Alvin Richard v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 29 2016, 8:27 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gary L. Griner Gregory F. Zoeller
Mishawaka, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alvin Richard, April 29, 2016
Appellant-Defendant, Court of Appeals Case No.
71A03-1510-CR-1740
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff Hurley, Judge
Trial Court Cause No.
71D08-1211-FC-274
Baker, Judge.
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[1] Alvin Richard appeals his conviction for Class C Felony Burglary,1 arguing that
there was not probable cause supporting a search warrant, that the destruction
of physical evidence denied him due process, and that his eight-year sentence
was inappropriate. Finding that there was probable cause, that he was not
denied due process, and that the sentence was not inappropriate, we affirm.
Facts
[2] In 2012, Sergeant Cynthia Guest of the St. Joseph County Police began
investigating a string of burglaries taking place in the area. The burglaries were
often similar in style: they took place at night, and the suspects often took only
cigarettes. The surveillance tapes revealed more similarities: the burglaries were
executed by a short, heavy-set man who was often accompanied by a second
suspect, who was a tall and skinny man. In addition, either a light-colored
Cadillac or a white Ford Escort appeared in many of the videos. Suspicion
alighted upon Richard for three reasons: he matched the physical description of
the suspect; the police pulled him over on three separate occasions near the
scene of a recent store burglary, although they did not find any evidence of
criminal activity on those occasions; and his two vehicles matched the two
vehicles that appeared in many of the surveillance tapes. Sergeant Guest
applied for, and was granted, a search warrant to place a GPS tracker on
Richard’s vehicles. The GPS devices were placed in early November 2012.
1
Ind. Code § 35-43-2-1.
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[3] A little more than a week later, the officers who were monitoring the devices
noticed that Richard’s Cadillac was parked outside of a gas station convenience
store around 1:30 a.m. Police went to the gas station and saw that the door was
ajar. The owner of the store arrived, took note of several items that were
missing, and pulled the store’s surveillance tapes.
[4] The police stopped Richard on his way home, and arrested him and his
passenger (a tall and skinny man). After obtaining a search warrant for the
vehicle, police found a sledge hammer, a pry bar, and clothing that matched
what was captured on the surveillance tape (including a mask). The officers
also found two counterfeit dollar bills—the owner of the gas station had taped
them next to the cash register to help employees spot fake bills.
[5] On November 13, 2012, the State charged Richard with Class C felony
burglary. Richard waived his right to trial by jury, and he filed a motion to
suppress any evidence stemming from the GPS tracking devices. He argued
that there was not probable cause to issue the warrant that authorized the GPS
tracker placement, and that the probable cause affidavit contained misleading
and stale information. After a hearing, the trial court denied Richard’s motion.
[6] At the August 21, 2015, bench trial, Richard also objected to the admission of
photographic evidence. The State had already tried and convicted the other
suspect in the burglaries, and erroneously destroyed the physical evidence after
that trial. For Richard’s trial, the State presented photographs of the evidence
that had been destroyed. Richard contended that the State had destroyed
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exculpatory evidence and that this violated his due process rights. The trial
court overruled this objection and, following trial, found Richard guilty as
charged. After a sentencing hearing on October 9, 2015, the trial court
sentenced Richard to eight years imprisonment, fully executed. Richard now
appeals.
Discussion and Decision
[7] Richard has three arguments on appeal: 1) the trial court erred by admitting
evidence stemming from the placement of the GPS devices, 2) the trial court
erred by admitting photographs of evidence that had been destroyed, and 3) the
sentence imposed by the trial court was inappropriate in light of the nature of
the offense and his character. We will consider each in turn.
I. The GPS Devices
[8] First, Richard argues that there was not probable cause to believe that evidence
of criminal activity would be discovered by the placement of the GPS devices.
He points to the three occasions on which he was pulled over near recent
burglaries and emphasizes that the police did not discover any inculpatory
evidence. He contends that this “suggests that a search would not turn up any
evidence of crime since each previous encounter with Richard following a
burglary found no evidence of the burglary in his vehicle.” Appellant’s Br. p. 8
(emphasis original).
[9] Typically, the admission of evidence is within the sound discretion of the trial
court, and the decision whether to admit evidence will not be reversed absent a
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showing of abuse of discretion. Prewitt v. State, 761 N.E.2d 862, 869 (Ind. Ct.
App. 2002). This occurs when a decision is clearly against the logic and effect
of the facts and circumstances before the court. Gibson v. State, 733 N.E.2d 945,
951 (Ind. Ct. App. 2000). But when the trial court’s evidentiary ruling is
predicated on an issue that impugns the constitutionality of a search and seizure
of evidence, this raises a question of law, and such questions are reviewed de
novo. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).
[10] Placement of a GPS device on a vehicle constitutes a search. United States v.
Jones, 132 S.Ct. 945, 949 (2012). In almost all cases involving a GPS device,
the police must obtain a search warrant. Keeylen v. State, 14 N.E.3d 865, 872-73
(Ind. Ct. App. 2014), clarified on reh’g, 21 N.E.3d 810 (Ind. Ct. App. 2014).
Probable cause must exist before a search warrant may be issued. Johnson v.
State, 32 N.E.3d 1173, 1176 (Ind. Ct. App. 2015). Probable cause exists for
issuing a search warrant where the facts and circumstances would lead a
reasonably prudent person to believe that a crime had been committed. Smith v.
State, 981 N.E.2d 1262, 1271 (Ind. Ct. App. 2013).
[11] We cannot agree that police lacked probable cause in this case. Richard
suggests that the warrant was based solely on the observation of the light-
colored Cadillac “without any more specific information, no make, no specific
color, no license plate number, [and] no identifying characteristics to
distinguish the vehicle. . . .” and that thousands of vehicles match this
description. Appellant’s Br. p. 9. Richard is certainly correct that if the police
only had information regarding the color and manufacturer of a vehicle seen
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near a crime, they would not have probable cause to place GPS trackers on
every such vehicle in the area.
[12] But this is not the only fact linking Richard to criminal activity. We have
stressed that probable cause is a fluid concept that must be evaluated based on
the facts of each case. Bennett v. State, 5 N.E.3d 498, 506 (Ind. Ct. App. 2014).
Richard matched the physical description of the suspect, observed either by
witnesses or surveillance tape, for more than ten smash-and-grab robberies.
Moreover, Richard was observed by police on at least three separate occasions
near the scene of recent burglaries, all at different convenience stores. Finally,
both of Richard’s vehicles were seen in surveillance tapes. Such a confluence of
facts would lead a reasonably prudent person to believe that Richard was
involved in criminal activity, and the police acted appropriately to use a GPS
pursuant to a search warrant. Richard’s argument to the contrary—that the
police had to let him continue to commit burglaries until he forgot his mask,
parked his car with the license plate toward the surveillance camera, or was
caught in the act—is simply unavailing.
II. Evidence Destruction
[13] Richard next argues that the State’s destruction of physical evidence compels a
reversal. We first note that it was clearly error to destroy evidence. Indiana
Code section 35-33-5-5(a) mandates that “all items of property seized by any
law enforcement agency as a result of an arrest, search warrant, or warrantless
search, shall be securely held by the law enforcement agency under the order of
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the court trying the cause. . . .” The question is what remedy, if any, Richard is
entitled to.
[14] Richard frames his argument as a claim that the trial erred by admitting
photographs of the evidence in lieu of the destroyed evidence. But he makes no
argument that the photos were inherently inadmissible: he does not claim that
they were unduly prejudicial, or irrelevant, or barred by any rule of evidence.
Rather, his claim is that the destruction of the evidence mandates a finding that
his due process rights were violated.
[15] To establish a due process violation, Richard must show either that the
evidence was “material exculpatory evidence” (rather than merely “potentially
useful evidence”) or that the State acted in bad faith to destroy it. Blanchard v.
State, 802 N.E.2d 14, 26-27 (Ind. Ct. App. 2004). To constitute material
exculpatory evidence, the “evidence must both possess an exculpatory value
that was apparent before the evidence was destroyed, and be of such a nature
that the defendant would be unable to obtain comparable evidence by other
reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984).
Where destroyed evidence could only have been subjected to tests, the results of
which might have exonerated the defendant, the evidence is merely potentially
useful. State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010).
[16] Richard argues that the evidence was exculpatory because one sweatshirt
collected by the police was different in color than what was captured on
surveillance tape. But the factfinder was able to view both the tape and a
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photograph of the sweatshirt to determine whether there was a discrepancy in
the color. Moreover, Richard was tracked by GPS to the scene of a burglary
and then found with items stolen from the burglarized store; clearly, the precise
color of a sweatshirt appearing on surveillance tape would not exculpate him.
[17] Richard is correct that the destroyed evidence was potentially useful in that the
pry bar and sledge hammer could have been tested to demonstrate whether or
not they were used in the burglary. Therefore, the inquiry turns to whether the
State acted in bad faith. Richard must show more than simple bad judgment or
negligence; he must show conduct that implies the conscious doing of wrong
because of dishonest purpose or moral obliquity. Land v. State, 802 N.E.2d 45,
52 (Ind. Ct. App. 2004).
[18] Richard points to a letter written by the prosecutor’s office to the police
department, which requested that the evidence not be destroyed. He argues
that since the police destroyed the evidence anyway, they acted in bad faith.
[19] We disagree: this is clearly a case of negligence rather than moral obliquity.
The police destroyed the evidence after the conclusion of the trial of the other
burglar. In fact, the letter from the prosecution demonstrates the absence of bad
faith, rather than its presence; there was no conscious plan by the State to
eliminate the evidence, it happened due to miscommunication and mistake. In
sum, we find no error, constitutional or otherwise, in the admission of this
evidence.
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III. Rule 7(B) Review
[20] Richard received the maximum sentence available for Class C felony burglary:
eight years executed. Ind. Code § 35-50-2-6(a). The advisory sentence for that
crime is four years. Id. He argues that his sentence is inappropriate.
[21] Indiana Appellate Rule 7(B) provides, “The Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” The principal role of such review is to
attempt to leaven the outliers, but not to achieve a perceived “correct” sentence.
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Sentencing is principally a
discretionary function in which the trial court’s judgment should receive
considerable deference. Id. at 1222.
[22] Turning to Richard’s offense, we will concede that this particular crime was not
the worst of the worst. Richard broke into a gas station and stole money. If we
were only to consider the nature of the offense, a maximum sentence would
give us pause.
[23] But we must also consider Richard’s character. Richard has an extensive
criminal history: he has four felony convictions and nine total convictions, not
to mention an extensive juvenile criminal history. Among his previous offenses
were robberies and burglaries. The present offense occurred not long after he
was released from parole for another crime. Despite repeated chances to turn
his life around and cease his criminal endeavors, Richard continued to
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burglarize businesses. Richard points to the several years leading up to his trial
in which he obtained a job and stayed out of trouble—but this was only done
after he was charged with the present felony, and is not necessarily indicative of
what he would have been doing otherwise.
[24] Considering both the nature of the offense and Richard’s character, we cannot
say that the sentence imposed by the trial court is inappropriate.
[25] The judgment of the trial court is affirmed.
May, J., and Brown, J., concur.
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