Utley v. State

• Decision Date: 01 April 1992
• Docket Number: No. 73S00-8910-CR-736,73S00-8910-CR-736
• Citation: 589 N.E.2d 232
• Parties: James Kenneth UTLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 232

589 N.E.2d 232

James Kenneth UTLEY, Appellant, v. STATE of Indiana, Appellee.

No. 73S00-8910-CR-736.

Supreme Court of Indiana.

April 1, 1992.

Michael J. McDaniel, McDaniel, Biggs & Ollis, New Albany, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

Appellant was tried by a jury and convicted of two counts of Murder and one count of Burglary, a Class A Felony. The jury was unable to reach a recommendation regarding the death penalty. The trial court took into consideration aggravating and mitigating circumstances, found that the aggravators outweighed the mitigators, and enhanced the sentence given on each count. He was sentenced to sixty (60) years for Murder, Count I; sixty (60) years for Murder, Count II; and fifty (50) years for Burglary, Count III, the sentences to be served consecutively.

The facts are: On February 18, 1988, Dexter Smith left his residence on Cole Road near New Washington, in Clark County, Indiana at approximately 12:45 p.m. When he left, his wife, Karen, and his three-year-old daughter, Jackie, were at home and his six-year-old daughter, Jessica, was at school. Jackie Fouts, Jessica's scout leader, called and spoke with Karen from approximately 1:00 to 1:15 p.m. When Karen failed to appear for her daughter's scout meeting at 3:00 p.m., Fouts took Jessica to Fouts' house and called Karen's mother-in-law, Maggie Smith. Smith and Janeen Cook, Smith's daughter, went to Karen's residence where they found the rear door unlocked and the bodies of Karen and Jackie inside. Karen's blue car was not at the residence but was found several miles away on Ira Taylor Road with the doors locked and keys gone.

The State presented testimony from David Cole, Lisa Siewert, and Howard Smith that between 12:30 and 1:05 p.m. they each, independently, saw a dark haired, heavy set person walking on Cole Road in the direction of the Smith residence. Agnes Burgin testified that at approximately 4:00 p.m. that day she saw a person wearing red getting out of a blue car in a ditch on Ira Taylor Road. Charles Burgin testified that at approximately 4:10 to 4:15 p.m. he saw a heavy set man in his late teens or early twenties wearing blue clothing and a red shirt or sweater walking off Ira Taylor Road onto Nabb-New Washington Road. Charles Burgin also saw a blue car which appeared to have broken down. These witnesses identified appellant, prior to charges being filed against him, as well as in court, as the man they had seen that day.

On February 23, 1988, police officers photographed appellant and fingerprinted him because he fit the description given by the witnesses. The next day appellant told police that he had not left his property on the day of the murders and that some friends had visited him early that afternoon. Appellant's friends, however, stated that they visited him after dark on the evening of the 18th. He also told police that the only gun on the premises was a .38 caliber pistol, that two .22 caliber pistols had been stolen. As the officers prepared to leave, appellant asked them if they would be coming back the next day to arrest him.

Later that day, appellant's father told police that they had two .22 caliber pistols on the property. He agreed to bring the pistols in for testing. However, appellant and his father produced only one pistol and claimed that appellant had sold the other one. Police obtained a search warrant and found a .22 caliber revolver in appellant's bedroom. Police also seized items of appellant's clothing which matched the description of the clothing worn by the suspect. Appellant fled, but later surrendered to police. On February 28, 1988, appellant was arrested, and his photograph appeared in the newspaper and on television.

A ballistics expert testified for the State that positive identification of the gun was impossible but that it appeared to be the one used to shoot the victims. The expert's opinion was based upon the fact that land and groove characteristics of the gun matched those of a bullet recovered from one of the victims and that a distinct skid mark on test-fired bullets matched that of the bullet recovered from one of the victims.

While in jail, appellant told another inmate, Roger Hall, that he was the one who had committed the double murder. Hall apparently stated that he couldn't understand why appellant would commit the crimes, especially killing the child. Appellant stated that he had been "high" when he murdered the victims and that he had tried to kill himself three times since the incident.

Autopsies of the victims' bodies were conducted on February 19, 1988. Both victims sustained gunshot wounds to the head, which were determined to be the cause of both deaths.

Appellant argues that the trial court erred when it denied his motion to suppress a Ruger .22 caliber revolver, two live .22 caliber rounds, and items of clothing recovered from appellant's residence because, he claims, the search warrant was invalid. Appellant argues that suppression was required because the affidavit failed to establish probable cause for issuance of the search warrant, that the warrant contained false statements and material omissions which rendered it invalid, and that the "good faith" exception does not validate the search.

In the case at bar, Officer Fred Smith, the affiant and detective in charge of the investigation of the crimes, testified that the information contained in the affidavit for the search warrant was not based upon information he had obtained personally, but for the most part upon information obtained by officers to whom he had delegated part of the investigation. Smith's affidavit states that he had information from witnesses placing someone resembling appellant near the scene of the crimes on that date. Appellant attempted to lie about his whereabouts at the time of the murders. Appellant attempted to manufacture a false alibi. Appellant first claimed that the only gun at his residence was a .38 caliber pistol, yet when confronted by the police stated that his family owned one .22 caliber pistol at the present time. Appellant claimed those guns were stolen and his father had stated previously that they currently owned two .22 caliber pistols. Tests showed that the weapon used in the murders was a .22 caliber gun.

Appellant's first argument in support of suppressing the evidence is that the search warrant affidavit is defective on its face because it fails to establish probable cause for the search. An affidavit demonstrates probable cause to search premises if it provides a sufficient basis of fact to permit a reasonably prudent person to believe that a search of those premises will uncover evidence of a crime. State v. Allen (1988), Ind.App., 525 N.E.2d 1267. The decision to issue the warrant should be based on the facts stated in the affidavit and the rational and reasonable inferences drawn therefrom. Blalock v. State (1985), Ind., 483 N.E.2d 439. Sufficiency need not rest on a single piece of information, but rather in the way the pieces fit together. Culver v. State (1988), Ind.App., 519 N.E.2d 196. Based on the information presented in the affidavit by the officer, it was reasonable for the judge to have found probable cause to issue the search warrant.

Appellant's next contention in support of suppression of the evidence is that the affidavit contains false statements. Appellant relies on Franks v. Delaware (1978), 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667. In Franks, the United States Supreme Court held that where a defendant makes a substantial showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the affidavit, and if the allegedly false statement is necessary to the finding of probable cause, that information must be excised. If the remaining information in the affidavit is insufficient to establish probable cause, then the search warrant must be voided and the fruits of the search must be suppressed.

Appellant contends that the following statements contained in the affidavit are false: 1) that the description of the suspect came from four school bus drivers; 2) that Agnes Burgin was attributed with giving a full description of the suspect, when she stated only that the man was wearing red; 3) that David Cole observed a person matching appellant's description driving the victim's car; and 4) that red fibers had been found in the victim's car.

Appellant contends that Officer Smith's testimony that he did not have personal knowledge of all the information in the affidavit, specifically that he had not spoken personally with the bus drivers who gave a description of the suspect, shows that the affidavit was prepared with recklessness, thereby violating Franks. However, as long as participating officers seeking the issuance of a search warrant collectively have probable cause, their individual knowledge can be imputed to the officer signing the affidavit in support of the search warrant. Williams v. State (1988), Ind.App., 528 N.E.2d 496. Appellant's argument fails here because other officers to whom a part of the investigation was delegated did take the descriptions from the witnesses.

Appellant contends that the aforementioned information contained in the affidavit was false. We have held that in order to prevail upon the contention that the affidavit for a search warrant contains information known by the affiant to be false, the appellant must show that the relevant matter as expressed in the affidavit was untrue. Phelan v. State (1980), 273 Ind. 542, 406 N.E.2d 237. Moreover, we have held that mistakes and inaccuracies of fact stated in a search or arrest warrant affidavit will not vitiate the reliability of the affidavits so long as such mistakes were innocently made. Johnson v. State (1985), Ind., 472 N.E.2d 892, reh'g denied.

At the suppression hearing, Officer...