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.

APPELLANT PRO SE

Sean Clover

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Sean Clover,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

November 17, 2016

Court of Appeals Case No.

03A05-1512-PC-2121

Appeal from Bartholomew Superior 

Court.

The Honorable Matthew D. Bailey, 

Special Judge.

Cause No. 03D01-1204-PC-2037

Garrard, Senior Judge

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[1] After Clover’s judgment of conviction and sentence for two counts of dealing in 

cocaine,1

each as a Class A felony, were affirmed on direct appeal,2Clover 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. 

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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 postconviction 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 

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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 

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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 

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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 

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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 

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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 

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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. 

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[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 

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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. 

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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 

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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.

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