Foster v. State

• Decision Date: 09 May 1994
• Docket Number: No. 49A04-9304-CR-158,49A04-9304-CR-158
• Citation: 633 N.E.2d 337
• Parties: Ahmad FOSTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 337

633 N.E.2d 337

Ahmad FOSTER, Appellant-Defendant, v.STATE of Indiana, Appellee-Plaintiff.

No. 49A04-9304-CR-158.

Court of Appeals of Indiana Fifth District.

May 9, 1994.

Transfer Denied Aug. 18, 1994.

David E. Cook, Samper Hawkins Atz & Cook, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SHARPNACK, Chief Judge.

Ahmad Foster appeals from his convictions of felony murder, auto theft, carrying a handgun without a license, and criminal recklessness.We affirm.¹

Foster raises four issues for our review which we restate and consolidate as:

1. whether the trial court erred in admitting evidence obtained through the execution of a search warrant at Foster's home; and

2. whether the trial court erred in admitting Foster's statement to police in which he confessed his guilt.

The facts most favorable to the judgments of conviction are as follows.At approximately 12:50 p.m., on December 1, 1990, Timothy Smeehuyzen was driving to the Hoosier Dome in Indianapolis, Indiana, when he noticed two people engaged in a struggle on the southwest corner of 60th Street and College Avenue.Smeehuyzen observed Foster with a handgun attempting to take the purse of an elderly woman, Mildred Stanfield.Foster raised the gun and shot Stanfield in the chest.When Stanfield began to slump and fall to the ground, Foster took her purse and fled.Smeehuyzen quickly turned his car around to pursue Foster, and Foster shot at Smeehuyzen.Smeehuyzen continued his pursuit and observed Foster get into the passenger side of a late model Oldsmobile Calais.As the chase continued, Foster leaned out the passenger side of the car and again pointed his gun at Smeehuyzen.Smeehuyzen eventually lost sight of the vehicle.

At approximately 12:53 p.m., police officer James Fitzpatrick of the Indianapolis Police Department received a radio dispatch reporting "a purse grabbed with injury" at 60th and College.Record, p. 1038.Fitzpatrick then received a description of the vehicle in which Foster had fled and learned that Smeehuyzen was in pursuit of Foster.As Fitzpatrick drove through the course of the chase, he observed several items laying on the street and sidewalk, including a church organist's book and a black purse.Fitzpatrick directed a crime lab technician to the area to recover the items for evidence.

During the evening hours of that same day, the Calais used as the getaway vehicle was located, abandoned, on the northwest corner of 33rd and Carrollton.The car had been stolen just prior to the shooting and robbery.The owner of the car noted that the right rear vent window was broken out, the molding around the window had been pried, and the steering column was broken.The owner also noted that a baby car seat and Mobil Oil credit card were missing from the vehicle.The broken car window was covered by plastic held in place by tape, and several latent fingerprints were discovered on the tape.

On December 29, 1990, at approximately 3:30 a.m., fingerprints on the tape from the car window were identified as belonging to Foster's brother, William Foster.After ascertaining William's address, police prepared a probable cause affidavit and a search warrant for his residence.The affidavit and warrant were taken to the residence of (the late) Judge A. Toni Cordingly, who signed the warrant authorizing the search.At approximately 10:00 a.m. that same morning, the police went to William's residence at 3046 North College Avenue to execute the search warrant.Foster was found in bed, and under the mattress was a .25 caliber handgun.Suspected narcotics were discovered on top of a dresser and table in the same room.Foster's brother William was found in another bedroom, and the .22 caliber handgun that had been used to shoot Stanfield was found in that room.During the course of the search, the boys' mother, Thelma Foster, arrived at the residence.

Foster and his brother William were transported to the police station for questioning.Their mother was transported to the police station separately, and their father was later picked up at his workplace and brought to the police station.With the presence and agreement of his parents, Foster waived his rights and gave a recorded statement to police in which he admitted shooting Stanfield.A latent fingerprint on Stanfield's purse was identified later as belonging to Foster.

Foster was fourteen years old when Mildred Stanfield was murdered.On motion by the State, juvenile jurisdiction over the cause was waived to adult court.Prior to trial, Foster moved to suppress the evidence seized during the search of the Foster residence and his statements to police in which he confessed to shooting and robbing Stanfield.The trial court granted Foster's motions with regard to any pre-rights advisement and waiver statements, but denied Foster's motions in all other respects.After a trial by jury, Foster was convicted of felony murder, robbery, auto theft, carrying a handgun without a license, and criminal recklessness.The robbery count was merged with the felony murder count, and Foster received a sentence of fifty-three years.²

I

The first issue Foster raises for our review is whether the trial court erred in admitting the evidence obtained through the search of Foster's home.Foster contends that the search warrant authorizing the seizure of this evidence was improper and illegal and not supported by probable cause.Foster points to a number of allegedly fatal defects in the probable cause affidavit and the warrant, detailed below.In response, the State argues that the warrant was valid and supported by probable cause.We agree with the State.

Indiana Code § 35-33-5-2 provides, in pertinent part:

"(a) Except as provided in section 8[IC 35-33-5-8] of this chapter, no warrant for search or arrest shall be issued until there is filed with the judge an affidavit:

(1) Particularly describing:

(A) The house or place to be searched and the things to be searched for; or

(B) Particularly describing the person to be arrested;

(2) Alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:

(A) The things as are to be searched for are there concealed; or

(B) The person to be arrested committed the offense; and

(3) Setting forth the facts then in knowledge of the affiant or information based on hearsay, constituting the probable cause."

I.C. § 35-33-5-2(a);see alsoU.S. Const. amend. IV;Ind. Const. art. I, § 11.Police officers seeking a search warrant are not required to make a prima facie showing of criminal conduct, nor must they demonstrate that contraband will be found on the premises to be searched."They need only show that there is a probability of criminal activity.When an affidavit contains such information, the issuing court may draw reasonable inferences therefrom and issue the warrant."Baker v. State (1990), Ind., 562 N.E.2d 726, 728.

In the case of Stabenow v. State (1986), Ind.App., 495 N.E.2d 197, 200, this court discussed review of a magistrate's determination of probable cause as follows:

"[I]t is axiomatic that a court of review will 'not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner.'[citations omitted]We have previously discussed the analysis utilized to review a magistrate's determination of probable cause:

'While the quantity and nature of the constituent elements necessary to establish probable cause are inextricably related to each given set of facts, there are two basic questions pertinent to the determination of probable cause for a search under any set of facts: (1) whether the particular items sought to be seized are sufficiently connected with criminal activity and (2) whether the items are to be found in a particular place.If sufficient facts are presented so that a neutral and detached magistrate can make an affirmative response to these questions, probable cause may be presumed to exist thus making the issuance of the search warrant reasonable.'

[citations omitted]

Our review of the probable cause determination is limited to an examination of the same information that was before the magistrate when the warrant was issued."

Id. at 200(emphasis in original);see alsoKail v. State (1988), Ind.App., 528 N.E.2d 799, trans. denied.We accord great deference to a magistrate's determination of probable cause.Bigler v. State (1992), Ind.App., 602 N.E.2d 509, 514, reh'g denied, trans. denied.On appellate review, we simply ensure that the issuing judge or magistrate had a substantial basis for concluding that probable cause existed; we do not undertake a de novo determination of probable cause.Id."Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants."United States v. Ventresca(1965), 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684;Brooks v. State (1988), Ind.App., 526 N.E.2d 1027, 1029.With these standards in mind, we now turn to the resolution of the present issue.

As noted above, when the latent fingerprints from the tape on the broken window of the stolen Calais were identified as those of William Foster, the police immediately prepared the probable cause affidavit and warrant.Omitting formal parts, the affidavit reads:

"Detective Craig Converse swears or affirms that he believes and has good cause to believe from my investigation I learned from reliable persons that the following facts and attending circumstances that: On 12-1-90 at about 12:50 p.m. Mildred E. Stanfield was a victim of a purse grab and criminal homicide.This occurred at the Corner [sic] of 60th and College Avenue.Witnesses to the incident described the...