Brown v. State

Decision Date02 March 1998
Docket NumberNo. 20S00-9401-CR-30,20S00-9401-CR-30
Citation691 N.E.2d 438
PartiesStephen D. BROWN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

John Pinnow, Greenwood, for Appellant.

Jeffrey A. Modisett, Attorney General, Suzann Weber Lupton, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

Defendant Stephen D. Brown was convicted of Murder 1 on October 5, 1984, following a jury trial. He was sentenced to a prison term of 60 years. This appeal was not filed until almost nine years later. We affirm.


The following facts and procedural history are relevant to the issues in this appeal.

Defendant and the victim were observed leaving an Elkhart speakeasy at 3:00 a.m. one winter morning. Defendant maintained that he and the victim drove to an area outside the city at the victim's direction. There, he said, a truck came up behind him and when he exited his vehicle, he was badly beaten by the two occupants of the truck. At about 5:00 a.m., the defendant entered an all-night restaurant on the outskirts of Elkhart covered in blood. He told the employees and a police officer who subsequently arrived that he had been beaten by two men in a truck. He did not mention the victim. Later that morning, a vehicle was found abandoned in a snow drift. Nearby was the partially nude body of the victim, dead from multiple stab wounds. Also observed by the police were two sets of tire tracks, one set from the vehicle, another from an unidentified truck.

Tracing the vehicle to defendant's girlfriend, the police obtained her consent to search her residence where defendant resided and shared a bedroom with her. Certain evidence was seized during this and a subsequent search. Defendant was subsequently arrested and gave several conflicting versions of what happened, eventually maintaining the beaten-by-two-men-in-a-truck account.

Shortly after the trial began, the owner of the property where the girlfriend's automobile had been found contacted the prosecutor after hearing a news report about the trial. This individual thereupon testified at trial that very early in the morning in question, he had shoveled snow along the road using his own truck. The tires on his truck were shown to resemble the theretofore unidentified second set of tire tracks. Defendant was found guilty as charged.

No appeal was filed until almost nine years later. Then, appellate counsel filed the praecipe but before the brief was filed, counsel sought permission from this Court to return to the trial court for consideration of defendant's claims of instructional error and ineffective assistance of trial counsel. This Court granted the motion and the trial court heard the instruction and ineffective assistance claims and rendered findings of fact and conclusions of law thereon. For convenience, the court in which defendant's original trial took place will be referred to in this opinion as the trial court and the court which heard the post-conviction claims of instructional error and ineffective assistance of counsel will be referred to as the post-conviction court.

Other relevant facts and procedural history will be provided when necessary.


Defendant raises three issues on appeal: (1) whether evidence seized without a warrant was improperly admitted at trial; (2) whether certain jury instructions impermissibly shifted the burden of proof; and (3) whether defendant was denied the effective assistance of trial counsel.


Defendant contends that his Fourth and Fourteenth Amendment rights were violated when he was denied his right to be free from unreasonable search and seizure. We disagree.

The defendant lived in a home owned by his girlfriend with whom he shared a bedroom. On the morning of December 10, when the police arrived at defendant's residence, his girlfriend invited the police to enter into the home and took the police to an upstairs bedroom where the defendant was sleeping. Upon entering the room, one of the policemen noticed a knife on top of the dresser. Subsequently, the police asked the girlfriend for permission to search the residence to obtain the knife and she voluntarily signed a consent form. The girlfriend then provided the police with a pair of driving gloves that the defendant had been wearing the night before. The next day when the police returned to the defendant's residence, the girlfriend signed another consent form permitting the police to search for a ring which was located on a cosmetic table in the bedroom shared by defendant and his girlfriend.

The Fourth Amendment 2 protects persons from unreasonable search and seizure and this protection has been extended to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 650, 81 S.Ct. 1684, 1688-89, 6 L.Ed.2d 1081 (1961). " '[I]n order to challenge a search as unconstitutional, a defendant must have a legitimate expectation of privacy in that which is searched.' " Peterson v. State, 674 N.E.2d 528, 532 (Ind.1996), cert. denied, --- U.S. ----, 118 S.Ct. 858, 139 L.Ed.2d 757 (quoting Livingston v. State, 542 N.E.2d 192, 194 (Ind.1989)). In determining whether a defendant has an expectation of privacy, we look to whether the defendant has control over or ownership in the premises searched. Id. (citations omitted). In a challenge to the constitutional validity of a search, defendant has the burden of demonstrating a legitimate expectation of privacy in the premises searched. Id. (citing Livingston, 542 N.E.2d at 194).

Our review of the record suggests that defendant did have a reasonable expectation of privacy. While defendant may not have owned the home in which he was residing, defendant had been living in the home with his girlfriend for two and a half months. Cf. Livingston, 542 N.E.2d at 194 (where we found no expectation of privacy because defendant "did not live in the house on a regular basis but merely slept in the room sometimes"). Thus, the circumstances indicate that at a minimum, defendant had control over the bedroom in which defendant slept, thereby establishing an expectation of privacy over the premises (i.e., the bedroom) searched.

As a general rule, the Fourth Amendment prohibits a warrantless search. Perry v. State, 638 N.E.2d 1236, 1240 (Ind.1994) (citing Wright v. State, 593 N.E.2d 1192, 1198 (Ind.1992)); Stallings v. State, 508 N.E.2d 550, 552 (Ind.1987). When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. Stallings, 508 N.E.2d at 552; Short v. State, 443 N.E.2d 298, 303 (Ind.1982). A valid consent to a search given by a third party who has common authority (or a sufficient relationship) to the premises to be searched is an exception which obviates the warrant requirement. See Canaan v. State, 683 N.E.2d 227, 231 (Ind.1997), reh'g denied (citing United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)); Perry, 638 N.E.2d at 1240; Wright, 593 N.E.2d at 1199; Stallings, 508 N.E.2d at 552. Common authority is not to be implied from the mere property interest a third party has in the property. Perry, 638 N.E.2d at 1241. The authority which justifies the third-party consent rests on the mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that each of the co-inhabitants has the right to permit the inspection in his or her own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Id. When reviewing a trial court determination of the validity of a search, we consider the evidence favorable to the trial court's ruling and any uncontradicted contrary evidence. Id. The test is sufficiency of the evidence. Stallings, 508 N.E.2d at 552.

Defendant asserts that the trial court erred in admitting the knife, gloves, and ring into evidence because the girlfriend's consent was invalid and the police could not reasonably believe that she had common authority over defendant's personal effects. We disagree with defendant. The issue is not whether the girlfriend had common authority over defendant's personal effects, but rather whether the girlfriend had common authority over the home, and specifically over the bedroom. As stated, the girlfriend owned the home and shared the bedroom with defendant. We can reasonably conclude that the cosmetic table and dresser were under the common authority of both defendant and his girlfriend and that the police reasonably believed that the girlfriend, as owner of the home, had the authority to consent to the search. See Canaan, 683 N.E.2d at 231 (citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ("official reliance on the consent may validate the search if it was reasonable for the officers to believe the third party had the requisite relationship"). See also Perry, 638 N.E.2d at 1241; Wright, 593 N.E.2d at 1199 (upholding the admissibility of a knife after a roommate's consent permitted officers to search lawfully the common areas of the residence from which the knife could be seen in plain view on a dresser in defendant's room). We find that the knife, gloves and ring were properly admitted.


Defendant maintains that certain jury instructions regarding intent impermissibly shifted the burden of proof. Defendant did not object to these jury instructions at trial. Ordinarily, a failure to object to a jury instruction, results in waiver of the issue. Ind.Crim.Rule 8(B); Sanchez v. State, 675 N.E.2d 306, 308 (Ind.1996) (citing Burton v. State, 526 N.E.2d 1163, 1165 (Ind.1988)). However, an error may be fundamental and thus not subject to waiver, if it is a "substantial blatant violation of basic principles." Winegeart v. State, 665 N.E.2d 893, 896 (Ind.1996) (citing Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994)). Fundamental error...

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