Aug 11 2015, 9:58 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bryan Gavin, August 11, 2015
Appellant-Defendant, Court of Appeals Case No.
79A02-1501-CR-27
v. Appeal from the Tippecanoe Superior
Court
State of Indiana, The Honorable Thomas H. Busch,
Judge
Appellee-Plaintiff
Case No. 79D02-1311-FB-36
Vaidik, Chief Judge.
Case Summary
[1] Miranda warnings are subject to a public-safety exception. That is, Miranda
warnings are not required when police officers ask questions reasonably
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prompted by a concern for the public safety. Bryan Gavin appeals his multiple
convictions stemming from an apartment-complex shooting. Specifically, he
argues that the trial court erred by admitting his statement to police about the
location of the gun because he made the statement before being informed of his
Miranda rights. Because the police officer’s question to Gavin about the
location of the gun was reasonably prompted by a concern for Gavin’s three-
year-old stepdaughter’s safety, we find that the trial court did not err in
admitting Gavin’s statement. We therefore affirm Gavin’s convictions.
Facts and Procedural History
[2] The facts most favorable to the verdict reveal that around 7:00 a.m. on October
28, 2013, Michael Winston received a phone call from his girlfriend, Erica Veal,
to pick her up at 2536 Richmond Court in Cambridge Estates, an apartment
complex in Lafayette, Indiana. Michael arrived around 8:00 a.m. and parked
his car. He left the car running and knocked on the door. When a man, later
identified as Gavin, came to the door, Michael asked for Erica. Gavin said she
was not there. When Michael insisted that it was the address that Erica had
given him and therefore she had to be there, Gavin responded, “she is not here
and if you don’t get away from my door[,] I’m going to give you something to
get away from my doorway.” Tr. p. 98. Believing Gavin was going to hurt
him, Michael returned to his car. When Michael got to his car, he grabbed a
tire iron from the back seat because he “didn’t know what [Gavin] was going to
come out and do to [him].” Id. at 99.
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[3] As Michael was getting ready to call Erica, Gavin pointed his hand out the
front door of the apartment and started shooting his .40 caliber semi-automatic
handgun. Michael ran. As he ran, two bullets struck him—one in the right hip
and the other in the left shin. At some point during the shooting, the window
of Gavin’s car was shattered. Neighbors heard the gunshots and called 911.
[4] Meanwhile, Gavin ran back inside the apartment to get his three-year-old
stepdaughter, J.M. Gavin then put J.M. in his maroon 1976 Cutlass and left
just as the police were arriving. Police found Michael lying in a grassy area,
and he was taken to the hospital. Police also found bullets and bullet holes in
various locations, including in cars and the apartment building across the street.
[5] Dispatch broadcasted that there was an active shooting and gave a description
of Gavin’s car. Several officers spotted a car that matched the description and
pulled over Gavin at the Super Test gas station at the intersection of State Road
38 East and U.S. 52 in Lafayette. With their guns drawn, the officers
approached Gavin’s car and ordered him out. Gavin “jumped” out the driver’s
side and said there was a baby in the car. Id. at 151. Officer Adam Burton of
the Lafayette Police Department ordered Gavin to the ground, where he was
handcuffed. Officer Burton then conducted a pat down and found a box of
ammunition in Gavin’s front sweatshirt pocket.
[6] Because Officer Burton had located the box of ammunition and believed that a
child was still inside the car, he asked Gavin “where the gun was.” Id. at 154.
Gavin answered that the gun “was in the car.” Id. at 155. Another officer then
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retrieved J.M. from Gavin’s car. The officer noted that the passenger-side
window was shattered and that J.M. was not in a booster seat, was not wearing
a seatbelt, and was sitting on shattered glass in the back seat. The officer also
noted that although it was cold that morning, J.M. was wearing only a shirt and
short skirt. Because J.M. was “very cold,” id. at 74, the officer transferred her
to his patrol car until Department of Child Services arrived. Officer Burton
took Gavin to the Lafayette Police Department. A later search of Gavin’s car
revealed a .40 caliber semi-automatic handgun underneath the passenger seat.
The seven cartridge cases found throughout the apartment complex were later
determined to have been fired from the gun found in Gavin’s car.
[7] The State eventually charged Gavin with Count I: Class C felony battery,
Count II: Class C felony criminal recklessness, Count III: Class A misdemeanor
carrying a handgun without a license; Count IV: Class D felony neglect of a
dependent, Count V: Class B felony unlawful possession of a firearm by a
serious violent felon, and Count VI: Class C felony carrying a handgun without
a license by a convicted felon.
[8] At trial, the State asked Officer Burton if Gavin had made any statements, and
Officer Burton said he had asked Gavin where the gun was. At this point,
defense counsel asked the trial court if he could ask Officer Burton “a couple
foundational questions” about why he had asked Gavin where the gun was
before Officer Burton was allowed to give Gavin’s answer. Id. at 155. Officer
Burton then explained that he had asked Gavin about the gun “because of
finding the ammo. I wanted to make sure that if the child still is in the vehicle
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that . . . they weren’t able to get to the gun to possibly harm themselves.” Id. at
156; see also id. at 157 (Officer Burton reiterating that he had asked Gavin about
the gun because of the “safety of the child inside the vehicle.”). Satisfied with
this answer, defense counsel said, “I’m not going to object to that . . . question.”
Id. at 157. Officer Burton then testified that Gavin said the gun was in his car.
Id.
[9] The jury found Gavin guilty as charged. Because of double-jeopardy concerns,
the trial court did not enter judgments of conviction for Counts III and VI.
Appellant’s App. p. 19. The court then sentenced Gavin to eight years for
Count I, eight years for Count II, three years for Count IV, and ten years for
Count V. The court ordered the sentences for Counts I, II, and V to be served
concurrently but the sentence for Count IV to be served consecutively, for an
aggregate sentence of thirteen years.
[10] Gavin now appeals.
Discussion and Decision
[11] Gavin contends that the trial court erred by admitting his statement to police
about the location of the gun because he made the statement before being
informed of his Miranda rights. The State responds that Gavin has waived this
issue for review because defense counsel stated at trial that he had no objection
and thus, Gavin must prove fundamental error, which he does not argue on
appeal and, in any event, cannot prove.
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[12] When the State asked Officer Burton if Gavin had made any statements, Officer
Burton said he had asked Gavin where the gun was. Tr. p. 154. Defense
counsel did not object but rather asked the trial court if he could ask “a couple
foundational questions” before Officer Burton was allowed to give Gavin’s
answer. Id. at 155. After asking Officer Burton questions about why he had
asked Gavin where the gun was, defense counsel stated, “I’m not going to
object . . . .” Id. at 157. Accordingly, because defense counsel said he had no
objection, Gavin has waived this issue for review. See Hayworth v. State, 904
N.E.2d 684, 693-94 (Ind. Ct. App. 2009). Gavin must therefore establish
fundamental error in order to obtain relief.
[13] Fundamental error is an extremely narrow exception to the waiver rule where
the defendant faces the heavy burden of showing that the alleged errors are so
prejudicial to the defendant’s rights as to “make a fair trial impossible.” Ryan v.
State, 9 N.E.3d 663, 668 (Ind. 2014) (quotation omitted), reh’g denied. In other
words, to establish fundamental error, the defendant must show that, under the
circumstances, the trial judge erred in not sua sponte raising the issue because
the alleged errors (a) “constitute clearly blatant violations of basic and
elementary principles of due process” and (b) “present an undeniable and
substantial potential for harm.” Id. (quotation omitted). The element of such
harm is not established by the fact of ultimate conviction; rather, it “depends
upon whether [the defendant’s] right to a fair trial was detrimentally affected by
the denial of procedural opportunities for the ascertainment of truth to which he
otherwise would have been entitled.” Id. (quotation omitted). In evaluating the
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issue of fundamental error, our task is to look at the alleged misconduct in the
context of all that happened and all relevant information given to the jury—
including evidence admitted at trial, closing argument, and jury instructions—
to determine whether the misconduct had such an undeniable and substantial
effect on the jury’s decision that a fair trial was impossible. Id. Fundamental
error is meant to permit appellate courts a means to correct the most egregious
and blatant trial errors that otherwise would have been procedurally barred; it is
not meant “to provide a second bite at the apple for defense counsel who
ignorantly, carelessly, or strategically fail to preserve an error.” Id.
[14] The State argues that even though Gavin made the statement about the location
of the gun before being informed of his Miranda rights, the trial court properly
admitted his statement under the public-safety exception to Miranda. The Fifth
Amendment guarantees that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” In Miranda, the United States
Supreme Court extended the Fifth Amendment privilege against compulsory
self-incrimination to individuals subjected to custodial interrogation by the
police. New York v. Quarles, 467 U.S. 649, 654 (1984). The Fifth Amendment
itself does not prohibit all incriminating admissions; “[a]bsent some officially
coerced self-accusation, the Fifth Amendment privilege is not violated by even
the most damning admissions.” Id. (quotation omitted). The Miranda Court,
however, presumed that interrogation in certain custodial circumstances is
inherently coercive and held that statements made under those circumstances
are inadmissible unless the suspect is specifically informed of his Miranda rights
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and freely decides to waive those rights. Id. “The prophylactic Miranda
warnings therefore are not themselves rights protected by the Constitution but
[are] instead measures to insure that the right against compulsory self-
incrimination [is] protected.” Id. (quotation omitted). Requiring Miranda
warnings before custodial interrogation provides “practical reinforcement” for
the Fifth Amendment right. Id.
[15] But Miranda warnings are subject to a public-safety exception. Id. at 655. That
is, Miranda warnings are not required when police officers ask questions
reasonably prompted by a concern for the public safety. Id. at 656. “[T]he need
for answers to questions in a situation posing a threat to the public safety
outweighs the need for the prophylactic rule protecting the Fifth Amendment’s
privilege against self-incrimination.” Id. at 657. Thus, in Quarles—where the
police were responding to report that a woman had been raped by an armed
man who had just entered a supermarket and were “confronted with the
immediate necessity of ascertaining the whereabouts of a gun which they had
every reason to believe the suspect had just removed from his empty holster and
discarded in [a] supermarket”—the United States Supreme Court
decline[d] to place officers . . . in the untenable position of having to
consider, often in a matter of seconds, whether it best serves society for
them to ask the necessary questions without the Miranda warnings and
render whatever probative evidence they uncover inadmissible, or for
them to give the warnings in order to preserve the admissibility of
evidence they might uncover but possibly damage or destroy their
ability to obtain that evidence and neutralize the volatile situation
confronting them.
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Id. at 657-58; see also Price v. State, 591 N.E.2d 1027, 1030 (Ind. 1992)
(recognizing that the public-safety exception to Miranda exists when police
officers “have an immediate concern for the safety of the general public [when]
an armed weapon remain[s] undiscovered”).
[16] We find that the public-safety exception to Miranda applies here, too. The
evidence shows that the officers were conducting a “high[-]risk stop” because
they were responding to a call of shots fired. Tr. p. 151, 156. After Officer
Burton handcuffed Gavin and located the box of ammunition in his front
sweatshirt pocket, he asked Gavin where the gun was because he “believed the
child was still in the vehicle” and “wanted to make sure that if the child still is in
the vehicle that . . . they weren’t able to get to the gun to possibly harm
themselves.” Id. at 154, 156 (emphasis added). Gavin answered that the gun
was in his car. Because Officer Burton’s question to Gavin about the location
of the gun was reasonably prompted by a concern for the safety of Gavin’s
three-year-old stepdaughter, see Bailey v. State, 763 N.E.2d 998, 1002 (Ind. 2002)
(“Though Officer Allender’s concern was not for the general public’s safety, as
it was in Price and Quarles, it was for the safety of another possible victim.
There is a fair amount of authority holding that questioning for the limited
purposes of locating or aiding a possible victim falls within the ‘public safety
exception’ to Miranda.”), we find that the trial court did not commit error,
much less fundamental error, in admitting Gavin’s statement about the location
of the gun.
[17] Affirmed.
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[18] Robb, J., and Pyle, J., concur.
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