Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 1 of 12 

### 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 David W. Stone, IV Anderson, Indiana A TTORNEYS FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana
Ian McLean Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA
Kraig Von Reese Brown, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff March 29, 2017 Court of Appeals Case No. 48A04-1606-CR-1368 Appeal from the Madison Circuit Court The Honorable Mark Dudley, Jr., Judge Trial Court Cause No. 48C06-1401-FB-147

Vaidik, Chief Judge.Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 2 of 12 

# Case Summary

[1] At Kraig Brown’s trial for dealing in co caine, a person who was in jail with Brown at the time was called to testify on Brown’s behalf. Under the advice of counsel and with the trial court’s a pproval, the witness invoked his Fifth Amendment privilege against self-incrimina tion. The jury convicted Brown. Brown now appeals, arguing that the tr ial court erred when it accepted the witness’s invocation of th e privilege against self-incrimi nation and that, in any event, the evidence is insu fficient to support his conv iction. Finding no error and that there is sufficien t evidence, we affirm. 

# Facts and Procedural History

[2] On April 21, 2011, Jerrett Scott purchase d cocaine and was later arrested for possession of cocaine by the Madison Coun ty Drug Task Force. In lieu of pressing charges, the Drug Task Force offered Scott a deal to work as a Confidential Informant (CI). The CI provided the Drug Task Force with Brown’s name and phone number and re ferred to Brown by his street name, “Manman.” Tr. p. 308. The CI stated that Brown was the d ealer who had sold to him earlier that day. The Drug Task Force had the CI call Brown to set up another buy.

[3] Before conducting a “controlled buy,” Drug Task Force officers conduct a prebuy interview—they search the CI for any drugs, money, or weapons and explain the buying process. After th e buy is completed, Drug Task ForceCourt of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 3 of 12 officers conduct a post-buy interview—th ey search the CI for any additional drugs, money, or weapons and ask questi ons about the buy. On April 21, Drug Task Force Officer Mark Naselroad cond ucted the CI’s pre-buy and post-buy interviews and provided him with fund s to purchase cocaine from Brown. During the buy, Drug Task Force officers lost sight of the CI and did not see Brown at the buy location. After purchasing the drugs, the CI immediately returned to Officer Naselroad’s underco ver car and went through the post-buy interview.

[4] The CI performed similar buys for the Drug Task Force on May 5 and May 18, going through the pre-buy and post-buy processes for each transaction with Officer Naselroad. At the May 5 buy, the CI met with Brown at a Motel 6. Officer Naselroad was positioned roughl y one block from the motel and could not see the drug deal. Drug Task Fo rce Officer Shaun Williams, however, provided additional surveillance from an undercover car parked in the motel’s parking lot. Officer Williams witnessed th e CI walk into room 206 and exit the room a short time later. He watched the CI proceed directly from the motel room to Officer Naselroad’s car. The CI then gave Officer Naselroad the drugs he had just purchased. Officer Willi ams remained at the motel for a few minutes after the CI left and witn essed Brown also exit room 206. 1

1 Brown maintains that Officer Williams testified that Brown came out of room 212 and not room 206. Appellant’s Br. pp. 14-15. Officer Wi lliams testified that he witnessed an unidentified man walk through the motel’s parking lot and ente r room 212. The man later opened his motel room door and stared at Officer Williams, who was still in his car. The unidentified man walked back into room 212 and was not seen again, nor was he present in the courtroom. See Tr. pp. 329-30. After Officer Williams testified that he saw BrownCourt of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 4 of 12 [5] At the May 18 buy, the CI met with Brow n in a parking lot. The CI entered a van and exited a few minutes later. He proceeded directly from the van to Officer Naselroad’s undercover car and handed over the drugs he had just purchased. Drug Task Force officers conducting surveillance on the buy did not see Brown. After the buy, two o fficers followed the van and witnessed a male and female exit the van. The offi cers were not able to identify either individual.

[6] After completing the third buy on May 18, Officer Naselroad presented the CI with a photo array of pictures of six di fferent individuals, including Brown. Officer Naselroad asked the CI if the man who sold him drugs on April 21, May 5, and May 18 was in the photo arra y. The CI identi fied Brown as the dealer on all three dates, circled Brown’s picture, and placed hi s initials next to Brown’s photo. State’s Ex. 7. Brown wa s later arrested and charged with three felony counts of dealing in cocaine. Brown was housed in the Madison County Jail while awaiting his trial.

[7] Before the start of Brown’s jury tria l, the CI was transferred from the Department of Correction to the Madison Co unty Jail. At the first day of trial, the CI testified that he knew Brow n, referred to Brown as Manman, and identified Brown in the co urtroom. The CI further stated that Brown was the

and the CI leave room 206, the State asked, “Did you see anybody else come out of room 212?” Id. at 332. Officer Williams did not correct the pr osecutor and answered, “[A]fter the CI came out I sat there like I said for approximately five (5) minute s or so before I observed Mr. Brown come out of the room.” Id. at 332-33. Read in context, it is clear that Officer Williams was testifying that Brown exited room 206 and not 212.Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 5 of 12 individual who had sold him cocaine on April 21, May 5, and May 18. He also confirmed that he had identified Brown in the photo array provided to him by Officer Naselroad.

[8] At the start of the second day of the tr ial, Brown presented his attorney with a handwritten note from Howard Jones, another inmate at the Madison County Jail. The note stated:
When [the CI] came into E-Bl ock he told me he had been incarcerated for 5 years (since 2010/2011). He also said he didn’t know you but you looked familiar, thinking he’d shot dice with you before. He spoke to me about how the detectives had brought him to MCJ to possibly testify against someone. He stated that when he was called by the detectives he would tell them to “Eat sh*t.” Once he came back from questioning he talked about possibly modifying or having his sentence amended for an early release. I’m not sure if he really is from Anderson or Michigan like he told me. After he was called down to sign some papers on 3-21-16, he got on the phone and told the recipient he would be getting out within 2 to 6 months. I believe he cut a deal for early release to testify against you.
Def. Ex. A (tendered during offer of pr oof but not admitted). Defense counsel alerted the trial court to the existence of the note and requested that Jones be called as a witness. Outs ide the presence of the ju ry, Jones was deposed and answered questions from both defense counsel and the State. Jones stated that he wrote the note for Brown, who he re ferred to as Manman. He wrote the note because, after his purported conver sation with the CI, he talked to an inmate named “Sticky” (Jones did not know Sticky’s real name), who told Jones that the CI was there to testify against Brown. Jones then got ahold ofCourt of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 6 of 12 Brown and told him about his alleged co nversation with the CI and wrote the note for Brown to give to his attorney. See Tr. pp. 419-20, 424-26, 435-37.

[9] The jury reconvened in th e courtroom, and defense counsel recalled the CI to testify. The CI denied ever speaking wi th anyone about Brown’s case or saying that he did not recognize Brown. The CI stated that he did not know anyone named Howard Jones and had never me t with Jones while in the Madison County Jail. He also expl ained, contrary to Jones’s note, that he had actually recognized Brown in the Madison County Jail and, as a result, requested a transfer to a different block to ensure th at he and Brown would not cross paths.

[10] Defense counsel then called Jones to testif y, but before he could take the stand an attorney present on his behalf objected:
I am representing defense’s next witness Howard Jones downstairs in two separate crimin al causes. One of those causes involves charges substant ially similar to this case. Basically a, a drug possession with, with potential intent to distribute. . . . I am instructing him to take the fifth in regard to this case in fear that somehow a door could be opened in which would result [sic] in him being examined with regard to the criminal charges pending against him and his involvement with those charges and our burden is merely to sh ow that there is the ri sk of that some piece [sic] of testimony being elicited from him that would supply a link in the chain to his future pr osecution. . . . [S]o we believe that that is a realisti c if not fanciful [sic] based on the charges pending against him that they could probe into drug dealing activity, kidnapping activity revo lved around drug dealing type allegations and extortion of another drug dealer.

Id. at 495-96.Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 7 of 12 [11] Based on Jones’s deposition and his atto rney’s objection, the trial court found that Jones had met his burden to inv oke his Fifth Amendment privilege against self-incrimination. Jones responded to defense counsel’s first question by saying, “Based upon advice of counsel I respectfully declin e to answer your questions and assert my Fifth Amendment.” Id. at 504. He was then dismissed as a witness.

[12] Later, outside the presence of the jury, defense counsel made an offer of proof that had Jones testified, his testimony would have been consistent with his deposition testimony and the note that he wrote to Brown. The trial court accepted the offer, stating, “Court will also show the offer of proof that if [Jones] had not invoked the Fifth Amen dment privilege his testimony would be consistent with [the note] and wh at he testified to earlier.” Id. at 513.

[13] After the conclusion of the trial, the ju ry returned a verdict of not guilty on counts I and III (the April 21 and May 18 buys), but it found Brown guilty on count II (the May 5 buy). Brown now appeals.


# Discussion and Decision

[14] Brown argues that the trial court erred wh en it granted Jones’ s invocation of his Fifth Amendment privilege against self-incri mination and that the evidence is insufficient to support his conviction for dealing in cocaine on May 5.Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 8 of 12 

## I. Fifth Amendment

[15] The Fifth Amendment to the United States Constitution extends to the States through the Fourteenth Amendment. Withrow v. Williams , 507 U.S. 680, 689 (1993). The Fifth Amendmen t provides that no person “shall be compelled in any criminal case to be a witness against hi mself.” U.S. Const. amend. V. This protection not only applies to a crimin al defendant in his own trial but also allows any witness “not to answer offi cial questions put to him in any other proceeding, civil or criminal, formal or informal, where the answer might incriminate him in future criminal proceedings.” Lefkowitz v. Turley , 414 U.S. 70, 77 (1973). The Fifth Amendment, ho wever, does not cr eate an unqualified privilege for a witness to remain silent. Salinas v. Texas , 133 S. Ct. 2174, 2182- 83 (2013). “A witness’ constitutional right to refuse to answer questions depends on his reason for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.” Id. at 2183 (citing Hoffman v. United States , 341 U.S. 479, 486-87 (1951)). “W hen confronted with a witness’s assertion of Fifth Amendment rights, the trial court must hold a hearing outside the presence of the jury.” Duso v. State , 866 N.E.2d 321, 325 (Ind. Ct. App. 2007) (citing Ind. Code § 35-37-3-1).

[16] We review a trial court’s acceptance of a witness’s invocation of the Fifth Amendment privilege against self-incrimina tion for an abuse of discretion. Id. “An abuse of discretion occurs when th e trial court’s decision is against the logic and effect of the facts an d circumstances before it.” Montgomery v. State , 14 N.E.3d 76, 78 (Ind. Ct. App. 2014). “We do not reweigh the evidence, andCourt of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 9 of 12 we consider only the ev idence most favorable to the judgment and the reasonable inferences drawn therefrom.” Hale v. State , 992 N.E.2d 848, 852 (Ind. Ct. App. 2013).

[17] Brown specifically argues that the risk that Jones would be prosecuted based on his testimony is “purely fanciful.” Appe llant’s Br. p. 13. In other words, the court should not have granted Jones’s invocation of the self-incrimination privilege because the threat of Jones’s testimony being linked to his pending charges is virtually non-existe nt. This Court set forth in Duso the standard for assessing a witness’s assertion of the self-incrimination privilege:
[I]n determining whether the an swer might so incriminate the witness, the court is bound by th e statement of the witness as to its effect unless it clearly appears from the examination and the circumstances before the court that the witness is mistaken in his conclusion that the answer will incriminate him, or that the witness’ refusal is purely contumacious. A witness is excused from answering if the answer woul d tend to furnish one link in the chain of evidence necessary to convict him of a criminal charge. The witness is not unde r any obligation to explain how the answer might tend to incrim inate him as this would defeat the very object of the co nstitutional provision.
866 N.E.2d at 325 (quoting Northside Sanitary Landfill, Inc. v. Bradley , 462 N.E.2d 1321, 1325 (Ind. Ct. App. 1984)). In appraising the witness’s claim, the trial court “must be governed as much by [its] personal perception of peculiarities of the case as by th e facts actually in evidence.” Northside Sanitary Landfill , 462 N.E.2d at 1326.Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 10 of 12 [18] Here, had Jones testified, the State and defense a ttorney would have been allowed to inquire into Jones’s criminal history, including the charges pending against him. One of Jones’s charges wa s “substantially similar” to Brown’s charges for dealin g in cocaine. Tr. p. 495; s ee Duso , 866 N.E.2d at 325. During his deposition, Jones referred to Brown as Manman, Brown’s street name. The State and the defense attorney would have been allowed to inquire into Jones’s relationships with both Brown and Sticky, see Ind. Evidence Rule 616, which could have opened a door to Jones’s pe nding charges. Based on the testimony Jones provided outside the pr esence of the jury and th e reasons for invoking the Fifth Amendment privilege against self-i ncrimination, it was not clearly apparent that Jones’s attorney was mistak en in his conclusion that his answers could reasonably incriminate him. The trial court did not abuse its discretion when it accepted Jones’s invocation of his Fifth Amendment privilege against self-incrimination. 2

[19] We also agree with the Stat e that even if the trial court had erred when it accepted Jones’s invocation of his Fi fth Amendment privilege, the error would have been harmless. Error is harmless wh en, in light of all the evidence in the case, it is sufficiently minor so as not to affect the substantial rights of a party. Ind. Appellate Rule 66(A); see Lewis v. State , 34 N.E.3d 240, 248 (Ind. 2015).

2 After the trial court granted Jones’ s invocation of his Fifth Amendment privilege, Brown’s attorney argued that Jones’s deposition test imony should be admi tted into the record for the jury, but defense counsel did not pursue the issue after the State gave its rebuttal argu ment for not admitting the de position. Defense counsel did not seek a ruling from the trial court, no ruling was issued, and this argument was not raised on appeal.Court of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 11 of 12 Jones’s testimony outside the presence of the jury was th at the CI told him that he did not know Brown but they had maybe shot dice together. This testimony, on its face would be hearsay, see Ind. Evidence Rule 801, but it could be admitted to impeach the CI, see Ind. Evidence Rule 608. In other words, Jones’s statement would have been admissible not for its truth but rather to create doubt regarding the tr uthfulness of the CI’s prio r testimony that he knew Brown. However, the CI’s testimony that he knew Brown was further supported by Officer Naselroad’s testimon y that the CI identified Brown in a photo array, provided the Drug Task Force with Brown’s name and contact information, and knew Brown’s street name. Additionally, Officer Williams testified that on May 5 he witnessed Br own exit motel room 206 mere minutes after the CI exited the room. Given the additional evidence to corroborate the CI’s testimony that he knew Brown, any error in allowing Jones not to testify would have been harmless. 

## II. Sufficiency of the Evidence

[20] Brown further contends that even if th e trial court properly allowed Jones to invoke the Fifth Amendment, the evid ence is insufficient to support his conviction. When reviewin g the sufficiency of the evidence, we neither reweigh the evidence nor determine th e credibility of the witnesse s; that role is reserved for the factfinder. Bailey v. State , 979 N.E.2d 133, 135 (Ind. 2012). “The evidence—even if conflicting—and all reas onable inferences drawn from it are viewed in a light most favo rable to the conviction.” Id. A conviction will be affirmed “if there is substantial eviden ce of probative value supporting eachCourt of Appeals of Indiana | Memorandum Decision 48A04-1606-CR-1368| March 29, 2017 Page 12 of 12 element of the crime from which a reasonab le trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id.

[21] Specifically, Brown argues that “other th an the testimony of [the CI] whom the jury did not find credible with respect to the other two buys, there is nothing to uphold the conviction beyond the fact that the defendant was at the motel.” Appellant’s Br. pp. 14-15. There is su fficient evidence to support the CI’s testimony that Brown had sold him co caine on May 5. Officer Naselroad testified about the pre-buy and post-b uy interview process and that he conducted these interviews with the CI on May 5. When the CI left Officer Naselroad’s car his only possession wa s the money the Drug Task Force had provided for him to purchase cocaine. The CI then entered room 206, as stated by Officer Williams, and left a few minutes later. The CI proceeded directly from room 206 to Officer Naselroad’s car, and his only possession upon arrival was cocaine. Officer Williams also te stified that he witnessed Brown leave room 206 minutes after the CI exited. There is sufficient evidence beyond the CI’s testimony to support Brown’s convic tion for dealing in cocaine on May 5.

[22] Affirmed.
Bradford, J., and Brown, J., concur.