MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Apr 19 2017, 10:22 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Agency Ellen H. Meilaender
Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron Smith, April 19, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1611-CR-2465
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff. Rothenberg
Trial Court Cause No.
49G02-1409-MR-42716
Bailey, Judge.
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Case Summary
[1] Aaron Smith (“Smith”) appeals his conviction of Felony Murder.1 We affirm.
Issues
[2] Smith presents two issues for review:
I. Whether the trial court erroneously admitted evidence
obtained pursuant to a search warrant unsupported by
probable cause; and
II. Whether the trial court erred by admitting into evidence
two text messages as statements of an unknown co-
conspirator.
Facts and Procedural History
[3] At 7:56 p.m. on June 6, 2014, Indianapolis Metropolitan Police Officers were
dispatched to Meadows Parkway and Adams Street in response to a 9-1-1 call.
The officers found Louis Myers, Jr. (“Myers”) seated in his vehicle. Myers had
died from multiple gunshot wounds. The officers observed a trail of blood
leading from the passenger side door into a grassy area.
[4] At 7:58 p.m., Smith arrived at Methodist Hospital in Indianapolis. He had
sustained a gunshot wound to his left forearm. Police officers attempted to
1
Ind. Code § 35-42-1-1.
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investigate the circumstances surrounding the gunshot injury. Smith identified
himself as Kevin Bradley. He claimed that he had been walking in an alley
near Michigan and Parker streets when a vehicle approached and the driver
displayed a weapon. Smith reported that he had been shot when he grabbed the
weapon.
[5] Police officers were unable to confirm that the injured person was Kevin
Bradley, and they asked Smith additional questions. However, Smith was
unable or unwilling to provide his correct name, date of birth, or current
address. He refused to identify his mother but claimed that he had a sister
whose name he could not remember. Eventually, officers identified Smith by
his fingerprints.
[6] Additional police officers were dispatched to the purported crime scene at
Michigan and Parker streets. There, the officers found no evidence of a
shooting. Also, there had been no recent report of shots fired in the area.
Police officers obtained a search warrant and seized Smith’s clothing, blood-
stained money, and his cell phone. Subsequent DNA testing led the examiner
to conclude that the blood stains on the currency were a mixture of blood from
Smith and Myers. Smith’s blood was found in Myers’ vehicle.
[7] Smith was charged with Murder, Felony Murder, and Unlawful Possession of a
Handgun by a Serious Violent Felon.2 On September 13, 2016, a jury acquitted
2
I.C. § 35-47-4-5.
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Smith of Murder and convicted him of Felony Murder. The handgun
possession charge was dismissed. Smith was sentenced to sixty years
imprisonment. He now appeals.
Discussion and Decision
Search Warrant
[8] Smith argues that the trial court erroneously admitted evidence seized during
his hospitalization because it was obtained pursuant to a search warrant
unsupported by probable cause. Particularly, Smith claims that the State failed
to identify a nexus between Smith’s admission to the hospital with a gunshot
wound and Myers’ shooting.
[9] Both the Fourth Amendment to the United States Constitution and Article I,
Section 11 of the Indiana Constitution require probable cause to support the
issuance of a search warrant. Bradley v. State, 4 N.E.3d 831, 840 (Ind. Ct. App.
2014), trans. denied. The Fourth Amendment to the United States Constitution
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.
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The text of Article 1, Section 11 of the Indiana Constitution contains nearly
identical language. State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006). These
constitutional principles are codified in Indiana Code section 35-33-5-2, which
details the information to be contained in an affidavit for a search warrant. 3 Id.
[10] “Probable cause is a fluid concept incapable of precise definition and must be
decided based on the facts of each case.” Bradley, 4 N.E.3d at 840. “The level
of proof necessary to establish probable cause is less than that necessary to
establish guilt beyond a reasonable doubt.” Jellison v. State, 656 N.E.2d 532,
534 (Ind. Ct. App. 1995). Probable cause requires only a fair probability of
criminal activity, not a prima facie showing. Id.
[11] “The task of the issuing magistrate is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit … there is
a fair probability that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). The duty of the
reviewing court is to determine whether the magistrate had a “substantial basis”
for concluding that probable cause existed. Id. at 238-39.
3
Pursuant to Indiana Code Section 35-33-5-2, the affidavit is to particularly describe the house or place to be
searched and the things to be searched for; or the person to be arrested. The affiant is required to allege
substantially the offense in relation thereto and that the affiant believes and has good cause to believe that the
things sought are concealed there or the person to be arrested committed the offense. The affidavit is to set
forth the facts known to the affiant through personal knowledge or based on hearsay. When based upon
hearsay, the affidavit must establish the credibility of the source or contain information establishing
corroboration.
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[12] A substantial basis requires the reviewing court, while giving significant
deference to the magistrate’s determination, to focus upon whether reasonable
inferences drawn from the totality of the evidence support the determination of
probable cause. Spillers, 847 N.E.2d at 953. This includes both the trial court
ruling on a motion to suppress and an appellate court reviewing that decision.
Id. Our review is de novo, while affording the requisite deference. Id.
[13] Here, the warrant was issued upon the affidavit of Detective Erika Jones, who
averred:
On Friday June 6th, 2014 at approximately 7:56 pm, Officers of
the Indianapolis Metropolitan Police Department were
dispatched to 4004 Meadows Dr. on the report of a person shot.
Upon arrival Officers observed a deceased black male sitting in
the passenger [sic] seat of a purple Honda Accord, suffering from
apparent gunshot wounds. Medics were on scene and
pronounced the male deceased at 7:59 pm.
I observed a trail of blood leading from the passenger side of the
vehicle to an open field to the west. I attempted to follow the
trail of blood; however it was lost in high grass in the field.
At 7:58 pm, Officers were dispatched to Methodist Hospital,
1701 Senate Blvd, on the report of a delayed person shot. Upon
arrival, Det. Jean Burkert spoke with the victim, who identified
himself as Kevin Bradley. Det. Burkert was unable to confirm
the name of Kevin Bradley and the information he provided.
The subject advised Det. Burkert that he was shot at E. Michigan
St/N. Parker Ave., however Officers did not locate a crime scene
and there were no shots fired runs in the area. The subject
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refused to provide any further information to Det. Burkert to
confirm his identity.
I am requesting a search warrant to recover the clothing that the
unidentified male was wearing when he arrived at Methodist
Hospital and his cell phone. His clothing is described as blue
jeans, blue t-shirt, black socks and gray/black/green tennis shoes.
His cell phone is a black Samsung flip phone.
(Ex. Vol. II, pg. 193.)
[14] At the motion to suppress hearing, Smith argued that there was no nexus
between the shooting of Myers and the shooting of Smith. The State pointed to
the timing of the events and Smith’s efforts to conceal his identity. The trial
court denied the motion to suppress, reasoning that the facts indicated either
that Smith had been a shooting victim, which would necessitate gathering of
evidence, or Smith had been criminally involved in Myers’ shooting, which
would likewise necessitate the gathering of evidence.
[15] In conducting our de novo review of the affidavit upon which the warrant was
issued, we observe that mere minutes elapsed between the police dispatch to the
murder scene and Smith’s arrival at the hospital with a gunshot wound.
Detective Jones averred that she had personally observed the murder scene and
there was a trail of blood leading away from the vehicle. Thus, there was a
strong indication that another individual had been wounded during the events
under investigation. At the hospital, the wounded man provided false
information as to his identity but claimed that he had been a shooting victim.
Given all the circumstances set forth in the affidavit, there was “a fair
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probability that contraband or evidence of a crime [would] be found” in Smith’s
personal effects. Gates, 462 U.S. at 238. This is true whether Smith was a
perpetrator or a victim. The warrant was supported by probable cause.
Text Messages
[16] A forensic search of Smith’s cell phone history, conducted pursuant to a second
warrant, revealed two text messages sent to Smith from an individual identified
only as “Lil Black.” (Tr. at 170.) The messages, sent shortly before Myers was
killed, state:
Bitch, I just called da lick.
Bitch, u just had me call this lick for no reason.
(Tr. 173-74.) Smith objected to the messages as inadmissible hearsay; the State
argued that the messages were admissible as statements of a co-conspirator.
The trial court agreed with the State that the texts were not hearsay and
admitted the texts into evidence. Smith contends that the trial court committed
reversible error.
[17] Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. Ind. Evidence Rule 801(c). A co-conspirator’s statement is not
hearsay, if the statement “was made by the party’s co-conspirator during and in
furtherance of the conspiracy.” Evid. Rule 801(d)(2)(E). “The statement does
not by itself establish … the existence of the conspiracy[.]” Id.
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[18] Before a statement is admissible as non-hearsay under Rule 801, “we also
require that the State prove that there is ‘independent evidence’ of the
conspiracy.” Lander v. State, 762 N.E.2d 1208, 1213 (Ind. 2002) (quoting Lott v.
State, 690 N.E.2d 204, 209 (Ind. 1997)). Accordingly, the State must show (1)
the existence of a conspiracy between the declarant and the party against whom
the statement is offered and (2) the statement was made in the course and in
furtherance of this conspiracy. Id.
[19] Before using the text messages from “Lil Black,” the State was required to
establish that a conspiracy existed between him and Smith. Arguing for
admissibility, the State directed the trial court to evidence that there were 32
phone calls and texts exchanged between “Lil Black” and Smith on June 6,
2014. Also, the State urged that the “timing was significant.” (Tr. at 170.)
Records disclosed that “Lil Black” placed the last telephone call that Myers
appears to have answered and that Smith called “Lil Black” three minutes later.
[20] The State now argues that “the timing and sequence of the calls suggests that
[Smith] and “Lil Black” were consulting with each other and working in concert
to arrange something in connection to Myers.” Appellee’s Brief at 22. Although
we agree that illegality may be “suggested,” we cannot conclude that a plethora
of calls, without background information as to the participants’ relationship or
any content of the communications, shows the “existence of a conspiracy”
between the declarant “Lil Black” and Smith. See Lander, 762 N.E.2d at 1213.
Nor does this call history, isolated from the texts, establish that a statement was
made in the course and furtherance of a conspiracy. As such, the State failed to
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meet the requirements of Rule 801(d)(2)(E). The texts were not properly
admitted as non-hearsay statements of a co-conspirator.
[21] However, a conviction will not be overturned if an erroneous ruling is harmless
error. Ind. Trial Rule 61. Harmless error has been defined as an error that does
not affect the substantial rights of a party. Lander, 762 N.E.2d at 1213. Here, the
State presented evidence to the jury including: officers dispatched upon a report
of shots fired discovered Myers’ body and a trail of blood leading away from the
vehicle; Myers had no currency on his person although he had been engaged in
selling movies; almost simultaneously with this discovery, Smith sought
treatment for a gunshot wound at a nearby hospital; Smith was evasive and
attempted to hide his true identity; Smith was in possession of blood-stained cash;
DNA testing revealed that Smith’s blood was in Myers’ vehicle; and DNA testing
revealed that a combination of Smith’s blood and Myers’ blood was on $20 bills
and $10 bills obtained from Smith at the hospital. Considering the overwhelming
evidence of Smith’s guilt, we cannot say that the jury’s consideration of the text
messages violated Smith’s substantial rights.
Conclusion
[22] The warrant executed during Smith’s hospitalization was supported by probable
cause. The admission of two text messages from an alleged co-conspirator to
Smith was harmless error.
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[23] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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