ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
JANICE L. STEVENS STEVE CARTER
Marion County Public Defender Agency Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General of Indiana
Office of the Attorney General
JERRY JONES, ) ) Appellant (Defendant Below ), ) Supreme Court Cause No. ) 49S00-0106-CR-00317v. )
As for the pawn shop, Ron Conner (Conner) owned and operated the
Lawrence Gold and Coin Shop at 8160 Pendleton Pike in Lawrence, Marion County.
On the morning of August 13, 1997, a worker in an adjacent
shop looked through the window in the side of the building, noticed the
owners leg lying behind the counter, and immediately called for assistance. Police
took fingerprints at the shop and also collected a spent cartridge casing and
a .32 caliber cartridge.
Detective Don Deputy of the Lawrence police conducted the initial homicide investigation.
Conners son informed the police that there were several valuables missing from the
display case, including a Masonic ring and a ladies cluster ring. He
also said that fold-over tags were attached to a substantial amount of the
On September 4, 1997, the Lawrence police sought a warrant to search Gregs
apartment for three suspects and items related to the bank robbery. A
Madison county judge issued the warrant for Gregs apartment, at 3663 Governours Court,
Apt. A in the Wingate Village apartment complex. The police watched the
Governours Court address periodically while the initial search warrant was obtained.
Shortly after the police obtained the warrant, the Emergency Response Team entered Gregs apartment to look for the suspects, but the house was empty. The Emergency Response Team discovered a weapon under the bed and placed it on the bed.
Thereafter, the police entered the apartment to search for additional weapons and other items connected with the bank robbery. While searching, they discovered additional guns and ammunition. One officer noticed several rings in a display case with white tags attached to them. The rings were later connected to the robbery and murder of Conner, the pawn shop owner. An officer conducting the bank robbery investigation informed the Lawrence police about the tray of rings they saw during the initial search. This officer knew that the Lawrence police were investigating a pawn shop crime.
Subsequently, the Lawrence police obtained a second warrant for the Governours Court residence
to search for weapons and evidence connected to the pawn shop offense.
An officer familiar with several of the missing rings identified some of the
items in Gregs apartment. A casing collected at the pawn shop contained
similar characteristics as those fired from the handgun found in the apartment.
The police obtained yet a third warrant seizing additional contraband related to the
pawn shop robbery and murder, and they seized the jewelry, a .32 caliber
Lorcin gun, various papers, and other items.
On September 8, after Jones denied that he had ever been in the store, Detective Don Deputy informed Jones that his prints were identified in the Lawrence Gold and Coin Shop. Police found Jones fingerprints on a ring tray in the rear of the shop, and his palm print on a display case.
Jones waived trial by jury and in due course the trial court concluded beyond a reasonable doubt that Jones was a major participant in the robbery and murder of Conner at the Lawrence Gold and Coin. Furthermore, the court found that Jones intentionally killed Conner and sentenced Jones to life without parole.
Jones argues that the first warrant was invalid because the police officer failed
to inform the issuing judge that the Governours Court apartment was under surveillance.
A warrant is not invalid simply because it contains slightly
inaccurate material that is immaterial to the warrants validity.
Franks v. Delaware, 438 U.S. 154, 171-72 (1978), the U.S. Supreme Court
held that a warrant is invalid where the defendant can show by a
preponderance of the evidence that the affidavits used to obtain the warrant contain
perjury by the affiant, or a reckless disregard for the truth by him,
and the rest of the affidavit does not contain materials sufficient to constitute
probable cause. See Id. at 171-72. Furthermore, fruits of the search
will be excluded just as if the affidavit did not contain allegations sufficient
to constitute probable cause. Id., at 155.
In this case, however, the officer who obtained the initial search warrant hardly
committed perjury to obtain the warrant, nor did he display a reckless disregard
by failing to inform the judge of the surveillance during the probable cause
hearing. As we observed in
Taylor v. State, 659 N.E.2d 535, 539
(Ind. 1995), probable cause requires only that the information available to the officer
would lead a person of reasonable caution to believe the items could be
useful as evidence of a crime. Based on the descriptions of the
suspects and the identification discovered in the car, probable cause existed to issue
a search warrant for the Governours Court address.
Jones also argues that there is no substantial basis to support a finding of probable cause because the first warrant obtained applied only to the seizure of the three persons, and any items discovered as a result of the search are invalid as fruits of the unlawful search. We disagree.
It is true that the warrant specifically directs the police to search and seize the three suspects whom police believed were at the Governours Court address, but the warrant also grants a search of the entire premises. Furthermore, the warrant indicates that probable cause exists to believe that the items seized were located at the Governours Court address. These include the goods, chattels, items or any part described and found as a result of the law enforcement agency whose officer executes the search warrant (Appellants Exhibit C.) Thus, to search and seize any person or item that the police believed was connected with the bank robbery did not exceed the scope of the initial warrant or invalidate it.
Plain View Doctrine and Subsequent Warrants. Jones petitioned the court to
suppress the jewelry, asserting that a warrantless search and seizure occurred when the police moved trays of jewelry and placed them on the bed, and arguing that the plain view doctrine did not apply.
Police may seize evidence not identified in a warrant under the plain view
doctrine. The plain view doctrine allows a police officer to seize items
when he inadvertently discovers items of readily apparent criminality while rightfully occupying a
Garrett v. State, 466 N.E.2d 8 (Ind. 1984.) See Coolidge
v. New Hampshire, 403 U.S. 443 (1971). First, the initial intrusion must
have been authorized under the Fourth Amendment. Daniels v. State, 683 N.E.2d
557, 558 (Ind. 1997.) Second, the items must be in plain view.
Id. Finally, the incriminating nature of the evidence must be immediately
In Arizona v. Hicks, 480 U.S. 321, 324-25 (1987), the Supreme Court ruled the police conducted a warrantless search when they moved a stereo to collect the serial numbers that were on the backside of the equipment. The present case differs from Hicks because the police did not move the jewelry to collect additional information. The fold-over tags on the jewelry in the display case were visible without any movement. The police did not acquire any additional information or benefit that they could not see before they moved the jewelry tray.
Moreover, the police obtained a subsequent search warrant. Had the police
relied solely on the first warrant to seize the jewelry, perhaps the outcome
would be different. Nevertheless, the jewelry was in plain view during the
initial search. The police obtained a second warrant, which included additional facts
to justify probable cause to seize the jewelry. We think this sequence
of events is consistent with the plain view doctrine.
Jones further argues that the gun was not included in the search warrant.
Seizure of the .32 caliber handgun is integrated into the other evidence
of the crime segment of the search warrant. Conner was shot during
the robbery at close range. It is reasonable to infer that a
gun would likely be seized as a natural extension of other evidence of
the crime for a homicide and robbery.
The trial court properly admitted the evidence.
The Sixth Amendment to the U.S. Constitution and Article 1, section 13
of the Indiana Constitution guarantee a criminal defendant the right to appointed counsel.
Faretta v. California, 422 U.S. 806, 835 (1975); Callahan v. State, 719 N.E.2d
430, 439 (Ind. Ct. App. 1999). Accordingly, when a criminal defendant waives
his right to counsel and elects to proceed pro se, we must decide
whether the trial court properly determined that the defendants waiver was knowing, intelligent,
and voluntary. Greer v. State, 690 N.E.2d 1214, 1216 (Ind. Ct. App.
1998), trans. denied.
Waiver of assistance of counsel may be established
based upon the particular facts and circumstances surrounding the case, including the background,
experience, and conduct of the accused. Jackson v. State, 441 N.E.2d 29,
32 (Ind. Ct. App. 1982.)
Dowell v. State, 557 N.E.2d. 1063 (Ind. Ct. App. 1990), the Court
of Appeals suggested several guidelines for a court to advise the defendant when
he considers self-representation. The guidelines include:
(1) The defendant should know the nature of the charges against him, the possibility that there may be lesser included offenses, and the possibility of the defenses and mitigating circumstances; (2) the defendant should be aware that self representation is almost always unwise, that he may conduct a defense which is to his own detriment, that he will receive no special treatment from the court and will have to abide by the same standards as an attorney, and that the State will be represented by experienced legal counsel; (3) the defendant should be instructed that an attorney has skills and expertise in preparing for and presenting a proper defense; and (4) the trial court should inquire into the defendants educational background, familiarity with legal procedures and rules of evidence and mental capacity.
Id., 557 N.E.2d at 1066-67.
Although this Court has endorsed these guidelines, we held in Leonard v. State,
579 N.E.2d 1294, 1296 (Ind. 1991) that the guidelines do not constitute a
rigid mandate setting forth specific inquiries that a trial court is required to
make before determining whether a defendants waiver of right to counsel is knowing,
intelligent, and voluntary. Accordingly, we noted it is sufficient for the lower court
to acquaint the defendant with the advantages to attorney representation and the drawbacks
of self-representation. Id.
In Faretta, the U.S. Supreme Court mandated that a record of waiver be established and also advised that the pro se defendant should be told about the dangers and disadvantages of self-representation. Dowell, 557 N.E.2d 1066. We recently re-emphasized the importance of such warnings. See Poynter v. State, 749 N.E.2d 1122, 1129 (Ind. 2001) (new trial ordered where judge did not advise defendant about dangers of self-representation).
The record here demonstrates that the trial court questioned Jones and his counsel several times to establish whether Jones knowingly, willingly, and voluntarily exercised his right to self-representation. ( See Appendix 458, 514; T.R. 59-63).
The court explicitly informed Jones regarding the potential danger of pro se litigation. See footnote The judge reminded Jones that he was not trained in the law and that his attorneys were. (T.R. at 59.) It cautioned him that he would be held to the same standard as a lawyer as far as the rules of evidence and arguments go. Im not going to cut you any slack in this regard. (T.R. at 60.) It warned him that if he were convicted he would not be able to claim ineffective assistance on appeal. (T.R. at 62.)
The court asked Jones more than three times whether he wanted to represent himself and Jones said he did. Jones acknowledged that he realized he would be held to the same standard as an attorney. The court attempted to discourage Jones from self-representation: I advise you [Jones] I dont think its a good idea . If I was charged with this, I wouldnt want to represent myself. (T.R. at 60.) Finally, the appointed attorneys for Jones indicated that each had discussed the matter with Jones, and both of them told the court they believed Jones understood what his decision involved. (T.R. at 62-63.) See footnote
The courts inquiry and the responses were adequate to establish that Jones exercised his right to represent himself pro se knowingly, willingly, and voluntarily.
When reviewing the claim of sufficiency of the evidence, we do not reweigh
the evidence or judge the credibility of the witnesses.
Jordan v. State,
656 N.E.2d 816 (Ind. 1995), rehg denied. We look only to the
probative evidence supporting the verdict and the reasonable inferences therein to determine whether
a reasonable trier of fact could conclude the defendant was guilty beyond a
reasonable doubt. Fields v. State, 679 N.E.2d 898 (Ind. 1997).
If there is substantial evidence of probative value to support the conviction, it
will not be set aside. Id.
Moreover, it is well settled that a conviction for murder may be sustained on circumstantial evidence. Green v. State, 587 N.E.2d 1314 (Ind. 1992). If a reasonable inference can be drawn from the circumstantial evidence, the verdict will not be disturbed. Id. Furthermore, intent to kill may be inferred where evidence establishes that the mortal wound was inflicted upon the victim by a deadly weapon in the hands of the defendant. Landress v. State, 600 N.E.2d 938 (Ind. 1992).
The circumstantial evidence directs us towards Jones. Police found the murder weapon,
.32 caliber Lorcin, under a pile of clothing in the room in the
apartment where Jones kept his belongings. (T.R. at 289-90.) It was the gun
that fired the fatal bullet. (T.R. 514-17.) Jones fingerprints were located
in the store on the ring tray that was in the rear of
the store, where presumably few customers had access. A display case at
the pawn shop contained Jones palm print, yet Jones denies ever entering the
Jones complains that the court found an intentional killing based on its conclusion
that the victim was shot from behind while bending over, execution-style, the court
said. Actually, the bullet entered the victims neck from the side and
traveled slightly upward, never entering the skull.
Thus, says Jones, the courts finding of intentionality rests on an inference that
is solely based on another inference, contrary to our decision in the capital
Landress. 600 N.E.2d at 942.
This puts too fine a point on the matter. While the trial
courts description of the killing may not have fit precisely with the stipulated
coroners report, the agreed fact that Conner was shot behind and below the
ear at intermediate range was sufficient to support the courts finding of intentional
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.