Brieger v. State Of Ind.
| Decision Date | 22 July 2010 |
| Docket Number | No. 49A02-0907-CR-617,No. 49G22-0811-FB-254527,49A02-0907-CR-617,49G22-0811-FB-254527 |
| Parties | TREVOR BRIEGER, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
ATTORNEYS FOR APPELLANT: RUTH JOHNSON Marion County Public Defender Indianapolis, Indiana KAREN CELESTINO-HORSEMAN Indianapolis, Indiana
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Carol J. Orbison, Judge
Trevor Brieger appeals his convictions for rape 1 as a Class B felony and criminal deviate conduct2 as a Class B felony. Brieger raises four issues that we consolidate and restate as: whether the trial court abused its discretion when it admitted DNA evidence obtained from a buccal swab taken from Brieger during a two-hour police interview.
We affirm.
In 2000, C.B. and Brieger, then both teenagers, resided near each other on South Moreland Avenue in Indianapolis, and the two became involved in a romantic relationship. The relationship became physical, and ultimately C.B. claimed Brieger had raped her. The allegation was investigated, but law enforcement did not pursue formal charges. Brieger moved away from the area in 2000 and had no communication with C.B. after that time.
In October 2007, Brieger moved back to the South Moreland Avenue residence to temporarily reside with his mother. C.B. was still residing a block or so down the street, now in a garage apartment located at the rear of her mother's home. Brieger "became acquainted again" with the neighbors, including C.B., and their relationship began to develop. Tr. at 212-13. One evening sometime in October 2007, Brieger entered C.B.'s apartment, and Brieger claims they had consensual intercourse; C.B. states that Brieger raped her, but she did not report it to authorities or otherwise tell anyone.
Later in the month, on October 18, 2007, at around 2:00 a.m., C.B. awoke to find that Brieger was standing by her futon bed.3 Brieger told C.B. that she "owed" him for having claimed that he raped her in 2000. Id. at 73. Brieger forced C.B. to have oral and vaginal sexual intercourse, and at some point, he punched her in the back of the head and slammed her hand in the door when she attempted to leave. Eventually, Brieger left her apartment, and C.B. went to the front of her house and woke her mother, who called the police.
Indianapolis Metropolitan Police Detective Linda White responded to the dispatch call and interviewed C.B. at her home. Thereafter, she drove C.B. to the hospital, where a sexual assault examination was performed. Meanwhile, at approximately 6:00 a.m., Detective White went to Brieger's mother's residence on South Moreland to locate Brieger. Detective White advised Brieger of C.B.'s rape allegation and asked Brieger if he would come to the police station for questioning, and he agreed. While being transported, Brieger was in handcuffs, pursuant to department policy, which was explained to Brieger. Once there, the handcuffs were removed, and Brieger met with Detective White in a room for questioning. Detective White read Brieger his Miranda rights, and Brieger signed a form waiving those rights. During Detective White's interview with Brieger, he reported having had consensual oral and vaginal sex with C.B. about seven to ten days prior, but he denied having sex with her anytime since then. After about forty minutes of questioning, Detective White left Brieger in the room for a while. When she returned, she asked Brieger to consent to a cheekswab (also known as a buccal swab4), which she explained would help him prove his assertion that he had not recently had sex with C.B. Brieger consented and signed a form that at the top stated, "PERMISSION TO SEARCH (Not in Custody)." State's Ex. 13. After the buccal swab was completed, Detective White drove Brieger home.
About two weeks later, the State charged Brieger with two counts of Class B felony rape, one count of Class B felony criminal deviate conduct, one count of Class B felony attempted criminal deviate conduct, and one count of Class D felony intimidation. Prior to trial, Brieger filed a motion to suppress the DNA evidence obtained through the buccal swab, arguing that the evidence was obtained in violation of the United States and Indiana Constitutions and that his consent was invalid. At the hearing on the motion to suppress, Brieger's counsel argued that Brieger was in custody at the time he gave his consent to the buccal swab, and, therefore, under Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), he should have been advised that he had the right to have counsel present prior to giving his consent to the buccal swab search. The trial court later denied the motion.5
At trial, a forensic scientist from the Marion County Forensic Services Agency (also known as the "Crime Lab") testified, over Brieger's objection, to her findings, which revealed the presence of Brieger's DNA in C.B.'s robe and genital swabs taken from C.B. while at the hospital in the early morning hours of October 18. Brieger testified later in thetrial and stated that he and C.B. had engaged in consensual vaginal intercourse sometime in the afternoon or evening of October 17; he admitted this was contrary to what he had told Detective White in the police interview, where he had denied having sex with C.B. for at least a week to ten days. The jury found Brieger guilty of rape and criminal deviate conduct.6 He now appeals.
Brieger claims that the buccal swab taken from him during police questioning was an illegal search under both Article I, Section 11 of the Indiana Constitution and the Fourth Amendment to the United States Constitution, and, consequently, the DNA evidence obtained through that search should have been suppressed and not admitted at trial.
As a preliminary issue, we note that Brieger asserts that the trial court abused its discretion when it denied his motion to suppress the results of the buccal swab. Appellant's Br. at 4. However, a ruling on a pretrial motion to suppress is not intended to serve as the final expression concerning admissibility, and once the matter proceeds to trial, the question of whether the trial court erred in denying a motion to suppress is no longer viable. Kelley v. State, 825 N.E.2d 420, 424-25 (Ind. Ct. App. 2005). Rather, the issue is appropriately framed as whether the trial court abused its discretion by admitting the evidence at trial. Miller v. State, 846 N.E.2d 1077, 1080 (Ind. Ct App. 2006), trans. denied; Kelley, 825 N.E.2d at 425. Our standard of review of rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by trial objection. Miller, 846 N.E.2d at 1080. We will reverse a trial court's ruling on the admissibility of evidence only when the trial court abused its discretion. Kelley, 825 N.E.2d at 427. An abuse of discretion occurs when a decision is clearly against the logic and effect of the facts and circumstances before the court. Id. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling. Miller, 846 N.E.2d at 1080. We must also consider the uncontested evidence favorable to the defendant. Id.
Brieger first claims that the buccal swab constituted an illegal search under Article I, Section 11 of the Indiana Constitution ("Section 11"), which provides:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the person or thing to be seized.
Although the language of Section 11 tracks the Fourth Amendment to the United States Constitution, we proceed somewhat differently when analyzing a claim under Section 11 than when considering a claim under the Fourth Amendment. Miller, 846 N.E.2d at 1080. Whereas the Fourth Amendment analysis focuses on a defendant's reasonable expectation of privacy, Section 11 analysis focuses on the actions of the police officer and whether the search is reasonable under the totality of the circumstances. Id.
In this case, Brieger argues that the consent to search that he gave to Detective White was invalid because he was "in custody," and, therefore, he was entitled to certain advisements under Pirtle v. State, where our Indiana Supreme Court, citing to both the Sixth Amendment of the United States Constitution and Article I, Section 13 of the Indiana Constitution, held that:
[A] person who is asked to give consent to search while in police custody is entitled to the presence and advice of counsel prior to making the decision whether to give such consent.
Pirtle, 323 N.E.2d at 640; Torres v. State, 673 N.E.2d 472, 474 (Ind. 1996). The right to receive a Pirtle advisement "can only be said to have attached if [the defendant] was in custody when he consented to the search." Joyner v. State, 736 N.E.2d 232, 241 (Ind. 2000).
As Brieger is claiming that he was entitled to receive a Pirtle advisement before consenting to the search, we must first determine whether he was in custody when he consented to the search. Whether an individual is in custody requires application of an objective test that asks whether a reasonable person under the same circumstances would believe that he was under arrest or not free to resist the entreaties of the police. Torres, 673 N.E.2d at 474; Miller, 846 N.E.2d at 1081. Several circumstances have been held to be relevant to the issue, including: whether the person is read his Miranda rights or handcuffed or restrained in any way; the manner in which the person is questioned;...
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