ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HILARY BOWE RICKS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
PAUL A. MOORE, )
vs. ) No. 49A02-0405-CR-436
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert Altice, Judge
Cause No. 49G02-0308-MR-128884
May 23, 2005
OPINION - FOR PUBLICATION
Paul A. Moore appeals his convictions and sentence for two counts of murder,
two counts of class B felony criminal confinement, and one count of class
B felony arson. We affirm.
We restate Moores three issues as follows:
I. Whether the trial court committed reversible error in admitting ballistics evidence derived from
the warrantless seizure of a handgun;
II. Whether his convictions are supported by sufficient evidence; and
III. Whether the trial court properly sentenced him.
Facts and Procedural History
The facts most favorable to the convictions indicate that Moores mother purchased a
.45-caliber Ruger handgun in 2001 and kept it at Moores home in the
4300 block of East 39th Street in Indianapolis. On the afternoon of
January 25, 2002, Indianapolis Police Department Sergeant David Wisneski responded to a report
of a burglary in progress at the home of Linda Jordan. Sergeant
Wisneski heard the yelling of gang names and saw an unidentified person push
Linda aside and forcibly enter her home. Yonic Jordan then forcibly removed
someone from the home. After the situation calmed down, Sergeant Wisneski learned
that Derrick Dempsey had lost a fight with Yonic and had driven to
the Jordan residence with Moore and a third person to seek revenge.
Tr. at 593. Sergeant Wisneski asked Dempsey if he could look inside
his car, which was parked in the driveway with the engine running.
Id. at 579. Dempsey consented.
In the trunk, Sergeant Wisneski found an assault rifle and a shotgun.
A records check indicated that Moore had reported these firearms stolen. Under
the front passenger seat, Sergeant Wisneski found a chrome and black .45-caliber Ruger
handgun, which had not been reported stolen.
Id. at 583. Moore
stated that he owned the handgun and produced a valid handgun permit.
Sergeant Wisneski made no arrests but confiscated the firearms because things were in
a very, very dangerous state at that time[.] Id. at 594.
Sergeant Wisneski sent the firearms to the police property room. On January
28, 2002, as part of his duties in operating the Integrated Ballistic Identification
System (IBIS), firearms technician John Brooks test-fired the confiscated handgun and entered the
relevant ballistics information into the IBIS computer.
In April 2002, Moores mother
retrieved the handgun from the property room and gave it to Moore.
Late one night in June 2003, Moore telephoned Eric Bettis, the uncle of
his friend Curtis Ward, and asked for a ride. Eric complied, and
Moore gave him $30. The next morning, Moore informed Eric that he
had left his gun in the car. Erics wife, Theresa, stopped by
Moores residence to give him the gun, but he was not at home.
Theresa gave the gun to Erics brother, Herman Bettis, because she did
not want to keep it in her car. Herman informed Moore that
he had the [b]lack and silver .45-caliber handgun, and Moore told him to
hang on to it[.]
Id. at 705, 706. Herman kept the
handgun in his restaurant.
On the evening of Friday, July 18, 2003, Adrian Beverly was riding around
with Brandie Coleman and Gregory Johnson, who was dressed as a female and
went by the name of Nireah. The trio saw Moore and Ward
riding in Moores car and asked them to pull into a gas station
parking lot. Johnson and Moore exited their vehicles, talked briefly, and exchanged
phone numbers. Johnson hugged Moore and kissed him on the cheek.
Id. at 798. Moore was attracted to Johnson. Id. at 799.
Coleman and Ward also exchanged phone numbers.
On July 21, 2003, Herman Bettis delivered the handgun to Moore at his
home. At 12:51 a.m. on July 23, 2003, Coleman called Moores home
phone to speak with Ward. Coleman and Johnson then drove to Moores
home in Colemans mothers Jeep Grand Cherokee. Coleman, Johnson, Ward, and Moore
chatted briefly outside and entered Moores home. Ward and Coleman went into
Wards room, and Moore and Johnson went into Moores room.
Later, Moore entered Wards room with a [b]lack and gray Ruger .45-caliber handgun
and said, Man, I need to holler at you. Id. at 456,
454. The two men went into the kitchen, and Moore asked Ward
whether he knew if Nireah is a man or a female. Id.
at 455. Ward told the [d]isturbed and upset Moore that Nireah looked
like a woman to him. Id. Moore and Ward went into
the living room, where Moore interrogat[ed] Johnson and Coleman regarding whether Johnson was
male or female. Id. at 456. After approximately forty minutes of
questioning, Johnson had to use the restroom. Moore followed him there and
exclaimed in a stunned, startled voice, Man, this is a boy. Id.
at 457. Moore became real irate and talked about feeling like his
manhoods been violated[.] Id. Moore stated that Johnson was kissing on
him. Id. at 457. Moore stated that he should [w]hip [their]
ass or possibly kill them[.] Id. at 458. Moore asked Johnson,
What did you think, I was a faggot? Id.
Moore asked Ward to get some wire, which they used to bind Colemans
and Johnsons hands behind their backs. Johnson sobbed that he didnt mean
nothing and would never do nothing like that again and turn straight.
Id. at 459. Moore put Coleman and Johnson in the backseat of
the Jeep and told Ward to follow him in Wards car. Moore
drove the Jeep from East 39th Street to a small park on Fall
Creek Parkway North Drive, where he drove over a curb, around a locked
gate, and into a wooded cul-de-sac. Ward drove past the gate, made
a U-turn, and returned to see Moore walking up the road. Moore
entered Wards car, took the handgun out of his pocket, dismantled it, and
threw the pieces out the window. Moore said, Man, I had to
do it. Id. at 463. Moore told Ward that he had
to calm [Coleman] down after he shot Johnson. Id. at 464.
The pair went back to Moores home, returned a roto-rooter to a rental
store, and went their separate ways.
That afternoon, Moore called Ward and stated that he might have to go
back and burn the truck up.
Id. at 467. Ward later
spoke with Moores brother, Clarence McGee, who had seen the bodies in the
Jeep. McGee asked Ward to pick him up at Moores home so
that they could go burn the Jeep up. Id. at 468.
Ward arrived at Moores home after dark. Moore told Ward that the
Jeep had to be burned to cover his tracks. Id. at 469.
McGee asked Ward to get a gas can, and the two men
drove back to the Jeep. Ward let McGee out of the car
near the Jeep, made a U-turn, and retrieved McGee, who smelled of gasoline
and said that he had almost burnt himself. Ward saw that the
Jeep was in flames. Upon their return, Moore described how Johnson flopped
back in the seat when he was shot. Id. at 472.
Moore told Ward that he was like a brother and that if anything
goes down that [they] wouldnt have anything to worry about. Id. at
Just after 9:00 p.m., firefighters were dispatched to the burning Jeep and extinguished
the flames. Inside, they discovered the charred bodies of Johnson and Coleman,
both of whom had been fatally shot in the forehead before the fire
started. Colemans larynx and chest had suffered blunt force trauma. The
.45-caliber bullets recovered from the victims skulls matched the January 2002 ballistics test
of Moores handgun. Investigators determined that gasoline had been poured in the
backseat of the Jeep and ignited. On July 29, 2003, Adrian Beverly
identified Ward as the passenger in the car that she had seen in
the gas station parking lot on July 18 while riding with Coleman and
Johnson. Ward initially denied any involvement in the crimes but eventually implicated
On August 5, 2003, the State charged Moore with two counts of murder,
two counts of class B felony criminal confinement, and one count of class
B felony arson. Moore and McGee were tried together in April 2004.
On April 8, 2004, the jury found Moore guilty as charged.
On May 5, 2004, the trial court imposed an aggregate sentence of 120
years. Moore now appeals.
Discussion and Decision
I. Admissibility of Ballistics Evidence
To generally deter police from violating peoples Fourth Amendment rights, the [United States]
Supreme Court created the exclusionary rule, which prohibits the admission of evidence seized
in violation of the Fourth Amendment. Caudle v. State, 754 N.E.2d 33,
34 (Ind. Ct. App. 2001), opinion on rehg, trans. denied. Moore contends
that Sergeant Wisneskis warrantless confiscation of his handgun in January 2002 was not
justified by probable cause and violated his right to be free from unreasonable
seizures under the Fourth Amendment to the United States Constitution. Appellants Br.
Moore characterizes the subsequent test-firing of the handgun as an
unconstitutional search and contends that the trial court committed reversible error in admitting
ballistics evidence obtained as a result of the seizure and test-firing of the
The State does not attempt to rebut Moores constitutional argument. We have
[a]n appellees failure to respond to an issue raised by an appellant is
akin to failure to file a brief. This circumstance does not, however,
relieve us of our obligation to decide the law as applied to the
facts in the record in order to determine whether reversal is required.
Controverting arguments advanced for reversal is still an obligation which properly remains with
counsel for the appellee. Therefore, [the appellant] need only establish that the
lower court committed prima facie error to win reversal on this issue.
Prima facie means at first sight, on first appearance, or on the face
of it. As this court said in
Gardner v. State, 591 N.E.2d
592 (Ind. Ct. App. 1992):
The prima facie standard thus prevents two evils which would otherwise undermine the
judicial process. First, by requiring the appellant to show some error, we
ensure that the court, not the parties, decides the law. Second, by
allowing the appellant to prevail upon a showing simply of prima facie error,
we avoid the improper burden of having to act as advocate for the
Id. at 593.
Newman v. State, 719 N.E.2d 832, 838 (Ind. Ct. App. 1999) (some citations
omitted), trans. denied (2000).
The Fourth Amendment provides, The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
The Fourth Amendment protects citizens against
unreasonable searches and seizures of persons and property by requiring a warrant based
on probable cause. McReynolds v. State, 460 N.E.2d 960, 962 (Ind. 1984).
Probable cause exists when an officer has knowledge of facts and circumstances
that would lead a reasonably prudent person to believe that a crime has
been committed. See Gibson v. State, 518 N.E.2d 1132, 1136 (Ind. Ct.
App. 1988), trans. denied.
It is axiomatic that warrants, both search and arrest, are required unless probable
cause exists along with exigent circumstances rendering it impractical to seek a warrant.
Jones v. State, 409 N.E.2d 1254, 1257 (Ind. Ct. App. 1980).
Exigent circumstances may include danger to law enforcement officers or the risk of
loss or destruction of evidence. See Zimmerman v. State, 469 N.E.2d 11,
16 (Ind. Ct. App. 1984). Absent probable cause, however, exigent circumstances alone
are insufficient to justify a warrantless seizure. Cf. Harless v. State, 577
N.E.2d 245, 248 (noting same with respect to warrantless search: [E]xigent circumstances
justify dispensing with the search warrant, but do not eliminate the need for
probable cause.); Jones, 409 N.E.2d at 1258 (A search without probable cause is
never justified by the need to prevent the disappearance or destruction of evidence
of a crime.). Whether a particular warrantless seizure violates the guarantees of
the Fourth Amendment depends upon the facts and circumstances of each case.
State v. Joe, 693 N.E.2d 573, 575 (Ind. Ct. App. 1998), trans. denied.
The State bears the burden of proving that the warrantless seizure fell
within an exception to the warrant requirement. Id.
Here, Sergeant Wisneski testified that he confiscated Moores handgun because he believed that
the crime of criminal gang activity had or may have taken place and
because things were in a very, very dangerous state at that time, and
there needed to be [a minimum] of cooling off because, you know,
anybody that would go get weapons and take them to someones house to
seek revenge, thats a danger. Tr. at 594. Sergeant Wisneski candidly
admitted, however, that he wasnt sure of the elements of criminal gang activity
at the time[,] id., and Moore points out that the handgun was not
seized as evidence of any crime, not even the gang activity that Wisneski
thought might be afoot.
Appellants Br. at 11. In other words,
Sergeant Wisneski did not have probable cause to seize the handgun, for which
Moore had a valid permit. Cf. Cochran v. State, 429 N.E.2d 672,
674 (Ind. Ct. App. 1981) (discussing seizure of property under plain view doctrine:
[A]n officer must have probable cause to believe that the property to
be seized is connected to criminal activity.). As such, the warrantless seizure
violated the Fourth Amendment.
We need not specifically determine whether the subsequent test-firing of the handgun was
a search for purposes of the Fourth Amendment, because the ballistics evidence was
clearly derived from the unconstitutional seizure and thus should have been excluded as
fruit of the poisonous tree.
The fruit of the poisonous tree doctrine is one facet of the exclusionary
rule of evidence which bars the admissibility in a criminal proceeding of evidence
obtained in the course of unlawful searches and seizures. When applied, the
doctrine operates to bar not only evidence directly obtained, but also evidence derivatively
gained as a result of information learned or leads obtained during an unlawful
search or seizure. To invoke the doctrine, a defendant must show that
challenged evidence was obtained by the State in violation of the defendants Fourth
Hanna v. State, 726 N.E.2d 384, 389 (Ind. Ct. App. 2000) (citations omitted).
Moore has made that showing here. We therefore conclude that the
trial court erred in admitting the ballistics evidence.
The State contends that the error was harmless. We agree.
Admissions of evidence in violation of the Fourth Amendment are subject to harmless
error analysis. Harmless error occurs when the conviction is supported by substantial
independent evidence of guilt which satisfies the reviewing court that there is no
likelihood that the erroneously admitted evidence contributed to the conviction. Violations of
the Fourth Amendment must be harmless beyond a reasonable doubt. We must
find that there is no substantial likelihood the error contributed to the verdict,
or, in other words, that the error was unimportant in relation to everything
else before the jury on the issue in question.
Smock v. State, 766 N.E.2d 401, 407 (Ind. Ct. App. 2002) (citations omitted).
II. Sufficiency of Evidence
At trial, Moore testified that he last saw the handgun a little bit
before his home was allegedly burglarized in August 2002, and although he admitted
to meeting and being kissed by Johnson several days before his murder, he
denied any involvement in the charged crimes. Tr. at 789. The
State points out that if the jury had believed Moores testimony, the ballistics
test from his gun would have been irrelevant. For if the gun
had been stolen and was in another persons possession in July of 2003,
Moore obviously could not be guilty of the murders. Appellees Br. at
9. The ballistics evidence was not inconsistent with Moores claim of innocence,
nor did it establish ipso facto that Moore used the handgun to kill
Coleman and Johnson. The jury chose to believe Wards and the Bettises
testimony that Moore possessed the handgun at the time of the murders, and
thus the ballistics evidence was merely cumulative of the evidence establishing that Moore
committed the murders. As discussed more fully below, this evidence is sufficiently
substantial that we must conclude that the trial courts error in admitting the
ballistics evidence was harmless beyond a reasonable doubt. See Fuller v. State,
674 N.E.2d 576, 578 (Ind. Ct. App. 1996) (It is well recognized that
any error in admitting evidence will be found harmless where the evidence is
merely cumulative. This proposition also applies where the alleged error is of
a constitutional nature.) (citation omitted).
Moore challenges the sufficiency of the evidence supporting his convictions. Our standard
of review is well settled:
When reviewing a sufficiency of the evidence claim, we consider only the evidence
most favorable to the judgment and all reasonable inferences to be drawn from
that evidence. We neither reweigh the evidence nor judge the credibility of
the witnesses. We will affirm a conviction upon finding substantial evidence of
probative value from which the jury could find the defendant guilty beyond a
Green v. State, 756 N.E.2d 496, 497 (Ind. 2001). The testimony of
a single eyewitness to a crime is sufficient to sustain a murder conviction.
Moore disparages Wards testimony regarding the crimes, characterizing it as incredibly dubious.
Appellants Br. at 23. For testimony to be so inherently incredible that
it is disregarded based on a finding of incredible dubiosity, the witness must
present testimony that is inherently contradictory, wholly equivocal or the result of coercion,
and there must also be a complete lack of circumstantial evidence of the
Clay v. State, 755 N.E.2d 187, 189 (Ind. 2001).
We note that
[a]pplication of this rule is rare; the standard to be applied is whether
the testimony is so incredibly dubious or inherently improbable that no reasonable person
could believe it.
The testimony of an accomplice is subject to high scrutiny. However, such
testimony is by itself sufficient to sustain a conviction. The fact that
the accomplice may not be completely trustworthy goes to the weight and credibility
of his testimony, something that is completely within the province of the jury
and cannot be reviewed on appeal.
Herron v. State, 808 N.E.2d 172, 176 (Ind. Ct. App. 2004) (citations omitted),
The incredible dubiosity rule is inapplicable here. Moore points to Wards initial
denial of involvement in the crimes, his incentive to implicate Moore and receive
favorable treatment from the State, and minor inconsistencies between his testimony and other
evidence in the record, but these do not render his testimony inherently improbable
such that no reasonable person could believe it. These inconsistencies were factual
issues for the jury to resolve.
Miller v. State, 770 N.E.2d 763,
775 (Ind. 2002). Wards account of the crimes was neither inherently contradictory
nor equivocal, and there is no indication that it was the result of
coercion. The jury found Ward to be a credible witness, and we
may not disturb that determination. We conclude that the State presented sufficient
evidence from which a jury could find Moore guilty beyond a reasonable doubt.
The trial court sentenced Moore as follows:
As to mitigating circumstances the Court is going to find that the Defendant
has a minimal criminal history, he only has one prior arrest and that
was for a misdemeanor possession of marijuana, so the Court believes that is
certainly a mitigating circumstance. The Court will also find as mitigating the
fact that imprisonment would impose a hardship against his dependents, I believe that
he has one child thats approximately one year old. As to aggravating
circumstances, this Court finds that the nature and the circumstances of the crime
committed was uniquely aggravating in this matter, this Court heard evidence and the
jury found the Defendant guilty based on evidence that Mr. Gregory Johnson had
dressed as a female and that this Defendant became upset when he realized
this. Both victims, Ms. Coleman and Mr. Johnson, were then bound with
wire, were taken to a remote spot, where I think the terms that
were used during the course of the trial, they were executed. This
Court also finds it unique that both of
these victims were not
shot in typical execution style in the back of the head. They
were shot in the front of the head, so that both victims were
able to observe their last fleeting moments as Mr. Moore pulled the trigger.
Following that the car was burned beyond recognition. As stated before
there were two victims, obviously Mr. Johnson was killed because he was different,
that appears to be the only reason and its certainly sad to realize
that Ms. Brandie Coleman was killed for basically being with another individual who
was different. And all of those circumstances make this a very unique
homicide, which is hard for this Court to say, no homicides unique, but
this one certainly had unique characteristics. The Court has carefully weighed the
aggravating circumstances against the mitigating circumstance and this Court believes the aggravator in
this case outweighs the mitigator. As to Count One, murder, the Defendant
will be sentenced to fifty-five years, the presumptive term.
] As to Count
Two, [murder,] fifty-five years, the presumptive term. Count One and Count Two
will be served consecutively. As to Count Three, [class B felony criminal
confinement,] Defendant will be sentenced to [the presumptive term of] ten years.[
As to Count Four, [class B felony criminal confinement,] the Defendant will be
sentenced to ten years, those will run concurrent with each other, as well
as concurrent with Counts One and Two. As to Count Five, the
[class B felony] arson, the Defendant will be sentenced to ten years, that
will be ordered to be served consecutive to Count One and Two.
Total sentence will be a hundred and twenty years for Mr. Paul Moore.
Tr. at 1119-21.
Moore contends that the trial court failed to give sufficient weight to his
minimal criminal history as a mitigating circumstance and violated his Sixth Amendment right
to trial by jury, as stated in Blakely v. Washington, 542 U.S. ,
124 S. Ct. 2531 (2004), by imposing consecutive sentences based on an aggravating
circumstance not found by the jury beyond a reasonable doubt.
See footnote Moore also
challenges the appropriateness of his sentence under Indiana Appellate Rule 7(B). We
address each contention in turn.
Our supreme court has explained that
[i]n order to impose consecutive sentences, a trial court must find at least
one aggravating circumstance. When a trial court imposes consecutive sentences, when not
required to do so by statute, [we] will examine the record to insure
that the trial court explained its reasons for selecting the sentence imposed.
The trial courts statement of reasons must include: (1) the identification of
all significant aggravating and mitigating circumstances; (2) the specific facts and reasons that
lead the court to find the existence of each such circumstance; and (3)
an articulation demonstrating that the mitigating and aggravating circumstances have been evaluated and
balanced in determining the sentence.
Ortiz v. State, 766 N.E.2d 370, 377 (Ind. 2002) (citations omitted). With
respect to Moores first contention, we note that [a] finding of mitigating circumstances,
like sentencing decisions in general, lies within the trial courts discretion[,] and that
the court is not required to give the same weight or credit to
mitigating evidence as does the defendant. Wilkie v. State, 813 N.E.2d 794,
799 (Ind. Ct. App. 2004), trans. denied. Moore cites Loveless v. State,
642 N.E.2d 974 (Ind. 1994), for the premise that a lack of prior
criminal convictions is a strong mitigating factor. Appellants Br. at 28.
We observe that the defendant in Loveless apparently had no criminal record whatsoever,
but in any event, we cannot conclude that Moores minimal criminal history outweighs
the uniquely aggravating nature and circumstances of his crimes as detailed by the
trial court in its sentencing statement. We find no abuse of discretion.
As for Moores Sixth Amendment argument, our supreme court recently held that [t]here
is no constitutional problem with consecutive sentencing so long as the trial court
does not exceed the combined statutory maximums as defined in Blakely in
this case, fifty-five years for the murder convictions and ten years for the
class B felony convictions. Smylie v. State, 823 N.E.2d 679, 686 (Ind.
2005). There is no constitutional problem here.
Finally, Moore asks us to revise his sentence pursuant to Appellate Rule 7(B),
contending that it is inappropriate in light of the nature of the offense
and the character of the offender. Ind. Appellate Rule 7(B). We
acknowledge Moores minimal criminal history, but given his cold-blooded execution and subsequent burning
of the victims, we cannot conclude that his 120-year sentence is inappropriate.
RILEY, J., and ROBB, J., concur.
At trial, Brooks explained, The criteria we have for the
IBIS system is to put in [confiscated] firearms of specific calibers that are
commonly used and test firing these are picked up on a daily basis
during the working week, test-fired and then the bullets and cartridge casings are
placed in the system. Tr. at 607. He further stated that
IBIS is a computerized system to help aid in investigations to link recovered
firearms evidence at locations to weapons or other shootings.
Id. at 608.
Brooks testified that Moores handgun did not have a magazine when he
received it for test-firing. Id. at 613.
At the time of the murders, Ward was on probation for
carrying a handgun without a license. Ward blamed McGee for the handgun
charge because he had brought [Wards] gun out of the house, and Ward
took the blame for it. Tr. at 485. Ward was taken
into custody and charged with violating his probation, and his bond was reduced
from $250,000 to $15,000.
Id. at 498. Ward was released on
bond in October 2003. Id. At the time of Moores trial,
Ward had been charged with but not yet prosecuted for class B felony
criminal confinement, class B felony arson, and class C felony assisting a criminal.
Id. at 485.
The jury found McGee guilty of arson, assisting a criminal,
and obstruction of justice. The trial court entered judgment of conviction and
sentenced McGee only on the first two counts because of double jeopardy concerns.
McGee appealed his convictions. Recently, another panel of this court affirmed
McGees arson conviction and vacated his conviction for assisting a criminal on double
See McGee v. State, No. 49A05-0405-CR-282 (Ind. Ct. App. Feb.
10, 2005), trans. denied. McGee and Moore have the same appellate counsel.
We direct counsels attention to Indiana Appellate Rule 15(C)(4)(c), which provides that
an appellants case summary shall include information regarding [r]elated appeals (prior, pending or
potential) known to the party[.] Moores case summary does not mention the
appeal of his codefendant, McGee.
Moore asserts for the first time on appeal that [i]f an
[apparently] unloaded handgun can be confiscated simply because it might cause harm, then
the entire Second Amendment to the United States Constitution is meaningless. Appellants
Br. at 12 (emphasis and footnote omitted);
see U.S. Const. amend. II (A
well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.).
We need not address that assertion here.
Moore also challenges the admissibility of the ballistics evidence under Article
1, Section 11 of the Indiana Constitution. Because we decide the issue
on Fourth Amendment grounds, we need not address his Indiana constitutional claim.
Footnote: At trial, Moore acknowledged that he had no basis for challenging
Sergeant Wisneskis warrantless search of Derrick Dempseys vehicle, in which the handgun was
See, e.g., Mays v. State, 719 N.E.2d 1263, 1266 (Ind. Ct.
App. 1999) (Fourth Amendment rights are personal and may not be vicariously asserted.
The definition of those rights is more properly placed within the purview
of substantive Fourth Amendment law than within that of standing. Thus, in
order to claim the protection of the Fourth Amendment, a defendant must demonstrate
that he personally has an expectation of privacy in the place searched and
that his expectation is reasonable.) (citations omitted), trans. denied (2000).
The State does not contend that Moore consented to Sergeant Wisneskis
seizure of the handgun and the subsequent test-firing of the handgun.
Trice v. State, 693 N.E.2d 649 (Ind. Ct. App. 1998),
we explained that
[i]n order to convict a defendant of criminal gang activity, the State must
prove beyond a reasonable doubt that the individual (1) is an active member
of a group with five or more members which promotes, sponsors, assists in,
or participates in or requires as a condition of membership or continued membership
the commission of a felony or an act that would be a felony
if committed by an adult or a battery, (2) has knowledge of the
groups criminal advocacy, and (3) has a specific intent to further the groups
Id. at 651 (citing Ind. Code §§ 35-45-9-1, -3) (emphasis added). It
would appear that Sergeant Wisneskis probable cause determination, if any, was based solely
on the yelling of gang names by unidentified persons during the fracas at
Linda Jordans home, at which Moore and two acquaintances were present.
See Hannibal v. State, 804 N.E.2d 206, 210 (Ind. Ct. App.
2004) (To justify a warrantless seizure under the plain view doctrine, a law
enforcement officer (1) must not have violated the Fourth Amendment in arriving at
the place where items are in plain view, (2) the incriminating nature of
the objects in plain view must be immediately apparent, and (3) the officer
must have a lawful right to access the items in plain view.).
A traditional application of the plain view doctrine would be problematic in this
case, given that Moore may not challenge the constitutionality of Sergeant Wisneskis search
of Dempseys vehicle, in which the handgun was not in plain view.
Even though Sergeant Wisneski did not violate Moores Fourth Amendment rights in searching
Dempseys vehicle, we note that any basis for suspecting that the handgun was
incriminating evaporated once he determined that it had not been reported stolen and
that Moore had a valid handgun permit. We do not mean to
suggest that police officers should not make every reasonable effort to ensure their
safety and the safety of others in similar situations, but we do emphasize
that all searches and seizures must comport with the Fourth Amendment for evidence
to be admissible at trial. Cf. Ind. Code § 35-33-1-1.5 (providing that
a law enforcement officer responding to the scene of an alleged crime involving
domestic or family violence shall use all reasonable means to prevent further violence,
including the confiscation and removal of a firearm, ammunition, or a deadly weapon
from the scene if the law enforcement officer has: (1) probable cause
to believe that a crime involving domestic or family violence has occurred; (2)
a reasonable belief that the firearm, ammunition, or deadly weapon: (A) exposes
the victim to an immediate risk of serious bodily injury; or (B) was
an instrumentality of the crime involving domestic or family violence; and (3) observed
the firearm, ammunition, or deadly weapon at the scene during the response.) (emphases
added). If any such items are removed from the scene, the officer
must provide for their safe storage
during the pendency of a proceeding
related to the alleged act of domestic or family violence. Id.
Recently, the General Assembly passed legislation regarding the seizure of firearms
from dangerous persons.
See House Enrolled Act 1776 (defining dangerous in relevant
part under Ind. Code § 35-47-13-1 as a person presents an imminent risk
of personal injury to the person or to another person). Pursuant to
this legislation, a law enforcement officer who conducts a warrantless seizure of a
firearm from a person the officer believes to be dangerous must submit to
the court a sworn statement describing the basis for that belief. Id.
(Ind. Code § 35-47-13-3(a)). From this statement, the court must determine whether
probable cause exists to believe that the person is dangerous. Id. (Ind.
Code § 35-47-13-3(b)). If the court finds the person to be dangerous,
then it shall order that the law enforcement agency retain the firearm pending
a hearing; if the court finds the person not to be dangerous, then
it shall order that the firearm be returned to the person. Id.
(Ind. Code §§ 35-47-13-3(b), -5). Indiana Code Section 35-47-13-3(c) provides, This section
does not authorize a law enforcement officer to perform a warrantless search or
seizure if a warrant would otherwise be required. Id.
Footnote: See Ind. Code § 35-50-2-3 (A person who commits murder shall
be imprisoned for a fixed term of fifty-five (55) years, with not more
than ten (10) years added for aggravating circumstances or not more than ten
(10) years subtracted for mitigating circumstances[.]).
See Ind. Code § 35-50-2-5 (A person who commits a Class
B felony shall be imprisoned for a fixed term of ten (10) years,
with not more than ten (10) years added for aggravating circumstances or not
more than four (4) years subtracted for mitigating circumstances[.]).
Moore also suggests that the trial court was required to clarify
why the particular sentences were being run consecutively[,] but he cites no authority
for this proposition. Appellants Br. at 29. It is well established
that a partys failure to provide proper citation to authority results in waiver.
Bartley v. State, 800 N.E.2d 193, 196 (Ind. Ct. App. 2003).
Consequently, we do not address this argument. We also note that Moore
mentions the Sixth Amendment for the first time in his reply brief.