Bradley v. State

• Decision Date: 02 March 1993
• Docket Number: No. 49S00-9110-CR-768,49S00-9110-CR-768
• Citation: 609 N.E.2d 420
• Court: Indiana Supreme Court
• Parties: Danny BRADLEY, Appellant, v. STATE of Indiana, Appellee.

Page 420

609 N.E.2d 420

Danny BRADLEY, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-9110-CR-768.

Supreme Court of Indiana.

March 2, 1993.

Susan W. Brooks, McClure & McClure & Kammen, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Following a jury trial in March, 1991, appellant, Danny Bradley, was convicted of Count I, robbery, a class A felony; Count II, robbery, a class A felony; Count III, criminal confinement, a class B felony; Count IV, criminal confinement, a class B felony; Count VI, theft, a class D felony; Count VII, theft, a class D felony; and Count VIII, habitual offender. The jury was unable to reach a verdict as to Count V, carrying a handgun without a license, a class A misdemeanor. Appellant was sentenced in conformity with our sentencing statutes.

Appellant raises six issues in this direct appeal: 1) ineffective assistance of counsel; 2) denial of motion to suppress evidence; 3) refusal to give jury instruction on lesser included offense; 4) improper reduction of Count II to a class B felony; 5) refusal to give tendered instructions; and 6) error in allowing Master Commissioner to answer jury questions, accept jury verdicts, and preside over habitual offender phase. Because we reverse appellant's convictions due to the trial court's failure to suppress evidence obtained as a result of an invalid search warrant, we do not reach appellant's other claims of error. As appellant does not claim that the evidence was insufficient to support his convictions, this case is properly remanded for a new trial. See Chandler v. State (1991), Ind., 581 N.E.2d 1233.

The facts most favorable to the verdict are as follows: At approximately 2:00 a.m. on November 4, 1989, appellant knocked on the motel room door of Janet McLaughlin and Mary Lou Leonard, who were staying at a Knights Inn in Indianapolis. Appellant told them that they had left their key in the door. Leonard thanked appellant and told him she would retrieve the key later. She watched him walk away and waited a few minutes to be sure he had left. When Leonard opened the door, appellant pushed his way inside the room with a gun in his hand, knocking Leonard to the ground. Appellant ordered the women to the corner of the room and threatened to kill them if they looked at him. He placed a coat over their heads and proceeded to ransack the room. Appellant took the women's purses, jewelry, and luggage, then told the women to stick their hands out so he could take their wedding bands. Leonard begged to be allowed to use soap to take off her rings, which had not been removed in years. Appellant refused and in the process of removing her rings he broke her finger. After the assailant left, the women notified the police and gave a description of their attacker. They were interviewed by Detective Sergeant Steven Gibbs and then taken to a hospital for treatment of Leonard's finger, as well as a laceration on her head and bruises.

The following Monday Detective Gibbs received an anonymous phone call advising him that appellant had committed the robbery. He obtained a search warrant, and on November 7th he and another officer executed the warrant at 2021 N. Bellefontaine, Bradley's address, finding several pieces of stolen property. Kerry Thomas, the mother of Bradley's children, was in the house and was wearing some of the The search warrant was based on the following affidavit (reproduced verbatim):

jewelry taken from Leonard and McLaughlin.

AFFIDAVIT FOR PROBABLE CAUSE

Det/Sgt Steven T Gibbs of the Marion CSD swears or affirms that he believes and has good cause to believe from my investigation I learned from reliable persons the following facts and attending circumstances that: he believes and has probable cause to believe that certain property hereinafter described is concealed in the following described residence, to wit: a two story yellow frame house with white trim and an enclosed brick porch with the numbers 2021 in the window and located at 2021 N Bellefontaine, Indpls, Marion County, Indiana.

The property is described as follows: A LIGHT COLORED SMALL automatic pistol; a grey sweatshirt with wide red stripes down the sleeves; 2 (two) diamond rings, a diamond cross necklace, 2 (two) maroon suitcases a ladies gucci watch, a black ladies purse; a maroon John Romaine purse and credit cards and identification in the names of Mary Lou Leonard and Janet M McLaughlin; which constitutes unlawfully obtained property and evidence of an offense.

In support of your affieant's assertion of probable cause, your affiiant would show the court that he has received the following facts from a reliable informant which facts the informant stated to be within the informants personal knowledge, to wit: On 11-6-89 the informant made a phone call to Det/Sgt Steve Gibbs. The informant stated that he knew an armed robbery had occured at a motel room near Shadeland Ave the previous Friday or Saturday. The informant said that two older white women had a black male force his way into their motel room and display a weapon. The informant stated that luggage, jewelry, cash and credit cards were taken and that one lady had been injured. The informnat stated that this robbery had been done by a Denny Bradley who resides at 2021 Bellefountaine, and that Bradley has a prior history of robbery arrests.

Your affiant believes and has probable cause to believe that the informant's information is reliable, based upon the following facts within your affiant's personal knowledge, to wit: On 11-4-89 (the previous Saturday) at about 2:41 am Det/Sgt Gibbs was sent to 7101 E 21st St, the Knights Inn Motel, room 309 (a block east of shadeland) to investigate an armed robbery. There I found Mary Lou Leonard wf55 and Janet McLaughlin wf56. They stated that a black male forced his way into their motel room and robbed them at gunpoint. They described all the property mentioned above by the informant as being taken with the exception of the credit cards. Mrs Leonard had her left finger broken by the robber as he took her wedding band. On 11-6-89 Det/Sgt Gibbs phoned both Leonard and McLaughlin and they stated that their credit cards had also been taken. To your affiants knowledge, there has been no publicity of this incident prior to receiving the informants phone call. Checking criminal histories Det/Sgt Gibbs found a Danny Bradley living at 2021 N Bellefountaine with prior robbery arrests. Therefore, your affiant respectfully requests the court to issue a search warrant directing the search for and seizure of the above-described property.

Record at 219. I.C. 35-33-5-2(b) requires that an affidavit in support of probable cause which is based on hearsay either "contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished" or "contain information that establishes that the totality of the circumstances corroborates the hearsay." Neither of these requirements have been met.

The affidavit does not establish the credibility of the source. The affiant twice states that the informant was reliable, when, in actuality, the informant was anonymous. Gibbs testified at the hearing on the motion to suppress that the caller was anonymous, that he did not recognize the voice, and, to...