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Judges rule counsel was not deficient, drug conviction stands

February 25, 2015

The Indiana Court of Appeals affirmed a man’s conviction of Class D felony possession of marijuana in excess of 30 grams after finding that the claims he wanted his attorney to raise at trial would not have prevailed.

Gordon Peak appealed his conviction in Gordon L. Peak, Jr. v. State of Indiana, 27A04-1406-CR-260, claiming on direct appeal that his trial counsel was ineffective for failing to file a motion the suppress the alleged marijuana found on Peak during a traffic stop and for not objecting at trial to the admission of the drug on the grounds the traffic stop was illegal.

A Marion police officer in an unmarked car saw Peak’s car leave from a house suspected in illegal drug transactions. Peak came to a red light, turned on his turn signal, and turned. The office radioed for a marked car to pull Peak over because he did not activate his turn signal 200 feet prior to the turn.

The second officer pulled the car over and smelled raw marijuana. During the stop, the officer discovered more than 30 grams of the drug hidden in Peak’s groin area. Peak admitted it was marijuana.

His attorney didn’t file a motion to suppress prior to trial and Peak and his attorney had conflicting views on what defense should be presented. His attorney did move to suppress the marijuana, arguing that police needed a search warrant. The trial court denied his motion and a jury found him guilty.

Peak didn’t dispute that he did not signal 200 feet before turning, but he claimed the statute doesn’t apply because he did not intend to turn right until he came to a stop at the light and made the decision.

“Peak might have raised a defense at trial that he lacked the intent to turn during the 200 feet, but the reasonable suspicion analysis looks at the totality of the circumstances leading up to a traffic stop to determine whether the officer had a particularized and objective basis for the stop. Failure to signal within the required distance is objective evidence of failure to comply with the statute,” Senior Judge John Sharpnack wrote.

If his attorney had filed the motion to suppress or objected to the admission of the marijuana because the traffic stop was illegal, the attorney would not have prevailed, the COA held. Counsel’s performance is not deficient for failing to present a claim that would have been meritless, Sharpnack wrote.



 

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