David J. Morris v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 28, 2017
• Docket: 46A04-1701-CR-167
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 28 2017, 8:41 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer L. Koethe Curtis T. Hill, Jr. La Porte, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David J. Morris, September 28, 2017 Appellant-Defendant, Court of Appeals Case No. 46A04-1701-CR-167 v. Appeal from the La Porte Superior Court State of Indiana, The Honorable Michael S. Appellee-Plaintiff. Bergerson, Judge Trial Court Cause No. 46D01-1604-MR-2

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 1 of 13 Case Summary [1] David Morris (“Morris”) appeals his convictions, following a jury trial, for

count I, murder, a felony;1 count II, felony murder, a felony;2 count III,

burglary, as a Level 4 felony;3 count IV, burglary, as Level 4 felony;4 count V,

auto theft, as a Level 6 felony;5 count VI, auto theft, a Level 6 felony;6 and

count VII, fraud, a Level 6 felony.7 We affirm.

Issues [2] Morris raises two issues on appeal:

I. Whether the trial court abused its discretion when it admitted into evidence Morris’ statements to police following his arrest.

II. Whether the trial court abused its discretion when it denied his motion for a mistrial.

1 Ind. Code § 35-42-1-1(1) (2016). 2 I.C. § 35-42-1-1(2). 3 I.C. § 35-43-2-1(1). 4 Id. 5 I.C. § 35-43-4-2.5. 6 Id. 7 I.C. § 35-43-5-4.

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 2 of 13 Facts and Procedural History [3] Hufracio Arteaga (“Arteaga”) lived and worked on West 11th Street in

Michigan City. Arteaga co-owned the Easy Drive Auto Sales car lot, which

included the adjacent office building where Arteaga also lived. However, in

late March of 2016, Arteaga and his business partner, Sergio Serrano

(“Serrano”), had their license to sell cars revoked.

[4] On April 23, 2016, Serrano discovered Arteaga’s body in the office of the

dealership. Arteaga had been stabbed to death. Serrano called the Michigan

City Police Department (“MCPD”), who responded to the scene. Serrano told

the police that some tires were missing from the business, and a green Subaru

was missing from the car lot. As the dealership was not authorized to sell any

vehicles, the MCPD officers entered the missing Subaru as a stolen vehicle.

Additionally, Arteaga’s wallet, credit card, and keys to the dealership office

were missing.

[5] On Saturday, April 23, an eye witness contacted police and informed them that

she had seen someone climbing out of the dealership through a broken window

on April 19, 2016. As part of the investigation, on April 23, MCPD officers

discovered a video from a nearby business that showed parts of the car lot from

April 19 to April 23. On April 23 and 24, MCPD officers viewed the video

which showed a man dressed in a dark gray hat, dark jacket, gray pants, and

dark shoes walking from the dealership office on Thursday, April 21. The

video showed the man walk to the green Subaru in the car lot and drive away.

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 3 of 13 After “several detectives” and two other “person[s] of interest” identified

Morris as the man in the video, the officers discovered Morris was on probation

and attempted to locate him at his last known address. Tr. Vol. II at 17. The

officers were unable to locate Morris but decided to surveil him when he

reported to the probation department on Monday, April 25.

[6] On April 25, Morris arrived at the Michigan City courthouse and reported for

probation. The MCPD officers surveilling the courthouse observed Morris was

wearing substantially the same clothing that he had been wearing in the

surveillance video of the car dealership. Morris loitered outside the courthouse,

talking to someone in a van. When the van drove away, Morris began walking

south through alleyways. The officers observed Morris as he walked, crossing

streets and ducking down several alleys.

[7] MCPD Detective Willie Henderson (“Det. Henderson”) was one of the officers

assigned to the surveillance team, and at one point he thought that Morris made

eye contact with him in one of the alleys. Worried that Morris might flee, Det.

Henderson consulted with lead Detective Francisco Rodriguez (“Det.

Rodriguez”) and then decided to arrest Morris for the auto theft. In the

meantime, Morris had walked to a house on Spring Street. Det. Henderson

observed that Morris looked nervous as he stood at the back porch talking to

other individuals. Morris then walked to the front of the house and back again,

looking around all the while. The officers then approached Morris, handcuffed

him, and placed him under arrest.

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 4 of 13 [8] At the police station, Morris, who was still handcuffed, spoke with MCPD

Detective Al Bush (“Det. Bush”) and Det. Rodriquez in a video-recorded

interview. Det. Bush asked Morris some preliminary questions about where

Morris lived, what his telephone number was, whether he could read and write,

and where he worked.8 Det. Bush then read Morris his Miranda rights, and

Morris signed a waiver of those rights. Det. Rodriguez told Morris that Morris

was at the police station because the Subaru had been reported stolen. During

the course of a lengthy interrogation, Morris admitted to breaking into the car

dealership and stealing the green Subaru on Thursday, April 21. He also

admitted to bringing the Subaru back to the dealership on Saturday, April 23,

because it had run out of gas. He admitted that he then stole a white car and

some tires from the dealership on April 23. Although Morris contended that

Arteaga had given Morris Arteaga’s credit card to buy some items, he admitted

to using Arteaga’s credit card to buy liquor without Arteaga’s authorization.

[9] Following Morris’ confession, police found in Morris’ coat the keys to the white

Hyundai Tiburon that was missing from the car lot, a receipt to a pawn shop,

and a note with Arteaga’s cell phone number on it. The police also found that

Morris and an accomplice had used Arteaga’s credit cards to make several

purchases at liquor stores, gas stations, and a Meijer. Morris and the

8 We note that routine, preliminary questions, such as those “regarding name, address, height, weight, eye color, date of birth, and current age are outside the scope of Miranda’s coverage,” and may, therefore, be asked prior to reading the Miranda warnings. Matheny v. State, 983 N.E.2d 672, 677 (Ind. Ct. App. 2013) (quotations omitted) (citing Loving v. State, 647 N.E.2d 1123, 1126 (Ind. 1995)), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 5 of 13 accomplice used Arteaga’s credit cards to purchase a Roomba vacuum at

Meijer, which matched an item found on Morris’ pawn shop receipt. Morris

was also captured on Meijer surveillance video driving away in the stolen white

Hyundai Tiburon. When police tested Morris’ coat, pants, and shoes, they

found Arteaga’s blood and DNA on them. A crime scene analysis also

concluded that the patterns of blood on Morris’ shoes and clothing were

consistent with someone who was present when the murder occurred.

[10] On April 29, 2016, the State charged Morris with murder, felony murder, two

counts of Level 4 felony burglary, two counts of Level 6 felony auto theft, and

Level 6 felony fraud. While Morris was incarcerated and awaiting trial, he

admitted to two different inmates that he had killed Arteaga. Morris told Corey

Wahl (“Wahl”) that he had stabbed Arteaga, and that he was concerned that he

had left sweat and his own DNA on Arteaga’s body. Later, Morris told

Sherman Arnett (“Arnett”), another fellow inmate, that while police said

Morris had stabbed Arteaga in the head, Morris had actually stabbed him in the

neck—which was consistent with the placement of Arteaga’s fatal injuries.

[11] Prior to his trial, Morris sought to exclude evidence of his admissions and

evidence procured while executing the subsequent search warrant on the basis

that they were obtained after an unlawful arrest. On June 6, 2016, the trial

court held a hearing on Morris’ motion to exclude. At the hearing, Detectives

Rodriguez and Henderson testified that MCPD arrested Morris after they had

viewed the surveillance video of the car lot and identified Morris as the man in

that video stealing the green Subaru. The trial court denied Morris’ motion,

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 6 of 13 finding “that probable cause existed for Defendant’s arrest on April 25, 2016 on

the charge of Auto Theft based upon video surveillance and positive

identification of the Defendant after multiple other leads were cleared by

investigation.” Appellant’s App. Vol. II at 57.

[12] Morris’ jury trial commenced on September 12, 2016. At trial, Det. Henderson

testified that he had obtained a warrant to search Morris’ residence and to seize

Morris’ clothing. Det. Henderson stated, “On Tuesday, April 26, 2016, after

Mr. Morris returned from Mindsight Consultants [“Mindsight”], I collected the

remaining…” Tr. Vol. VI at 6-7. Morris’ counsel objected and requested a

sidebar. Outside the presence of the jury, Morris claimed that Mindsight was a

company that specialized in polygraph examinations and that Det. Henderson’s

reference to Mindsight was therefore an impermissible reference to polygraphs.

On voir dire, Det. Henderson stated that he knew that Mindsight provided

consultations for polygraphs, but was uncertain of any other area of business in

which they participated.

[13] The trial court overruled Morris’ objection and motion to strike Det.

Henderson’s testimony about Mindsight, and it denied Morris’ request for a

mistrial. The trial court noted that there had been no mention of a polygraph in

the testimony that had been given, and Morris stipulated to that. The trial court

also noted that Mindsight provides other services, such as hypnotic therapy,

and the company was not widely known outside of the law enforcement and

legal communities, and it was not equated generally with polygraphs. The trial

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 7 of 13 court stated that to poll the jury or to give an admonishment would only “shine

a spotlight” on the matter and raise more questions with the jury. Id. at 34.

[14] The jury found Morris guilty as charged. The trial court sentenced him to sixty

years in the Department of Correction (“DOC”) on count I, murder, and count

II—felony murder—was merged with count I. The court sentenced him to ten

years on each burglary count, to run consecutively with each other and count I.

The court sentenced him to two years on each auto theft count, each to run

concurrently to each other and the prior counts. The court sentenced him to

two years on the fraud count, to run consecutively to counts I, III, and IV.

Morris’ total sentence is eighty-two years in the DOC. This appeal ensued.

Discussion and Decision Admission of Morris’ Statement to Police [15] Morris contends that the trial court erred in admitting into evidence his

statement to police, which included his confession to auto theft. He originally

challenged the admission of the statement in a motion to suppress. However,

rather than taking an interlocutory appeal on the denial of his motion, he

proceeded to a complete jury trial.

“Thus, the issue is ... appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial.” Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). Our standard of review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre- trial motion to suppress or by trial objection. Ackerman v. State,

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 8 of 13 774 N.E.2d 970, 974-75 (Ind. Ct. App. 2002), trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied. However, we must also consider the uncontested evidence favorable to the defendant. Id. In this sense, the standard of review differs from the typical sufficiency of the evidence case where only evidence favorable to the verdict is considered. Fair v. State, 627 N.E.2d 427, 434 (Ind. 1993).

Widduck v. State, 861 N.E.2d 1267, 1269 (Ind. Ct. App. 2007).

[16] Morris asserts that his statement following his arrest was improperly admitted

under the Fourth Amendment to the United States Constitution9 because the

police lacked probable cause for the arrest. Under the Fourth Amendment, it is

well-settled that an officer may arrest a suspect without a warrant if he has

probable cause to believe that the suspect has committed a criminal act. Ortiz v.

State, 716 N.E.2d 345, 348 (Ind. 1999) (citing Sears v. State, 668 N.E.2d 662,

666-67 (Ind. 1996)).

Probable cause exists when, at the time of the arrest, the arresting officer has knowledge of facts and circumstances that would warrant a person of reasonable caution to believe that the suspect had committed a criminal act. [Sears, 668 N.E.2d] at 667. The amount of evidence necessary to meet the probable cause requirement is determined on a case-by-case basis, see Peterson [v. State], 674 N.E.2d [528,] 536 [(Ind. 1996)], and the facts and

9 Morris does not raise a claim under Article 1, Section 11 of the Indiana Constitution.

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 9 of 13 circumstances need not relate to the same crime with which the suspect is ultimately charged. Sears, 668 N.E.2d at 667 n. 10.

Id.

[17] Here, the evidence established that, at the time the police arrested10 Morris, they

had probable cause to believe that he had committed the crime of auto theft. In

the course of investigating Arteaga’s death, on April 23 the police obtained a

video from a nearby business that showed parts of the car lot from April 19 to

April 23. On April 23 and 24, the police viewed the video which showed

Morris at the dealership lot on April 21, dressed in a dark gray hat, dark jacket,

gray pants, and dark shoes. The video showed Morris walk from the dealership

office to the green Subaru in the car lot and drive away. Serrano had informed

the police on April 23 that the green Subaru was missing from the car lot. On

Monday, April 25, the police observed Morris wearing the same clothes he had

worn in the video of the car lot. Thus, when the police arrested Morris on April

25, they had knowledge of facts and circumstances that would warrant a person

of reasonable caution to believe that Morris had stolen the green Subaru.11 That

10 In the interview, prior to reading Morris his Miranda rights and questioning him, the police initially stated to Morris that he was not yet under arrest. However, regardless of those initial statements, Morris clearly was under arrest from the time he was apprehended and handcuffed at the house on Spring Street. E.g., Kelly v. State, 997 N.E.2d 1045, 1051 (Ind. 2013) (quotation and citation omitted) (“[A]n arrest occurs when a police officer interrupts the freedom of the accused and restricts his liberty of movement.”). And neither party disputes that Morris was, in fact, under arrest at the time he was interviewed by the police. 11 Because the police had probable cause for Morris’ arrest independent of the eye witness’ statements identifying him as the person climbing out of the window of the dealership, it is irrelevant whether the eye witness was unreliable, as Morris contends.

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 10 of 13 is, the police had probable cause to arrest Morris for auto theft. Therefore, the

trial court did not abuse its discretion in holding that Morris’ statements to

police following his lawful arrest were admissible.

Denial of Motion for Mistrial [18] Morris also asserts that the trial court erred when it denied his motion for a

mistrial. We review a trial court’s decision to grant or deny a mistrial for an

abuse of discretion, Isom v. State, 41 N.E.3d 469, 480 (Ind. 2015), keeping in

mind that a mistrial “is an extreme sanction that is warranted only when no

other cure can be expected to rectify the situation.” Adams v. State, 890 N.E.2d

770, 775 (Ind. Ct. App. 2008), trans. denied.

To prevail on appeal from the denial of a motion for mistrial, the appellant must demonstrate that the statement or conduct in question was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected. We determine the gravity of the peril based upon the probable persuasive effect of the misconduct on the jury’s decision rather than upon the degree of impropriety of the conduct.

Id. (internal citation omitted).

[19] Here, Morris contends that he was placed in a position of grave peril by Det.

Hendricks’ testimony that “[o]n Tuesday, April 26, 2016, after Mr. Morris

returned from Mindsight Consultants [“Mindsight”], I collected the

remaining…” Tr. Vol. VI at 6-7. He contends that the words “Mindsight

Consultants” are “synonymous with polygraphs” in his community and,

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 11 of 13 therefore, Det. Hendricks’ testimony violated an order in limine that had

prohibited the parties from mentioning polygraph examinations.12 Appellant’s

Br. at 18. He points out that, in Indiana, “[i]n general, a reference to a

polygraph examination without an agreement by both parties is inadmissible

and grounds for error.” Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct. App.

2003), trans. denied.

[20] However, as the trial court noted, Morris provided no evidence to support his

claim that “Mindsight Consultants” is synonymous with polygraphs, and there

was never any use of the word “polygraph” itself. Thus, Morris failed to show

that the reference to Mindsight was prejudicial to him. Moreover, Det.

Hendricks’ passing reference to Mindsight likely had little persuasive effect on

the jury, even if they understood that Mindsight conducted polygraph

examinations, because there was substantial evidence other than Det.

Hendricks’ brief remark to support the verdict. Video evidence showed Morris

stealing the green Subaru from the car lot on April 21, and Morris admitted to

that. Morris also admitted to being at the car dealership to steal the white car

on April 23, the day Serrano found Arteaga’s body. Following his arrest,

Morris admitted to two of his cell mates that he murdered Arteaga. And

Arteaga’s blood was found on Morris’ clothing and shoes. Thus, the probable

impact on the jury of the brief reference to Mindsight was low in light of all the

other evidence supporting the verdict, and Morris was not placed in grave peril.

12 The motion in limine and the court’s order on that motion are not contained in the appendix.

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 12 of 13 The trial court did not abuse its discretion when it denied Morris’ motion for a

mistrial.

Conclusion [21] The evidence established that the police had probable cause to arrest Morris for

auto theft; therefore, the trial court did not abuse its discretion in holding that

Morris’ statements to police following his lawful arrest were admissible. And,

the trial court did not abuse its discretion in denying Morris’ motion for a

mistrial, as the passing reference to “Mindsight Consultants” was not

prejudicial and, in any case, had little, if any, persuasive effect on the jury.

[22] Affirmed.

Baker, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017 Page 13 of 13