ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
JANICE L. STEVENS STEVE CARTER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, IN
ARTHUR THADDEUS PERRY
Deputy Attorney General of
Indiana
Office of the Attorney General
Indianapolis, IN
IN THE
SUPREME COURT OF INDIANA
JERRY JONES, )
)
Appellant (Defendant Below), ) Supreme Court Cause No.
) 49S00-0106-CR-00317
)
v. )
)
STATE OF INDIANA, )
)
)
Appellee (Plaintiff Below). )
____________________________________________________________________________
__
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9803-CF-32696
March 5, 2003
SHEPARD, Chief Justice
A trial court found Jerry Jones guilty of murdering a pawn shop owner
and sentenced him to life without the possibility of parole. He now
appeals, arguing that the trial court erred when it dismissed his motion to
suppress evidence obtained during a search and seizure, allowed him to
represent himself pro se, and convicted him based on insufficient evidence.
We affirm.
Facts and Procedural History
The investigation of the murder became intertwined with that of an
earlier bank robbery. On the morning of September 3, 1997, there was a
bank robbery in Chesterfield. Police pursued the suspected robbers in a
car until the car crossed several lanes and landed in a ditch. The three
occupants exited the car and fled into a nearby field. Police searched the
car, registered to Gregory Jones (“Greg”), and found Greg’s Indiana drivers
license and Department of Correction identification card; they also found
an Indiana identification card for Jerry Jones (“Jones”). The car’s trunk
contained a garbage bag filled with money from the bank.
The police learned that Greg’s relative J.P. also worked for the
Department of Correction, and they conducted a residential surveillance of
all three suspects.[1] Officers apprehended J.P. but later eliminated him
as a suspect because his size and stature were inconsistent with the
description of the robbers. The investigation of Greg and Jones continued.
As for the pawn shop, Ron Conner (“Conner”) owned and operated the
Lawrence Gold and Coin Shop at 8160 Pendleton Pike in Lawrence, Marion
County. On the morning of August 13, 1997, a worker in an adjacent shop
looked through the window in the side of the building, noticed the owner’s
leg lying behind the counter, and immediately called for assistance.
Police took fingerprints at the shop and also collected a spent cartridge
casing and a .32 caliber cartridge.
Detective Don Deputy of the Lawrence police conducted the initial
homicide investigation. Conner’s son informed the police that there were
several valuables missing from the display case, including a Masonic ring
and a ladies cluster ring. He also said that fold-over tags were attached
to a substantial amount of the missing jewelry.
On September 4, 1997, the Lawrence police sought a warrant to search
Greg’s apartment for three suspects and items related to the bank robbery.
A Madison county judge issued the warrant for Greg’s apartment, at 3663
Governours Court, Apt. A in the Wingate Village apartment complex. The
police watched the Governours Court address periodically while the initial
search warrant was obtained.
Shortly after the police obtained the warrant, the Emergency Response
Team entered Greg’s apartment to look for the suspects, but the house was
empty. The Emergency Response Team discovered a weapon under the bed and
placed it on the bed.
Thereafter, the police entered the apartment to search for additional
weapons and other items connected with the bank robbery. While searching,
they discovered additional guns and ammunition. One officer noticed
several rings in a display case with white tags attached to them. The
rings were later connected to the robbery and murder of Conner, the pawn
shop owner. An officer conducting the bank robbery investigation informed
the Lawrence police about the tray of rings they saw during the initial
search. This officer knew that the Lawrence police were investigating a
pawn shop crime.
Subsequently, the Lawrence police obtained a second warrant for the
Governours Court residence to search for weapons and evidence connected to
the pawn shop offense. An officer familiar with several of the missing
rings identified some of the items in Greg’s apartment. A casing collected
at the pawn shop contained similar characteristics as those fired from the
handgun found in the apartment.
The police obtained yet a third warrant seizing additional contraband
related to the pawn shop robbery and murder, and they seized the jewelry, a
.32 caliber Lorcin gun, various papers, and other items.
On September 8, after Jones denied that he had ever been in the store,
Detective Don Deputy informed Jones that his prints were identified in the
Lawrence Gold and Coin Shop. Police found Jones’ fingerprints on a ring
tray in the rear of the shop, and his palm print on a display case.
Jones waived trial by jury and in due course the trial court concluded
beyond a reasonable doubt that Jones was a major participant in the robbery
and murder of Conner at the Lawrence Gold and Coin. Furthermore, the court
found that Jones intentionally killed Conner and sentenced Jones to life
without parole.
Illegal Search and Seizure
After denying Jones’ motion to suppress, the trial court admitted
into evidence the tray of jewelry and .32 caliber Lorcin, found at the
Governours Court address. Jones claims the warrant authorizing the search
was illegally obtained.
In asserting such claims, we focus on whether a “substantial basis”
existed for a warrant authorizing a search or seizure. Houser v. State, 678
N.E.2d. 95 (Ind. 1997). Where a presumption of the validity of the search
warrant exists, the burden is upon the defendant to overturn that
presumption. Snyder v. Snyder, 460 N.E.2d 522 (Ind. Ct. App. 1984). If
the evidence is conflicting, we consider only the evidence favorable to the
ruling and will affirm if the ruling is supported by substantial evidence
of probative value. Melton v. State, 705 N.E.2d 564 (Ind. Ct. App. 1999).
Jones argues that the first warrant was invalid because the police
officer failed to inform the issuing judge that the Governours Court
apartment was under surveillance. A warrant is not invalid simply
because it contains slightly inaccurate material that is immaterial to the
warrant’s validity.
In Franks v. Delaware, 438 U.S. 154, 171-72 (1978), the U.S. Supreme
Court held that a warrant is invalid where the defendant can show by a
preponderance of the evidence that the affidavits used to obtain the
warrant contain perjury by the affiant, or a reckless disregard for the
truth by him, and the rest of the affidavit does not contain materials
sufficient to constitute probable cause. See Id. at 171-72. Furthermore,
fruits of the search will be excluded just as if the affidavit did not
contain allegations sufficient to constitute probable cause. Id., at 155.
In this case, however, the officer who obtained the initial search
warrant hardly committed perjury to obtain the warrant, nor did he display
a reckless disregard by failing to inform the judge of the surveillance
during the probable cause hearing. As we observed in Taylor v. State, 659
N.E.2d 535, 539 (Ind. 1995), probable cause requires only that the
information available to the officer would lead a person of reasonable
caution to believe the items could be useful as evidence of a crime. Based
on the descriptions of the suspects and the identification discovered in
the car, probable cause existed to issue a search warrant for the
Governours Court address.
Jones also argues that there is no substantial basis to support a
finding of probable cause because the first warrant obtained applied only
to the seizure of the three persons, and any items discovered as a result
of the search are invalid as fruits of the unlawful search. We disagree.
It is true that the warrant specifically directs the police to search
and seize the three suspects whom police believed were at the Governours
Court address, but the warrant also grants a search of the entire premises.
Furthermore, the warrant indicates that “probable cause exists to believe
that the items seized were located at the Governours Court address. These
include the goods, chattels, items or any part… described and found as a
result of the law enforcement agency whose officer executes the search
warrant…” (Appellant’s Exhibit C.) Thus, to search and seize any person
or item that the police believed was connected with the bank robbery did
not exceed the scope of the initial warrant or invalidate it.
Plain View Doctrine and Subsequent Warrants. Jones petitioned the
court to
suppress the jewelry, asserting that a warrantless search and seizure
occurred when the police moved trays of jewelry and placed them on the bed,
and arguing that the plain view doctrine did not apply.
Police may seize evidence not identified in a warrant under the plain
view doctrine. The plain view doctrine allows a police officer to seize
items when he inadvertently discovers items of readily apparent criminality
while rightfully occupying a particular location. Garrett v. State, 466
N.E.2d 8 (Ind. 1984.) See Coolidge v. New Hampshire, 403 U.S. 443 (1971).
First, the initial intrusion must have been authorized under the Fourth
Amendment. Daniels v. State, 683 N.E.2d 557, 558 (Ind. 1997.) Second, the
items must be in plain view. Id. Finally, the incriminating nature of the
evidence must be immediately apparent. Id.
.
In Arizona v. Hicks, 480 U.S. 321, 324-25 (1987), the Supreme Court
ruled the police conducted a warrantless search when they moved a stereo to
collect the serial numbers that were on the backside of the equipment. The
present case differs from Hicks because the police did not move the jewelry
to collect additional information. The fold-over tags on the jewelry in
the display case were visible without any movement. The police did not
acquire any additional information or benefit that they could not see
before they moved the jewelry tray.
Moreover, the police obtained a subsequent search warrant. Had the
police relied solely on the first warrant to seize the jewelry, perhaps the
outcome would be different. Nevertheless, the jewelry was in plain view
during the initial search. The police obtained a second warrant, which
included additional facts to justify probable cause to seize the jewelry.
We think this sequence of events is consistent with the plain view
doctrine.
Jones further argues that the gun was not included in the search
warrant. Seizure of the .32 caliber handgun is integrated into the “other
evidence of the crime” segment of the search warrant. Conner was shot
during the robbery at close range. It is reasonable to infer that a gun
would likely be seized as a natural extension of “other evidence of the
crime” for a homicide and robbery.
The trial court properly admitted the evidence.
Waiver of Counsel
Jones suggests that the trial court allowed him to represent himself
without satisfactorily advising him of the dangers of self-representation.
The Sixth Amendment to the U.S. Constitution and Article 1, section
13 of the Indiana Constitution guarantee a criminal defendant the right to
appointed counsel. Faretta v. California, 422 U.S. 806, 835 (1975);
Callahan v. State, 719 N.E.2d 430, 439 (Ind. Ct. App. 1999). Accordingly,
when a criminal defendant waives his right to counsel and elects to proceed
pro se, we must decide whether the trial court properly determined that the
defendant’s waiver was knowing, intelligent, and voluntary. Greer v.
State, 690 N.E.2d 1214, 1216 (Ind. Ct. App. 1998), trans. denied.[2]
Waiver of assistance of counsel may be established based upon the
particular facts and circumstances surrounding the case, including the
background, experience, and conduct of the accused. Jackson v. State, 441
N.E.2d 29, 32 (Ind. Ct. App. 1982.)
In Dowell v. State, 557 N.E.2d. 1063 (Ind. Ct. App. 1990), the Court
of Appeals suggested several guidelines for a court to advise the defendant
when he considers self-representation. The guidelines include:
(1) The defendant should know the nature of the charges against him,
the possibility that there may be lesser included offenses, and the
possibility of the defenses and mitigating circumstances; (2) the
defendant should be aware that self representation is almost always
unwise, that he may conduct a defense which is to his own detriment,
that he will receive no special treatment from the court and will have
to abide by the same standards as an attorney, and that the State will
be represented by experienced legal counsel; (3) the defendant should
be instructed that an attorney has skills and expertise in preparing
for and presenting a proper defense; and (4) the trial court should
inquire into the defendant’s educational background, familiarity with
legal procedures and rules of evidence and mental capacity.
Id., 557 N.E.2d at 1066-67.
Although this Court has endorsed these guidelines, we held in Leonard
v. State, 579 N.E.2d 1294, 1296 (Ind. 1991) that the guidelines do not
“constitute a rigid mandate setting forth specific inquiries that a trial
court is required to make before determining whether a defendant’s waiver
of right to counsel is knowing, intelligent, and voluntary.” Accordingly,
we noted it is sufficient for the lower court to acquaint the defendant
with the advantages to attorney representation and the drawbacks of self-
representation. Id.
In Faretta, the U.S. Supreme Court mandated that a record of waiver
be established and also advised that the pro se defendant should be told
about the dangers and disadvantages of self-representation. Dowell, 557
N.E.2d 1066. We recently re-emphasized the importance of such warnings.
See Poynter v. State, 749 N.E.2d 1122, 1129 (Ind. 2001) (new trial ordered
where judge did not advise defendant about dangers of self-representation).
The record here demonstrates that the trial court questioned Jones
and his counsel several times to establish whether Jones knowingly,
willingly, and voluntarily exercised his right to self-representation.
(See Appendix 458, 514; T.R. 59-63).
The court explicitly informed Jones regarding the potential danger of
pro se litigation.[3] The judge reminded Jones that he was not trained in
the law and that his attorneys were. (T.R. at 59.) It cautioned him that
he would be held to the same standard as a lawyer “as far as the rules of
evidence and arguments go. I’m not going to cut you any slack in this
regard.” (T.R. at 60.) It warned him that if he were convicted he would
not be able to claim ineffective assistance on appeal. (T.R. at 62.)
The court asked Jones more than three times whether he wanted to
represent himself and Jones said he did. Jones acknowledged that he
realized he would be held to the same standard as an attorney. The court
attempted to discourage Jones from self-representation: “I advise you
[Jones] I don’t think it’s a good idea…. If I was charged with this, I
wouldn’t want to represent myself.” (T.R. at 60.) Finally, the appointed
attorneys for Jones indicated that each had discussed the matter with
Jones, and both of them told the court they believed Jones understood what
his decision involved. (T.R. at 62-63.)[4]
The court’s inquiry and the responses were adequate to establish that
Jones exercised his right to represent himself pro se knowingly, willingly,
and voluntarily.
Sufficiency of Evidence on Intentionality
Jones contends the State failed to prove an intentional killing, a
necessary finding for sentencing to life without the possibility of parole.
When reviewing the claim of sufficiency of the evidence, we do not
reweigh the evidence or judge the credibility of the witnesses. Jordan v.
State, 656 N.E.2d 816 (Ind. 1995), reh’g denied. We look only to the
probative evidence supporting the verdict and the reasonable inferences
therein to determine whether a reasonable trier of fact could conclude the
defendant was guilty beyond a reasonable doubt. Fields v. State, 679
N.E.2d 898 (Ind. 1997). If there is substantial evidence of probative
value to support the conviction, it will not be set aside. Id.
Moreover, it is well settled that a conviction for murder may be
sustained on circumstantial evidence. Green v. State, 587 N.E.2d 1314 (Ind.
1992). If a reasonable inference can be drawn from the circumstantial
evidence, the verdict will not be disturbed. Id. Furthermore, intent to
kill may be inferred where evidence establishes that the mortal wound was
inflicted upon the victim by a deadly weapon in the hands of the defendant.
Landress v. State, 600 N.E.2d 938 (Ind. 1992).
The circumstantial evidence directs us towards Jones. Police found
the murder weapon, .32 caliber Lorcin, under a pile of clothing in the room
in the apartment where Jones kept his belongings. (T.R. at 289-90.) It was
the gun that fired the fatal bullet. (T.R. 514-17.) Jones’ fingerprints
were located in the store on the ring tray that was in the rear of the
store, where presumably few customers had access. A display case at the
pawn shop contained Jones’ palm print, yet Jones denies ever entering the
store.
Jones complains that the court found an intentional killing based on
its conclusion that the victim was shot from behind while bending over,
execution-style, the court said. Actually, the bullet entered the victim’s
neck from the side and traveled slightly upward, never entering the skull.
Thus, says Jones, the court’s finding of intentionality rests on an
inference that is solely based on another inference, contrary to our
decision in the capital case of Landress. 600 N.E.2d at 942.
This puts too fine a point on the matter. While the trial court’s
description of the killing may not have fit precisely with the stipulated
coroner’s report, the agreed fact that Conner was shot behind and below the
ear at intermediate range was sufficient to support the court’s finding of
intentional killing.
Conclusion
We affirm the trial court’s judgment.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] The residential surveillance included the Governours Court residence as
the primary residence for Greg , Venice Court as the primary residence for
J.P, and a home on the northwest side of town as the primary residence for
Jones. (T.R. 640-45.) The police focused surveillance on the Governours
Court address after receiving a tip that the suspects were in the area.
J.P. also informed police that Jerry would sometimes reside at Greg’s
apartment. (T.R. 682-83.)
[2] The right to counsel can only be relinquished by a knowing, voluntary,
and intelligent waiver of the right. Russell v. State, 383 N.E.2d. 309,
312 (Ind. 1978); McKeown v. State, 556 N.E.2d 3, 6 (Ind. Ct. App. 1990)
(citations omitted).
[3] The court’s inquiry regarding whether Jones knowingly, willingly, and
voluntarily wanted to represent himself pro se is reflected in the trial
record pp.58–64.
[4] Such moments present judges with a potential “Catch 22.” Though the
judge must ensure that a defendant acts in a knowing, intelligent, and
voluntary manner, he cannot coerce him to change his mind about pro se
representation. Jones has an absolute right to represent himself pro se,
regardless of whether his representation equates to the quality of his
court appointed attorneys. In Sherwood v. State, 717 N.E.2d 131, 134 (Ind.
1999), we observed that “respect for the individual, which is the life
blood of the law, requires that the accused’s choice be honored although he
may conduct his own defense to his detriment.” Id. quoting Faretta, 422
U.S. at 834 (1975).