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Jones v. State

Court: Indiana Supreme Court
Date filed: 2003-03-05
Citations: 783 N.E.2d 1132
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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).