MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          FILED
court except for the purpose of establishing                         Apr 19 2017, 10:22 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Agency                                                   Ellen H. Meilaender
Indianapolis, Indiana
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Aaron Smith,                                             April 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1611-CR-2465
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff.                                      Rothenberg
                                                         Trial Court Cause No.
                                                         49G02-1409-MR-42716



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017         Page 1 of 11
                                          Case Summary
[1]   Aaron Smith (“Smith”) appeals his conviction of Felony Murder.1 We affirm.



                                                    Issues
[2]   Smith presents two issues for review:

                 I.       Whether the trial court erroneously admitted evidence
                          obtained pursuant to a search warrant unsupported by
                          probable cause; and


                 II.      Whether the trial court erred by admitting into evidence
                          two text messages as statements of an unknown co-
                          conspirator.


                                   Facts and Procedural History
[3]   At 7:56 p.m. on June 6, 2014, Indianapolis Metropolitan Police Officers were

      dispatched to Meadows Parkway and Adams Street in response to a 9-1-1 call.

      The officers found Louis Myers, Jr. (“Myers”) seated in his vehicle. Myers had

      died from multiple gunshot wounds. The officers observed a trail of blood

      leading from the passenger side door into a grassy area.


[4]   At 7:58 p.m., Smith arrived at Methodist Hospital in Indianapolis. He had

      sustained a gunshot wound to his left forearm. Police officers attempted to




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017   Page 2 of 11
      investigate the circumstances surrounding the gunshot injury. Smith identified

      himself as Kevin Bradley. He claimed that he had been walking in an alley

      near Michigan and Parker streets when a vehicle approached and the driver

      displayed a weapon. Smith reported that he had been shot when he grabbed the

      weapon.


[5]   Police officers were unable to confirm that the injured person was Kevin

      Bradley, and they asked Smith additional questions. However, Smith was

      unable or unwilling to provide his correct name, date of birth, or current

      address. He refused to identify his mother but claimed that he had a sister

      whose name he could not remember. Eventually, officers identified Smith by

      his fingerprints.


[6]   Additional police officers were dispatched to the purported crime scene at

      Michigan and Parker streets. There, the officers found no evidence of a

      shooting. Also, there had been no recent report of shots fired in the area.

      Police officers obtained a search warrant and seized Smith’s clothing, blood-

      stained money, and his cell phone. Subsequent DNA testing led the examiner

      to conclude that the blood stains on the currency were a mixture of blood from

      Smith and Myers. Smith’s blood was found in Myers’ vehicle.


[7]   Smith was charged with Murder, Felony Murder, and Unlawful Possession of a

      Handgun by a Serious Violent Felon.2 On September 13, 2016, a jury acquitted



      2
          I.C. § 35-47-4-5.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017   Page 3 of 11
      Smith of Murder and convicted him of Felony Murder. The handgun

      possession charge was dismissed. Smith was sentenced to sixty years

      imprisonment. He now appeals.



                                 Discussion and Decision
                                           Search Warrant
[8]   Smith argues that the trial court erroneously admitted evidence seized during

      his hospitalization because it was obtained pursuant to a search warrant

      unsupported by probable cause. Particularly, Smith claims that the State failed

      to identify a nexus between Smith’s admission to the hospital with a gunshot

      wound and Myers’ shooting.


[9]   Both the Fourth Amendment to the United States Constitution and Article I,

      Section 11 of the Indiana Constitution require probable cause to support the

      issuance of a search warrant. Bradley v. State, 4 N.E.3d 831, 840 (Ind. Ct. App.

      2014), trans. denied. The Fourth Amendment to the United States Constitution

      provides:

              The right of the people to be secure in their persons, houses,
              papers, and effects, against unreasonable searches and seizures,
              shall not be violated, and no Warrants shall issue, but upon
              probable cause, supported by Oath or affirmation, and
              particularly describing the place to be searched, and the persons
              or things to be seized.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017   Page 4 of 11
       The text of Article 1, Section 11 of the Indiana Constitution contains nearly

       identical language. State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006). These

       constitutional principles are codified in Indiana Code section 35-33-5-2, which

       details the information to be contained in an affidavit for a search warrant. 3 Id.


[10]   “Probable cause is a fluid concept incapable of precise definition and must be

       decided based on the facts of each case.” Bradley, 4 N.E.3d at 840. “The level

       of proof necessary to establish probable cause is less than that necessary to

       establish guilt beyond a reasonable doubt.” Jellison v. State, 656 N.E.2d 532,

       534 (Ind. Ct. App. 1995). Probable cause requires only a fair probability of

       criminal activity, not a prima facie showing. Id.


[11]   “The task of the issuing magistrate is simply to make a practical, common-sense

       decision whether, given all the circumstances set forth in the affidavit … 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). The duty of the

       reviewing court is to determine whether the magistrate had a “substantial basis”

       for concluding that probable cause existed. Id. at 238-39.




       3
         Pursuant to Indiana Code Section 35-33-5-2, the affidavit is to particularly describe the house or place to be
       searched and the things to be searched for; or the person to be arrested. The affiant is required to allege
       substantially the offense in relation thereto and that the affiant believes and has good cause to believe that the
       things sought are concealed there or the person to be arrested committed the offense. The affidavit is to set
       forth the facts known to the affiant through personal knowledge or based on hearsay. When based upon
       hearsay, the affidavit must establish the credibility of the source or contain information establishing
       corroboration.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017                Page 5 of 11
[12]   A substantial basis requires the reviewing court, while giving significant

       deference to the magistrate’s determination, to focus upon whether reasonable

       inferences drawn from the totality of the evidence support the determination of

       probable cause. Spillers, 847 N.E.2d at 953. This includes both the trial court

       ruling on a motion to suppress and an appellate court reviewing that decision.

       Id. Our review is de novo, while affording the requisite deference. Id.


[13]   Here, the warrant was issued upon the affidavit of Detective Erika Jones, who

       averred:

               On Friday June 6th, 2014 at approximately 7:56 pm, Officers of
               the Indianapolis Metropolitan Police Department were
               dispatched to 4004 Meadows Dr. on the report of a person shot.


               Upon arrival Officers observed a deceased black male sitting in
               the passenger [sic] seat of a purple Honda Accord, suffering from
               apparent gunshot wounds. Medics were on scene and
               pronounced the male deceased at 7:59 pm.


               I observed a trail of blood leading from the passenger side of the
               vehicle to an open field to the west. I attempted to follow the
               trail of blood; however it was lost in high grass in the field.


               At 7:58 pm, Officers were dispatched to Methodist Hospital,
               1701 Senate Blvd, on the report of a delayed person shot. Upon
               arrival, Det. Jean Burkert spoke with the victim, who identified
               himself as Kevin Bradley. Det. Burkert was unable to confirm
               the name of Kevin Bradley and the information he provided.
               The subject advised Det. Burkert that he was shot at E. Michigan
               St/N. Parker Ave., however Officers did not locate a crime scene
               and there were no shots fired runs in the area. The subject


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017   Page 6 of 11
               refused to provide any further information to Det. Burkert to
               confirm his identity.


               I am requesting a search warrant to recover the clothing that the
               unidentified male was wearing when he arrived at Methodist
               Hospital and his cell phone. His clothing is described as blue
               jeans, blue t-shirt, black socks and gray/black/green tennis shoes.
               His cell phone is a black Samsung flip phone.


       (Ex. Vol. II, pg. 193.)


[14]   At the motion to suppress hearing, Smith argued that there was no nexus

       between the shooting of Myers and the shooting of Smith. The State pointed to

       the timing of the events and Smith’s efforts to conceal his identity. The trial

       court denied the motion to suppress, reasoning that the facts indicated either

       that Smith had been a shooting victim, which would necessitate gathering of

       evidence, or Smith had been criminally involved in Myers’ shooting, which

       would likewise necessitate the gathering of evidence.


[15]   In conducting our de novo review of the affidavit upon which the warrant was

       issued, we observe that mere minutes elapsed between the police dispatch to the

       murder scene and Smith’s arrival at the hospital with a gunshot wound.

       Detective Jones averred that she had personally observed the murder scene and

       there was a trail of blood leading away from the vehicle. Thus, there was a

       strong indication that another individual had been wounded during the events

       under investigation. At the hospital, the wounded man provided false

       information as to his identity but claimed that he had been a shooting victim.

       Given all the circumstances set forth in the affidavit, there was “a fair
       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017   Page 7 of 11
       probability that contraband or evidence of a crime [would] be found” in Smith’s

       personal effects. Gates, 462 U.S. at 238. This is true whether Smith was a

       perpetrator or a victim. The warrant was supported by probable cause.


                                              Text Messages
[16]   A forensic search of Smith’s cell phone history, conducted pursuant to a second

       warrant, revealed two text messages sent to Smith from an individual identified

       only as “Lil Black.” (Tr. at 170.) The messages, sent shortly before Myers was

       killed, state:

               Bitch, I just called da lick.


               Bitch, u just had me call this lick for no reason.


       (Tr. 173-74.) Smith objected to the messages as inadmissible hearsay; the State

       argued that the messages were admissible as statements of a co-conspirator.

       The trial court agreed with the State that the texts were not hearsay and

       admitted the texts into evidence. Smith contends that the trial court committed

       reversible error.


[17]   Hearsay is an out-of-court statement offered to prove the truth of the matter

       asserted. Ind. Evidence Rule 801(c). A co-conspirator’s statement is not

       hearsay, if the statement “was made by the party’s co-conspirator during and in

       furtherance of the conspiracy.” Evid. Rule 801(d)(2)(E). “The statement does

       not by itself establish … the existence of the conspiracy[.]” Id.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017   Page 8 of 11
[18]   Before a statement is admissible as non-hearsay under Rule 801, “we also

       require that the State prove that there is ‘independent evidence’ of the

       conspiracy.” Lander v. State, 762 N.E.2d 1208, 1213 (Ind. 2002) (quoting Lott v.

       State, 690 N.E.2d 204, 209 (Ind. 1997)). Accordingly, the State must show (1)

       the existence of a conspiracy between the declarant and the party against whom

       the statement is offered and (2) the statement was made in the course and in

       furtherance of this conspiracy. Id.


[19]   Before using the text messages from “Lil Black,” the State was required to

       establish that a conspiracy existed between him and Smith. Arguing for

       admissibility, the State directed the trial court to evidence that there were 32

       phone calls and texts exchanged between “Lil Black” and Smith on June 6,

       2014. Also, the State urged that the “timing was significant.” (Tr. at 170.)

       Records disclosed that “Lil Black” placed the last telephone call that Myers

       appears to have answered and that Smith called “Lil Black” three minutes later.


[20]   The State now argues that “the timing and sequence of the calls suggests that

       [Smith] and “Lil Black” were consulting with each other and working in concert

       to arrange something in connection to Myers.” Appellee’s Brief at 22. Although

       we agree that illegality may be “suggested,” we cannot conclude that a plethora

       of calls, without background information as to the participants’ relationship or

       any content of the communications, shows the “existence of a conspiracy”

       between the declarant “Lil Black” and Smith. See Lander, 762 N.E.2d at 1213.

       Nor does this call history, isolated from the texts, establish that a statement was

       made in the course and furtherance of a conspiracy. As such, the State failed to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017   Page 9 of 11
       meet the requirements of Rule 801(d)(2)(E).                      The texts were not properly

       admitted as non-hearsay statements of a co-conspirator.


[21]   However, a conviction will not be overturned if an erroneous ruling is harmless

       error. Ind. Trial Rule 61. Harmless error has been defined as an error that does

       not affect the substantial rights of a party. Lander, 762 N.E.2d at 1213. Here, the

       State presented evidence to the jury including: officers dispatched upon a report

       of shots fired discovered Myers’ body and a trail of blood leading away from the

       vehicle; Myers had no currency on his person although he had been engaged in

       selling movies; almost simultaneously with this discovery, Smith sought

       treatment for a gunshot wound at a nearby hospital; Smith was evasive and

       attempted to hide his true identity; Smith was in possession of blood-stained cash;

       DNA testing revealed that Smith’s blood was in Myers’ vehicle; and DNA testing

       revealed that a combination of Smith’s blood and Myers’ blood was on $20 bills

       and $10 bills obtained from Smith at the hospital. Considering the overwhelming

       evidence of Smith’s guilt, we cannot say that the jury’s consideration of the text

       messages violated Smith’s substantial rights.



                                               Conclusion
[22]   The warrant executed during Smith’s hospitalization was supported by probable

       cause. The admission of two text messages from an alleged co-conspirator to

       Smith was harmless error.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017   Page 10 of 11
[23]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2465 | April 19, 2017   Page 11 of 11
