McAnalley v. State
| Decision Date | 18 October 2019 |
| Docket Number | Court of Appeals Case No. 18A-CR-1099 |
| Citation | 134 N.E.3d 488 |
| Parties | Robert MCANALLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Statement of the Case1
[1] McAnalley appeals his conviction after a jury trial of Level 4 felony unlawful possession of a firearm by a serious violent felon2 and his guilty plea to an habitual offender enhancement.3 We affirm.
Issues
[2] McAnalley presents three issues, which we restate as the following questions:
Facts and Procedural History
[3] After midnight on November 17, 2017, in the early morning hours of November 18, 2017, McAnalley and a friend, Elgin Wilson, were in Indianapolis at the home of another friend. McAnalley's wife, Desiree, called and offered to pick up Elgin and her husband because it was cold outside. On the way home, the three were pulled over in a traffic stop near the intersection of Raymond Street and Keystone Avenue by Officer Douglas Lepsky of the Indianapolis Metropolitan Police Department (IMPD).
[4] Officer Lepsky was in a fully marked police vehicle and uniform patrolling an area that was described by him as follows:
Uh, give or take, it's north and south–let's see, East Raymond, so–the whole area's–especially around Keystone and Raymond can be a touch and go area sometimes. We get calls on narcotic investigations around that area. And–but normally the–the actually[sic] area I stopped them has been recently pretty quiet.... [it could be considered a high crime area]...(affirming that description posed in a question).
[5] Officer Lepsky ran the license plate of the vehicle in front of him, and pulled the vehicle over after discovering that the license plate was registered to a different vehicle than the one he was following (i.e., the stop was for improper plates). The vehicle in front of him was a Chevy, but the license plate was registered for a Pontiac. He initiated the traffic stop in what he also described as a residential area by only activating his emergency lights and spotlight, but not his siren.
[6] The vehicle commenced to a "slow roll, and then eventually stopped." Id. at 6. Officer Lepsky testified that as he observed the vehicle come to a stop, he saw the front-seat passenger, later identified as McAnalley, "leaning forward towards the dashboard." Id. at 74. The officer characterized those actions as a "furtive movement." Id. at 77. The State later used that same terminology in closing and rebuttal closing argument at trial; (furtive gestures when defendant leaned toward the dashboard where the glove box would be) Id. at 198-99; (furtive gestures when defendant moved toward the glove box before officer approached car) Id. at 214.
[7] Officer Lepsky first approached the driver's side door of the vehicle and informed Desiree, the driver, that she had been pulled over for displaying an improper license plate. The officer obtained verbal identification from the three occupants of the vehicle. McAnalley was in the front passenger seat and Elgin was seated in the back behind Desiree. After searching the names and birthdates provided by the three occupants of the vehicle, Officer Lepsky learned that McAnalley had an active felony warrant for his arrest. The officer was unaware of the basis for the issuance of the warrant. Id. at 14.
[8] Other officers were summoned to the scene, per normal IMPD procedure, to make the arrest on the active warrant. When Officers Matthew Coffing and Brent McDonald arrived, Officer Lepsky approached the passenger side of the vehicle, opened the door, and instructed McAnalley to step out of the vehicle. McAnalley complied, Officer Lepsky told him about the warrant, and placed McAnalley in handcuffs. The officer then patted McAnalley down and found an empty gun holster clipped to the front waistband of his pants.
[9] Next, the officers had McAnalley stand, handcuffed, near the rear of the vehicle. Later Officer Lepsky instructed Desiree and Elgin to exit the Chevy. He testified that all three occupants of the vehicle were compliant. Id. at 13. They stood outside of the vehicle but were a slight distance from McAnalley.
[10] Officer Lepsky and Officer Coffing then performed what Officer Lepsky called a "protective sweep" of the interior of the vehicle, while Officer McDonald stood near the rear of the vehicle "keeping an eye on everybody." Id. at 8, 15. In further explanation of what was described as a protective sweep, Officer Lepsky testified as follows:
All occupants were asked to exit the vehicle, and we did what's called a protective sweep where you just look around in plain view to make sure there are no guns or any weapons that could cause immediate threat or danger....We did a sweep. I started on the, I believe it was the driver's side and Officer Coffing was on the passenger side....[Answers affirmatively when asked:] When you're doing a protective sweep, you're just looking with your eyes to make sure that there's nothing that can be used to harm you....[Answers in the negative when asked]: [W]hen you are performing a protective sweep, do you touch anything or manipulate anything with your hands? ...
[11] During the course of the protective sweep, officers looked at a glove box directly in front of the front passenger seat. The glove box in this vehicle, however, was missing its cover. Inside the open glove box area, in plain view, the officers saw the handle and magazine of a handgun. Neither officer had observed the handgun when they first removed McAnalley from the vehicle. Id. at 16.
[12] More specifically, the following testimony was offered by Officer Lepsky about the condition of the glove box, what was discovered, and what ensued.
Uh, we discovered that there was a–a glove box missing the front cover, and in plain view when you just looked at that glove box, you could see a handle and a magazine of a handgun....There was no cover on the glove box. We didn't have to manipulate anything, open anything, there was no cover, no door on that glove box at that time.... I requested Officer Coffing, who is a gun liaison to secure the gun and do DNA swabs and fingerprints off of it....Uhm, I read Miranda Rights to Mr. McAnalley off an index card I keep in my front right pocket, ma'am....[Answers affirmatively to the question]: Did he indicate that he did understand his rights....[Answers affirmatively to the question if he had asked about the gun found in the vehicle].... He said that it was his. That he knew he did–he shouldn't have had it, but he bought it off of somebody because he needed protection for himself and his family.... He also admitted that he was a felon. [After stating he did not talk to the other two occupants of the vehicle in reference to the gun, Officer Lepsky testified that at that time neither one volunteered that the gun was theirs].
[13] Officer Lepsky testified that during the protective sweep the officers found "a black pistol, semi-automatic" that was located in the glove box which was missing the front cover. Id. at 79.
[14] There were no outstanding warrants or incriminating information about Desiree and Elgin and they were allowed to leave the scene in the vehicle after the handgun was confiscated.
[15] Officer Coffing secured the handgun in a gun box in his patrol car. He transported the handgun to the police station because he did not want to process the handgun in the rain. Once at the police station and while wearing protective gloves to preserve the evidence, Officer Coffing first swabbed it for DNA in an attempt to collect fingerprints. The DNA was submitted for further testing and the findings were "a complex mixture." Id. at 152.4
Fingerprint samples, which were also submitted for testing, showed there was "insufficient ridge detail" to perform a comparison. Id. at 144.5
[16] Subsequently, the State charged McAnalley with Level 4 felony unlawful possession of a firearm by a serious violent felon and with being an habitual offender.6 After a pre-trial hearing and briefing by the parties on McAnalley's motion to suppress the handgun, the trial court denied the motion.
[17] McAnalley's motion to suppress stated in pertinent part as follows:
Appellant's App. Vol. II, p. 87.
[18] The trial court stated in pertinent part as follows when denying the motion to suppress:
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