Gray v. State

Attorney for Appellant

Marion County Public Defender
Janice L. Stevens
Indianapolis, IN

Attorneys for Appellee

Steve Carter
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, IN



      IN THE
      INDIANA SUPREME COURT


CHARLES GRAY,
      Appellant (Defendant below),

      v.

STATE OF INDIANA,
      Appellee (Plaintiff below).



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)     Supreme Court No.
)     49S00-0003-CR-212
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      APPEAL FROM THE MARION SUPERIOR COURT
      The Honorable Tanya Walton Pratt, Judge
      Cause No. 49G01-9810-CF-157515



                              ON DIRECT APPEAL




                              November 16, 2001

SULLIVAN, Justice.


      Defendant Charles Gray was convicted for the murder and robbery of  an
elderly man.  We  find  that  a  police  officer’s  affidavit  provided  the
requisite “substantial basis” for concluding that  probable  cause  existed.
We  reaffirm  that  our  long-held  rule  against  polygraph   evidence   is
constitutional.  And we conclude that aggravating circumstances support  the
sentence imposed.


                                 Background


      The facts favorable to the judgment indicate  that  on  September  10,
1997, 93-year-old Earl Perry was severely beaten with his own  cane  in  his
home and had $200 taken from him. Mr. Perry later died  from  his  injuries.
Before dying, Mr. Perry gave an account  of  what  had  happened,  including
what the assailant had said to him prior to the assault.  Mr. Perry  related
that the assailant stated that he was friends with “Wendell,”  referring  to
Wendell Hart, a man whom Mr. Perry had hired in the past to  perform  chores
for him.  The assailant asked if Mr. Perry had any work for  him,  and  when
Mr. Perry said no, the assailant wrote a name and telephone number  down  on
a post-it note pad.  The assailant then began to beat Mr. Perry.

      Detective Mitchell was assigned the case and interviewed Wendell  Hart
in  the  Morgan  County  Jail.   Hart  told  Detective  Mitchell   about   a
conversation Hart had with a man about Earl  Perry;  Hart  later  identified
this man as Charles Gray.  Detective Mitchell found Charles  Gray  in  March
of 1998 in the Marion County Jail.  At that  interview,  Detective  Mitchell
took a sample of Gray’s handwriting and turned it  into  the  Marion  County
Crime Lab for testing.  Detective Mitchell later received notice that  there
were  “similar  characteristics”  found  in  Gray’s  handwriting   and   the
handwriting of the post-it  note  from  the  crime  scene.   The  crime  lab
requested more samples, and Detective Mitchell obtained  a  limited  warrant
in order to do this.  The second set of handwriting samples  confirmed  that
Charles Gray was the author of the post-it note.

      Defendant was convicted of murder[1] and robbery.[2]  He was sentenced
to serve sixty-five years for the murder, and eight years for  the  robbery.
The sentences were ordered to  be  served  consecutively,  for  a  total  of
seventy-three (73) years.  Defendant appeals his conviction and sentence.


                                 Discussion



                                      I


      Defendant contends that his conviction should be reversed because  the
probable  cause  affidavit  used  to  obtain  Defendant’s  second   set   of
handwriting  samples  was  invalid.[3]   To  support  the   probable   cause
affidavit, Detective  Mitchell  swore  to  the  following  facts:   (1)  the
victim, prior to dying, had stated several  times  that  his  assailant  was
connected to a man named “Wendell,” later identified as  Wendell  Hart;  (2)
Detective Mitchell found Hart in a correctional facility and spoke with  him
about Mr. Perry; (3) during this conversation, Hart  recalled  that  he  had
spoken about Mr. Perry to a Charles Gray while  they  were  both  in  Morgan
County Jail in 1997; (4)  Detective  Mitchell  found  Charles  Gray  in  the
Marion County Jail and took a handwriting exemplar  which  he  submitted  to
the crime lab; (5) the crime lab then requested some more samples of  Gray’s
“course of business” writing as well as some more sample handwriting due  to
similar characteristics in Gray’s handwriting and the post-it note  left  on
the crime scene.

      Based on this information,  the  magistrate  granted  the  warrant  to
obtain  the  samples.   Detective  Mitchell  gathered  the  second  set   of
handwriting samples from Defendant, which  later  proved  to  be  conclusive
evidence that Defendant was the person who authored the post-it note at  the
crime scene.  The trial court upheld the  validity  of  the  probable  cause
affidavit  and  denied  Defendant’s  Motion  to  Suppress  the   handwriting
samples.

      To be valid, a warrant and its underlying affidavit must  comply  with
the Fourth Amendment prohibition on unreasonable searches and  seizures,  as
well as Indiana constitutional and statutory law.[4]   In  order  to  comply
with these  restrictions,  the  magistrate’s  task  is  “simply  to  make  a
practical, commonsense decision whether, given  all  the  circumstances  set
forth before him … 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).


      As the reviewing court, our duty under  the  Fourth  Amendment  is  to
determine whether the magistrate issuing  the  warrant  had  a  “substantial
basis” for concluding that probable cause existed.  Gates, 462 U.S. at  238-
39.  While significant deference is due to the  magistrate’s  determination,
our  search  for  substantial  basis  must  focus  on  whether   “reasonable
inferences  drawn  from  the  totality   of   the   evidence   support   the
determination.”  Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997).

      Defendant argues  that  the  affidavit  was  defective  in  two  ways.
First, he says the affidavit was supported by  uncorroborated  hearsay  from
an unreliable source.   Second,  he  says  Detective  Mitchell  omitted  key
facts, thereby misleading the magistrate issuing the warrant.   (Appellant’s
Br. at 16-17.)  As a result, Defendant argues, the handwriting samples  were
obtained in violation of his Fourth Amendment and Indiana  statutory  rights
and should have been excluded from evidence.

      We conclude that when deciding to issue the  warrant,  the  magistrate
had facts from which it could  reasonably  infer  that  there  was  probable
cause to believe Charles Gray had authored the post-it  note  at  the  crime
scene.  The affidavit contained  the  manner  in  which  Detective  Mitchell
discovered how Charles Gray was connected to Mr. Perry.  After  finding  out
this connection, Detective Mitchell took a  handwriting  sample  from  Gray.
Based  on  the  similar  characteristics  of  the  first  sample,  Detective
Mitchell sought the warrant in issue to obtain  a  second  set.   All  other
facts in the affidavit  merely  provide  context  for  the  situation.   The
totality of the evidence presented in the  affidavit  clearly  supports  the
magistrate’s determination that there was  substantial  basis  for  probable
cause.  See Gates, 462 U.S. at 238-39; Houser, 678 N.E.2d at 99.

      As to Defendant’s two specific claims, we conclude that the  affidavit
was not  supported  by  hearsay,  as  Defendant  contends.   Wendell  Hart’s
hearsay statements to Detective Mitchell initially  led  Detective  Mitchell
to Charles Gray.  However, it was the “similar characteristics” between  the
first set taken from Gray and the crime scene post-it  note  that  supported
Detective Mitchell’s probable cause affidavit.

      Likewise, the affidavit was not defective because  Detective  Mitchell
omitted a key fact, to wit, that Hart could not  identify  Charles  Gray  by
name.  Hart picked Gray out of a photo  array  of  those  who  had  been  in
Hart’s  cell  block  at  the  time  of  the  conversation.   This  omission,
intentional or unintentional, did not mislead the  magistrate.   The  manner
in which Charles Gray became connected to the case was not important to  the
affidavit.  As such, Detective Mitchell’s conversation with  Hart  was  mere
context for the magistrate.  The similar characteristics found  between  the
first handwriting sample and the  crime  scene  post-it  note  provided  the
substantial basis needed by the magistrate.


                                     II


      Defendant contends that he was denied his right to present  a  defense
under the Sixth Amendment of the United States Constitution because  he  was
not  allowed  to  cross-examine  a  police  detective  about   a   polygraph
examination of a potential suspect, Robert  Smith.   Defendant  argues  that
this evidence was relevant to his defense that someone  else  assaulted  and
robbed Mr. Perry.

      Polygraph examinations are generally not  admissible  as  evidence  in
Indiana.  Perry v. State,  541  N.E.2d  913,  915  (Ind.  1989).    This  is
because of  the  inherent  unreliability  of  polygraph  examinations.   See
Hubbard v. State, 742 N.E.2d 919, 923-24 (Ind. 2001).  Earlier this year  in
Hubbard we gave extended treatment to a  defendant’s  claim  that  our  rule
against the use of polygraph evidence  conflicted  with  his  constitutional
right to present a defense.  We reaffirm that analysis  and  again  conclude
that the “defendant’s limited interest in  putting  on  unreliable  evidence
does not outweigh the State’s  interest  in  ensuring  that  [only  reliable
evidence is introduced at trial].”  Id. at 924; see also  United  States  v.
Scheffer, 523 U.S. 303 (1998) (holding that a  per  se  rule  excluding  all
polygraph evidence did not  abridge  the  defendant’s  right  to  present  a
defense under the United States Constitution).


      The polygraph  examination  of  Robert  Smith  constituted  unreliable
evidence.   In  balancing  the  interests  of  a   fair   trial   with   the
constitutional interests of Defendant,  the  trial  court  did  not  err  in
excluding  the  polygraph  evidence.   See  Hubbard,  742  N.E.2d  at   923;
Scheffer, 523 U.S. at 309.



                                     III


      Defendant contends that it was improper for the trial court to  impose
consecutive sentences based on the violence of  the  offense.   (Appellant’s
Br. at 18.)

      In general, the legislature  has  prescribed  standard  sentences  for
each crime, allowing the sentencing  court  limited  discretion  to  enhance
sentence to reflect  aggravating  circumstances  or  reduce  it  to  reflect
mitigating circumstances.  The legislature  also  permits  sentences  to  be
imposed consecutively  if  aggravating  circumstances  warrant.   Morgan  v.
State, 675 N.E.2d 1067, 1073  (Ind.  1996)  (citing  Reaves  v.  State,  586
N.E.2d 847 (Ind.  1992)).   See  Ind.  Code  §35-38-1-7.1(b)  (a  court  may
consider  aggravating  circumstances  in  determining  whether   to   impose
consecutive sentences).

      When the trial court imposes a sentence  other  than  the  presumptive
sentence, or imposes consecutive sentences where not required to  do  so  by
statute, this Court will  examine  the  record  to  insure  that  the  court
explained its reasons for selecting the  sentence  it  imposed.   Archer  v.
State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Hammons v. State, 493  N.E.2d
1250, 1254 (Ind. 1986)).   The  trial  court’s  statement  of  reasons  must
include the following components:  (1)  identification  of  all  significant
aggravating  and  mitigating  circumstances;  (2)  the  specific  facts  and
reasons  that  lead  the  court  to  find  the  existence   of   each   such
circumstance; and (3) an articulation demonstrating that the mitigating  and
aggravating circumstances have been evaluated and  balanced  in  determining
the sentence.  Mitchem v. State, 685 N.E.2d 671,  678  (Ind.  1997)  (citing
Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996)).

       At  the  sentencing  hearing,  the  trial   court   identified   five
aggravating  circumstances:   (1)  Defendant  had  a  history  of   criminal
activity that went as far back as 1980; (2) Defendant was on probation  when
he committed the murder and robbery of the  victim;  (3)  Defendant  was  in
need of correctional rehabilitative treatment best  provided  by  commitment
to  a  penal  facility  due  to  the  fact  that  all  other   attempts   at
rehabilitation had failed; (4) the victim of the crime  was  93  years  old,
and physically infirm; (5) the nature of the crime was particularly  heinous
in that Defendant beat the victim with the victim’s own cane where no  force
would have been necessary to rob the victim.

      The trial court also identified one mitigating circumstance, that  is,
the Defendant’s drug addiction.  The court then weighed the aggravating  and
the mitigating circumstances, and found that the  aggravating  circumstances
outweighed the mitigating.  The trial court sentenced  Defendant  to  sixty-
five (65) years for the murder, and eight  years  for  the  robbery,  to  be
served consecutively for a total of seventy-three (73) years.

      Defendant contends  that  the  trial  court  failed  to  identify  any
aggravating circumstances  when  it  imposed  the  sentences  consecutively,
other than the violent nature of the offense.  (Appellant’s Br.  at  19-20.)
While this appears to be the case, it does not entitle Defendant to  relief.
 We  have  held  that  the  violent  nature  of  a  crime  is  a  sufficient
aggravating circumstance to justify consecutive sentences.  See  Sanquenetti
v. State, 727 N.E.2d 437, 443 (Ind. 2000).  And even if we were to  find  it
insufficient  here,  we  likely  would  find,  in  the   exercise   of   our
constitutional  authority  to  review  and  revise  sentences,[5]  that  the
aggravating  circumstances  articulated  by  the  trial  court  to   support
enhancing the murder  count’s  sentence  support  consecutive  sentences  as
well.  See Mitchem, 685 N.E.2d at 680.


                                 Conclusion


      We affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code §35-42-1-1 (1998).
[2] Ind. Code §35-42-5-1 (1998).
[3] Defendant had previously consented to the first set of samples taken  by
Detective Mitchell in March of 1998.
[4] Ind. Const. art. I, §11; Ind. Code §35-33-5-2 (1998).
[5] Ind. Const. art.  VII, §4.