MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Sep 28 2017, 8:41 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
La Porte, Indiana                                        Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David J. Morris,                                         September 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A04-1701-CR-167
        v.                                               Appeal from the La Porte Superior
                                                         Court
State of Indiana,                                        The Honorable Michael S.
Appellee-Plaintiff.                                      Bergerson, Judge
                                                         Trial Court Cause No.
                                                         46D01-1604-MR-2



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017        Page 1 of 13
                                             Case Summary
[1]   David Morris (“Morris”) appeals his convictions, following a jury trial, for

      count I, murder, a felony;1 count II, felony murder, a felony;2 count III,

      burglary, as a Level 4 felony;3 count IV, burglary, as Level 4 felony;4 count V,

      auto theft, as a Level 6 felony;5 count VI, auto theft, a Level 6 felony;6 and

      count VII, fraud, a Level 6 felony.7 We affirm.



                                                   Issues
[2]   Morris raises two issues on appeal:

                 I.       Whether the trial court abused its discretion when it
                          admitted into evidence Morris’ statements to police
                          following his arrest.


                 II.      Whether the trial court abused its discretion when it
                          denied his motion for a mistrial.




      1
          Ind. Code § 35-42-1-1(1) (2016).
      2
          I.C. § 35-42-1-1(2).
      3
          I.C. § 35-43-2-1(1).
      4
          Id.
      5
          I.C. § 35-43-4-2.5.
      6
          Id.
      7
          I.C. § 35-43-5-4.


      Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017   Page 2 of 13
                            Facts and Procedural History
[3]   Hufracio Arteaga (“Arteaga”) lived and worked on West 11th Street in

      Michigan City. Arteaga co-owned the Easy Drive Auto Sales car lot, which

      included the adjacent office building where Arteaga also lived. However, in

      late March of 2016, Arteaga and his business partner, Sergio Serrano

      (“Serrano”), had their license to sell cars revoked.


[4]   On April 23, 2016, Serrano discovered Arteaga’s body in the office of the

      dealership. Arteaga had been stabbed to death. Serrano called the Michigan

      City Police Department (“MCPD”), who responded to the scene. Serrano told

      the police that some tires were missing from the business, and a green Subaru

      was missing from the car lot. As the dealership was not authorized to sell any

      vehicles, the MCPD officers entered the missing Subaru as a stolen vehicle.

      Additionally, Arteaga’s wallet, credit card, and keys to the dealership office

      were missing.


[5]   On Saturday, April 23, an eye witness contacted police and informed them that

      she had seen someone climbing out of the dealership through a broken window

      on April 19, 2016. As part of the investigation, on April 23, MCPD officers

      discovered a video from a nearby business that showed parts of the car lot from

      April 19 to April 23. On April 23 and 24, MCPD officers viewed the video

      which showed a man dressed in a dark gray hat, dark jacket, gray pants, and

      dark shoes walking from the dealership office on Thursday, April 21. The

      video showed the man walk to the green Subaru in the car lot and drive away.


      Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017   Page 3 of 13
      After “several detectives” and two other “person[s] of interest” identified

      Morris as the man in the video, the officers discovered Morris was on probation

      and attempted to locate him at his last known address. Tr. Vol. II at 17. The

      officers were unable to locate Morris but decided to surveil him when he

      reported to the probation department on Monday, April 25.


[6]   On April 25, Morris arrived at the Michigan City courthouse and reported for

      probation. The MCPD officers surveilling the courthouse observed Morris was

      wearing substantially the same clothing that he had been wearing in the

      surveillance video of the car dealership. Morris loitered outside the courthouse,

      talking to someone in a van. When the van drove away, Morris began walking

      south through alleyways. The officers observed Morris as he walked, crossing

      streets and ducking down several alleys.


[7]   MCPD Detective Willie Henderson (“Det. Henderson”) was one of the officers

      assigned to the surveillance team, and at one point he thought that Morris made

      eye contact with him in one of the alleys. Worried that Morris might flee, Det.

      Henderson consulted with lead Detective Francisco Rodriguez (“Det.

      Rodriguez”) and then decided to arrest Morris for the auto theft. In the

      meantime, Morris had walked to a house on Spring Street. Det. Henderson

      observed that Morris looked nervous as he stood at the back porch talking to

      other individuals. Morris then walked to the front of the house and back again,

      looking around all the while. The officers then approached Morris, handcuffed

      him, and placed him under arrest.



      Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017   Page 4 of 13
[8]   At the police station, Morris, who was still handcuffed, spoke with MCPD

      Detective Al Bush (“Det. Bush”) and Det. Rodriquez in a video-recorded

      interview. Det. Bush asked Morris some preliminary questions about where

      Morris lived, what his telephone number was, whether he could read and write,

      and where he worked.8 Det. Bush then read Morris his Miranda rights, and

      Morris signed a waiver of those rights. Det. Rodriguez told Morris that Morris

      was at the police station because the Subaru had been reported stolen. During

      the course of a lengthy interrogation, Morris admitted to breaking into the car

      dealership and stealing the green Subaru on Thursday, April 21. He also

      admitted to bringing the Subaru back to the dealership on Saturday, April 23,

      because it had run out of gas. He admitted that he then stole a white car and

      some tires from the dealership on April 23. Although Morris contended that

      Arteaga had given Morris Arteaga’s credit card to buy some items, he admitted

      to using Arteaga’s credit card to buy liquor without Arteaga’s authorization.


[9]   Following Morris’ confession, police found in Morris’ coat the keys to the white

      Hyundai Tiburon that was missing from the car lot, a receipt to a pawn shop,

      and a note with Arteaga’s cell phone number on it. The police also found that

      Morris and an accomplice had used Arteaga’s credit cards to make several

      purchases at liquor stores, gas stations, and a Meijer. Morris and the




      8
        We note that routine, preliminary questions, such as those “regarding name, address, height, weight, eye
      color, date of birth, and current age are outside the scope of Miranda’s coverage,” and may, therefore, be
      asked prior to reading the Miranda warnings. Matheny v. State, 983 N.E.2d 672, 677 (Ind. Ct. App. 2013)
      (quotations omitted) (citing Loving v. State, 647 N.E.2d 1123, 1126 (Ind. 1995)), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017        Page 5 of 13
       accomplice used Arteaga’s credit cards to purchase a Roomba vacuum at

       Meijer, which matched an item found on Morris’ pawn shop receipt. Morris

       was also captured on Meijer surveillance video driving away in the stolen white

       Hyundai Tiburon. When police tested Morris’ coat, pants, and shoes, they

       found Arteaga’s blood and DNA on them. A crime scene analysis also

       concluded that the patterns of blood on Morris’ shoes and clothing were

       consistent with someone who was present when the murder occurred.


[10]   On April 29, 2016, the State charged Morris with murder, felony murder, two

       counts of Level 4 felony burglary, two counts of Level 6 felony auto theft, and

       Level 6 felony fraud. While Morris was incarcerated and awaiting trial, he

       admitted to two different inmates that he had killed Arteaga. Morris told Corey

       Wahl (“Wahl”) that he had stabbed Arteaga, and that he was concerned that he

       had left sweat and his own DNA on Arteaga’s body. Later, Morris told

       Sherman Arnett (“Arnett”), another fellow inmate, that while police said

       Morris had stabbed Arteaga in the head, Morris had actually stabbed him in the

       neck—which was consistent with the placement of Arteaga’s fatal injuries.


[11]   Prior to his trial, Morris sought to exclude evidence of his admissions and

       evidence procured while executing the subsequent search warrant on the basis

       that they were obtained after an unlawful arrest. On June 6, 2016, the trial

       court held a hearing on Morris’ motion to exclude. At the hearing, Detectives

       Rodriguez and Henderson testified that MCPD arrested Morris after they had

       viewed the surveillance video of the car lot and identified Morris as the man in

       that video stealing the green Subaru. The trial court denied Morris’ motion,

       Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017   Page 6 of 13
       finding “that probable cause existed for Defendant’s arrest on April 25, 2016 on

       the charge of Auto Theft based upon video surveillance and positive

       identification of the Defendant after multiple other leads were cleared by

       investigation.” Appellant’s App. Vol. II at 57.


[12]   Morris’ jury trial commenced on September 12, 2016. At trial, Det. Henderson

       testified that he had obtained a warrant to search Morris’ residence and to seize

       Morris’ clothing. Det. Henderson stated, “On Tuesday, April 26, 2016, after

       Mr. Morris returned from Mindsight Consultants [“Mindsight”], I collected the

       remaining…” Tr. Vol. VI at 6-7. Morris’ counsel objected and requested a

       sidebar. Outside the presence of the jury, Morris claimed that Mindsight was a

       company that specialized in polygraph examinations and that Det. Henderson’s

       reference to Mindsight was therefore an impermissible reference to polygraphs.

       On voir dire, Det. Henderson stated that he knew that Mindsight provided

       consultations for polygraphs, but was uncertain of any other area of business in

       which they participated.


[13]   The trial court overruled Morris’ objection and motion to strike Det.

       Henderson’s testimony about Mindsight, and it denied Morris’ request for a

       mistrial. The trial court noted that there had been no mention of a polygraph in

       the testimony that had been given, and Morris stipulated to that. The trial court

       also noted that Mindsight provides other services, such as hypnotic therapy,

       and the company was not widely known outside of the law enforcement and

       legal communities, and it was not equated generally with polygraphs. The trial



       Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017   Page 7 of 13
       court stated that to poll the jury or to give an admonishment would only “shine

       a spotlight” on the matter and raise more questions with the jury. Id. at 34.


[14]   The jury found Morris guilty as charged. The trial court sentenced him to sixty

       years in the Department of Correction (“DOC”) on count I, murder, and count

       II—felony murder—was merged with count I. The court sentenced him to ten

       years on each burglary count, to run consecutively with each other and count I.

       The court sentenced him to two years on each auto theft count, each to run

       concurrently to each other and the prior counts. The court sentenced him to

       two years on the fraud count, to run consecutively to counts I, III, and IV.

       Morris’ total sentence is eighty-two years in the DOC. This appeal ensued.



                                  Discussion and Decision
                     Admission of Morris’ Statement to Police
[15]   Morris contends that the trial court erred in admitting into evidence his

       statement to police, which included his confession to auto theft. He originally

       challenged the admission of the statement in a motion to suppress. However,

       rather than taking an interlocutory appeal on the denial of his motion, he

       proceeded to a complete jury trial.

               “Thus, the issue is ... appropriately framed as whether the trial
               court abused its discretion by admitting the evidence at trial.”
               Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003).
               Our standard of review of rulings on the admissibility of evidence
               is essentially the same whether the challenge is made by a pre-
               trial motion to suppress or by trial objection. Ackerman v. State,

       Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017   Page 8 of 13
                 774 N.E.2d 970, 974-75 (Ind. Ct. App. 2002), trans. denied. We
                 do not reweigh the evidence, and we consider conflicting
                 evidence most favorable to the trial court’s ruling. Collins v. State,
                 822 N.E.2d 214, 218 (Ind. Ct. App. 2005), trans. denied.
                 However, we must also consider the uncontested evidence
                 favorable to the defendant. Id. In this sense, the standard of
                 review differs from the typical sufficiency of the evidence case
                 where only evidence favorable to the verdict is considered. Fair
                 v. State, 627 N.E.2d 427, 434 (Ind. 1993).


       Widduck v. State, 861 N.E.2d 1267, 1269 (Ind. Ct. App. 2007).


[16]   Morris asserts that his statement following his arrest was improperly admitted

       under the Fourth Amendment to the United States Constitution9 because the

       police lacked probable cause for the arrest. Under the Fourth Amendment, it is

       well-settled that an officer may arrest a suspect without a warrant if he has

       probable cause to believe that the suspect has committed a criminal act. Ortiz v.

       State, 716 N.E.2d 345, 348 (Ind. 1999) (citing Sears v. State, 668 N.E.2d 662,

       666-67 (Ind. 1996)).

                 Probable cause exists when, at the time of the arrest, the arresting
                 officer has knowledge of facts and circumstances that would
                 warrant a person of reasonable caution to believe that the suspect
                 had committed a criminal act. [Sears, 668 N.E.2d] at 667. The
                 amount of evidence necessary to meet the probable cause
                 requirement is determined on a case-by-case basis, see Peterson [v.
                 State], 674 N.E.2d [528,] 536 [(Ind. 1996)], and the facts and




       9
           Morris does not raise a claim under Article 1, Section 11 of the Indiana Constitution.


       Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017     Page 9 of 13
                circumstances need not relate to the same crime with which the
                suspect is ultimately charged. Sears, 668 N.E.2d at 667 n. 10.


       Id.


[17]   Here, the evidence established that, at the time the police arrested10 Morris, they

       had probable cause to believe that he had committed the crime of auto theft. In

       the course of investigating Arteaga’s death, on April 23 the police obtained a

       video from a nearby business that showed parts of the car lot from April 19 to

       April 23. On April 23 and 24, the police viewed the video which showed

       Morris at the dealership lot on April 21, dressed in a dark gray hat, dark jacket,

       gray pants, and dark shoes. The video showed Morris walk from the dealership

       office to the green Subaru in the car lot and drive away. Serrano had informed

       the police on April 23 that the green Subaru was missing from the car lot. On

       Monday, April 25, the police observed Morris wearing the same clothes he had

       worn in the video of the car lot. Thus, when the police arrested Morris on April

       25, they had knowledge of facts and circumstances that would warrant a person

       of reasonable caution to believe that Morris had stolen the green Subaru.11 That




       10
           In the interview, prior to reading Morris his Miranda rights and questioning him, the police initially stated
       to Morris that he was not yet under arrest. However, regardless of those initial statements, Morris clearly
       was under arrest from the time he was apprehended and handcuffed at the house on Spring Street. E.g., Kelly
       v. State, 997 N.E.2d 1045, 1051 (Ind. 2013) (quotation and citation omitted) (“[A]n arrest occurs when a
       police officer interrupts the freedom of the accused and restricts his liberty of movement.”). And neither
       party disputes that Morris was, in fact, under arrest at the time he was interviewed by the police.
       11
          Because the police had probable cause for Morris’ arrest independent of the eye witness’ statements
       identifying him as the person climbing out of the window of the dealership, it is irrelevant whether the eye
       witness was unreliable, as Morris contends.

       Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017           Page 10 of 13
       is, the police had probable cause to arrest Morris for auto theft. Therefore, the

       trial court did not abuse its discretion in holding that Morris’ statements to

       police following his lawful arrest were admissible.


                                Denial of Motion for Mistrial
[18]   Morris also asserts that the trial court erred when it denied his motion for a

       mistrial. We review a trial court’s decision to grant or deny a mistrial for an

       abuse of discretion, Isom v. State, 41 N.E.3d 469, 480 (Ind. 2015), keeping in

       mind that a mistrial “is an extreme sanction that is warranted only when no

       other cure can be expected to rectify the situation.” Adams v. State, 890 N.E.2d

       770, 775 (Ind. Ct. App. 2008), trans. denied.


               To prevail on appeal from the denial of a motion for mistrial, the
               appellant must demonstrate that the statement or conduct in
               question was so prejudicial and inflammatory that he was placed
               in a position of grave peril to which he should not have been
               subjected. We determine the gravity of the peril based upon the
               probable persuasive effect of the misconduct on the jury’s
               decision rather than upon the degree of impropriety of the
               conduct.


       Id. (internal citation omitted).


[19]   Here, Morris contends that he was placed in a position of grave peril by Det.

       Hendricks’ testimony that “[o]n Tuesday, April 26, 2016, after Mr. Morris

       returned from Mindsight Consultants [“Mindsight”], I collected the

       remaining…” Tr. Vol. VI at 6-7. He contends that the words “Mindsight

       Consultants” are “synonymous with polygraphs” in his community and,

       Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017   Page 11 of 13
       therefore, Det. Hendricks’ testimony violated an order in limine that had

       prohibited the parties from mentioning polygraph examinations.12 Appellant’s

       Br. at 18. He points out that, in Indiana, “[i]n general, a reference to a

       polygraph examination without an agreement by both parties is inadmissible

       and grounds for error.” Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct. App.

       2003), trans. denied.


[20]   However, as the trial court noted, Morris provided no evidence to support his

       claim that “Mindsight Consultants” is synonymous with polygraphs, and there

       was never any use of the word “polygraph” itself. Thus, Morris failed to show

       that the reference to Mindsight was prejudicial to him. Moreover, Det.

       Hendricks’ passing reference to Mindsight likely had little persuasive effect on

       the jury, even if they understood that Mindsight conducted polygraph

       examinations, because there was substantial evidence other than Det.

       Hendricks’ brief remark to support the verdict. Video evidence showed Morris

       stealing the green Subaru from the car lot on April 21, and Morris admitted to

       that. Morris also admitted to being at the car dealership to steal the white car

       on April 23, the day Serrano found Arteaga’s body. Following his arrest,

       Morris admitted to two of his cell mates that he murdered Arteaga. And

       Arteaga’s blood was found on Morris’ clothing and shoes. Thus, the probable

       impact on the jury of the brief reference to Mindsight was low in light of all the

       other evidence supporting the verdict, and Morris was not placed in grave peril.



       12
            The motion in limine and the court’s order on that motion are not contained in the appendix.


       Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017        Page 12 of 13
       The trial court did not abuse its discretion when it denied Morris’ motion for a

       mistrial.



                                               Conclusion
[21]   The evidence established that the police had probable cause to arrest Morris for

       auto theft; therefore, the trial court did not abuse its discretion in holding that

       Morris’ statements to police following his lawful arrest were admissible. And,

       the trial court did not abuse its discretion in denying Morris’ motion for a

       mistrial, as the passing reference to “Mindsight Consultants” was not

       prejudicial and, in any case, had little, if any, persuasive effect on the jury.


[22]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A04-1701-CR-167 | September 28, 2017   Page 13 of 13
