Kirk v. State

• Decision Date: 24 September 2012
• Docket Number: No. 49A02–1110–CR–979.,49A02–1110–CR–979.
• Citation: 974 N.E.2d 1059
• Parties: Gregory KIRK, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

974 N.E.2d 1059

Gregory KIRK, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1110–CR–979.

Court of Appeals of Indiana.

Sept. 24, 2012.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Gary R. Rom, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Gregory Kirk (“Kirk”) appeals from his convictions following a jury trial for conspiracy to commit dealing in cocaine ¹ as a Class B felony, conspiracy to commit dealing in a controlled substance ² as a Class B felony, neglect of a dependent ³ as a Class C felony,⁴ and possession of marijuana ⁵ as a Class A misdemeanor. On appeal, Kirk raises the following consolidated and restated issues:

I. Whether the trial court abused its discretion in admitting incriminating statements about Kirk, which were made to police by Kirk's stepson, D.K.;

II. Whether the trial court abused its discretion in admitting evidence obtained during a warrantless search of Kirk's cell phone, which Kirk alleges was obtained in violation of the Fourth Amendment to the United States Constitution and Article I, section 11 of the Indiana Constitution;

III. Whether the search of Kirk's home violated the Fourth Amendment to the United States Constitution and Article I, section 11 of the Indiana Constitution, because the search warrant was not supported by probable cause;

IV. Whether the trial court abused its discretion when it admitted the search warrant into evidence; and

V. Whether there was sufficient evidence to support Kirk's convictions.

We affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

During June 2010, Dennis Barnett (“Barnett”) lived in the 800 block of North Tuxedo Street in Indianapolis. At that time, Barnett, a long-time drug user, was buying $20 to $40 worth of crack cocaine every other day from Kirk's sixteen-year-old stepson, D.K. Barnett was unable to text from his cell phone, so when he needed drugs he would knock on the door of D.K.'s house, which was located at 918 North Tuxedo Street. Occasionally, when Barnett did not have the cash to pay for the cocaine, D.K. “fronted [Barnett] until the next day.” Tr. at 84. Both Barnett and D.K. kept track of the cocaine Barnett purchased and any money that Barnett owed. Kirk was sometimes present when Barnett bought cocaine from D.K., and would request cocaine from D.K. or Barnett for his own use.

On or about the evening of June 18, 2010, Barnett promised Kirk $20 if he would drive him to collect $80 from a man who owed him money. When they arrived, the man did not have cash so Barnett accepted payment in the form of $80 worth of crack cocaine. Kirk asked Barnett to give him $20 worth of cocaine as payment for the drive, instead of the previously agreed $20 in cash. Id. at 104. On the drive back, Kirk talked to Barnett “about money he [Barnett] owed [Kirk's] son,” for previously purchased drugs. Id. at 114. Upon returning home, Kirk told D.K. that Barnett owed D.K. money and that Barnett was currently in possession of crack cocaine. Id. at 93. That evening, D.K. and an unidentified man went to Barnett's house. Barnett testified that he had smoked all of the cocaine before the men got there. The men left Barnett's home without incident.

On June 19, 2010, Barnett walked by Kirk's home on his way home from work. Upon seeing Barnett, Kirk said, “You are going to get beat down.” Id. at 90, 96. Later that evening, Barnett saw Kirk and D.K. across the street near his house. D.K. had a gun in his hand, which was pointed at the ground. Kirk was standing beside D.K., and the two were “talking towards [Barnett] down the street.” Id. at 98. At trial, Barnett testified that he heard Kirk yell, “We going to get him.” Id. at 97. Assuming that Kirk and D.K. were there to collect on the debt they believed Barnett owed for a prior cocaine purchase, Barnett called 911.

Indianapolis Metropolitan Police Department (“IMPD”) Reserve Officer Alan Nelson

(“Officer Nelson”) responded to the call, and after Barnett provided a description of the suspects and the direction they were headed, Officer Nelson apprehended Kirk and D.K. about fifty or sixty yards from Barnett's house. Additional IMPD officers, including Detective Garth Schwomeyer (“Detective Schwomeyer”), arrived shortly thereafter.

For officer safety, and in an attempt to control the situation, Officer Nelson patted down the suspects for weapons. The pat-down of D.K. revealed that he was carrying a loaded, semi-automatic, Cobra 380 handgun. The gun had been reported stolen in 2009. D.K. was arrested for possession of a handgun without a license. Police then handcuffed him and advised him of his Miranda⁶ rights. Although one of the officers determined that D.K. was only sixteen-years old, he was not informed of his rights under Indiana Code section 31–32–5–1, which pertains to a juvenile's waiver of his right against self-incrimination. A search incident to arrest revealed that D.K. had a baggie of cocaine in his front pocket, $120 in cash, and, in his back pocket, eighteen pills of acetaminophen with codeine in a pill bottle bearing the name “Richard Dodd.” Id. at 126–27. After he was arrested, D.K. made incriminating statements about Kirk to police.

After noticing that Kirk's eyes were glassy and bloodshot, his speech was slurred, and his breath had an odor of alcohol, Detective Schwomeyer arrested Kirk for public intoxication and for neglect of a dependent and advised him of his Miranda rights. During a search of Kirk incident to arrest, police found half-burnt marijuana cigarettes, “roach clips,” a pipe, and a cell phone. Id. at 141. Detective Schwomeyer immediately pressed the text button on the cell phone and looked at six to eight text messages. He recalled that one text message was from “someone requesting to purchase marijuana, and [another] one was someone requesting to purchase pain pills.” Id. at 180. Officer Nelson also looked at the text messages. While Officer Nelson did not recall the exact language of the text messages, he recalled that they were from “people wanting to buy drugs,” i.e., “pills” and one other drug that Officer Nelson could not remember. Id. at 129. When questioned at the scene, Kirk told Detective Schwomeyer that he had been near Barnett's house because “the guy owed him money.” Id. at 229. When asked about the nature of the debt, Kirk declined to answer. Id.

On June 23, 2010, Detective Schwomeyer obtained a warrant to search the home at 918 North Tuxedo Street, the address both Kirk and D.K. gave as being their residence. Id. at 200. That same day, officers executed the search warrant and found a duffle bag in a wooden box on the outside back porch. Attached to the duffle bag was a cardboard tag with D.K.'s name on it. Id. at 195–97. Under the duffle bag, Detective Schwomeyer found a Mossburg .22 caliber full tactical rifle. Id. at 196. Detective Schwomeyer testified that the duffle bag contained a sawed-off 12–gauge shotgun; 200 to 300 rounds of different kinds of ammunition; 1000 small, plastic, zip-lock baggies; a set of digital scales; a shoulder holster for a semi-automatic 380; a couple of BB guns; and a bottle of injectable lidocaine. Id. Inside the home, police found $388 in cash inside a backpack, which was in the closet of the bedroom that D.K. shared with his younger brother. Id. at 232. In that same bedroom, police found a gun cleaning kit for an M–16 rifle. Id. at 197.

Kirk was charged with conspiracy to commit dealing in cocaine, conspiracy to commit dealing in a controlled substance, neglect of a dependent, and possession of marijuana. Prior to trial, Kirk sought to suppress: (1) statements D.K. made to police; (2) evidence obtained from the search of Kirk's cell phone; and (3) evidence found during the search of his home. After a hearing on the motion, the trial court denied the motion to suppress. Kirk filed a motion to reconsider. It is not clear from the record before us whether that motion was ever ruled on by the trial court.

Kirk's two-day jury trial began on September 14, 2011. On the first day of trial, Kirk raised a motion in limine: (1) to exclude evidence that a confrontation had occurred between Barnett and Kirk a couple of days prior to Kirk's arrest; (2) to exclude D.K. as a witness because Kirk alleged that D.K. was called as a witness by the State for the sole purpose of later impeachment; and (3) to exclude Detective Schwomeyer's testimony regarding the content of the text messages on Kirk's cell phone. Id. at 49–58. The trial court denied the motion in limine, but indicated it would “entertain an objection at the appropriate time and rule on it then.” Id. at 64.

During trial, defense counsel again objected to the admission of D.K.'s statements on the basis that they were taken in violation of Indiana Code section 31–32–5–1, and also objected on the basis that they were hearsay. Over defense counsel's objections, the trial court admitted the evidence of D.K.'s statements and the evidence discovered during the search of both Kirk's cell phone and his home. Id. at 128–30, 171–74, 177, 180, 186–88, 194, 201, 211. Kirk was convicted of all four counts and was sentenced to eighteen years, with ten years executed and eight years suspended to probation for each Class B felony conspiracy conviction; four years executed for the Class C felony neglect of a dependent conviction; and one year executed for the Class A misdemeanor possession of marijuana conviction, all of which were ordered to run concurrently. Kirk now appeals.

DISCUSSION AND DECISION

I. Admission of D.K.'s Statements

Kirk argues that the trial court abused its discretion in admitting incriminating statements D.K. made about Kirk to police. Specifically, Kirk contends that the statements should not have been admitted into evidence because they were taken by police in violation of Indiana Code section...