterizing video evidence is admissible. See Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015) (holding testimony defendant was “evasive” during interrogation was “admissible as lay opinion testimony—a helpful summary of observations any ordinary juror could have made while listening to [the defendants] responses”).
8
. Campbell also asserts reversal of his conviction for dealing in a narcotic drug in Cause F3-11 should result in reversal of the trial courts revocation of his probation in Cause F4-27. However, we need not address this issue because we affirm Campbells conviction in Cause F3-11.
May, Judge.
Riley, J., and Tavitas, J., concur.