Barker v. State

• Citation: 96 N.E.3d 638
• Decision Date: 19 March 2018
• Docket Number: Court of Appeals Case No. 45A03–1701–CR–123
• Parties: Isiah L. BARKER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

96 N.E.3d 638

Isiah L. BARKER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

Court of Appeals Case No. 45A03–1701–CR–123

Court of Appeals of Indiana.

FILED March 19, 2018

Attorney for Appellant : Kristin A. Mulholland, Appellate Public Defender, Crown Point, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Larry D. Allen, Deputy Attorney General, Indianapolis, Indiana

Brown, Judge.

[1] Isiah L. Barker appeals his convictions for murder and feticide as a class B felony. Barker raises one issue which we revise and restate as whether the trial court abused its discretion in admitting certain evidence. We affirm.

Facts and Procedural History

[2] In June 2011, Cynthia Funches, a certified nursing assistant employed at Renaissance Park South, was in a relationship with Barker and was pregnant with his child. Funches lived in an apartment in Highland, Indiana, and her lease listed her as the only resident and provided in part that "[t]he premises shall be occupied solely for residential purposes by Resident and those persons listed in the Application for the Lease" and that "[v]isitors will be limited to 2 persons staying with Resident for a maximum of 14 days, whether consecutive or individually during each year of the Lease term." State's Suppression Hearing Exhibit 3. Funches listed Barker as her emergency contact on her application for residency and his address as 9350 South Green.

[3] On June 21, 2011, Funches called Genett Clay, a nurse, and told her that she wanted to call off from work because she was bleeding and needed to go to the hospital. Clay heard a male voice instructing Funches to "hang up the damn phone, because we have to go." Trial Transcript Volume 2 at 34. Funches called Clay again, and Clay heard the same male voice state: "I don't have time for this shit. Hang up the phone. We have to go to the hospital." Id.

[4] Around 11:00 p.m. on June 21, 2011, Vivian Pettigrew, who lived in the same apartment complex as Funches, left her apartment and went to her car to retrieve her laundry. She observed two men coming down the stairs with a bin and recognized one of the men as Funches's boyfriend, Barker. Pettigrew made eye contact with Barker, he "ducked his head real quick," and "it troubled [her] spirit." Trial Transcript Volume 3 at 186, 202. She observed the men struggle with the bin and head towards a green Caravan that Pettigrew recognized as the same Caravan that Barker had previously driven. She also observed that the Caravan had two mattresses on top.

[5] On June 22, 2011, Funches's sister, Shaunte Ruth, called the office of Funches's apartment complex, told a woman that she was trying to contact her sister and had not heard from her, and asked if she would go to the apartment and see if she received a response at the door. Laura Newton and her co-worker, Pamela Heeringa, went to Funches's apartment, knocked on the door, received no response, and then entered the door using a key.

[6] Heeringa found the apartment in "complete disarray." Transcript of Suppression Hearing Volume 2 at 10. Newton and Heeringa looked for Funches, but did not find her. They observed a rolled-up carpet in the living room and that the carpet was missing from the dining room and the hallway area. Newton went into the dining room and down the hall where she could see in the bedroom and the bathroom and "went to where [she] would have been able to see [Funches] if she had been there." Trial Transcript Volume 2 at 94. Newton observed that there was furniture located in various areas of the apartment where it should not have been such as a dresser in the kitchen and that the apartment looked like it had been ransacked. Heeringa locked the door, returned to the leasing office, and called the police.

[7] Highland Police Officer Brandon Norris received a dispatch regarding a welfare check or "[c]hecking the wellbeing of somebody that somebody hasn't had contact with in a little while or something of that nature." Id. at 121. Officer Norris spoke with the apartment employees, and they gave him information as to the apartment that he needed to check. At some point, Highland Police Officer Wright also arrived. The leasing agents informed Officer Norris that "a female had not been seen or heard from in a while, so they were going to let [them] into the apartment, if we could have a welfare check on her." Transcript of Suppression Hearing Volume 2 at 162. The leasing agents mentioned to Officer Norris that they had "peeked in and seen some things which then led them to believe that they should back out and call the police."Id. One of the leasing agents told Officer Norris that there were blood stains on some rolled-up carpet inside the apartment. Officer Norris inquired whether there were any co-tenants that lived there at that time and was advised that Funches was the only lessee. Heeringa let the officers into the apartment.

[8] When Officer Norris first entered the apartment, he saw that the door trim looked as if it had been damaged. He observed that "everything was stacked up in the kitchen" and "everything was in disarray," and the officers proceeded in "to make sure that there was no—nothing—you know, foul play or anything—anything crazy inside, because just how things were stacked up and everything was in disarray, and it looked a little suspicious." Id. at 165. Officer Norris called out "Hello Highland Police" to make sure no one was present and, as he and Officer Wright were going down the hallway, they noticed other things out of place or out of the ordinary. Id. at 168. Officer Norris smelled an odor "that could be recognizable as a cleaning product or bleach" and observed that the kitchen was full of furniture and what he thought was rolled-up fragments of carpet in the living room. Trial Transcript Volume 2 at 146. The bedroom did not have any mattresses or carpet, stains were present on the floor, and the closet mirror was cracked. Officer Norris believed he was standing in a crime scene. He canvassed the entire apartment and did not find Funches. He "went over to the carpet, pulled a piece or two and rolled it back and noticed immediately that there was some blood stain on the carpet." Transcript of Suppression Hearing Volume 2 at 175. Officer Norris then saw Corporal Potesta, his immediate supervisor, standing at the front of the apartment. Corporal Potesta took a look and then said, "[A]ll right, let's—no more touching anything. Let's call Detective Santino." Id. Officer Norris then stayed in the immediate hallway outside the door to secure the scene and spoke to Highland Police Detective Mark Santino when he arrived.

[9] After speaking briefly with the family and with the knowledge that Funches apparently had been out of contact with her family and missing, Detective Santino entered the apartment as a "follow-up with patrol for their welfare check" or "an extension of their welfare check." Id. at 42. At that time, Detective Santino believed that Funches was alive. During his walkthrough of the living room, kitchen, and hallway, Detective Santino did not see a cot, a sleeping bag, or anything to indicate that someone was staying there that day. The apartment appeared abandoned "[f]or all practical purposes."¹ Id. at 85. In the bedroom, Detective Santino observed that there was not even a mattress or box spring and it did not appear to him that anyone was staying in the bedroom. Detective Santino also observed some sort of dark substance on the concrete which he believed to be blood, a couple of speckles of blood in the hallway, and a bucket with a liquid and a rag inside that had a red-like substance on it. Detective Santino did not collect any property during that initial walkthrough. He told a patrolman to close the door and secure it.

[10] Detective Santino asked Heeringa who was on the lease, and she confirmed that Funches was the leaseholder. Detective Santino had contact with Funches's family and learned that Funches might be in the company of Barker and that she was potentially being held against her will. Detective Santino was not sure if the victim was deceased or still alive, and he then called the Lake County Crime Lab to obtain a second opinion and start processing the apartment with the goal of finding Funches. The crime lab took photographs of the apartment and collected pieces of carpeting, a piece of paper, and swabs of an unknown red substance.

[11] Meanwhile that same day, Chicago Police Detective Stan Kalicki responded to a call regarding a body found in a garage in Chicago by a homeowner. Detective Kalicki arrived at the scene and observed it to be an abandoned house and garage. The homeowner informed the police that he had arrived there earlier in the day and observed the side door that he had just screwed shut was kicked up and a padlock had been placed on it to prevent access. The homeowner cut off the lock, entered the garage, opened a plastic tote container, and discovered a body. The police observed that the body had a uniform for Renaissance Rehabilitation Center, contacted the Center, and learned that Funches was employed there but was not there that day. The police observed a tattoo on the forearm and tentatively identified the body as Funches. It was later determined that Funches suffered stab wounds

and died from multiple blunt force trauma² and the fetus within her died from asphyxiation

anoxia.

[12] Approximately "[a]n hour, ninety minutes," after Detective Santino arrived at Funches's apartment, Chicago Police called Detective Santino and informed him that there was a tentative identification of a body found as being Funches based on tattoos of the victim. Trial Transcript Volume 3 at 28.

[13] After the crime lab left and after Detective Santino learned that Funches was presumed dead, Officer Norris went back into the apartment and collected some pieces of evidence left behind by the crime lab. Detective Santino learned that Officers Norris and...