Norman Barker v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL R. FISHER GREOGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
FILED
Oct 17 2012, 9:28 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
NORMAN BARKER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1201-CR-20
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Carol J. Orbison, Judge
Cause No. 49G22-1007-MR-56772
October 17, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant Norman Barker appeals following his convictions of murder and
felony murder, both felonies;1 Class A felony robbery;2 Class A felony conspiracy to commit
robbery;3 and Class A misdemeanor carrying a handgun without a license.4 Barker contends
that the trial court abused its discretion in admitting certain evidence and that his aggregate
sixty-five-year sentence is inappropriately harsh. We affirm.
FACTS AND PROCEDURAL HISTORY
Approximately two weeks prior to July 20, 2010, Barker and his friend Eric Lipscomb
were presented by Chelsea Stewart with the idea of robbing Robert Spaulding’s Indianapolis
house. The duo believed that they would be able to take $20,000 and eleven pounds of
marijuana from Spaulding. At Lipscomb’s house, Barker, Lipscomb, and Stewart discussed
a plan to rob Spaulding with Lipscomb’s girlfriend Jessica Brackett and Barker’s girlfriend
and Stewart’s cousin Jessica Owens. Stewart showed Barker and Owens where Spaulding
lived and Barker provided firearms.
On July 20, 2010, Barker, Lipscomb, Owens, and Bracket went to a Wal-Mart in
Camby to purchase .40 caliber ammunition to be used in the robbery. The group planned to
use two guns, one of which was a black .40 caliber automatic handgun to be used by Barker.
(Tr. 124). When it was dark, the quartet drove to Spaulding’s neighborhood in Brackett’s
1
Ind. Code § 35-42-1-1 (2010).
2
Ind. Code § 35-42-5-1 (2010).
3
Ind. Code §§ 35-42-5-1; 35-41-5-2 (2010).
4
Ind. Code § 35-47-2-1 (2010).
2
white Blazer but left when they observed too many cars in the area, retreating to Lipscomb’s
for approximately one hour. When the quartet returned, Brackett parked the Blazer while
Barker and Lipscomb proceeded on foot to Spaulding’s house, located at 219 West Southern
Street.
Once inside Spaulding’s house, Lipscomb ordered Spaulding to the ground and the
duo asked where his “sack was that he’s supposed to keep his stuff in.” State’s Ex. 120 at 34.
Spaulding replied that there were some drugs in the kitchen, so Barker walked into the
kitchen and retrieved a small bag of marijuana as well as Spaulding’s keys. When Barker
returned, a struggle for his handgun ensued with Spaulding. Barker’s gun fired during the
struggle, and he yelled for Lipscomb, telling him to “‘get him’”. State’s Ex. 120 at 36.
Lipscomb shot, hitting Spaulding. Spaulding continued to struggle, managing to grab
Barker’s handgun from his hand and take hold of his shirt. As Barker attempted to pull his
shirt off, Lipscomb fired a second time, hitting both Barker and Spaulding. Barker and
Lipscomb ran back to the blazer, Barker leaving his handgun and shirt behind. Barker also
left a trail of blood as he ran from Spaulding’s house. As Barker and Lipscomb ran, a
witness heard Barker say “the mother-f***** shot me.” Tr. p. 256.
After neighbor Devon Watson witnessed Barker and Lipscomb flee, she called 911 at
approximately 12:14 a.m. and ran to Spaulding’s house. Spaulding was still alive when
Watson arrived and was coughing up blood and saying the name of his two-year-old
daughter. Although emergency help arrived at approximately 12:21 a.m., Spaulding had
already died, with his daughter asleep in the next room.
3
Meanwhile, Barker, Lipscomb, Brackett, and Owens drove to a Village Pantry
approximately one to one-and-one-half miles away, at 1402 South Meridian Street. Owens
called 911 at approximately 12:16 a.m. and told the operator that Barker had been shot, and,
in the background, Lipscomb can be heard saying, “[w]e can’t be this close to the
property[,]” and Brackett can be heard saying, “[t]hrow that gun out the window.” Tr. p. 455.
The quartet decided that they would tell police that Barker had been wounded in a drive-by
shooting. Owens was instructed to tell police that she and Barker were by a Burger King
when Barker pushed her to the ground and was shot, at which point Owens called Brackett
and Lipscomb to retrieve them.
Indianapolis Metropolitan Police Detective Brian Schemenaur responded to 219 West
Southern and spoke with Watson and additional witness Jenny Sterling, who each provided
descriptions of the two males they saw fleeing Spaulding’s house. Detective Schemenaur
was also told that one of the suspects had been shot and was able to corroborate the story by
finding the trail of blood left by Barker. Detective Jeffrey Wager responded to 1402 South
Meridian. Based on information relayed from 219 South Western, detective Wager noticed
that Barker fit the description of one of the suspects. Detective Wager also learned at some
point that one of the suspects had been shot. By 1:00 a.m., Detective Wager had concluded
that there was a high probability that Barker was involved in the homicide at 219 West
Southern.
After Barker had been taken to the hospital, Sergeant Michael Duke, who did not
know about the shooting at 219 West Southern, spoke with Barker about his wound.
4
Sergeant Duke found it odd that Barker had supposedly called a friend to take him to the
hospital instead of 911, that Barker could not really account for his activities prior to the
shooting, and, that, according to Barker’s story, he and the others were not, in fact, headed in
the direction of any nearby hospital. At approximately 3:40 a.m., Barker was transported to
the homicide office along with his clothing, which had been removed at the hospital.
Detective Wager inventoried Barker’s items and found Spaulding’s keys in the pocket of a
pair of shorts.
At 8:38 a.m., Detective Schemenaur interviewed Barker. Barker initially repeated the
story that he had been shot in a drive-by. At 9:04 a.m., Detective Schemenaur Mirandized5
Barker and began questioning regarding the homicide at 219 West Southern. Barker denied
being at 219 West Southern, but consented to a cheek swab for DNA when Detective
Schemenaur told him that blood belonging to a suspect had been found at the scene. After
Barker consented to the cheek swab, Detective Schemenaur told Barker that police had found
Spaulding’s keys in the pocket of Barker’s shorts; that his story was not consistent with those
of Lipscomb, Owens, and Brackett; and that witnesses saw Spaulding’s assailants running
away. Barker then admitted that he had been at 219 West Southern during the robbery but
that Lipscomb had shot Spaulding. Barker’s DNA was eventually found in samples
recovered from the living room wall and porch of Spaulding’s house, the road next to
Spaulding’s house, and the gray shirt found inside.
5
Miranda v. Arizona, 384 U.S. 436 (1966).
5
On July 26, 2010, the State charged Barker with murder, felony murder, Class A
felony robbery, and two counts of Class A misdemeanor carrying a handgun without a
license.6 On August 9, 2010, the State added a charge of Class A felony conspiracy to
commit robbery. On September 28, 2010, Barker moved to suppress evidence related to his
clothing that had been taken from him at the hospital as well as all testimony related to the
allegedly illegal search. On November 12, 2010, the trial court denied Barker’s suppression
motion. On November 29, 2011, a jury found Barker guilty as charged.
On December 14, 2011, the trial court sentenced Barker to sixty-five years of
incarceration for murder, twenty years for robbery, one year of carrying a handgun without a
license, and eight years for conspiracy to committed robbery, all sentences to be served
concurrently, and imposed no sentence for felony murder. The trial court found Barker’s
juvenile record and the circumstances of the crime to be aggravating circumstances.
DISCUSSION AND DECISION
I. Whether the Trial Court Abused its Discretion in Admitting Certain Evidence
Barker contends that the trial court abused its discretion in admitting any evidence
resulting from the seizure of Spaulding’s keys from his shorts pocket. The admissibility of
evidence is within the sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60
(Ind. Ct. App. 2002), trans denied. We will reverse a trial court’s decision on the
admissibility of evidence only upon a showing of an abuse of that discretion. Id. An abuse
of discretion may occur if the trial court’s decision is clearly against the logic and effect of
6
At some point, one of the carrying a handgun without a license charges was apparently dropped.
6
the facts and circumstances before the court, or if the court has misinterpreted the law. Id.The Court of Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis
in the record, even though it was not the reason enunciated by the trial court. Moore v. State,
839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do not reweigh the evidence,
and consider the evidence most favorable to the trial court’s ruling. Hirsey v. State, 852
N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied.
We need not address the merits of Barker’s arguments, however, if we conclude that
even an erroneous admission of the evidence in question could only be considered harmless.
“[A]n evaluation for harmless error involves considering the likelihood that the questioned
evidence may have contributed to the conviction.” Davis v. State, 598 N.E.2d 1041, 1048
(Ind. 1992). “Erroneously admitted evidence may be found to be harmless where a
determination of guilt is supported by overwhelming independent evidence.” Id.Even if we assume that the keys were unconstitutionally seized, we conclude that
admission of evidence regarding them and resulting from them was harmless. The keys
represented evidence that placed Barker at the scene of Spaulding’s homicide, but this
evidence was far from the only evidence against Barker and far from the most compelling.
Most damning, of course, were the DNA samples found at the scene, which not only placed
Barker at the scene but placed him at the scene at the time of the shooting and established
that he was the assailant who was wounded during the incident. As previously mentioned,
Barker’s DNA was found in a blood sample taken from a wall and a shirt inside Spaulding’s
house, in a blood sample taken from the porch, and in the blood trail leading away from the
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house. The keys merely established that Barker had been in Spaulding’s house at some point,
but the DNA established that Barker had been shot while there and was therefore one of the
persons who had robbed and killed him. Barker agreed to allow a cheek swab to be taken
before being told that Spaulding’s keys had been found in his clothing, which sample
ultimately led to matching his DNA to that found at the scene.
The DNA evidence is hardly the only other evidence tying Barker to Spaulding’s
murder. Owens testified for the State and detailed how Barker and Lipscomb were taken to
Spaulding’s neighborhood with the purpose of robbing him, were dropped off, went into his
home, and ran back shortly after the sound of two gunshots, with Barker shot in the left arm.
Owens also testified that the quartet decided to fabricate the story about the drive-by shooting
at a Burger King. Barker’s appearance and dress the night of the shooting generally jibe with
the eyewitness accounts of three persons who saw Spaulding’s assailants flee after the
shooting. As the result of a 911 call made minutes after Spaulding’s murder, Barker was
found a mile to a mile-and-a-half away from Spaulding’s house suffering from a gunshot
wound when there was ample evidence that one of Spaulding’s attackers had been shot. The
stories told to police by Barker and his cohorts were not consistent, and portions of them,
despite being generally consistent, were inherently suspect, including how Barker allegedly
called Brackett and Lipscomb to take him to the hospital instead of the authorities and that
their alleged direction of travel before arriving at 1402 South Meridian was not in the
direction of any nearby hospital.
Finally, Barker incriminated himself in the statement taken on the morning of July 21,
8
2010. Barker contends that this statement resulted from Detective Schemenaur telling him
about the keys, but we consider this highly unlikely. Put another way, even if the seizure of
the keys was unconstitutional, Barker’s confession was not the “fruit of the poisonous tree.”
The “fruit of the poisonous tree” doctrine is one facet of the exclusionary rule
of evidence which bars the admissibility in a criminal proceeding of evidence
obtained in the course of unlawful searches and seizures. When applied, the
doctrine operates to bar not only evidence directly obtained, but also evidence
derivatively gained as a result of information learned or leads obtained during
an unlawful search or seizure. To invoke the doctrine, a defendant must show
that challenged evidence was obtained by the State in violation of the
defendant's Fourth Amendment rights. Stated differently, the defendant must
show that the search or seizure was illegal in the first instance. Where there is
no illegal search or seizure, there can be no “fruit of the poisonous tree.”
However, the “fruit of the poisonous tree” doctrine has no application
when the derivative evidence has an “independent source[.]”
Hanna v. State, 726 N.E.2d 384, 389 (Ind. Ct. App. 2000) (citations omitted).
For much the same reasons that we have concluded that the admission of evidence
relating to Spaulding’s keys, even if erroneous, was harmless, we conclude that Barker’s
confession was derived from other evidence. As previously mentioned, Barker agreed to
submit to a cheek swab before even learning about the keys found in his pocket, and must
have believed that DNA testing would establish that he was the suspect who was shot at
Spaulding’s house. Detective Schemenaur also told Barker that he had already spoken to
Lipscomb, Owens, and Brackett and that their stories did not match Barker’s and that
witnesses had seen Spaulding’s assailants running away from his house. We conclude that
Barker’s confession was not the result of being told that Spaulding’s keys were found in his
pocket. Because of the overwhelming evidence of Barker’s guilt, any error the trial court
9
may have made in admitting evidence regarding Spaulding’s keys can only be considered
harmless.
II. Whether Barker’s Sentence is Inappropriate
We “may revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate
review of sentences must give due consideration to the trial court’s sentence because of the
special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an
authorization to revise sentences when certain broad conditions are satisfied.” Shouse v.
State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks
omitted). “[W]hether we regard a sentence as appropriate at the end of the day turns on our
sense of the culpability of the defendant, the severity of the crime, the damage done to others,
and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d
1219, 1224 (Ind. 2008). In addition to the “due consideration” we are required to give to the
trial court’s sentencing decision, “we understand and recognize the unique perspective a trial
court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct.
App. 2007). As previously mentioned, the trial court sentenced Barker to an aggregate sixty-
five years of incarceration.
The nature of Barker’s offenses is that they were premeditated and involved being
prepared to use deadly force during their commission. Barker secured the firearms used in
the robbery and both his and Lipscomb’s handguns were loaded. One should not invade
10
another’s home armed with a firearm and be surprised when violence is the result. Moreover,
photographs of Spaulding’s house show toys and other items in plain view that indicate the
presence of a child in the house. Finally, it should be noted that Barker and his cohorts had
plenty of opportunities to rethink their plan, but did not. The robbery had been planned
approximately two weeks beforehand, and the quartet even called off the robbery earlier in
the evening on July 20, 2010, only to return later and try again. The nature of Barker’s
offenses warrants a lengthy sentence.
Barker’s character also justifies a harsh sentence. Although Barker, who was eighteen
years old in July of 2010, had no prior adult criminal history, his juvenile record is extensive,
to say the least. As a juvenile, Barker was charged with a total of twenty-nine counts of
delinquency, resulting in six true findings, including three that would have been felonies if
committed by an adult–auto theft, theft, and escape. Barker’s numerous contacts with the
juvenile justice system did not cause him to reform himself. In a short time, Barker
graduated from relatively minor property crimes to a robbery resulting in a man’s death.
Barker’s complete lack of any remorse over Spaulding’s death also speaks ill of his character.
In a telephone call to family from jail, Barker’s attempt to explain how he was not the shooter
consisted, in part, of the following statement: “I didn’t do that s*** … like I said, if I’d shot
f****** dude I’d have shot him right between his f****** eyes and got away.” State’s Ex.
126. Barker’s character also fully justifies a harsh sentence. Barker has failed to establish
that his sixty-five-year aggregate sentence was inappropriate.
We affirm the judgment of the trial court.
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ROBB, C.J., and BAKER, J., concur.
12