MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 11 2016, 8:37 am
Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce W. Graham Gregory F. Zoeller Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Danny James Horton, April 11, 2016
Appellant-Defendant, Court of Appeals Case No. 79A05-1507-CR-990 v. Appeal from the Tippecanoe Superior Court. The Honorable Steven P. Meyer, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 79D02-1403-FB-5
Sharpnack, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 1 of 15 Statement of the Case [1] Danny James Horton appeals from his conviction of unlawful possession of a 1 firearm by a serious violent felon , a Class B felony, and an habitual offender
determination. We affirm and remand for resentencing.
Issues [2] Horton presents the following issues for our review:
I. Whether the trial court abused its discretion by excluding a defense witness during the second phase of Horton’s jury trial for violating an order separating the witnesses; II. Whether the trial court abused its discretion by denying Horton’s motion to suppress and admitting evidence at trial that was seized after law enforcement officers executed a search warrant; and III. Whether the trial court committed a sentencing error on the habitual offender enhancement.
Facts and Procedural History [3] On February 25, 2014, Lafayette Police Department Sergeant Brian Brown
received information that Horton was wanted on an outstanding warrant from
Warren County, Indiana, and was being investigated for weapons and
narcotics. Sergeant Brown examined the law enforcement records management
system and discovered that Horton had an incident approximately two years
1 Ind. Code § 35-47-4-5 (2012).
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 2 of 15 prior involving fleeing law enforcement, narcotics, and weapons. He also
verified that the arrest warrant from Warren County was still active.
[4] Sergeant Brown had been contacted by officers working for the United States
Marshal’s Office informing him that they had been running surveillance on
Horton and had narrowed his location to one particular house in Lafayette.
Officers had spoken to three individuals who had recently left that house and
asked them if Horton was inside. The first person, Jennifer Ellison, the owner
of the home and Horton’s girlfriend, told the officers that Horton was not inside
the house and that she had not seen him for two weeks. Two individuals who
left the house later, Justin Rossi, Ellison’s step-son, and Jonathan Henson,
Rossi’s friend, told officers that Horton was in the house, there were guns in the
house, and that they had observed Horton carrying a handgun.
[5] Brown obtained a search warrant for Ellison’s house, but before it could be
executed, Horton was taken into custody a short distance away. When
Sergeant Brown arrived on the scene with the search warrant, officers executed
the warrant and searched Ellison’s house. While searching, they found
marijuana hidden in the master bedroom, a rifle hidden beside a dryer, and
ammunition for the rifle and other weapons. Officers applied for and obtained
an amended search warrant, which was executed. After being advised of his
rights, Horton was interviewed by Brown and an A.T.F. agent. Horton
admitted that he possessed the rifle, but explained he was going to repair it for
another person.
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 3 of 15 [6] On March 3, 2014, the State charged Horton with Class B felony unlawful
possession of a firearm by a serious violent felon, Class A misdemeanor
possession of marijuana, and Class A misdemeanor possession of
paraphernalia. Later, the State added an habitual offender allegation.
[7] On July 24, 2014, Horton filed a motion to suppress the firearm, marijuana,
paraphernalia, and his statements to police on constitutional grounds. He
argued that the items seized were inadmissible because: 1) they were seized
pursuant to a search warrant that was not supported by probable cause or
reliable information; 2) the information supporting the warrant was stale and
anticipatory; 3) the warrant lacked specificity of the items to be seized; and, 4)
the search exceeded the scope of the warrant. With respect to his statements,
Horton argued that he was questioned by law enforcement officers without the
benefit of receiving his Miranda warnings.
[8] On September 18, 2014, the trial court held a hearing on Horton’s motion to
suppress after which it took the matter under advisement and requested that the
parties brief the matter by October 8, 2014.
[9] Horton’s memorandum in support of his motion to suppress maintained the
position that the search warrant was not based on reliable information because
Rossi and Henson’s information was not corroborated prior to the search.
Horton argued in the alternative, that if the search warrant was proper, the
scope of the search was overbroad. With respect to Horton’s statement to
police officers, Horton argued for the first time that his interrogation was
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 4 of 15 similar to the one conducted in Payne v. State, 854 N.E.2d 7 (Ind. Ct. App.
2006). In Payne, a defendant’s conviction was reversed because of the
erroneous admission of both her pre-Miranda statements to police, occurring
during the first seven hours of interrogation, and her post-Miranda statements,
occurring in the approximately four additional hours of interrogation.
[10] In its response, the State argued in support of the admissibility of the evidence
seized pursuant to the search warrant. However, no argument was made in
support of the admissibility of Horton’s statements to police.
[11] On October 15, 2014, the trial court entered an order denying Horton’s motion
to suppress the evidence seized pursuant to the warrant, finding that it was
supported by reliable, corroborated information and that the scope of the search
was not overbroad. The trial court, however, granted the motion to suppress
Horton’s statements to police, citing the State’s failure to present an argument
against that part of Horton’s motion.
[12] On November 10, 2014, the State filed a motion to reconsider the trial court’s
order granting Horton’s motion to suppress his statements, citing argument and
evidence presented by the State at the hearing on the motion to suppress. In
support of the motion to reconsider, the State cited its overview of the evidence
including the details of Horton’s recorded statement and that Horton received
his Miranda warnings. The State also noted Sergeant Brown’s testimony at the
suppression hearing about: 1) conducting the recorded interview with Horton
on February 26, 2014; 2) reading a waiver of Miranda rights to Horton; 3)
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 5 of 15 confirming that Horton understood his rights; and, 4) observing Horton sign a
written waiver. The recorded statement and Horton’s written waiver were
admitted at the hearing. The State also challenged Horton’s reliance on Payne,
contending that Horton’s interview was not similar. The trial court granted the
State’s motion to reconsider by order dated December 15, 2014.
[13] On May 20, 2015, Horton filed a motion requesting an order in limine
prohibiting at trial any mention of: 1) Horton’s prior arrests or convictions; 2)
his pending habitual offender status; 3) that Horton currently was in custody;
and, 4) the outstanding warrant for Horton’s arrest on a different matter at the
time he was arrested for this offense. Horton also requested a separation of
witnesses. The next day, Horton filed a supplemental motion requesting that
the order in limine also suppress evidence obtained as a result of the search
warrant and Horton’s statement to police. On May 26, 2015, the State filed a
motion requesting an order in limine, which among other things, asked for a
separation of witnesses save for the assisting law enforcement officer remaining
at counsel table with the State.
[14] Horton’s jury trial began on May 26, 2015. The trial court entered an order
separating the witnesses and identifying the phases of the trial. The
misdemeanor charges of possession of marijuana and possession of
paraphernalia would be tried until a verdict was reached in phase one. The
second phase of the trial would involve resolution of the felony charge of
unlawful possession of a firearm by a serious violent felon. If necessary, the
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 6 of 15 third phase of the trial would be held to determine Horton’s habitual offender
status.
[15] The jury acquitted Horton of the misdemeanor charges in phase one of the trial.
Phase two of the trial began immediately after the verdicts were returned in
phase one. On May 28, 2015, during phase two, Horton’s counsel, obligated by
his ethical duty to the trial court, informed the court of a potential violation by
Ellison and Horton of the order separating witnesses. Ellison had previously
testified in phase one of the trial and was to testify on behalf of Horton in phase
two.
[16] Ellison was questioned outside the presence of the jury about the potential
violation. Under questioning by the defense, Ellison stated that when she
visited Horton at the jail, she and Horton only discussed family and a legal
matter in another county. She testified that Horton started to talk about the
case, but she prevented him from saying much.
[17] When questioned by the State, Ellison acknowledged that she had testified at
trial the previous day and that she had been advised by Horton’s counsel about
the order separating witnesses. She testified, however, that she did not think
that the order applied to Horton. She admitted that she and Horton had
discussed evidence in the case, facts about the case, and other witnesses’
testimony.
[18] After Ellison was excused from the courtroom, the State informed the trial
court that police officers were asked to review jail telephone records. They
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 7 of 15 found two telephone calls between Horton and Ellison made after the
separation order was entered. Defense counsel informed the trial court that he
intended to call Ellison as a witness in phase two to testify about the layout of
her house and to the fact that she moved the rifle from the garage into the
laundry room.
[19] The trial court listened to the recordings of the telephone conversations between
Horton and Ellison. In them, Horton acknowledged that he was aware of the
order separating witnesses, yet the two discussed the testimony of various
witnesses after the order was issued. The trial court then granted the State’s
motion to exclude Ellison’s testimony during phase two over Horton’s
objection.
[20] At the conclusion of phase two of the trial, the jury found Horton guilty of
unlawful possession of a firearm by a serious violent felon. Horton waived his
right to a jury trial on phase three, and the trial court found Horton to be an
habitual offender.
[21] During sentencing, the trial court found the aggravating circumstances of
Horton’s criminal history, that he was out on bond, and that he was on parole
at the time he committed this offense, outweighed the lack of mitigating
circumstances. The trial court sentenced Horton to eighteen years executed in
the Department of Correction with a sentence of ten years executed for the
habitual offender enhancement, to be served consecutively. The trial court
entered a corrected sentencing order setting forth the accurate name of the
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 8 of 15 crime. The trial court issued a second corrected sentencing order setting forth
the accurate count upon which the conviction was entered. Horton now
appeals.
Discussion and Decision I. Exclusion of Witness [22] Horton argues that the trial court abused its discretion by excluding Ellison’s
testimony in phase two of his jury trial. Evidence Rule 615 provides for the
separation of witnesses for the purpose of preventing them from hearing other
witness testimony. Indeed, a well-settled element of Indiana procedural law
provides that “[t]he purpose of a separation order is to prevent witnesses from
changing their testimony according to the questioning and testimony of those
preceding them at trial.” Garland v. State, 439 N.E.2d 606, 608 (Ind. 1982),
(superseded by rule as stated in Hernandez v. State, 716 N.E.2d 948, 950 (Ind.
1999) (trial court required to grant motions for separation of witnesses)).
[23] Appellate review of a trial court’s decision to exclude evidence based on a
violation of a separation order is for an abuse of discretion. Jiosa v. State, 755
N.E.2d 605, 607 (Ind. 2001) (citing Goolsby v. State, 517 N.E.2d 54, 61 (Ind.
1987)). When a violation of a witness separation order occurs, it is within the
trial court’s discretion as to the course of action to be followed. Cordray v. State,
687 N.E.2d 219, 221 (Ind. Ct. App. 1997).
[24] “Permitting a witness to testify in violation of a separation of witnesses order is
a matter within the sound discretion of the trial judge and we will not disturb
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 9 of 15 the exercise of that discretion unless there is a showing that there was such
prejudice to the defendant that there was an abuse of discretion.” Wireman v.
State, 432 N.E.2d 1343, 1349 (Ind. 1982). An abuse of discretion is found
where the trial court’s decision is clearly against the logic and effect of the facts
and circumstances. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
[25] Although a defendant has a right under the Sixth Amendment to the United
States Constitution to present witnesses on his behalf, this right is not absolute.
Townsend v. State, 26 N.E.3d 619, 627 (Ind. Ct. App. 2015), trans. denied. A trial
court may exclude the testimony of a party’s witness who violates the order
separating witnesses if the party is at fault. Jiosa v. State, 755 N.E.2d 605, 608
(Ind. 2001).
[26] The record before us establishes that the trial court did not abuse its discretion
by excluding Ellison’s testimony during phase two of Horton’s trial. Horton
and Ellison were aware of the order separating witnesses. Horton and Ellison
discussed the testimony of other witnesses who had testified at trial in clear
violation of the court’s order.
[27] Furthermore, the trial court’s decision finds support in Horton’s admission that
he received the rifle from a friend, he was going to repair it for his friend,
described the needed repairs, and informed officers that he was the person who
placed the rifle next to the dryer. Therefore, exclusion of Ellison’s testimony in
phase two did not prejudice Horton’s defense. There was no abuse of discretion
in the exclusion of Ellison’s testimony during phase two of Horton’s trial.
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 10 of 15 II. Admission of Seized Evidence [28] Horton argues that the trial court erred by denying his motion to suppress.
Horton argues that the probable cause supporting the search warrant was
deficient because it was based on uncorroborated hearsay information.
[29] When a case proceeds to trial, review of a trial court’s ruling on a motion to
suppress is no longer viable. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013).
When an objection to the evidence is lodged at trial, the issue on appellate
review is whether the trial court abused its discretion by admitting the evidence
at trial. Id. The general admission of evidence at trial is left to the sound
discretion of the trial court. Id. We will reverse the trial court’s decision only
when admission of the evidence is clearly against the logic and effect of the facts
and circumstances and the error affects a party’s substantial rights. Id. Based
upon the arguments before us, we will analyze this issue under the Fourth
Amendment to the United States Constitution only.
[30] The Fourth Amendment to the U.S. Constitution protects persons from
unreasonable search and seizure by prohibiting, as a general rule, searches and
seizures conducted without a warrant supported by probable cause. Id. at 260.
As a deterrent, evidence obtained in violation of this rule is generally
inadmissible in a prosecution against the victim of the unlawful search or
seizure absent evidence of a recognized exception. Id. Probable cause means a
probability of criminal activity, not a prima facie showing. Seltzer v. State, 489
N.E.2d 939, 941 (Ind. 1986).
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 11 of 15 [31] When a probable cause affidavit is based on hearsay, the affidavit must either
contain reliable information establishing the credibility of the source and of
each of the declarants of the hearsay and establishing that there is a factual basis
for the information furnished, or contain information that establishes that the
totality of the circumstances corroborates the hearsay. Ind. Code § 35-33-5-2(b)
(2014).
[32] Upon appellate review of the trial court’s decision, we focus on whether
reasonable inferences drawn from the totality of the evidence support the
determination of probable cause. Jackson v. State, 908 N.E.2d 1140, 1142 (Ind.
2009). “Where a presumption of the validity of the search warrant exists, the
burden is upon the defendant to overturn that presumption.” Jones v. State, 783
N.E.2d 1132, 1136 (Ind. 2003). We do not reweigh the evidence. State v.
Washington, 898 N.E.2d 1200, 1203 (Ind. 2008).
[33] Upon our deferential review of a trial court’s denial of a defendant’s motion to
suppress, we construe conflicting evidence in the light most favorable to the
ruling, but also consider any substantial and uncontested evidence favorable to
the defendant. Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014). We defer to the
trial court’s findings of fact unless they are clearly erroneous. Id. When a trial
court denies the defendant’s motion to suppress on constitutional grounds, it
presents a question of law, which we address de novo. Id. We may affirm a
trial court’s judgment on any theory supported by the evidence, and on any
legal ground apparent in the record. Ratliff v. State, 770 N.E.2d 807, 809 (Ind.
2002).
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 12 of 15 [34] Sergeant Brown’s probable cause affidavit stated that the Lafayette Police
Department was contacted on February 25, 2014, by an agent with the U.S.
Marshal’s Fugitive team regarding an individual identified as Danny “Boone”
Horton. Horton was wanted on a warrant out of Warren County for failure to
appear for charges associated with dealing in methamphetamine. Brown
obtained a copy of the warrant from the Warren County Sheriff’s office on
February 25, 2014, confirming that the warrant was still active. While
attempting to locate Horton, officers with the U.S. Marshal’s Office observed
Horton enter Ellison’s residence. They maintained surveillance of the residence
and observed Ellison leave. When questioned by the officers, Ellison claimed
that Horton was not at her home, that she had not seen him in two weeks, and
she declined to allow officers to check her residence.
[35] After Ellison left, two other people exited the home and were questioned by the
officers maintaining surveillance. Justin Rossi was Ellison’s stepson, and
Jonathan Henson was a friend of Rossi’s. They both said that Horton was in
Ellison’s house at the time they left, that he was carrying a handgun, and that
there were other firearms in the house, including a rifle in the garage, that
belonged to Horton.
[36] The affidavit also stated that Horton had a prior conviction for Class B felony
burglary, making it illegal for him to possess any firearms. Brown stated that he
believed Henson and Rossi to be reliable and credible because they spoke from
personal knowledge and had no known reason to lie. The officers with the U.S.
Marshal’s office and Lafayette Police Department were also believed to be
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 13 of 15 credible because they spoke from personal knowledge obtained in their
capacities as law enforcement officers.
[37] The information in the affidavit provided sufficient probable cause for the
issuance of the search warrant for Ellison’s house and, though based upon
hearsay, was based upon reliable and credible hearsay. Independent police
investigation corroborated the witnesses’ statements. See Fry v. State, 25 N.E.3d
237, 244 (Ind. Ct. App. 2015), trans. denied. Furthermore, these witnesses—
Henson and Rossi—were identified. Concerned or cooperative citizens are
entitled to some degree of credibility and reliability for purposes of probable
cause. State v. Renzulli, 958 N.E.2d 1143, 1147 (Ind. 2011).
[38] Additionally, as long as participating officers seeking the issuance of a search
warrant collectively have probable cause, their individual knowledge can be
imputed to the officer signing the affidavit in the search warrant. Utley v. State,
589 N.E.2d 232, 236 (Ind. 1992). Brown corroborated information from
officers about the active warrant from Warren County by obtaining a copy of
the warrant. Officers observed whom they believed to be Horton enter Ellison’s
house. Henson and Rossi stated to officers that Horton was in the house, that
they had observed him with a handgun and that other firearms were present.
Given the totality of the circumstances, we cannot say that the affidavit lacked
sufficient probable cause to search Ellison’s home. Horton has not overturned
the presumption of validity of the search warrant. The trial court did not abuse
its discretion by admitting evidence seized during the search.
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 14 of 15 III. Sentencing Error [39] Horton briefly argues and the State concedes that the trial court erred by
imposing a separate, consecutive sentence for Horton’s habitual offender
adjudication. The trial court sentenced Horton to eighteen years executed in
the Department of Correction with a sentence of ten years executed for the
habitual offender enhancement, to be served consecutively.
[40] An habitual offender adjudication does not constitute a separate crime nor does
it result in a separate sentence. Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997).
An habitual offender adjudication results in a sentence enhancement imposed
upon the conviction of a subsequent felony. Id. We remand this matter to the
trial court for purposes of resentencing Horton with instructions to enhance his
sentence for his conviction of unlawful possession of a firearm by a serious
violent felon due to his habitual offender adjudication.
Conclusion [41] In light of the foregoing, we affirm the trial court’s decision regarding the
sanction for the violation of the order separating witnesses and the admission of
evidence seized pursuant to the search warrant. However, we remand this
matter for resentencing.
[42] Affirmed in part, and remanded in part with instructions.
Najam, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A05-1507-CR-990 | April 11, 2016 Page 15 of 15