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).
)
) Supreme Court No.
) 49S00-0003-CR-212
)
)
)
)
)
)
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.
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[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.