McGrew v. State

• Decision Date: 27 November 1996
• Docket Number: No. 86A05-9409-CR-378,86A05-9409-CR-378
• Citation: 673 N.E.2d 787
• Parties: David McGREW, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 787

673 N.E.2d 787

65 USLW 2407

David McGREW, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 86A05-9409-CR-378.

Court of Appeals of Indiana.

Nov. 27, 1996.

Rehearing Denied Jan. 13, 1997.

Transfer Granted May 14, 1997.

William E. Daily, Danville, for Appellant.

Pamela Carter, Attorney General of Indiana, James A. Joven, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SULLIVAN, Judge.

David McGrew (McGrew) appeals his conviction for criminal deviate conduct, a Class B felony. ¹ McGrew presents four issues for our review, which we reorder and restate as follows:

1. Whether the trial court erred in admitting evidence seized from his home pursuant to a search warrant;

2. Whether the trial court erred in allowing two witnesses to testify as to what the victim told them about the crime;

3. Whether the trial court erroneously admitted expert testimony regarding analysis of hair samples found in McGrew's vehicle; and

4. Whether the evidence is sufficient to sustain McGrew's conviction.

We reverse and remand for a new trial. Because we anticipate the same issues arising on remand, we address all of them.

The evidence most favorable to the judgment reveals that in the evening of July 26, 1993, McGrew was having drinks at Levi's Bar in Williamsport when he struck up a conversation with J.W., a woman with whom he was slightly acquainted. After consuming additional drinks, the pair arranged to meet at DJ's, a bar in West Lebanon, where they continued to drink and talk together. Later, McGrew told J.W. that he wanted to go to a bar in Covington, and invited her to join him. They departed in McGrew's car, with McGrew driving.

Shortly after leaving DJ's bar, McGrew pulled the car into a dead-end side road to urinate. When he returned, he entered on the passenger side, directing J.W. to move behind the steering wheel. McGrew told J.W. that if she felt uncomfortable, she could start the car and drive away. After the pair sat in the parked car for a brief time, talking and kissing, McGrew attempted to unfasten J.W.'s pants. J.W. resisted, telling McGrew she wanted him to stop because she knew his girlfriend. McGrew cornered J.W. behind the steering wheel, grabbing her by the hair and pushing her head toward his waist. J.W. then noticed that McGrew had removed his pants. As J.W. reiterated her unwillingness to engage in a sexual act with McGrew, he grabbed J.W. again, shoving her head toward his crotch and informing her in a hostile tone of voice that he knew she liked to "give head." Record at 438. Fearful of fleeing the car on the isolated country road, J.W. performed oral sex on McGrew.

McGrew got dressed and then returned to the passenger side. J.W. then drove McGrew's car to the site where her car was parked, and went in search of her friend, Cheryl Morgan (Morgan). She found Morgan and an acquaintance, Lynn Burkhart (Burkhart), at Robie's Bar in Attica, and told them what happened. Morgan advised J.W. to go to the hospital or the police station; J.W. refused at that time, believing that prosecution would be fruitless because "there wasn't any evidence" and it was "[her] word against his." Record at 455. J.W. changed her mind a few hours later, however, and early the next morning drove to the Warren County Sheriff's Department to report the incident.

On October 7, 1993, McGrew was charged by indictment with criminal deviate conduct. One week later, police executed a search warrant at McGrew's home and recovered a sexual device commonly known as a dildo. This device was part of the evidence offered by the State during the jury trial that followed, along with expert testimony concerning hair samples retrieved from McGrew's car and testimony by Morgan and Burkhart regarding statements made by J.W. after the incident.

In defense of McGrew, his girlfriend, Monica Burkes (Burkes), testified that he suffered from Peyronie's Disease, a condition which caused his erect penis to curve into a horseshoe shape and resulted in painful erections. Burkes testified that by fall of 1992, the condition had progressed to the point that McGrew's penis was noticeably deformed and he was unable to ejaculate or achieve a full erection. The State's medical witness, Dr. Norbert Welch (Welch), reviewed McGrew's medical records and agreed that McGrew had developed a severe case of Peyronie's Disease. Welch testified that it could be painful for someone in McGrew's condition to achieve even a partial erection, and that the radiation treatments which McGrew received were only used if the patient was in pain or severely deformed. Welch also stated, however, that the disease would not have affected McGrew's ability to ejaculate because a male can ejaculate absent an erection.

At the conclusion of the trial, McGrew was found guilty as charged, and was sentenced to ten years, suspended. McGrew was then placed on probation for ten years and ordered to serve three years in community corrections.

I. Warrant and Seizure

McGrew contends that the trial court erred in admitting evidence seized by police during a search of his home, thus violating his rights under both the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution.

On October 15, 1993, police searched McGrew's home pursuant to a warrant based on information contained in a probable cause affidavit prepared earlier that day by Al Lindsay (Lindsay), an investigator with the Warren County Prosecutor's Office. According to the affidavit, J.W. reported that during the commission of the crime, McGrew said "he would like to take her to his home where, among other things, he had a sexual device known as a 'dildo' he would like to use on her person". Record at 47-48. This information was provided by J.W. in an interview with Indiana State Police investigators and during a subsequent interview at which Lindsay was present.

Shortly before trial, McGrew filed a motion to suppress, asserting that the information supporting the search warrant was too stale to support a finding of probable cause and that the sexual device was not a proper subject for a search warrant in that it was not an instrument of the crime, fruit of the crime, or even present during the commission of the crime. In opposition to the motion, the State maintained that the information was not stale, and even assuming arguendo that probable cause was lacking, the "good faith" exception to the warrant requirement applied. The trial court denied the motion on grounds that the staleness rule did not apply to the type of evidence under consideration. The dildo was subsequently admitted at trial over McGrew's timely objection.

a. Probable Cause

Article 1, Section 11 of the Indiana Constitution provides that "[N]o warrant shall issue, but upon probable cause". When faced with a search and seizure challenge under the state constitution, we focus upon the reasonableness of the official behavior. Moran v. State (1994) Ind., 644 N.E.2d 536, 539, reh'g denied. The issuance of a search warrant is reasonable if, under the facts presented in the affidavit, a neutral and detached magistrate could find probable cause that the particular items sought to be seized are sufficiently connected with the criminal activity, and that the items will be found in a particular place at the time the warrant is issued. Stabenow v. State (1986) Ind.App., 495 N.E.2d 197, 200.

As a general rule, stale information will not support a finding of probable cause. Raymer v. State (1985) Ind., 482 N.E.2d 253, 255. Stale information gives rise only to mere suspicion and not reasonable belief, especially when the evidence is easily concealed and moved. Id. Our courts have not established a per se rule as to how much time may elapse between the obtaining of the facts upon which the warrant is based and the issuance of the warrant. Id. Instead, the remoteness of the information must be judged by the facts and circumstances of each case. Armstrong v. State (1982) Ind., 429 N.E.2d 647, 651. Factors to be considered include when the affiant acquired the information as well as the age of the information. Id. The affidavit clearly states that J.W. learned of the existence of the sexual device during the commission of the crime. ² Thus, the information was 81 days old when Lindsay executed the probable cause affidavit. The affidavit does not indicate when J.W. was interviewed by Lindsay and the State Police; however, during the suppression hearing, the State stipulated that the first interview occurred on August 9. Thus, a total of 67 days elapsed between the time Lindsay learned of the evidence and the date of the affidavit.

In addition to the time element, the nature of the seized items is also a factor to be considered in determining probable cause. Williams v. State (1981) Ind., 426 N.E.2d 662, reh'g denied. In Williams, police seized the ashes of a lady's burned handbag pursuant to an affidavit and warrant executed 67 days after a murder and armed robbery. The court found probable cause that the ashes would still be at the house more than two months after the crime: "Here, we do not deal with marijuana, which can be expected in the natural course of events to be smoked or moved into commercial channels, but with the burned remnants of a purse and its contents ... having an innocent appearance and no utility." Id. at 667.

The type of evidence seized also factored heavily in a more recent staleness challenge. In Foster v. State (1994) Ind.App., 633 N.E.2d 337, trans. denied, a panel of this court held that a 28-day-interval between the crime--felony murder and auto theft--and the issuance of the warrant did not render the information fatally stale. Again the court distinguished the seized items from controlled substances, which are expected to either be consumed or distributed. "[T]he items sought by police in this case were in part innocuous (child's car seat, dark fur garment, and adhesive...