Louis Davis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 17, 2015
• Docket: 34A02-1405-CR-372
• Status: Published

Opinion

MEMORANDUM DECISION Feb 17 2015, 8:18 am

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Gregory F. Zoeller Kokomo, Indiana Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Louis Davis, February 17, 2015

Appellant-Defendant, Court of Appeals Case No. 34A02-1405-CR-372 v. Appeal from the Howard Superior Court. The Honorable William C. Menges, State of Indiana, Judge. Appellee-Plaintiff Cause No. 34D01-1101-FD-85

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 1 of 12 [1] Louis Davis appeals his convictions for Receiving Stolen Property,1 a class D

felony, and Possession of Marijuana,2 a class D felony. Davis argues that the

trial court erred in admitting certain evidence and in permitting the State to

strike a juror during voir dire. Finding no error, we affirm.

Facts [2] On January 6, 2011, Julie and Everett Vice’s home in Marion was burglarized.

Among the items stolen were three guitars. Grant County detectives began

investigating and soon discovered ads on Craigslist advertising the stolen

guitars.

[3] The Grant Circuit Court issued subpoenas to obtain the email addresses

associated with the ads and the subscriber information associated with the

email addresses. An ad for one of the stolen guitars was connected to an email

address and phone number belonging to Davis. The Craigslist ads were also

connected to an address in Kokomo, which is in Howard County.

[4] On January 28, 2011, Grant County Detectives Erin Keppeler and Shelby

Taylor went to the Kokomo address and knocked on the door. Davis answered

the door and spoke with the detectives. He told the detectives that the

apartment belonged to his brother and his brother’s girlfriend and that he could

not consent to a search. He also told them that he had not seen any guitars in

1 Ind. Code § 35-43-4-2. 2 Ind. Code § 35-48-4-11.

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 2 of 12 the apartment. While Davis spoke, Detective Keppeler noticed that the interior

paint and trim of the apartment matched what was in the background of the

pictures of the guitars on Craigslist.

[5] The detectives left and sat in an unmarked van while they applied for a search

warrant. After about fifteen minutes, a woman arrived at the apartment. A few

minutes after her arrival, she exited the apartment with Davis. She was

carrying a safe and Davis was carrying a laptop computer. The detectives

approached them and asked Davis if they could check the serial number on the

laptop, to which Davis consented. The laptop’s serial number came back as

stolen.

[6] The detectives then called Kokomo Police for assistance. When they arrived,

the officers noticed that Davis’s shirt was sticking out, as though Davis was

wearing a bullet proof vest. The officers asked Davis if he had anything under

his shirt, and Davis responded that he had a guitar. Davis lifted up his shirt and

removed the Gibson guitar that had appeared in the Craigslist ad. The body of

the guitar had been against his chest and the neck of the guitar had been down

one of his pant legs.

[7] Davis was placed under arrest. The officers looked inside Davis’s backpack and

found approximately ninety-nine grams of marijuana and a digital scale. The

officers subsequently obtained a search warrant for the apartment. During the

execution of the search, Detective Taylor took a photograph of the paint and

trim of the apartment.

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 3 of 12 [8] The State charged Davis with class D felony receiving stolen property, class D

felony dealing in marijuana, and class D felony possession of marijuana.

During voir dire the State struck a Black juror. Davis, who is also Black,

challenged the strike under Batson v. Kentucky, in which the United States

Supreme Court held that purposeful racial discrimination in jury selection

violates a defendant’s equal protection rights. 476 U.S. 79, 86 (1986). The trial

court denied Davis’s challenge.

[9] A jury trial began on March 28, 2014. During trial, Davis objected to the

admission of evidence obtained as a result of the search of the apartment,

arguing that the search was illegal. Davis argued that, although the officers had

obtained a search warrant, the warrant was invalid because the State was

unable to find the affidavit that was submitted to support the issuance of the

warrant. The trial court denied this motion.

[10] Davis also objected to Detective Keppeler’s testimony regarding anything she

had learned in response to the subpoenas. Davis argued that the subpoenas

were invalid because they cited a repealed statute and were signed by a circuit

court judge rather than a superior court judge. The trial court overruled Davis’s

objection.

[11] The jury found Davis guilty of receiving stolen property and possession of

marijuana but not guilty of dealing in marijuana. On April 30, 2014, the trial

court sentenced Davis to three-year concurrent sentences for the two

convictions. Davis now appeals.

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 4 of 12 Discussion and Decision I. Admission of Evidence [12] We first address Davis’s arguments regarding the trial court’s decision to admit

certain evidence over his objections. Decisions regarding the admission of

evidence are left to the discretion of the trial court. Clark v. State, 994 N.E.2d

252, 259-60 (Ind. 2013). We review such decisions for an abuse of discretion

and we will reverse only when admission is clearly against the logic and effect

of the facts and circumstances before the court and the error affects a party’s

substantial rights. Id.

[13] Davis first argues that the search of the apartment was illegal because it was

based on a defective search warrant and, therefore, Detective Taylor’s

photograph of the paint and trim of the apartment should have been suppressed.

He argues that the warrant was defective because the State failed to supply a

copy of the affidavit supporting the issuance of the warrant.

[14] In response to Davis’s objection at trial, the trial court noted that Davis was

simply a visitor in the apartment and, therefore, lacked standing to challenge

the search. Tr. p. 122. We agree. To have standing to challenge a search

under the Indiana Constitution,3 “a defendant must establish ownership,

3 Davis does not specify whether his argument is founded on Article I, Section 11 of our State’s constitution or the Fourth Amendment to the United States Constitution. The analyses differ, with the Indiana Constitution providing arguably broader protection—protecting searches of possessions over which one claims ownership irrespective of the place where the possessions were found. Campos v. State, 885 N.E.2d

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 5 of 12 control, possession, or interest in either the premises searched or the property

seized.” Peterson v. State, 674 N.E.2d 528, 534 (Ind. 1996). The record shows

that Davis was only visiting the apartment. Tr. p. 123-25. On appeal, Davis

does not argue that he had ownership, control, possession, or interest in the

apartment. Furthermore, the only evidence admitted relating to the search was

a photograph showing the paint and trim of the apartment. Tr. p. 113-14.

Davis certainly had no interest in the paint and trim of the apartment,

ownership or otherwise. Consequently, Davis had no standing to challenge the

admission of this evidence.

[15] Davis next argues that the detectives had no right to investigate the apartment

because it was in Howard County and the detectives worked in Grant County.

Accordingly, Davis argues for the suppression of all evidence discovered as a

result of the detectives’ investigation of the Kokomo apartment.

[16] Davis claims that the detectives’ “operational jurisdiction [was] limited to the

geographical boundaries of Grant County.” Appellant’s Br. p. 6. In support of

this contention, Davis cites State ex rel. Penrod v. French, 222 Ind. 145, 51 N.E.2d

858 (Ind. 1943). However, if anything, French supports the opposite conclusion.

[17] In French, the plaintiff alleged that a sheriff and his deputy unlawfully arrested

him and transported him to a different county where he was held in a jail cell

590, 598 (Ind. 2008). However, because Davis asserts neither an expectation of privacy in the apartment nor an ownership interest in any objects searched, he would lack standing under either analysis.

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 6 of 12 without charge and forced to submit to a lie detector test. Id. at 148-49, 51

N.E.2d at 859. The plaintiff sued the sheriff on an official sheriff’s bond, which

served as an insurance policy for the State in case anyone suffered damages as a

result of the sheriff’s misconduct. An indemnity company that acted as a surety

on the bond argued that it only had the responsibility to pay if the sheriff was

acting in his official capacity. The indemnity company argued that the sheriff

could not have been acting in his official capacity because he arrested the

plaintiff outside of the county in which he served. Our Supreme Court

disagreed, noting:

It is true that in the absence of statute the power of a sheriff and his deputy is limited to their county. Under our statutes, however, a sheriff is expressly given power to make an arrest in certain cases beyond the limits of his own county. Id. at 160, 51 N.E.2d at 863-64.

[18] It is always the case that law enforcement officers’ powers are limited in the

absence of statute, as the Indiana Code is the very source of their powers. But it is

important to note that there was no such absence in French, as then-existing

provisions of our Code specifically allowed a sheriff from one county to go into

another county to execute an arrest warrant. See Secs. 9-1001, 9-1010, Burns’

1933.

[19] An officer’s power to arrest is presently outlined in Indiana Code section 35-33-

1-1:

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 7 of 12 (a) A law enforcement officer[4] may arrest a person when the officer has: (1) A warrant commanding that the person be arrested; (2) probable cause to believe the person has committed or attempted to commit, or is committing or attempting to commit, a felony . . . The section goes on to enumerate more instances in which an officer may arrest

a person without limiting that authority based on geographical location.

Accordingly, Indiana courts have found that a law enforcement officer's power

to arrest is statewide. Hart v. State, 671 N.E.2d 420, 425 (Ind. Ct. App. 1996) (“.

. . Town Marshal’s power to arrest and detain a citizen is not limited to the

geographic boundaries of his town, but is statewide.”) abrogated on other grounds,

Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007).

[20] But Davis not only claims that an officer lacks statewide power to arrest. He

argues that an officer lacks statewide power to conduct an investigation of any

kind. Assuming solely for the sake of argument that officers even need be

granted such investigative powers, we find that where officers are given the

power to arrest, it necessarily follows that they have the power to investigate in

the manner employed by Detectives Keppeler and Taylor. Consequently, Davis

has failed to substantiate his claim that the detectives in this case exceeded their

authority.

4 Detectives Keppeler and Taylor are sheriff’s deputies, Tr. p. 105, 151, and therefore “law enforcement officers” for the purposes of this provision. Ind. Code 35-31.5-2-185.

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 8 of 12 [21] Davis next argues that the subpoenas issued by the Grant Circuit Court were

invalid because the court lacked authority to issue them and also because they

listed a repealed statutory citation. In regard to the statutory citation, the

subpoenas incorrectly indicated that they were issued pursuant to Indiana Code

section 33-14-1-3, which was recodified as Indiana Code section 33-39-1-4 in

2004. P.L. 98-2004. However, the trial court was correct to note that, because

the subpoenas need not have listed any statutory citation at all, this minor error

could not render them invalid.

[22] As to whether circuit courts have the authority to issue subpoenas, Davis points

to Indiana Code section 33-39-1-4:

When a prosecuting attorney receives information of the commission of a felony or misdemeanor, the prosecuting attorney shall cause process to issue from a court (except the circuit court) having jurisdiction to issue the process to the proper officer, directing the officer to subpoena the persons named in the process who are likely to have information concerning the commission of the felony or misdemeanor. [23] (Emphasis added). In Percifield v. State, this Court considered this exception,

which has remained in the provision since 1852, and noted:

[In] 1852, [] the court structure and prosecutorial regime was quite different than now. Given the current structure of the courts and the organization of prosecutors, the exception is an anachronism. When we look at a statute, we presume that the legislature intends its language to be applied in a logical manner consistent with the intent of the statute's underlying policy and goals. The purpose of the statute is to enable prosecutors, not to limit jurisdiction of circuit courts. As our supreme court has held, the main purpose is to provide review by a court to see that a subpoena is warranted by the circumstances and that its scope is appropriate.

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 9 of 12 *** We conclude that I.C. § 33–14–1–3 (now I.C. § 33–39–1–4) does not prohibit circuit courts from issuing a subpoena duces tecum. 814 N.E.2d 710, 719-20 (Ind. Ct. App. 2004). We believe this interpretation is

sound, and we decline Davis’s invitation to revisit the question.

[24] Moreover, our Code was amended in 2011 and both circuit and superior courts

were given “original and concurrent jurisdiction in all civil cases and in all

criminal cases.” Ind. Code § 33-28-1-2 (circuit); Ind. Code § 33-29-1-1.5

(superior). It follows that both courts have the necessary powers to aid them in

the exercise of this jurisdiction. Accordingly, Indiana Code section 33-28-1-5

provides that a circuit court may “issue and direct all processes necessary to the

regular execution of the law” to corporations and individuals. This includes

subpoenas. See In re Order for Ind. Bell Tel. to Disclose Records, 274 Ind. 131, 136,

409 N.E.2d 1089, 1092 (Ind. 1980). In sum, the subpoenas at issue here were

valid and the trial court did not err in admitting any evidence obtained by them.

II. Batson Claim [25] Davis next argues that the trial court erred in denying his challenge to the

State’s decision to strike a juror during voir dire. Davis argues that the State’s

decision was racially motivated. “Upon appellate review, a trial court’s

decision concerning whether a peremptory challenge is discriminatory is given

great deference, and will be set aside only if found to be clearly erroneous.”

Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001).

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 10 of 12 [26] Davis appears to have objected to the State’s decision to strike a Black juror

under Batson v. Kentucky, 476 U.S. 79, (1986). Appellant’s Br. p. 10. In that

case, the United States Supreme Court held that purposeful racial

discrimination in jury selection violates a defendant’s equal protection rights

under the Fourteenth Amendment to the United States Constitution. Batson,

476 U.S. at 86.

[27] To establish a claim under Batson, a defendant must show:

(1) that the prosecutor used peremptory strikes to remove members of a cognizable racial group from the jury pool; and (2) that the facts and circumstances raise an inference that the prosecutor used those strikes to exclude potential jury members from the jury because of their race. Williams v. State, 700 N.E.2d 784, 786 (Ind. 1998).

[28] Here, Davis has failed to show that the facts and circumstances create an

inference that the prosecutor struck the juror because of his race. First, the juror

at issue here5 stated that he believed marijuana should be legal. Tr. p. 51. He

then insisted adamantly that he would have to actually see something happen in

order to believe that it had happened. The prosecutor presented the juror with a

hypothetical regarding what it would take for him to believe that it was raining

outside:

5 Although Davis tries to cast doubt as to the identity of the speaker because he is labeled as “unidentified male” in the transcript, it is clear that the juror answering these questions is the Black male that Davis is referring to. See Tr. p. 51, 54-55; Appellee’s Br. p. 26-27.

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 11 of 12 Prosecutor: What if I walk in and I’m wet with an umbrella. Would that be enough if I tell you it’s raining outside? Juror: (Inaudible) Prosecutor: Ok. You’d probably need to hear the rain itself. Juror: Or see it. Prosecutor: Or see it. What if everybody else in the room came in and were drenched and you got here earlier (inaudible) everybody tells you it’s raining, would that be enough? Juror: No. Tr. p. 54.

[29] From this conversation, the prosecutor could infer that this particular juror

would not vote to convict no matter how strong of a case was presented because

the juror had not personally witnessed the crime being committed. Thus, the

prosecutor had a race-neutral explanation for challenging this particular juror

sufficient to overcome any inference that the challenge was racially motivated.

See Brown v. State, 751 N.E.2d 664, 667-68 (Ind. 2001) (“. . . the prosecutor must

provide a facially valid explanation for the use of the peremptory challenge and

unless a discriminatory intent is inherent in the prosecutor’s explanation, the

reason offered will be deemed race neutral.”) (quotations omitted).

Accordingly, the trial court did not err when it denied Davis’s challenge.

[30] The judgment of the trial court is affirmed.

Vaidik, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A02-1405-CR-372 | February 17, 2015 Page 12 of 12