Drug dealer’s appeal fails to show prosecutorial misconduct

A prosecutor’s suggestion to jurors during closing arguments that the volume of fentanyl in a habitual drug dealer’s possession had the potential to kill thousands of people did not constitute fundamental error. The Indiana Court of Appeals on Friday rejected that and other arguments of a man convicted and sentenced to 40 years in prison.

The panel affirmed multiple convictions and the 40-year sentence imposed by a Marion County jury in Willlie J. Bailey v. State of Indiana, 18A-CR-2317. Indianapolis Metropolitan Police began monitoring Bailey after receiving a tip that a man nicknamed “Skip” was dealing drugs from various vehicles he would drive to a house on Olney Street. Bailey, who was sentenced to community corrections for a prior drug dealing offense, was registered at an address on Old Stone Drive.

After watching numerous apparent drug transactions over the course of several weeks and collecting other evidence, IMPD officers obtained a search warrant for the various vehicles Bailey had been seen driving and the two homes he was associated with. Police stopped Bailey at a gas station, searched his car and found 4.9 grams of fentanyl and $295. They then found almost another 13 grams at the Old Stone addresses, as well as 27 grams of cocaine, 10 grams of marijuana and $9,000 in cash. Photos of Bailey and mail addressed to him at that location tied him to the drugs.

At a jury trial last August, Bailey was convicted of Level 2 felony counts of dealing in cocaine and dealing in narcotic drug; Level 6 felony counts of possession of a narcotic drug and felony escape for knowingly violating a home detention order; and Class B misdemeanor possession of marijuana. Found to also be a habitual offender, Bailey was sentenced to an aggregate of 40 years in prison to be served consecutive to another sentence.

On appeal, Bailey argued a claim of prosecutorial misconduct for an argument intended to inflame the passions or prejudice of the jury. The prosecutor told jurors that .001 grams of fentanyl can cause an overdose, then reasoned, “(Bailey) has 18,000 chances of somebody [overdosing], not only on his person but in his house … he had 5 grams on him. It was actually 4.94. So that’s 494, or 4,940 potential overdoses.” The prosecutor also overstated the amount of money found during closing arguments.

“However, these statements appear to be inadvertent mistakes rather than calculated attempts to inflame the passions of the jury,” Judge Melissa May wrote for the panel. “Further, any error was not so egregious as to constitute fundamental error. The comments were limited in nature and the record contains substantial evidence of Bailey’s guilt.”

The panel also rejected Bailey’s other arguments contesting the searches and sufficiency of the evidence. May noted Bailey signed a community corrections contract that subjected him to searches of his home at any time without notice. His movement also was to be limited under terms of his house arrest.

Citing State v. Schlechty, 926 N.E.2d 1, 8 (Ind. 2010),  the COA found that under the circumstances, a warrant wasn’t even needed to initially search Bailey’s car.

“The community corrections contract Bailey signed required him to allow police to search him and his property based on reasonable suspicion of behavior violating the contract, such as possession of illegal drugs. Therefore, based on the information gathered during the police investigation, Bailey could be detained and searched without an arrest warrant,” May wrote.

“… We conclude Bailey’s rights under both the United States and the Indiana Constitutions were not violated when he and his vehicle were stopped and searched. Further, the warrant authorizing the search of the Old Stone Address and the Olney Address was supported by probable cause. There was sufficient evidence of guilt in the record to support the jury’s verdict,” the panel held.