By Liz Shepherd
InkFreeNews

WARSAW — Christopher Susaraba, a 32-year-old man who dealt drugs to a Kosciusko County Jail inmate who overdosed and died, is appealing his 40-year prison sentence.

His appeal was transmitted to the Indiana Court of Appeals on Thursday, June 9.

Everett and Helen Newman, with Newman and Newman LLC, Albion, are the attorneys representing Susaraba in his appeal. The Newmans also represented Susaraba during his June 2021 jury trial.

Background on Case

According to court documents, on March 9, 2019, KCJ officers responded to a report of an unresponsive inmate. Officers entered a cell block to find an inmate performing CPR on Dennis McCrory, 39, Michigan. The inmate told officers McCrory was overdosing on heroin.

Officers continued CPR until medical personnel arrived, performed CPR and administered Narcan with no success. McCrory was later pronounced dead in Fort Wayne.

On March 11, 2019, a pathologist ruled McCrory’s cause of death as acute mixed drug intoxication. A drug screen showed methamphetamine and narcotics were in McCrory’s body.

Several witnesses said Susaraba brought a large amount of heroin and methamphetamine into the jail. Witnesses also said Susaraba was dealing heroin and methamphetamine to multiple inmates in exchange for money.

Susaraba provided a large amount of methamphetamine and heroin to McCrory, who used the drugs, became lethargic and eventually overdosed and died.

During a three-day jury trial in June 2021, Susaraba was found guilty of dealing in a controlled substance resulting in death, a level 1 felony; and trafficking with an inmate, a level 5 felony. The jury also found Susaraba guilty of being a habitual offender.

In July 2021, Kosciusko Circuit Court Judge Michael Reed sentenced Susaraba to 30 years in the Indiana Department of Correction. The trafficking with an inmate charge merged into the Level 1 felony. Judge Reed also added an additional 10 years to Susaraba’s sentence through the habitual offender enhancement.

In total, Susaraba received a 40-year DoC sentence. He is currently serving his sentence at Miami Correctional Level 3 Facility, with a projected release date of March 6, 2053. On Jan. 4, Susaraba was also sentenced on a St. Joseph County case for trafficking with an inmate. In that case, he received a five-year prison sentence. The five-year sentence was ordered to be served consecutively to Susaraba’s Level 1 felony case in Kosciusko County.

Appellant’s Brief

A 40-page appellant’s brief, filed April 22 by Susaraba’s legal counsel, presents three arguments as to why Susaraba’s charges should be dismissed.

1. Insufficient evidence

In their brief, Susaraba’s counsel argues that direct proof of drug usage by McCrory on March 9, 2019, and Susaraba being identified as the drugs’ source in KCJ depends solely upon testimony from Daniel Swafford. Swafford was a jail inmate called to testify by the state during Susaraba’s trial.

In his testimony, Swafford said he, McCrory, Susaraba and another inmate used drugs on March 9, 2019.

During testimony, through cross-examination, Swafford identified McCrory’s jail roommate, Steven Bennett, as the person who delivered the drugs to McCrory.

The appellant’s brief points out contradictions in Swafford’s testimony.

“In its closing statement, the State summarized Swafford’s testimony as follows: ‘Daniel Swafford told you Susaraba provided the drugs to each of them,'” read the brief. “However, in the same testimony during cross-examination, Swafford testified that it was Swafford himself who brought McCrory to where the drugs would be used and that the source of all the drugs used was Bennett, whom Swafford observed giving the drugs to McCrory and from whom he obtained his own drugs. The State relied solely upon Swafford to establish the elements of delivery from Susaraba to McCrory.”

Susaraba’s counsel further argues that Swafford’s testimony describes, at best, usage of drugs by inmates versus drug dealing or transference.

“Swafford never testified that he saw any transfer of drugs from anyone, only usage by the inmates,” states the brief. “He did not see Susaraba bring any drugs into the jail.”

Counsel also states that Bennett being the source of the drugs is more plausible since Bennett and McCrory were cellmates, while Susaraba had been in the jail for less than two days prior to the overdose occurring.

2. Control and delivery of substances

The brief again focuses on Swafford’s testimony being the sole evidence used by the state to identify Susaraba as the drugs’ source.

“Without Swafford’s testimony, there is no evidence that McCrory used drugs with anyone at any place within the jail or that any person received drugs from Susaraba on March 9,” read the brief.

The Newmans also argue that other drug sources, as well as other inmates capable of delivering drugs, were inside the jail at the time of McCrory’s death. The brief focuses on testimonies from inmates and jail staff who discussed how items were typically exchanged.

“When the State told the jury that ‘these problems did not arise until Mr. Susaraba arrived (at the jail),’ it was horribly mistaken,” argues the brief.

It also further elaborates on Bennett easily being the drug source for the block’s inmates.

“That might seem to be mere speculation, but it is less of a speculation than that an individual (Susaraba) stopped without notice and then arrested, searched and scanned, was the major source for drugs in the block after being there for only 41 hours,” read the brief.

Slow moving case

Susaraba’s jury trial was initially scheduled to take place in March 2021. However, prior to the trial beginning, Deputy Prosecuting Attorney Matt Buehler requested the court continue the trial due to the state missing essential witnesses. This motion was denied.

Buehler then made the motion to dismiss the criminal charges and re-file them under a different case number. Judge Reed allowed the motion.

Susaraba’s counsel argues that the permittance of dismissing the case and re-filing charges within hours of a motion ruling due to the State’s unpreparedness shifted the burden of exercising due process confrontation rights to Susaraba.

“When (Susaraba) is literally sitting in the courtroom ready for his trial he should not find himself, after hundreds of days in jail, facing another trial in the unforeseeable (at that time) future for no better reason than that the State did not get its witnesses together and failed to give (Susaraba) his statutorily required timely notice,” read the brief. “The State had 664 days to file its notice of intent and instead elected to file only 14 days before trial, six days later than that required by Indiana Code 36-35-11-2.”

The Newmans conclude the brief by stating the judgments should be vacated and all counts against Susaraba be dismissed.

Appellee’s Brief

The 17-page appellee’s brief, filed May 23 in response to Susaraba’s argument, was written on behalf of the state by Indiana Deputy Attorney General Nicole D. Wiggins.

Wiggins argues in her brief that Susaraba’s conviction should be upheld.

The state argues that the “incredible dubiosity rule” does not apply to the case or Swafford’s testimony since more than one witness testified for the state of Indiana during Susaraba’s trial. Another inmate who testified for the state also said that Susaraba provided him with meth at the jail.

Wiggins also states that Swafford’s testimony is not so improbable that no reasonable person could believe it.

“The fact that drugs are smuggled into jails and used therein is unfortunately not uncommon or improbable,” said Wiggins. “Indeed, an officer testified that drugs had previously been found in the Kosciusko County Jail during booking.”

The state further argues that there is circumstantial evidence supporting Swafford’s testimony. Evidence includes booking reports confirming that Susaraba and McCrory were housed in the same cell block; McCrory’s girlfriend testifying that she transferred funds to Susaraba’s jail account on behalf of McCrory; and a letter from a jail inmate to the county sheriff asserting that drugs were being smuggled into the jail.

Susaraba and his counsel also argued that the substance in question for the case was not sufficiently identified as a controlled substance. Again, the state cites Swafford’s testimony of knowing the substance was a mixture of heroin and methamphetamine “because of the way it burned his nose.”

“This testimony was sufficient to establish that the substance given to McCrory was heroin, methamphetamine, or a mixture thereof, and was therefore a controlled substance,” said Wiggins.

Wiggins also argued that even if testimony was deemed inadequate, toxicology and autopsy reports on McCrory’s body confirm that McCrory died from an overdose of methamphetamine and heroin.

The state further argues that the trial court properly denied Susaraba’s motion to dismiss the case.

“(Susaraba) had adequate time to prepare a defense and was not forced to discard his prior preparation for trial and begin anew with different charges, strategies and defenses,” argued Wiggins. “Although (Susaraba) claims that his right to confrontation was intruded upon, he fails to identify what evidence or witness he was denied the right to confront at trial. Indeed, (Susaraba) was able to confront and cross-examine the eyewitness to the fatal drug exchange, as well as those witnesses involved in the blood collection and testing in this case.”