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.
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[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.
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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.
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[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.
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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
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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.
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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:
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(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.
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[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.
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***
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).
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[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.
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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.
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