                                                                       Aug 11 2015, 9:58 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Timothy P. Broden                                          Gregory F. Zoeller
      Lafayette, Indiana                                         Attorney General of Indiana
                                                                 Chandra K. Hein
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Bryan Gavin,                                              August 11, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                79A02-1501-CR-27
              v.                                                Appeal from the Tippecanoe Superior
                                                                Court
      State of Indiana,                                         The Honorable Thomas H. Busch,
                                                                Judge
      Appellee-Plaintiff
                                                                Case No. 79D02-1311-FB-36




      Vaidik, Chief Judge.



                                           Case Summary
[1]   Miranda warnings are subject to a public-safety exception. That is, Miranda

      warnings are not required when police officers ask questions reasonably


      Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015                 Page 1 of 10
      prompted by a concern for the public safety. Bryan Gavin appeals his multiple

      convictions stemming from an apartment-complex shooting. Specifically, he

      argues that the trial court erred by admitting his statement to police about the

      location of the gun because he made the statement before being informed of his

      Miranda rights. Because the police officer’s question to Gavin about the

      location of the gun was reasonably prompted by a concern for Gavin’s three-

      year-old stepdaughter’s safety, we find that the trial court did not err in

      admitting Gavin’s statement. We therefore affirm Gavin’s convictions.



                             Facts and Procedural History
[2]   The facts most favorable to the verdict reveal that around 7:00 a.m. on October

      28, 2013, Michael Winston received a phone call from his girlfriend, Erica Veal,

      to pick her up at 2536 Richmond Court in Cambridge Estates, an apartment

      complex in Lafayette, Indiana. Michael arrived around 8:00 a.m. and parked

      his car. He left the car running and knocked on the door. When a man, later

      identified as Gavin, came to the door, Michael asked for Erica. Gavin said she

      was not there. When Michael insisted that it was the address that Erica had

      given him and therefore she had to be there, Gavin responded, “she is not here

      and if you don’t get away from my door[,] I’m going to give you something to

      get away from my doorway.” Tr. p. 98. Believing Gavin was going to hurt

      him, Michael returned to his car. When Michael got to his car, he grabbed a

      tire iron from the back seat because he “didn’t know what [Gavin] was going to

      come out and do to [him].” Id. at 99.


      Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015      Page 2 of 10
[3]   As Michael was getting ready to call Erica, Gavin pointed his hand out the

      front door of the apartment and started shooting his .40 caliber semi-automatic

      handgun. Michael ran. As he ran, two bullets struck him—one in the right hip

      and the other in the left shin. At some point during the shooting, the window

      of Gavin’s car was shattered. Neighbors heard the gunshots and called 911.


[4]   Meanwhile, Gavin ran back inside the apartment to get his three-year-old

      stepdaughter, J.M. Gavin then put J.M. in his maroon 1976 Cutlass and left

      just as the police were arriving. Police found Michael lying in a grassy area,

      and he was taken to the hospital. Police also found bullets and bullet holes in

      various locations, including in cars and the apartment building across the street.


[5]   Dispatch broadcasted that there was an active shooting and gave a description

      of Gavin’s car. Several officers spotted a car that matched the description and

      pulled over Gavin at the Super Test gas station at the intersection of State Road

      38 East and U.S. 52 in Lafayette. With their guns drawn, the officers

      approached Gavin’s car and ordered him out. Gavin “jumped” out the driver’s

      side and said there was a baby in the car. Id. at 151. Officer Adam Burton of

      the Lafayette Police Department ordered Gavin to the ground, where he was

      handcuffed. Officer Burton then conducted a pat down and found a box of

      ammunition in Gavin’s front sweatshirt pocket.


[6]   Because Officer Burton had located the box of ammunition and believed that a

      child was still inside the car, he asked Gavin “where the gun was.” Id. at 154.

      Gavin answered that the gun “was in the car.” Id. at 155. Another officer then


      Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015   Page 3 of 10
      retrieved J.M. from Gavin’s car. The officer noted that the passenger-side

      window was shattered and that J.M. was not in a booster seat, was not wearing

      a seatbelt, and was sitting on shattered glass in the back seat. The officer also

      noted that although it was cold that morning, J.M. was wearing only a shirt and

      short skirt. Because J.M. was “very cold,” id. at 74, the officer transferred her

      to his patrol car until Department of Child Services arrived. Officer Burton

      took Gavin to the Lafayette Police Department. A later search of Gavin’s car

      revealed a .40 caliber semi-automatic handgun underneath the passenger seat.

      The seven cartridge cases found throughout the apartment complex were later

      determined to have been fired from the gun found in Gavin’s car.


[7]   The State eventually charged Gavin with Count I: Class C felony battery,

      Count II: Class C felony criminal recklessness, Count III: Class A misdemeanor

      carrying a handgun without a license; Count IV: Class D felony neglect of a

      dependent, Count V: Class B felony unlawful possession of a firearm by a

      serious violent felon, and Count VI: Class C felony carrying a handgun without

      a license by a convicted felon.


[8]   At trial, the State asked Officer Burton if Gavin had made any statements, and

      Officer Burton said he had asked Gavin where the gun was. At this point,

      defense counsel asked the trial court if he could ask Officer Burton “a couple

      foundational questions” about why he had asked Gavin where the gun was

      before Officer Burton was allowed to give Gavin’s answer. Id. at 155. Officer

      Burton then explained that he had asked Gavin about the gun “because of

      finding the ammo. I wanted to make sure that if the child still is in the vehicle

      Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015   Page 4 of 10
       that . . . they weren’t able to get to the gun to possibly harm themselves.” Id. at

       156; see also id. at 157 (Officer Burton reiterating that he had asked Gavin about

       the gun because of the “safety of the child inside the vehicle.”). Satisfied with

       this answer, defense counsel said, “I’m not going to object to that . . . question.”

       Id. at 157. Officer Burton then testified that Gavin said the gun was in his car.

       Id.


[9]    The jury found Gavin guilty as charged. Because of double-jeopardy concerns,

       the trial court did not enter judgments of conviction for Counts III and VI.

       Appellant’s App. p. 19. The court then sentenced Gavin to eight years for

       Count I, eight years for Count II, three years for Count IV, and ten years for

       Count V. The court ordered the sentences for Counts I, II, and V to be served

       concurrently but the sentence for Count IV to be served consecutively, for an

       aggregate sentence of thirteen years.


[10]   Gavin now appeals.



                                  Discussion and Decision
[11]   Gavin contends that the trial court erred by admitting his statement to police

       about the location of the gun because he made the statement before being

       informed of his Miranda rights. The State responds that Gavin has waived this

       issue for review because defense counsel stated at trial that he had no objection

       and thus, Gavin must prove fundamental error, which he does not argue on

       appeal and, in any event, cannot prove.


       Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015   Page 5 of 10
[12]   When the State asked Officer Burton if Gavin had made any statements, Officer

       Burton said he had asked Gavin where the gun was. Tr. p. 154. Defense

       counsel did not object but rather asked the trial court if he could ask “a couple

       foundational questions” before Officer Burton was allowed to give Gavin’s

       answer. Id. at 155. After asking Officer Burton questions about why he had

       asked Gavin where the gun was, defense counsel stated, “I’m not going to

       object . . . .” Id. at 157. Accordingly, because defense counsel said he had no

       objection, Gavin has waived this issue for review. See Hayworth v. State, 904

       N.E.2d 684, 693-94 (Ind. Ct. App. 2009). Gavin must therefore establish

       fundamental error in order to obtain relief.


[13]   Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged errors are so

       prejudicial to the defendant’s rights as to “make a fair trial impossible.” Ryan v.

       State, 9 N.E.3d 663, 668 (Ind. 2014) (quotation omitted), reh’g denied. In other

       words, to establish fundamental error, the defendant must show that, under the

       circumstances, the trial judge erred in not sua sponte raising the issue because

       the alleged errors (a) “constitute clearly blatant violations of basic and

       elementary principles of due process” and (b) “present an undeniable and

       substantial potential for harm.” Id. (quotation omitted). The element of such

       harm is not established by the fact of ultimate conviction; rather, it “depends

       upon whether [the defendant’s] right to a fair trial was detrimentally affected by

       the denial of procedural opportunities for the ascertainment of truth to which he

       otherwise would have been entitled.” Id. (quotation omitted). In evaluating the


       Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015     Page 6 of 10
       issue of fundamental error, our task is to look at the alleged misconduct in the

       context of all that happened and all relevant information given to the jury—

       including evidence admitted at trial, closing argument, and jury instructions—

       to determine whether the misconduct had such an undeniable and substantial

       effect on the jury’s decision that a fair trial was impossible. Id. Fundamental

       error is meant to permit appellate courts a means to correct the most egregious

       and blatant trial errors that otherwise would have been procedurally barred; it is

       not meant “to provide a second bite at the apple for defense counsel who

       ignorantly, carelessly, or strategically fail to preserve an error.” Id.


[14]   The State argues that even though Gavin made the statement about the location

       of the gun before being informed of his Miranda rights, the trial court properly

       admitted his statement under the public-safety exception to Miranda. The Fifth

       Amendment guarantees that “[n]o person . . . shall be compelled in any

       criminal case to be a witness against himself.” In Miranda, the United States

       Supreme Court extended the Fifth Amendment privilege against compulsory

       self-incrimination to individuals subjected to custodial interrogation by the

       police. New York v. Quarles, 467 U.S. 649, 654 (1984). The Fifth Amendment

       itself does not prohibit all incriminating admissions; “[a]bsent some officially

       coerced self-accusation, the Fifth Amendment privilege is not violated by even

       the most damning admissions.” Id. (quotation omitted). The Miranda Court,

       however, presumed that interrogation in certain custodial circumstances is

       inherently coercive and held that statements made under those circumstances

       are inadmissible unless the suspect is specifically informed of his Miranda rights


       Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015   Page 7 of 10
       and freely decides to waive those rights. Id. “The prophylactic Miranda

       warnings therefore are not themselves rights protected by the Constitution but

       [are] instead measures to insure that the right against compulsory self-

       incrimination [is] protected.” Id. (quotation omitted). Requiring Miranda

       warnings before custodial interrogation provides “practical reinforcement” for

       the Fifth Amendment right. Id.


[15]   But Miranda warnings are subject to a public-safety exception. Id. at 655. That

       is, Miranda warnings are not required when police officers ask questions

       reasonably prompted by a concern for the public safety. Id. at 656. “[T]he need

       for answers to questions in a situation posing a threat to the public safety

       outweighs the need for the prophylactic rule protecting the Fifth Amendment’s

       privilege against self-incrimination.” Id. at 657. Thus, in Quarles—where the

       police were responding to report that a woman had been raped by an armed

       man who had just entered a supermarket and were “confronted with the

       immediate necessity of ascertaining the whereabouts of a gun which they had

       every reason to believe the suspect had just removed from his empty holster and

       discarded in [a] supermarket”—the United States Supreme Court

               decline[d] to place officers . . . in the untenable position of having to
               consider, often in a matter of seconds, whether it best serves society for
               them to ask the necessary questions without the Miranda warnings and
               render whatever probative evidence they uncover inadmissible, or for
               them to give the warnings in order to preserve the admissibility of
               evidence they might uncover but possibly damage or destroy their
               ability to obtain that evidence and neutralize the volatile situation
               confronting them.



       Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015        Page 8 of 10
       Id. at 657-58; see also Price v. State, 591 N.E.2d 1027, 1030 (Ind. 1992)

       (recognizing that the public-safety exception to Miranda exists when police

       officers “have an immediate concern for the safety of the general public [when]

       an armed weapon remain[s] undiscovered”).


[16]   We find that the public-safety exception to Miranda applies here, too. The

       evidence shows that the officers were conducting a “high[-]risk stop” because

       they were responding to a call of shots fired. Tr. p. 151, 156. After Officer

       Burton handcuffed Gavin and located the box of ammunition in his front

       sweatshirt pocket, he asked Gavin where the gun was because he “believed the

       child was still in the vehicle” and “wanted to make sure that if the child still is in

       the vehicle that . . . they weren’t able to get to the gun to possibly harm

       themselves.” Id. at 154, 156 (emphasis added). Gavin answered that the gun

       was in his car. Because Officer Burton’s question to Gavin about the location

       of the gun was reasonably prompted by a concern for the safety of Gavin’s

       three-year-old stepdaughter, see Bailey v. State, 763 N.E.2d 998, 1002 (Ind. 2002)

       (“Though Officer Allender’s concern was not for the general public’s safety, as

       it was in Price and Quarles, it was for the safety of another possible victim.

       There is a fair amount of authority holding that questioning for the limited

       purposes of locating or aiding a possible victim falls within the ‘public safety

       exception’ to Miranda.”), we find that the trial court did not commit error,

       much less fundamental error, in admitting Gavin’s statement about the location

       of the gun.


[17]   Affirmed.

       Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015      Page 9 of 10
[18]   Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015   Page 10 of 10
