Court of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 1 of 11 

### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
A TTORNEY FOR A PPELLANT John Pinnow Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Antwane Broomfield , Appellant

- Petitioner , v. 

### State of Indiana, Appellee

- Respondent

. February 8, 2019 Court of Appeals Ca se No. 18A

- PC

- 19 33 Appeal from the Vanderburgh Superior Court The Honorable Leslie C. Shively , Judge Trial Court Cause No. 82D01

- 1610

- PC

- 5020
Riley, Judge.Court of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 2 of 11 

### STATEMENT OF THE CASE
[1] Appellant

- Petitioner, Antwane Broomfield (Broomfield), appeals the denial of his petition for post

- conviction relief (PCR).

[2] We affirm. 

### ISSUE
[3] Broomfield presents one issue on appeal, which we restate as: Whether Broomfield was denied the effective assistance of his tr ial counsel by failing to object at trial to the admission of certain evidence. 

### FACTS AND PROCEDURAL HISTORY
[4] On March 11, 2014, Officer David Brown (Officer Brown) and Officer Jackie Lowe (Officer Lowe) of the Evansville Po lice Department attended roll call at 11:00 p.m. at the beginning of their shift as motor patrol officers

. T he officers received an alert to be on the lookout for three African

- Ame rican males who had reportedly committed a home invasion and robbery around 10:30 p.m. that evening at 911 Oakley Street. The suspects were armed with two handguns. The officers spoke with the K

- 9 unit involved in investigating the offenses and were advi sed that the suspects had been tracked traveling east but had been lost , which indicated that the y had either been in a car or were on bicycles.

[5] Around midnight while on patrol in their cruiser, the officers spotted a grey four

- door passenger car with th ree black males in it less than one mile away from the location of the home invasion. Because of the hour and the time ofCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 3 of 11 year, there was not much foot or vehicular traffic in that residential area. The car, later determined to be driv en by Broomfield, w as southbound on Governor Street around Virginia Street. Officer Brown drove up behind the car, and Broomfield immediately turned right onto Virginia Street as Officer Brown followed. Broomfield made another immediate turn onto Lafayette Street and trave lled up to Iowa Street. Broomfield signaled a right turn at Iowa Street then extinguished the right

- tu rn signal and drove straight to Delaware Street. Broomfield stopped at Delaware Street, signaled a right turn and then parked on Delaware . In Officer B rown’s training and experience, Broomfield’s manner of driving the car w as odd and fit a pattern of evasive driving

. The officers sat in their cruiser and waited to see what the occupants of the car would do next.

[6] All three men exited the car. Broomfie ld momentarily reached back into the car to retrieve a jacket. The three men then crossed the street to a house. One man went up to the house’s porch, while the other two men stayed in the yard

an d watched the O fficer’s cruiser as it passed them. None o f the men made any effort to knock on the door of the home. The officers noted that no lights were on in the house. All three men watched the officers ’ cruiser as it passed by, which Officer Brown found to be suspicious because, in his experience, as a g eneral rule when people go to visit someone, they knock on the door even if there are officers present. The officers circled the block, parked just south of Delaware Street, and walked back to the intersection so that they could continue to observe the ca r and the house where the three men had gone. However, the three men had continued walking north on Lafayette Street andCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 4 of 11 had t urned west onto Oregon Street. After noting that the men had not gone into the home where they had stopped and had continued wal king, t he officers decided that “things started to add up that something wasn’t right.” (Trial Transcript Vol. I, p. 20).

[7] Officer Lowe radioed for assistance in locating and identifying the three men. Other officers stopped them on Oregon Street , three and one

- half blocks away from where Broomfield had parked the car . Broomfield and the two other men provided identification, and subsequent investigation revealed that all three were habitual traffic violators (HTVs). An officer shone a flashlight into the car Bro omfield had been driving and saw a nine

- millimeter handgun on the floorboard of the driver’s seat and a baggie containing what turned out to be
coca ine . A subsequent search of the vehicle also turned up a baggie of a green leafy substance which was later determined to be a synthetic cannabinoid. After receiving his Miranda advisements, Broomfield first told Officer Brown that he had not been in the car. Broomfield then stated that he had been in the car but had not been driving. Lastly, Broom field reverted to his initial statement that he had not been in the car.

[8] On March 12, 2014, t he State filed an Information, charging Broomfield with carrying a handgun without a license, a Class C felony; operating a vehicle after forfeiture for life, a Class C felony; possession of cocaine, a Class D felony; and possession of a synthetic drug, a Class A misdemeanor

. On July 20, 2015, before the commencement of Broomfield’s jury trial, his trial c ounsel made an oral motion to suppress the evidence gather ed from the investigatory stopCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 5 of 11 detailed above based on her argument that the officers lacked the necessary reasonable suspicion of criminal wrongdoing to support the stop. Off icer Brown testified regarding the alert that he received during roll call that day to be on the lookout for the three armed African

- American suspects of the home invasion, something that he had not mention ed when Broomfield’s trial counsel had deposed him during discovery. The trial cour t denied the motion to suppress, finding tha t the State had shown that the officers had a “particularized and objective basis for the investigative stop.” (Trial Tr. Vol. I, p . 34). Broomfield’s trial counsel , who thought that she had made a continuing objection to the admission of the challenged ev idence at the beginning of the trial, did not object to its admission at trial. Broomfield was convicted of all charges and was sentenced to an aggregate sentence of fifteen years.
[9] This c ourt affirmed Broomfield’s convictions on direct appeal , hol ding t hat his
one appellate claim based on the allegedly erroneous admission of the challenged evidence was waived due to his tria l counsel’s failure to object. See Broomfield v. State , No. 82A04

- 1508

- CR

- 1190, slip op. at 2 (Ind. Ct. App. March 15, 2016). On October 10, 2016, Broomfield filed his PCR in which he alleged that his trial counsel was ineffective for waiving his evidentiary claim by failing to object to the admission of the challenged evidence at trial. On May 2, 2018, the PCR court held a hearing on Broomfield’ s PCR . On July 26, 2018, the PCR court entered its Order denying Broomfield relief, finding that the stop at issue was supported by reasonable suspicion and that Br oomfield had failed to demonstrate that he had been prejudiced by his trial counsel’s failure to objectCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 6 of 11 because “the evidence in question was admissible, and thus any objection would have been unsuccessful.” (PCR App. Vol. II, p. 114).

[10] Broomfield now ap peals. Additional facts will be provided as necessary. 

### DISCUSSION AND DECISION I. Standard of Review [11] PCR proceedings are civil proceedings in which a petitioner may present limited collateral challenges to a criminal conviction and sentence. Weisheit v. State , 109 N.E.3d 978, 983 (Ind. 2018). In a PCR proceeding , the petitioner bears the burden of establishing his claims by a preponderance of the evidence. Id . When a petitioner appeals from the denial of his PCR, he stands in the position of one app ealing from a negative judgment. Hollowell v. State , 19 N.E.3d 263, 269 (Ind. 2014). To prevail on appeal from the denial o f a PCR, the petitioner must show that the evidence “as a whole leads unerringly and unmistakably to a conclusion opposite that rea ched by the [PCR] court.” Id . In addition, where a PCR court makes findings of fact and conclusions of law in accordance with Indiana Post

- Conviction Rule 1(6), we do not defer to its legal conclusions, but we will reverse its findings and judgment only upon a showing of clear error, meaning error which leaves us with a definite and firm conviction that a mistake has been made

. Id

. In making this determination, we do not reweigh the evidence or judge the credibility of witnesses, and we consider only th e probative evidence and reasonable inferences flowing therefrom thatCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 7 of 11 support the PCR court ’s judgment

. McKnight v. State , 1 N.E.3d 193, 199 (Ind. Ct. App. 2013).
II. Ineffective Assistance of Counsel

[12] Broomfield contends that he “was denied the effective assistance of trial counsel when counsel waived a pretrial motion to suppress by not objecting at trial.” (Appellant’s Br. p. 6). We evaluate ineffective assistance of counsel claims under the two

- par t test articulated in Strickland v. Washington , 466 U.S. 668 (1984). To prevail on such a claim, a petitioner must show that 1) his counsel’s performance was deficient based on prevailing professional norms; and 2) that the deficient performance prejudice d the defense. Weisheit , 109 N.E.3d at 983 (citing Strickland , 466 U.S. at 687). In order to demonstrate sufficient prejudice, the petitioner must show that there is a reasonable probability that, but for his counsel’s unprofessional errors, the result o f the proceeding would have been different. Id

. (citing Strickland , 466 U.S. at 694). A reasonable probability is

one that is sufficient to undermine confidence in the outcome. Id

. To demonstrate prejudice as a result of trial counsel’s failure to obj ect to the admission of evidence, a petition must show that an objection would have been sustained by the trial court and that he was prejudiced by his counsel’s failure

. Mays v. State , 719 N.E.2d 1263, 1265

- 66 (Ind. Ct. App. 1999) , trans. denied

. A peti tioner’s failure to satisfy either the ‘performance’ or the ‘prejudice’ prong of

a Strickland analysis will cause an ineffective assistance of counsel claim to fail. Taylor v. State , 840 N.E.2d 324, 331 (Ind. 2006). If it is easier to dispose of anCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 8 of 11 ineff ectiveness claim on the grounds that prejudice has not been shown, that course shoul d be followed. Carter v. State , 929 N.E.2d 1276, 1280 (Ind. 2010).

[13] Broomfield’s specific claim of ineffective assistance is that his trial counsel should have preserve d his evidentiary claim by objecting to the admission of the challenged evidence because the investigatory stop that garnered that evidence was not based on reasonable suspicion. Thus, resolution of his claim entails review of whether the st op at issue was supported by the reasonable suspicion required by the Fourth Amendment

. 1 As held in Terry v. Ohio , 392 U.S. 1, 27 (1968), the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has reasonable suspicion of criminal activity. Reid v. State , 113 N.E.3d 290, 298 (Ind. Ct. App. 2018). The requisite r easonable suspicion exists if the facts known to the officer at the moment of the stop, together with the reasonable inferences arising from such facts, would cause an ordinary prudent person to believe that criminal activity has occurred or is about to oc cur. Id

. Reasonable suspicion “must be comprised of more than an officer’s general “hunches” or unparticularized suspicions. Id . The reviewing court makes reasonable suspicion determinations by looking at the totality of the

1 Broomfield’s claim of ineffectiv eness is that his trial counsel waived the pretrial motion to suppress by failing to object on the same grounds at trial. Broomfield’s trial counsel did not develop a separate argument based on Article 1, Section 11 in her argument at the pretrial suppression hearing, and the PCR court made no findi ngs or conclusions based on state constitutional law . As such, w e decline to address Broomfield’s Article 1, Section 11 analysis. See Abel v. State , 773 N.E.2d 276, 278 n.1 (Ind. 2002) (holding that failure to develop a separate state constitutional claim resulted in waiver of the issue).Court of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 9 of 11 circu mstances of each case to determine whether the de taining officer had a particularized and objective basis for suspecting legal wrongdoing. Id

.
[14] Here, officers Brown and Lowe had received an alert to be on the lookout for three African

- American men who had committed a home inv asion, were armed with two handguns, and who they knew would be either in a car or on bicycles. The officers then spotted a car in a low

- traffic area containing three African

American men within one mile of the location of the home invasion. Thus, Broomf ield and his cohorts matched the race, number, and mode of transportation of the home invasion suspects and were spotted relatively close to the location of the reported crime, especially considering that they were in a car, as opposed to being on foot

. T he fact that it was late at night and the area was not busy made it more likely that the three men were indeed the suspects sought for the home invasion.

[15] After the officers tailed the car, Broomfield engaged in what Officer Brown considered to be, in his training and experience, evasive driving before parking the car. Broomfield and the other two men then exited the car, approached a darkened home, but left seemingly without attempting to knock on the door or otherwise contact the occupants of the home, which, in Officer Brown’s experience, was unusual in that people who are visiting a home usually attempt to knock on the door, even if law enforcement officers are passing by. In the context of investigating a home invasion involving armed suspects, appro aching a darkened home without attempting to contact the occupants is suspicious. Although any one of these circumstances taken alone may not have beenCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 10 of 11 enough to constitute reasonable suspicion, taken together, the totality of the circumstances of the men matching the general description provided for the home invasion suspects, being spotted close to the scene of the home invasion, engaging in evasive driving when trai led by the officers , and approaching the darkened home without attempting to contact the occupants constituted a reasonable basis for the investigatory stop. Reid , 113 N.E.3d at 298 (holding that reasonable suspicion determinations are made by examining the totality of the circumstances of the particular case).

[16] Broomfield argues otherwise a nd directs our attention to the fact s that t he officers had no description of the home invasion suspects’ vehicle, the ti me and place he was spotted by the officers which he considers to be too remote in place and time from the home invasion, an d the officers did not observe him committing any traffic infractions or crimes . However, these arguments are unavailing given our standard of review upon denial from a PCR which precludes us from reweighing evidence or considering evidence that does not suppor t the PCR court’s judgment. McKnight , 1 N.E.3d at 199

. He also contends that “[l]egally parking the car, getting out of the car, walking across the street and going up to a dark house are not illegal” and that “ [ m ] aking eye contact with the police and th en walking away from them does not provide reasonable suspicion for an investigatory stop.” (Appellant’s Br. p. 22). W e agree with the general premise that approaching a darkened house, making eye contact with police, and walking away would not constitut e reasonable suspicion taken alone and out of contex t. However, within the totality of theCourt of Appeals of Indiana | Memorandum Decision 18A

- PC

- 1933 | February 8, 2019 Page 11 of 11 circumstances present here , namely the ongoing home invasion investigation, the men matching the general description of the suspects relatively close to the
scene o f the home invasion, and Broomfield’s evasive dri ving, the three men’s conduct of approaching the dark ened house and apparently leaving without knocking was but one element which contributed to the officers ’ reasonable suspicion.

[17] Because the investigatory stop was based on reasonable suspicion and did not violate Broomfield’s Fourth Amendment rights, any objection his trial counsel would have lodged at trial would not have been fruitful, and Broomfield cannot show that he was prejudiced by his trial counsel ’ s failure to object at trial to preserve a claim challenging what w as admissible evidence

. Mays , 719 N.E.2d at 1265

- 66. Having disposed of Broomfield’s claim of ineffective assistance of counsel on lack of prejudice grounds, we declin e to addr ess his al legation of his trial c ounsel ’s deficient performance. See Carter , 929 N.E.2d at 1280. As a result, we conclude that the PCR court’s conclusions were not clearly
erroneous , and denial of relief was proper

. Hollowell , 19 N.E.3d at 269. 

### CONCLUSION
[18] Based on the foregoing, we conclude that Broomfield was not denied the effective assistance of his trial counsel for failing to lodge objections to p reserve
an evidentiary claim that was without merit

.
[19] Affirmed.

[20] Kirsch, J. and Robb, J. concur