State v. Foy

• Decision Date: 19 March 2007
• Docket Number: No. 68A05-0605-CR-235.,68A05-0605-CR-235.
• Citation: 862 N.E.2d 1219
• Parties: STATE of Indiana, Appellant-Plaintiff, v. Robert M. FOY, Appellee-Defendant.
• Court: Indiana Appellate Court

862 N.E.2d 1219

STATE of Indiana, Appellant-Plaintiff, v. Robert M. FOY, Appellee-Defendant.

No. 68A05-0605-CR-235.

Court of Appeals of Indiana.

March 19, 2007.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Michael J. Alexander, Muncie, IN, Attorney for Appellee.

OPINION

FRIEDLANDER, Judge.

The State charged Robert Foy with murder. Foy filed a motion to suppress, which the trial court granted. Foy cross-appeals and raises the following restated issues:

1. Did the trial court err in granting the State's belated motion to file an interlocutory appeal?

2. Was the warrant supported by probable cause?

The State appeals and presents the following restated issue:

3. Did the trial court err in granting Foy's motion to suppress?

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

The following account comes largely from Stephen McCord's, an investigator with the Randolph County Sheriff's Department (RCSD), probable cause affidavit in support of the search warrant. Around 3:30 p.m. on April 22, 2004, Carol Jones placed a 911 call and informed the operator that a deceased woman, later identified as Diane Foy, Foy's wife, was in the Foys' residence located at 4050 South County Road 110 West, in Randolph County, Indiana. The record is unclear about why Jones entered the residence. Foy informed Jones that Diane had recently left on a motorcycle, and that approximately twenty minutes later he found her floating face down in a nearby pond. Foy further claimed he removed Diane from the pond, carried her into their residence, and placed her on a couch.

Jones informed the 911 operator that Diane was still on the couch, and the 911 operator instructed Jones to relocate Diane to the floor and administer CPR. At some point after this instruction, Jones stated "Oh God, I think he killed her[,]" and "Oh my God, what did he do to her." Appellant's Appendix at 20. Jones also told the 911 operator that Diane appeared to have bruises on her neck, arm, and head.

Later that day, McCord traveled to the Foys' residence. Upon his arrival, McCord was informed that emergency personnel found Diane's body and clothing dry. McCord was also told that when the emergency personnel first arrived, there was a bloody cloth near Diane's body, but that the cloth disappeared by the time Diane was taken to the hospital. Emergency personnel also observed "a red substance" on Foy's clothing and skin, and abrasions on his hands. The attending physicians and nurses at Ball Memorial Hospital found no water in Diane's lungs and noted the purported cause of death was inconsistent with her injuries.

McCord filed a probable cause affidavit in support of the issuance of a search warrant that same day (April 22). McCord's affidavit contained the foregoing facts and stated he "believe[d] and [was] presuming this to be a homicide investigation." Id. at 22. Based upon McCord's affidavit, a search warrant was issued that authorized a search for "[a]ny and all trace evidence" on Foy's person and in the Foys' residence and any outbuildings and vehicles thereon. Id. at 16.

That evening, RCSD personnel executed a search, which resulted in the seizure of specimens from Foy's and Diane's bodies and over sixty items of personal property, including: (1) "potential blood smears" on Foy's left forearm, right hand, and left hand; (2) "[r]ed stain[s]" on all of the following — a napkin, a torn denim shirt, a bathroom window frame, a bed sheet on a bed located in the master bedroom, the kitchen floor, a handrail, steps leading to the basement, the bottom stair step, near a bed located in the basement, the ceiling in the pool room, a sofa in the pool room, a sock in the living room, a chair in the living room, several places on the living room wall, a wall near the front door, the floor near a sofa in the living room, several places on a sofa in the living room, the computer screen, the floor near the dining room table, the dining room carpet, a ceramic flower pot in the dining room, a comforter, a mattress pad, a "white throw", a sock near the kitchen doorway, a green towel from the floor of the master bedroom, a pair of blue jeans located near the bathroom, a sock located near the bedroom, panties located near the bedroom, a shirt in the pool room, a slipper in the pool room; and (3) "[r]ed stain[s]" on panties, a shirt, and blue jeans worn by Diane at the time of her death. Id. at 25-26.

On April 29, 2004, the State charged Foy with murder. Nearly one year later, on April 25, 2005, Foy filed a motion to suppress the evidence seized pursuant to the search warrant. The trial court concluded the search warrant was supported by probable cause, but found the search warrant lacked the necessary particularity and, therefore, granted Foy's suppression motion on January 27, 2006. On March 2, the State filed a "Motion to File a Belated Motion Requesting Certification of an Interlocutory Order[,]" id. at 7, and filed a "Motion Requesting Certification of an Interlocutory Order" on March 23, 2006. Id. at 104. On March 23, over Foy's objection, the trial court granted the State's motion.

On April 4, 2006, the trial court certified the State's interlocutory appeal and on May 4, the State filed in this court a motion requesting that we accept jurisdiction of its interlocutory appeal, which was granted on July 11. On July 12, the State filed its notice of appeal. Thereafter, on September 19, 2006, Foy filed a motion to dismiss the State's interlocutory appeal. This court issued an order on November 2, in which we held in abeyance Foy's motion to dismiss. Oral argument regarding Foy's motion to dismiss was held in Indianapolis on January 24, 2007. Further facts will be included as necessary.

1.

Foy contends the State's interlocutory appeal should be dismissed for lack of jurisdiction because the State failed to file a certification motion within thirty days of the issuance of the trial court's interlocutory order. Subject matter jurisdiction concerns a court's ability to hear and decide a case based upon the class of cases to which it belongs. Cardiology Assoc. of Nw. Ind., P.C. v. Collins, 804 N.E.2d 151 (Ind.Ct.App.2004). It is this court's duty to determine whether we have jurisdiction before determining the rights of the parties on the merits. Bridgestone Americas Holding, Inc., et al. v. Mayberry, et al., 854 N.E.2d 355 (Ind.Ct.App. 2006), trans. pending. "Further, a court always has jurisdiction to consider its own jurisdiction." Id. at 358.

This case comes to us from the trial court's grant of Foy's suppression motion and, therefore, this appeal is interlocutory in nature. See Frensemeier v. State, 849 N.E.2d 157, 159 (Ind.Ct.App.2006) ("interlocutory appeal challenging the denial of his motion to suppress"), trans. denied. The Indiana Rules of Appellate Procedure provide that we have jurisdiction over appeals of interlocutory orders under Appellate Rule 14. Ind. Appellate Rule 5(B); Bridgestone Americas Holding, Inc., et al. v. Mayberry, et al., 854 N.E.2d 355. Pursuant to App. R. 14, there are three ways we may obtain jurisdiction over an interlocutory appeal: (1) App. R. 14(A) permits interlocutory orders as of right; (2) App. R. 14(B) permits discretionary appeals "if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal"; and (3) App. R. 14(C) authorizes other interlocutory appeals only as provided by statute. Bridgestone Americas Holding, Inc., et al. v. Mayberry, et al., 854 N.E.2d 355. Neither App. R. 14(A) nor (C) apply to the present case and, thus, our jurisdiction over this appeal is discretionary and must derive from App. R. 14(B). Id.

App. R. 14(B) states, "[a]n appeal may be taken from ... interlocutory orders if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal." The rule clearly provides that the only prerequisite for this court to accept a discretionary interlocutory appeal is certification of the order by the trial court. Bridgestone Americas Holding, Inc., et al. v. Mayberry, et al., 854 N.E.2d 355. In this case, the trial court certified its order suppressing certain evidence, and the State filed a motion with this court to accept jurisdiction of the appeal, which we granted. The two requirements of App. R. 14(B) were therefore satisfied, and we have jurisdiction to review the trial court's order. See id. (jurisdiction where trial court certified its order and we granted appellant's certification motion).

Nonetheless, we must still determine whether the trial court properly granted the State's certification motion. We are not bound by a trial court's determination on the issue of certification, Cardiology Assoc. of Nw. Ind., P.C. v. Collins, 804 N.E.2d 151, and the trial court's certification is subject to review for an abuse of discretion. Troyer v. Troyer, 686 N.E.2d 421 (Ind.Ct.App.1997). Pursuant to App. R. 14(B)(1)(a), a party generally must bring a motion requesting certification of an interlocutory order within thirty days of the date of the interlocutory order unless, for good cause, the trial court permits a belated motion. In the event the trial court grants a belated motion and certifies the appeal, it "shall make a finding that the certification is based on a showing of good cause, and shall set forth the basis for that finding." App. R. 14(B)(1)(a).

We have not previously defined "good cause" within the meaning of App. R. 14(B). Foy directs our attention to a number of cases addressing former Ind. Supreme Court Rule 2-2. See, e.g., Eggers v. Wright, 253 Ind. 44, 245 N.E.2d 331 (1969); Deckard v. State, 241 Ind. 338, 170 N.E.2d 424 (1961); Barker v. State, 242 Ind. 5, 175 N.E.2d 353 (1961). Former Supreme Court R. 2-2, however, is not sufficiently analogous to control the resolution of this issue because: (1) it allowed only for an extension of time to file...