Attorneys for Appellee
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
November 16, 2001
Detective Mitchell was assigned the case and interviewed Wendell Hart in the Morgan
County Jail. Hart told Detective Mitchell about a conversation Hart had with
a man about Earl Perry; Hart later identified this man as Charles Gray.
Detective Mitchell found Charles Gray in March of 1998 in the Marion
County Jail. At that interview, Detective Mitchell took a sample of Grays
handwriting and turned it into the Marion County Crime Lab for testing.
Detective Mitchell later received notice that there were similar characteristics found in Grays
handwriting and the handwriting of the post-it note from the crime scene.
The crime lab requested more samples, and Detective Mitchell obtained a limited warrant
in order to do this. The second set of handwriting samples confirmed
that Charles Gray was the author of the post-it note.
Defendant was convicted of murder
He was sentenced to serve
sixty-five years for the murder, and eight years for the robbery. The
sentences were ordered to be served consecutively, for a total of seventy-three (73)
years. Defendant appeals his conviction and sentence.
Based on this information, the magistrate granted the warrant to obtain the samples.
Detective Mitchell gathered the second set of handwriting samples from Defendant, which
later proved to be conclusive evidence that Defendant was the person who authored
the post-it note at the crime scene. The trial court upheld the
validity of the probable cause affidavit and denied Defendants Motion to Suppress the
To be valid, a warrant and its underlying affidavit must comply with the
Fourth Amendment prohibition on unreasonable searches and seizures, as well as Indiana constit
and statutory law.
In order to comply with these restrictions, the magistrates
task is simply to make a practical, commonsense decision whether, given all the
circumstances set forth before him
there is a fair probability that contraband
or evidence of a crime will be found in a particular place.
Illinois v. Gates, 462 U.S. 213, 238 (1983).
As the reviewing court, our duty under the Fourth Amendment is to determine
whether the magistrate issuing the warrant had a substantial basis for concluding that
bable cause existed. Gates, 462 U.S. at 238-39. While significant deference
is due to the magistrates determination, our search for substantial basis must focus
on whether reasonable inferences drawn from the totality of the evidence support the
determination. Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997).
Defendant argues that the affidavit was defective in two ways. First, he
says the aff
idavit was supported by uncorroborated hearsay from an unreliable source.
Second, he says Detective Mitchell omitted key facts, thereby misleading the magistrate issuing
the warrant. (Appellants Br. at 16-17.) As a result, Defendant argues,
the handwriting samples were obtained in violation of his Fourth Amendment and Indiana
statutory rights and should have been excluded from evidence.
We conclude that when deciding to issue the warrant, the magistrate had facts
from which it could reasonably infer that there was probable cause to believe
Charles Gray had authored the post-it note at the crime scene. The
affidavit contained the manner in which Detective Mitchell discovered how Charles Gray was
connected to Mr. Perry. After finding out this connection, Detective Mitchell took
a handwriting sample from Gray. Based on the similar characteristics of the
first sample, Detective Mitchell sought the warrant in issue to obtain a second
set. All other facts in the affidavit merely provide context for the
situation. The totality of the evidence presented in the affidavit clearly supports
the magistrates dete
rmination that there was substantial basis for probable cause. See
Gates, 462 U.S. at 238-39; Houser, 678 N.E.2d at 99.
As to Defendants two specific claims, we conclude that the affidavit was not
pported by hearsay, as Defendant contends. Wendell Harts hearsay statements to Detective
Mitchell initially led Detective Mitchell to Charles Gray. However, it was the
similar characteristics between the first set taken from Gray and the crime scene
post-it note that supported Detective Mitchells probable cause affidavit.
Likewise, the affidavit was not defective because Detective Mitchell omitted a key fact,
to wit, that Hart could not identify Charles Gray by name. Hart
picked Gray out of a photo array of those who had been in
Harts cell block at the time of the conversation. This omission, intentional
or unintentional, did not mislead the magistrate. The manner in which Charles
Gray became connected to the case was not important to the affidavit.
As such, Detective Mitchells conversation with Hart was mere context for the magistrate.
The similar characteristics found between the first handwriting sample and the crime
scene post-it note provided the substantial basis needed by the magistrate.
Polygraph examinations are generally not admissible as evidence in Indiana.
State, 541 N.E.2d 913, 915 (Ind. 1989). This is because of
the inherent unreliability of polygraph examinations. See Hubbard v. State, 742 N.E.2d
919, 923-24 (Ind. 2001). Earlier this year in Hubbard we gave extended
treatment to a defendants claim that our rule against the use of polygraph
evidence conflicted with his constitutional right to present a defense. We reaffirm
that analysis and again conclude that the defendants limited interest in putting on
unreliable evidence does not outweigh the States interest in ensuring that [only reliable
evidence is introduced at trial]. Id. at 924; see also United States
v. Scheffer, 523 U.S. 303 (1998) (holding that a per se rule excluding
all polygraph evidence did not abridge the defendants right to present a defense
under the United States Constitution).
The polygraph examination of Robert Smith constituted unreliable evidence. In ba
interests of a fair trial with the constitutional interests of Defendant, the trial
court did not err in excluding the polygraph evidence. See Hubbard, 742
N.E.2d at 923; Scheffer, 523 U.S. at 309.
In general, the legislature has prescribed standard sentences for each crime, allowing the
sentencing court limited discretion to enhance sentence to reflect aggravating circu
mstances or reduce
it to reflect mitigating circumstances. The legislature also permits sentences to be
imposed consecutively if aggravating circumstances warrant. Morgan v. State, 675 N.E.2d 1067,
1073 (Ind. 1996) (citing Reaves v. State, 586 N.E.2d 847 (Ind. 1992)).
See Ind. Code §35-38-1-7.1(b) (a court may consider aggravating circumstances in determining whether
to impose consecutive sentences).
When the trial court imposes a sentence other than the presumptive sentence, or
mposes consecutive sentences where not required to do so by statute, this Court
will examine the record to insure that the court explained its reasons for
selecting the sentence it imposed. Archer v. State, 689 N.E.2d 678, 683
(Ind. 1997) (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)).
The trial courts statement of reasons must include the following components: (1)
identification of all significant aggravating and mitigating circumstances; (2) the specific facts and
reasons that lead the court to find the existence of each such circumstance;
and (3) an articulation demonstrating that the mitigating and aggravating circumstances have been
evaluated and balanced in determining the sentence. Mitchem v. State, 685 N.E.2d
671, 678 (Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind.
At the sentencing hearing, the trial court identified five aggravating circumstances: (1)
Defendant had a history of criminal activity that went as far back as
1980; (2) Defendant was on probation when he committed the murder and robbery
of the victim; (3) Defendant was in need of correctional rehabilitative treatment best
provided by commitment to a penal facility due to the fact that all
other attempts at rehabilitation had failed; (4) the victim of the crime was
93 years old, and physically infirm; (5) the nature of the crime was
particularly heinous in that Defendant beat the victim with the victims own cane
where no force would have been necessary to rob the victim.
The trial court also identified one mitigating circumstance, that is, the Defendants drug
addiction. The court then weighed the aggravating and the mitigating circumstances, and
found that the aggravating circumstances outweighed the mitigating. The trial court se
Defendant to sixty-five (65) years for the murder, and eight years for the
robbery, to be served consecutively for a total of seventy-three (73) years.
Defendant contends that the trial court failed to identify any aggravating circu
it imposed the sentences consecutively, other than the violent nature of the offense.
(Appellants Br. at 19-20.) While this appears to be the case,
it does not entitle Defendant to relief. We have held that the
violent nature of a crime is a sufficient aggravating circumstance to justify consecutive
sentences. See Sanquenetti v. State, 727 N.E.2d 437, 443 (Ind. 2000).
And even if we were to find it insufficient here, we likely would
find, in the exercise of our constitutional authority to review and revise sentences,
that the aggravating circumstances articulated by the trial court to support enhancing the
murder counts sentence support consecutive sentences as well. See Mitchem, 685 N.E.2d
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.