Johnnie Nettles v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Nov 17 2016, 8:47 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark S. Lenyo Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Johnnie Nettles, November 17, 2016
Appellant-Defendant, Court of Appeals Case No.
71A05-1603-CR-513
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jerome Frese,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
71D03-1412-MR-12
71D03-1207-FB-99
Bailey, Judge.
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Case Summary
[1] Johnnie Nettles (“Nettles”) appeals his convictions for Murder, a felony, 1 and
Robbery, as a Level 5 felony.2 He presents the sole issue of whether the trial
court abused its discretion in admitting physical evidence. We affirm.
Facts and Procedural History
[2] On December 21, 2014, the owners of Chuck’s Tavern in South Bend, Indiana
entered the premises and found their employee, twenty-five-year-old Angela
Garza (“Garza”), murdered. She had suffered eighteen stab wounds and blunt
force trauma. Approximately $1,500.00 was missing from the cash register and
two safes. Garza’s vehicle was also missing.
[3] Nettles soon came under suspicion, as he had been in contact with Garza
during the prior evening and had arranged to meet her when she closed the bar.
During the afternoon of December 21, Corporal David Ruiz of the Mishawaka
Police Department (“Corporal Ruiz”) received a dispatch indicating that
Nettles could be located at an apartment complex at 4500 Hickory Road in St.
Joseph County. By that time, Corporal Ruiz had located Garza’s missing
vehicle near 4508 Hickory Road.
1
Ind. Code § 35-42-1-1.
2
I.C. § 35-42-5-1. This appeal is consolidated with an appeal from a probation revocation order in 71D03-
1207-FB-000099. However, Nettles presents no separate argument with regard to the probation revocation
order.
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[4] Corporal Ruiz and several other officers approached the first apartment unit of
4500 Hickory Road. Before the officers “had the chance to knock,” a door
opened and Nettles exited the apartment to approach a mailbox. (Tr. at 28.)
The officers restrained Nettles and requested identification from him. Nettles
stated that his identification card could be found inside a black coat hanging in
a closet in the front room. He asked to be allowed to wear that coat and also
requested his shoes.
[5] Nettles was taken to the police station, where he gave a statement indicating
that Garza’s keys and cellphone, as well as a knife, could be found in his
apartment. Meanwhile, Lieutenant Anthony Bontrager (“Lieutenant
Bontrager”) interviewed Nettle’s girlfriend, Diamond Marshall (“Marshall”),
and determined that she had leased the apartment solely in her name. Marshall
executed a form giving permission to search the apartment. A search yielded
blood-stained currency, Garza’s cell phone and keys, a food benefits card that
had belonged to Garza’s sister, and a broken knife later found to contain DNA
consistent with Garza’s DNA profile.
[6] Nettles was charged with Murder and Robbery. Prior to trial, he filed a motion
to suppress. Nettles sought exclusion of the knife, keys, card, cell phone, and
currency. After a hearing, the motion to suppress was denied. Nettles was tried
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by a jury and convicted as charged. He received consecutive sentences of sixty-
five years for Murder and six years for Robbery.3 This appeal ensued.
Discussion and Decision
[7] Nettles contends that the trial court erred in denying his motion to suppress.
However, “[d]irect review of the denial of a motion to suppress is only proper
when the defendant files an interlocutory appeal.” Clark v. State, 994 N.E.2d
252, 29 (Ind. 2013). We thus frame the issue as whether the trial court abused
its discretion in admitting evidence. A trial court has broad discretion to rule
on the admissibility of evidence, and we reverse only when admission is clearly
against the logic and effect of the facts and circumstances and the error affects a
party’s substantial rights. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).
However, when an appellant argues that the trial court admitted evidence that
was obtained in an unconstitutional search or seizure, he or she raises a
question of law that we review de novo. Id. at 40-41.
[8] Nettles first alleges that the warrantless search was conducted in violation of the
Fourth Amendment to the United States Constitution. “The Fourth
Amendment protects persons from unreasonable search and seizure and this
protection has been extended to the states through the Fourteenth
3
Nettles was on probation after having pled guilty to Burglary as a Class B felony in 2012. On February 22,
2016, his probation was revoked. As a sanction, Nettles was ordered to serve the six-year sentence that had
been suspended.
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Amendment.” Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). Warrantless
searches and seizures conducted inside a home are presumptively unreasonable.
Id. The State has the burden of proving that an exception to the warrant
requirement existed at the time of the warrantless residential search. Id. One
well-recognized exception to the warrant requirement is that of a voluntary and
knowing consent to search. Id.
[9] Nettles acknowledges that a consent search took place, but argues: “Although
Diamond Marshall signed a consent to search form, the circumstances under
which it was signed were not voluntary.” Appellant’s Brief at 21.
[10] At the suppression hearing, Lieutenant Bontrager testified that he had obtained
Marshall’s consent to search the apartment. According to Lieutenant
Bontrager, he read an electronic version of a Pirtle4 form to Marshall. He
further testified that Marshall was non-confrontational and appeared to
understand the explanation of her Pirtle rights. Both Marshall and Lieutenant
Bontrager electronically signed the form. At the conclusion of the suppression
hearing evidence, the trial court sought to clarify that Nettles “accept[ed] that
[Marshall] was not coerced.” (Tr. at 145.) Nettles agreed that coercion would
not be argued.
4
In Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975), our supreme court held that a person who is asked to
give consent to search while in police custody is entitled to the presence and advice of counsel prior to
making the decision whether to give such consent. The right may be waived, but the burden will be upon the
State to show that such waiver was explicit. Id. at 29, 323 N.E.2d at 640.
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[11] Thereafter, at trial, Nettles lodged a continuing objection “based upon the
ruling on the motion to suppress.” (Tr. at 332-33.) Several times, upon the
admission of testimonial or physical evidence, Nettles reminded the trial court
of his continuing objection. However, he did not provide any specificity. For
example, he once objected as follows: “Defendant would object to Exhibits 65
through 86 for the reason that they are all depicting items of the search of the
apartment.” (Tr. at 566.) To the extent that Nettles now claims Marshall’s
consent was involuntary, he did not take this position at the suppression
hearing or at trial.5 Moreover, while he now highlights the facts that he had
been incapacitated by his arrest and Marshall was a single mother with a sick
baby, he directs us to no testimony suggesting that any police officer engaged in
coercive conduct directed toward Marshall. Nettles has not successfully
challenged the voluntariness of Marshall’s consent.
[12] Nettles next presents a Fourth Amendment argument related to recovery of the
blood-stained currency in particular. He argues that, notwithstanding
Marshall’s consent, she did not have authority to permit a search of his
clothing. According to Nettles, his expectation of privacy was akin to that of
the appellant in Krise, whose purse was searched without her consent after her
roommate gave verbal consent to search the premises. 746 N.E.2d at 960.
5
“If the foundational evidence at trial is not the same as that presented at the suppression hearing, the trial
court must make its decision based upon trial evidence and may consider hearing evidence only if it does not
conflict with trial evidence.” Guilmette, 14 N.E.2d at 40, n. 1. The trial court also is to consider any hearing
evidence that is favorable to the defendant and not contradicted by trial evidence. Id.
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[13] In Krise, our Indiana Supreme Court observed that a consent search is more
restricted than a search based upon probable cause – in that authority to consent
is required – and in an ultimately fact-sensitive situation, “the scope of a
consent search is measured by objective reasonableness, the express object to be
searched, and the suspect’s imposed limitations.” Id. at 966. The Court noted
that “the type of container is of great importance,” looked at steps Krise had
taken to protect her privacy,6 and concluded that Krise’s roommate had no
actual authority to consent to the search of the purse and the State had failed to
justify the search on the basis of apparent authority. Id. at 969-71. Reversing
the denial of Krise’s motion to suppress, the Court explained its holding as
follows:
Rather than considering a third-party’s authority to consent to
the general search of the home as “all encompassing” to the
search of every container found inside the home, we hold that the
inspection of closed containers that normally hold highly
personal items requires the consent of the owner or a third party
who has authority – actual or apparent – to give consent to the
search of the container itself.
Id. at 969. Actual authority to consent to a search of a home may not be
effective consent to a search of a closed object inside the home. Id. at 968.
Thus, Nettles asks that we consider his coat pocket to be a type of “closed
6
Krise’s roommate, Charles Tungate, testified that he did not have access to Krise’s purse.
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container” as discussed in Krise, and that we find Marshall lacked actual or
apparent authority to consent to its search.
[14] Marshall, the sole lessee of the apartment, advised officers that she and Nettles
shared a closet and that Nettles also had a bag of clothing in the living room.
The closet was a repository for some items Nettles kept there as he came and
went, “staying most nights” with Marshall. (Tr. at 447.) Unlike the clothing in
the living room, Nettles did not restrict access to the closeted items by
depositing them in a bag. Rather, his clothing was commingled with Marshall’s
clothing. The officers were not required to remove a covering, much less open
a closure mechanism as is common with purses. Under the circumstances here,
we are not persuaded that Nettles took steps such that he had an expectation of
privacy in his coat pocket akin to that of one who deposits highly personal
items in a closed purse. He has shown no Fourth Amendment violation.
[15] Nettles also argues that the trial court admitted physical evidence obtained in
violation of Article 1, Section 11 of our Indiana Constitution, providing:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall
not be violated; and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to be
seized.
When determining whether a search comports with this state constitutional
provision, “[i]nstead of focusing on the defendant’s reasonable expectation of
privacy, we focus on the actions of the police officer, concluding that the search
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is legitimate where it is reasonable given the totality of the circumstances.”
Trimble v. State, 842 N.E.2d 798, 803 (Ind. 2006). In the evaluation of
reasonableness, we consider “1) the degree of concern, suspicion, or knowledge
that a violation has occurred, 2) the degree of intrusion the method of the
search or seizure imposes on the citizen’s ordinary activities, and 3) the extent
of law enforcement needs.” Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005).
[16] Here, police had a very strong suspicion that Nettles had murdered Garza. He
had contacted her repeatedly the night before to arrange a meeting when she
closed the bar. That meeting time corresponded to Garza’s last cash register
transaction and last cell phone communication. Garza’s vehicle had been
located at the apartment complex where Nettles was known to stay. The
consent search did not present an additional intrusion into Nettles’ ordinary
activities, as the search of Marshall’s premises did not take place until after
Nettles had been arrested and removed from the premises. Finally, the extent
of law enforcement needs was high, as the search involved the recovery of
crucial items connecting Nettles to Garza’s murder. The keys, cell phone, and
food benefits card had been in Garza’s possession; the broken knife and some of
the currency had DNA consistent with that of Garza. The search was not
unreasonable under the totality of the circumstances.
Conclusion
[17] We find no abuse of discretion in the admission of evidence.
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[18] Affirmed.
Riley, J., and Barnes, J., concur.
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