MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Feb 20 2020, 8:10 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
Derick W. Steele                                        Curtis T. Hill, Jr.
Raquet, Vandenbosch & Steele                            Attorney General of Indiana
Kokomo, Indiana
                                                        J.T. Whitehead
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marcus Byars,                                           February 20, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-368
        v.                                              Appeal from the Howard Circuit
                                                        Court
State of Indiana,                                       The Honorable Lynn Murray,
Appellee-Plaintiff,                                     Judge
                                                        Trial Court Cause No.
                                                        34C01-1705-MR-112



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020               Page 1 of 14
                                Case Summary and Issue
[1]   Following a jury trial, Marcus Byars was convicted of felony murder, and

      sentenced to serve sixty-five years in the Indiana Department of Correction

      (“DOC”), with three years suspended to probation. Byars appeals and raises

      one issue for our review: whether the trial court abused its discretion in

      admitting evidence discovered in Byars’ trailer pursuant to a search warrant.

      Concluding the trial court did not abuse its discretion, we affirm.



                            Facts and Procedural History
[2]   The facts most favorable to the verdict are as follows. Byars and Jason Heck

      had known each other for years. On the night of May 21 and early morning of

      May 22, 2017, Byars was out drinking with friends. When he returned to his

      uncle’s trailer later that night, he called Heck, who was in bed with his

      girlfriend, Natasha King, at their house. Byars asked “if [Heck] would trade

      [him] some Xanax for some marijuana.” Transcript of Evidence, Volume III at

      194. The two discussed an incident that occurred around Mother’s Day, in

      which Byars had been robbed. Heck offered to sell Byars a pistol, and Byars

      agreed to purchase it. Because Byars had been drinking, he asked Heck to

      come to his trailer for the exchange and Heck agreed. Heck got out of bed and

      told King he was going to the Chrysler parking lot to “[h]old up somebody for

      two grand.” Tr., Vol. II at 135. Heck left with an AirsoftBB gun pistol that he

      had covered with black electrical tape to make it appear real.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 2 of 14
[3]   Heck arrived at Byars’ trailer and parked his car across the street from the

      trailer. Heck and Byars inspected the pistol; Byars wanted to test the gun “to

      make sure it worked.” Tr., Vol. III at 195. Heck then drove the two of them in

      Byars’ truck to the UAW Hall. When they arrived at the UAW Hall, the two

      exited Byars’ truck, and Byars shot Heck with the gun. After shooting Heck,

      Byars drove his truck to the trailer and told his uncle what had happened.

      Byars then returned to the UAW Hall where he recovered the gun and took

      Heck’s keys, cigarettes, and cell phone before going back to his uncle’s trailer.

      Byars “tried to get [his] uncle to follow [him] to go take [Heck’s] car back to

      where he was, but [his uncle] wouldn’t do it[.]” Id. at 198.


[4]   After his uncle refused, Byars went to his friend April’s house and solicited her

      help in moving Heck’s car. The two of them took Heck’s car to the Chrysler

      parking lot, located a short distance from where Byars had shot Heck, and left

      it. Eventually, Byars and April returned to the trailer and went to sleep. After

      lying down for some time, Byars got some flour, put it in a bag, returned to the

      UAW Hall, and placed the bag of flour near Heck’s body in an attempt to make

      it “look like a drug deal gone bad or a robbery committed during a drug deal[.]”

      Id. at 204-05. Hours later, Byars went to work and discussed what had

      happened with “anybody that would listen to the situation.” Id. at 199. Also

      that morning, Byars contacted his lifelong friend, Stephanie Cross, and stated

      that he needed to speak with her about “something [that] was . . . bothering

      him[.]” Tr., Vol. II at 197. Byars came to Cross’ house, the two conversed on




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 3 of 14
      the porch, and Byars told Cross that he had shot someone. Byars left but the

      two agreed to meet up later that day.


[5]   Around 12:00 or 1:00 p.m., Cross went to Byars’ trailer where Byars revealed

      additional details to Cross. Specifically, Byars disclosed that he had been with

      friends earlier in the night; he later shot someone in the face; there was a shell

      casing and he picked it up; he drove the victim’s car to a Chrysler plant; he later

      returned to the scene and took the victim’s cell phone and broke it into pieces;

      he also placed a “white powder substance” near the victim to make it look like

      a drug deal; and he gave the gun to another person. See id. at 200-01. Byars

      then discussed formulating an alibi with Cross – framing someone he did not

      like.


[6]   Around 4:14 p.m., officers of the Kokomo Police Department (“KPD”)

      responded to a report of an “unconscious, unresponsive” male at the Local

      1166 Union Hall in Kokomo, Indiana. Id. at 91. Upon arrival, officers

      observed a man’s body underneath a covered recreational area; he was

      facedown with dried blood around his head, his pants were pulled down, and

      his pockets were turned inside out. The victim was later identified as Heck. 1 At

      the scene, officers located two spent .9 mm shell casings, a piece of plastic

      believed to be part of a phone, and footprints leading from the body toward the

      parking lot. Underneath Heck’s body, officers discovered “what appear[ed] to




      1
          Initially, officers were able to identify Heck through his tattoo and jail records.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020          Page 4 of 14
      be a piece of glass to a smartphone, the covering,” and a plastic baggie

      containing a white powdery substance. Id. at 96.


[7]   The same day, KPD Detective Brent Wines spoke with Heck’s parents, who

      confirmed Heck’s cell phone number and that he owned a 2009 Pontiac G6.

      Officers then obtained a search warrant for Heck’s cell phone records. The next

      day, May 23, officers located Heck’s car in the lot of the Chrysler plant, just

      north of the crime scene, and confirmed the vehicle they located was registered

      to Heck. Officers also obtained the surveillance footage of the parking lot

      where Heck’s car was found. The footage illustrated the following: Heck’s car

      pulled into the parking lot at 2:42 a.m. on May 22; a red colored car then pulled

      up to Heck’s car; a person got out of Heck’s car and into the red car; the red car

      drove away; and Heck’s car remained parked in the lot where officers found it.

      The same day, officers received the autopsy report, which revealed Heck’s

      cause of death as a gunshot wound to the head. Specifically, the bullet entered

      just above Heck’s right eyebrow. Officers then interviewed King, who stated

      that she was with Heck the night before when he got a phone call; Heck told

      King that he and the caller planned to rob someone; and he subsequently left

      the house with an airsoft gun.


[8]   On May 24, officers received Heck’s cell phone records. The records indicated

      that Heck received a phone call from a number later determined to be Byars’ at

      1:01 a.m., 1:22 a.m., and 1:36 a.m. on May 22; the duration of the calls were

      398, 295, and 25 seconds respectively. See Exhibit, Volume I at 62. At 1:37

      a.m., Heck received a text message from Byars and several minutes later, called

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 5 of 14
       Byars back, a call which lasted 186 seconds. See id. On May 25, officers

       interviewed Cross, who provided Byars’ cell phone number and stated that

       Byars stayed at three different locations and had three vehicles, including a red

       Chevy Camaro. Cross told investigators that Byars told her he shot someone in

       the face, left the victim’s car at Chrysler, and took the victim’s cellphone and

       broke it into pieces. She further stated that Byars told her he took something

       from the scene but also left something, and that he hid the gun at a friend’s

       house.


[9]    Following the interview, investigators confirmed that Byars owned a red 1998

       Chevrolet Camaro and located said vehicle outside of Byars’ grandfather’s

       house – one of the addresses provided by Cross. Officer Michael Banush

       submitted a probable cause affidavit outlining all of this information in his

       application for a search warrant for Byars’ trailer. The trial court issued the

       warrant and officers executed it shortly thereafter. During the search, officers

       seized (among other items) a pair of boots, three empty Boost Mobile cell

       phone boxes and a receipt, $3,090 in cash, and a plastic bag containing three

       Xanax pills.


[10]   On May 26, 2017, the State charged Byars with murder; the State later filed the

       additional charge of felony murder for knowingly or intentionally killing Heck

       while committing or attempting to commit robbery. See Appellant’s Appendix,

       Volume 2 at 15, 25. On July 31, 2018, Byars filed a motion to suppress all

       evidence seized during the execution of the search warrant of his trailer.

       Following a suppression hearing on August 14, the trial court denied the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 6 of 14
       motion. A jury trial was held on December 10-13, 2018. At trial, Byars

       renewed his objection to the evidence discovered during the execution of the

       search warrant at his home. See Tr., Vol. II at 178. The jury found Byars guilty

       of reckless homicide, as a lesser included offense of murder, and felony murder.

       The trial court entered judgment of conviction for felony murder and vacated

       Byars’ reckless homicide conviction due to double jeopardy concerns. The trial

       court sentenced Byars to serve sixty-five years in the DOC, with three years

       suspended to probation. Byars now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[11]   Byars presents his issue as challenging the denial of a motion to suppress;

       however, his case proceeded to trial where he renewed his objection to the

       admission of this evidence.


               In such an instance the question of whether the trial court erred
               in denying a motion to suppress is no longer viable. A ruling on
               a pretrial motion to suppress is not intended to serve as the final
               expression concerning admissibility. Direct review of the denial
               of a motion to suppress is only proper when the defendant files
               an interlocutory appeal.


       Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013) (internal quotations and citations

       omitted). In this case, the issue on appeal is best framed as a challenge to the

       admission of evidence and we review it as such.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 7 of 14
[12]   Our standard of review in this area is well-settled: the admission and exclusion

       of evidence falls within the sound discretion of the trial court, and we review

       the trial court’s decision for an abuse of that discretion. Mack v. State, 23

       N.E.3d 742, 750 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion

       occurs when the trial court’s decision is clearly against the logic and effect of

       the facts and circumstances before it. Morrison v. State, 824 N.E.2d 734, 739

       (Ind. Ct. App. 2005), trans. denied. We do not reweigh the evidence, and we

       consider conflicting evidence most favorable to the trial court’s ruling.

       Strickland v. State, 119 N.E.3d 140, 146 (Ind. Ct. App. 2019), trans. denied.

       However, we must also consider the uncontested evidence favorable to the

       defendant. Id.


               II. Admission of Evidence: Validity of Warrant
[13]   Byars challenges the validity of the warrant authorizing police to search his

       trailer. Specifically, he argues there was insufficient evidence in the affidavit to

       establish probable cause because the affidavit contained uncorroborated

       hearsay, namely Cross’ statements implicating Byars in Heck’s murder. We

       disagree.


[14]   Although a trial court’s determination of facts is entitled to deferential review,

       we employ a de novo standard when reviewing the trial court’s ultimate

       determination of reasonable suspicion and probable cause. Johnson v. State, 992

       N.E.2d 955, 957 (Ind. Ct. App. 2013), trans. denied. “In other words, when a

       trial court has admitted evidence alleged to have been discovered as the result of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 8 of 14
       an illegal search or seizure, we generally will assume the trial court accepted the

       evidence presented by the State and will not reweigh that evidence, but we owe

       no deference as to whether that evidence established the constitutionality of a

       search or seizure.” Id.


[15]   The Fourth Amendment to the United States Constitution and Article 1,

       section 11 of the Indiana Constitution both require probable cause for the

       issuance of a search warrant. Rader v. State, 932 N.E.2d 755, 758 (Ind. Ct. App.

       2010), trans. denied. “Probable cause is a fluid concept incapable of precise

       definition and must be decided based on the facts of each case.” Id.

       “Ultimately, the task of a magistrate in deciding whether to issue a search

       warrant is simply to make a practical, commonsense 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.” McGrath

       v. State, 95 N.E.3d 522, 528 (Ind. 2018) (internal quotation omitted). When

       reviewing a magistrate’s decision to issue a warrant, we apply a deferential

       standard. Newby v. State, 701 N.E.2d 593, 598 (Ind. Ct. App. 1998). We

       evaluate whether the reasonable inferences drawn from the totality of the

       evidence support the probable cause finding. McGrath, 95 N.E.3d at 528.

       “Rather than consider post hoc justifications for the search, we evaluate only the

       evidence presented to the issuing magistrate.” Id.


[16]   The United States Supreme Court has held that uncorroborated hearsay from a

       source whose credibility is itself unknown, standing alone, cannot support a

       finding of probable cause to issue a search warrant. Newby, 701 N.E.2d at 598.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 9 of 14
       “The hearsay must exhibit some hallmarks of reliability.” Jaggers v. State, 687

       N.E.2d 180, 182 (Ind. 1997). The reliability of hearsay for purposes of proving

       probable cause can be established in a number of ways, including where:


                (1) the informant has given correct information in the past, (2)
                independent police investigation corroborates the informant’s
                statements, (3) some basis for the informant’s knowledge is
                demonstrated, or (4) the informant predicts conduct or activities
                by the suspect that are not ordinarily easily predicted.


       Newby, 701 N.E.2d at 598. And “[d]epending on the facts, other considerations

       may come into play in establishing the reliability of the informant or the

       hearsay.” Scott v. State, 883 N.E.2d 147, 154 (Ind. Ct. App. 2008).


[17]   Pursuant to Indiana Code section 35-33-5-2(b), the General Assembly’s

       codification of the Fourth Amendment doctrine pertaining to the use of

       informants to establish probable cause, when statements contained in an

       affidavit are based on hearsay, the affidavit must either: (1) contain reliable

       information establishing the credibility of the source and of each of the

       declarants of the hearsay and establishing that there is a factual basis for the

       information furnished; or (2) contain information that establishes that the

       totality of the circumstances corroborates the hearsay. State v. Mason, 829

       N.E.2d 1010, 1017 (Ind. Ct. App. 2005).2




       2
        Byars does not advance a separate and distinct argument under the Indiana Constitution and therefore, any
       such argument is considered waived. Myers v. State, 839 N.E.2d 1154, 1158 (Ind. 2005), cert. denied, 547 U.S.
       1148 (2006).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020                Page 10 of 14
[18]   Byars contends the information provided by Cross is merely uncorroborated

       hearsay. We are unpersuaded and conclude that the totality of the evidence

       corroborates Cross’ statements.


[19]   Cross provided information to investigators implicating Byars in Heck’s

       murder, which was incorporated into the probable cause affidavit as follows:


               On 5/25/17 at 12:34 am investigators interviewed Stephanie E.
               Cross. Stephanie advised that at approximately 10:04 am on
               5/24/17, she received a phone call from [Byars]. She provided
               Byars’ cellphone number[.] According to Stephanie, Byars told
               her that he needed to talk with her about something important
               but could not talk on the telephone. Stephanie told investigators
               that he arrived at her residence . . . a short time later. While at
               her house, Byars told her that he shot a guy in the face. Byars
               then told Stephanie that he did not want to speak there and
               wanted to meet with her at his trailer which she agreed to do.
               Byars left while Stephanie got ready. Stephanie advised that
               Byars was on his yellow/black motorcycle. She arrived at Byars’
               trailer [and] stated that it was only Byars and herself at the trailer.
               Stephanie stated to investigators that Byars told her that a few
               days ago, he saw a man that he knows who owed him some
               money. He and the man went to the trailer and played video
               games. Stephanie stated that she believed that those present in
               the trailer was [sic] Byars, Byars’ girlfriend, April M. Williams
               and the victim. Byars told her at some point that day after
               playing video games, he shot the victim in the face one (1) time.
               He did not tell her the location of the incident. Byars then told
               Stephanie that he “ditched” the victim’s car at Chrysler. He also
               stated . . . that he took the victim’s cellphone and busted it into
               pieces. According to Stephanie, Byars told her that he threw the
               phone pieces out of the car window while traveling back to his
               trailer. He advised Stephanie that the battery is in someone’s
               yard that lives in the trailer park. Byars asked Stephanie if he
               should retrieve the piece and throw it away someplace else.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 11 of 14
        Stephanie told investigators that she did not know which
        Chrysler plant the victim’s car was left at. She advised that Byars
        told her that he was driving his red Chevy Camaro at the time of
        the shooting. Stephanie informed investigators that Byars told
        her that he picked something up at the murder scene; but also left
        something. She thought he may have told her that he picked up
        the shell casing; but she was not certain. Stephanie stated that
        Byars told her he hid the gun at a friend’s house.


        According to Stephanie, Byars stays at three residences [one of
        which is his uncle’s trailer]. She also knows him to drive three
        vehicles: a red Chevrolet Camaro, a yellow/black motorcycle
        and a black SUV.


Appellant’s App., Vol. 2 at 110-11. The following evidence, which we

summarize, corroborates Cross’ statements:


    • Investigators identified Heck as the victim.

    • Heck suffered a single gunshot wound just above the eyebrow.

    • Heck’s vehicle was found in the Chrysler parking lot and police

        investigation and video surveillance confirmed this.

    • Officers located plastic and glass pieces from a smartphone under Heck’s

        body.

    • Officers confirmed that Byars owned a red 1998 Chevrolet Camaro; they

        confirmed the license plate was registered to the vehicle; and they located

        this vehicle outside one of the locations where Cross had stated Byars

        frequently stays.

    • Video surveillance showed that Heck’s car pulled into the Chrysler

        parking lot at 2:42 a.m.; a red colored car then pulled up to Heck’s car; a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 12 of 14
               person got out of Heck’s car and into the red car; the red car drove away;

               and Heck’s car remained parked in the lot where officers later found it.

           • Heck’s pants pockets were turned inside out; a powdery substance was

               found at the scene of the crime; and officers did not locate a cell phone or

               keys.


[20]   Furthermore, Cross provided officers with Byars’ cell phone number, and the

       cell phone records that were obtained established contact between Heck and

       Byars during the relevant timeframe. Also, Cross and Byars were friends, and

       Cross knew Byars well enough to know all three vehicles he drove and the three

       locations he stayed. This certainly adds to her credibility. The probable cause

       affidavit contained reliable information, and the totality of the circumstances

       corroborated the hearsay. Accordingly, we conclude the search warrant for

       Byars’ residence was supported by probable cause and the trial court did not

       abuse its discretion when it admitted the evidence procured via the search

       warrant.



                                              Conclusion
[21]   Given all the information in the affidavit, we conclude the probable cause

       affidavit did not contain uncorroborated hearsay, and there was sufficient

       evidence establishing probable cause to support the warrant authorizing the

       search of Byars’ trailer. Therefore, the trial court did not abuse its discretion

       when it admitted evidence procured pursuant to the warrant. Accordingly, we

       affirm.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 13 of 14
[22]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-368 | February 20, 2020   Page 14 of 14
