BROOKS v. State of Ind., No. 49A04-0911-CR-651.

Docket NºNo. 49A04-0911-CR-651.
Citation934 N.E.2d 1234
Case DateOctober 05, 2010
CourtCourt of Appeals of Indiana

934 N.E.2d 1234

Nevin BROOKS, Appellant-Defendant,
STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0911-CR-651.

Court of Appeals of Indiana.

Oct. 5, 2010.

934 N.E.2d 1235


934 N.E.2d 1236


934 N.E.2d 1237

Victoria L. Bailey, Marion County Public Defender Agency, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

BARTEAU, Senior Judge.

Defendant-Appellant Nevin Brooks appeals his conviction of and sentence for felony murder. 1 We affirm.


Brooks raises six issues for our review, which we restate as:

I. Whether the juvenile court abused its discretion in waiving jurisdiction over Brooks.

II. Whether the admission of evidence obtained through a pat down search was proper under the Fourth Amendment.

III. Whether the admission of evidence obtained through a pat down search was proper under Article I, Section 11 of the Indiana Constitution.

IV. Whether the trial court erred in denying Brooks' motion for mistrial.

V. Whether the State presented sufficient evidence to support the conviction.

VI. Whether the sentence imposed was inappropriate.


On March 16, 2008, at approximately 10 p.m., David Hardwick was shot in the head and mortally wounded during a robbery. A police investigation disclosed that Hardwick had been shot at close range while on his knees and that his body had been turned over as it lay on the ground. Hardwick's wallet, watch, and bracelet were not found on his person.

Approximately two miles from the crime scene, a young African-American male was caught on surveillance video attempting to use Hardwick's ATM card at a machine located in a service station. This person, later identified as fourteen-year-old Brooks, arrived at the service station in a white car containing at least two other individuals. Brooks' attempts to use Hardwick's card occurred approximately twenty minutes after Hardwick's death.

Two days later, Lawrence Police Officer Tracey Cantrell responded to a dispatch that described an armed robbery at a Lawrence apartment complex. The dispatch included a description of the suspect, particularly the suspect's jacket and clothing, and the direction in which the suspect had fled. Officer Cantrell, who was near the crime scene, observed a person who matched the description given by dispatch

934 N.E.2d 1238

talking with the apartment complex maintenance man. Officer Cantrell approached the person, later identified as Brooks, and asked to speak with him. Suspecting that Brooks might be armed, Officer Cantrell performed a pat down search before speaking with him. During this pat down search, Officer Cantrell felt what he immediately identified as bullets. Officer Cantrell removed the bullets from Brooks because he was concerned that Brooks might have the gun on his person or might have hidden the gun nearby. After removing the bullets from Brooks, Officer Cantrell handcuffed him and continued the search, still looking for a weapon. Another Lawrence officer arrived at the scene with the victim of the armed robbery, and the victim identified Brooks as the one who pointed a gun at him while robbing him of cash. Brooks was then arrested for the armed robbery and was transported to the police station.

Brooks was subsequently identified as the person in the service station surveillance tapes by both a police officer and Brooks' mother. Forensic testing on Hardwick's skull and the confiscated bullets disclosed that the .38 caliber special light weight bullets had the same uncommon characteristics and morphology as the bullet recovered from Hardwick's skull.

The State filed a delinquency petition in juvenile court, alleging that Brooks had committed acts of murder, felony murder, and robbery. The State also filed a petition to waive jurisdiction over Brooks to adult court. After a hearing on the waiver petition, the juvenile court ordered waiver. After waiver and a subsequent hearing on Brooks' motion to suppress the bullets, the trial court denied the motion to suppress. The trial court also denied Brooks' motion for mistrial during the trial. As noted above, Brooks was found guilty on all three counts, with the trial court merging the convictions at sentencing. Brooks was sentenced to the advisory sentence of fifty-five years. He now appeals.


Brooks contends that the juvenile court abused its discretion when it waived him into adult court. He argues that the juvenile court neglected to make sufficient findings on the issue of whether waiver was in his best interest or the best interests of the safety and welfare of the community. He further argues that he presented sufficient evidence to show that waiver was not in his or the community's best interest. Brooks also contends that under the current standard of review, this Court is unable to conduct a meaningful review of the juvenile court's order, resulting in the loss of opportunity for a constitutionally meaningful review.

Ind.Code § 31-30-3-4 provides:

Upon motion of the prosecuting attorney and after full investigation and hearing, the juvenile court may waive jurisdiction if it finds that:

(1) the child is charged with an act that would be murder if committed by an adult;

(2) there is probable cause to believe that the child has committed the act; and

(3) the child was at least ten (10) years of age when the act charged was allegedly committed;

unless it would be in the best interests of the child and the safety and welfare of the community for the child to remain within the juvenile justice system.

We review a juvenile court's decision to waive jurisdiction only for an abuse of discretion. Moore v. State, 723 N.E.2d 442, 445 (Ind.Ct.App.2000). It is for the juvenile court judge, after weighing

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the effect of retaining or waiving jurisdiction, to determine which is the more desirable alternative. Id. It is well-settled that in reviewing a sufficiency claim, appellate courts will neither weigh the evidence nor judge the credibility of the witnesses “but rather will consider that evidence most favorable to the State with all reasonable inferences therefrom.” McDowell v. State, 456 N.E.2d 713, 715 (Ind.1983). The record of the waiver hearing may be used to supplement the juvenile court's conclusion. Smith v. State, 459 N.E.2d 355, 360 (Ind.1983).

In the present case, the juvenile court made extensive findings on the first three elements above. However, with regard to the best interests of Brooks and the community, the juvenile court merely concluded that it had “not found from the evidence that it would be in the best interest of the child and the safety and welfare of the community for him to remain within the juvenile justice system.” (Appellant's App. at 42).

In the interest of judicial economy, the expected practice is for the juvenile court to make specific findings to support its conclusion. However, our supreme court has held that the lack of such findings does not invalidate the order “if the record contains sufficient facts for the court to find that waiver is appropriate.” Vance v. State, 640 N.E.2d 51, 57 (Ind.1994). The court then reviewed the record and affirmed the juvenile court. Id. We will follow our supreme court's lead and review the record to ascertain whether it contains sufficient facts to support the juvenile court's order.

Our review of the record discloses that a large group of senior probation staff conferred on the question of waiver and determined that it was in the best interests of the community that Brooks be waived. The witness for the probation department explained that the group determined that if Brooks were to remain in the juvenile system he would have to be released at age twenty-one into a culture where he had no supervision or essential services. The witness further explained that there was a “good chance” that Brooks would re-offend. (Tr. at 940). In addition, the record discloses that Brooks has had prior encounters with the juvenile justice system, and those encounters failed to deter his criminal behavior; indeed, instead of reforming, Brooks engaged in far more serious criminal actions than before his contact with the system. The record discloses that probation workers considered Brooks to be beyond rehabilitation by the local juvenile justice system. Furthermore, it is evident from the record that the community's best interests are not served by the release at age twenty-one of a juvenile who engaged in robbing and killing an innocent citizen.

Brooks had a number of witnesses testify that it would be in his best interest to continue in the juvenile system. One of these witnesses, a psychiatrist, admitted that Brooks had fooled others into believing that he was reformed. The psychiatrist testified that she did not like what Brooks would learn at a secure facility, but she admitted that a secure facility would protect the community from Brooks' violence.

Another witness, a professor, testified about a study showing that fewer offenders kept in the juvenile justice system re-offended than those waived into the adult system. However, the study did not include juveniles who had committed murder.

Other witnesses, including those from the non-profit entity Boys Town, testified that Brooks could be treated in the juvenile system, but they admitted that they could not predict with certainty that

934 N.E.2d 1240

Brooks would not ultimately be a serious danger to the community.

The record shows that the ability of the juvenile system to rehabilitate Brooks is questionable, and the risk to the community of leaving him in the juvenile system is unquestioned. Accordingly, we conclude that the trial court did not abuse its discretion in waiving Brooks to the adult system.

With reference to Brooks' contention that our standard of review...

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