Alvin Richard v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 29 2016, 8:27 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Gary L. Griner Gregory F. Zoeller Mishawaka, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Alvin Richard, April 29, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1510-CR-1740 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff Hurley, Judge Trial Court Cause No. 71D08-1211-FC-274

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1740 | April 29, 2016 Page 1 of 10 [1] Alvin Richard appeals his conviction for Class C Felony Burglary,1 arguing that

there was not probable cause supporting a search warrant, that the destruction

of physical evidence denied him due process, and that his eight-year sentence

was inappropriate. Finding that there was probable cause, that he was not

denied due process, and that the sentence was not inappropriate, we affirm.

Facts [2] In 2012, Sergeant Cynthia Guest of the St. Joseph County Police began

investigating a string of burglaries taking place in the area. The burglaries were

often similar in style: they took place at night, and the suspects often took only

cigarettes. The surveillance tapes revealed more similarities: the burglaries were

executed by a short, heavy-set man who was often accompanied by a second

suspect, who was a tall and skinny man. In addition, either a light-colored

Cadillac or a white Ford Escort appeared in many of the videos. Suspicion

alighted upon Richard for three reasons: he matched the physical description of

the suspect; the police pulled him over on three separate occasions near the

scene of a recent store burglary, although they did not find any evidence of

criminal activity on those occasions; and his two vehicles matched the two

vehicles that appeared in many of the surveillance tapes. Sergeant Guest

applied for, and was granted, a search warrant to place a GPS tracker on

Richard’s vehicles. The GPS devices were placed in early November 2012.

1 Ind. Code § 35-43-2-1.

Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1740 | April 29, 2016 Page 2 of 10 [3] A little more than a week later, the officers who were monitoring the devices

noticed that Richard’s Cadillac was parked outside of a gas station convenience

store around 1:30 a.m. Police went to the gas station and saw that the door was

ajar. The owner of the store arrived, took note of several items that were

missing, and pulled the store’s surveillance tapes. [4] The police stopped Richard on his way home, and arrested him and his

passenger (a tall and skinny man). After obtaining a search warrant for the

vehicle, police found a sledge hammer, a pry bar, and clothing that matched

what was captured on the surveillance tape (including a mask). The officers

also found two counterfeit dollar bills—the owner of the gas station had taped

them next to the cash register to help employees spot fake bills. [5] On November 13, 2012, the State charged Richard with Class C felony

burglary. Richard waived his right to trial by jury, and he filed a motion to

suppress any evidence stemming from the GPS tracking devices. He argued

that there was not probable cause to issue the warrant that authorized the GPS

tracker placement, and that the probable cause affidavit contained misleading

and stale information. After a hearing, the trial court denied Richard’s motion. [6] At the August 21, 2015, bench trial, Richard also objected to the admission of

photographic evidence. The State had already tried and convicted the other

suspect in the burglaries, and erroneously destroyed the physical evidence after

that trial. For Richard’s trial, the State presented photographs of the evidence

that had been destroyed. Richard contended that the State had destroyed

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exculpatory evidence and that this violated his due process rights. The trial

court overruled this objection and, following trial, found Richard guilty as

charged. After a sentencing hearing on October 9, 2015, the trial court

sentenced Richard to eight years imprisonment, fully executed. Richard now

appeals.

Discussion and Decision [7] Richard has three arguments on appeal: 1) the trial court erred by admitting

evidence stemming from the placement of the GPS devices, 2) the trial court

erred by admitting photographs of evidence that had been destroyed, and 3) the

sentence imposed by the trial court was inappropriate in light of the nature of

the offense and his character. We will consider each in turn.

I. The GPS Devices [8] First, Richard argues that there was not probable cause to believe that evidence

of criminal activity would be discovered by the placement of the GPS devices.

He points to the three occasions on which he was pulled over near recent

burglaries and emphasizes that the police did not discover any inculpatory

evidence. He contends that this “suggests that a search would not turn up any

evidence of crime since each previous encounter with Richard following a

burglary found no evidence of the burglary in his vehicle.” Appellant’s Br. p. 8

(emphasis original). [9] Typically, the admission of evidence is within the sound discretion of the trial

court, and the decision whether to admit evidence will not be reversed absent a Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1740 | April 29, 2016 Page 4 of 10

showing of abuse of discretion. Prewitt v. State, 761 N.E.2d 862, 869 (Ind. Ct.

App. 2002). This occurs when a decision is clearly against the logic and effect

of the facts and circumstances before the court. Gibson v. State, 733 N.E.2d 945,

951 (Ind. Ct. App. 2000). But when the trial court’s evidentiary ruling is

predicated on an issue that impugns the constitutionality of a search and seizure

of evidence, this raises a question of law, and such questions are reviewed de

novo. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). [10] Placement of a GPS device on a vehicle constitutes a search. United States v.

Jones, 132 S.Ct. 945, 949 (2012). In almost all cases involving a GPS device,

the police must obtain a search warrant. Keeylen v. State, 14 N.E.3d 865, 872-73

(Ind. Ct. App. 2014), clarified on reh’g, 21 N.E.3d 810 (Ind. Ct. App. 2014).

Probable cause must exist before a search warrant may be issued. Johnson v.

State, 32 N.E.3d 1173, 1176 (Ind. Ct. App. 2015). Probable cause exists for

issuing a search warrant where the facts and circumstances would lead a

reasonably prudent person to believe that a crime had been committed. Smith v.

State, 981 N.E.2d 1262, 1271 (Ind. Ct. App. 2013). [11] We cannot agree that police lacked probable cause in this case. Richard

suggests that the warrant was based solely on the observation of the light-

colored Cadillac “without any more specific information, no make, no specific

color, no license plate number, [and] no identifying characteristics to

distinguish the vehicle. . . .” and that thousands of vehicles match this

description. Appellant’s Br. p. 9. Richard is certainly correct that if the police

only had information regarding the color and manufacturer of a vehicle seen

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near a crime, they would not have probable cause to place GPS trackers on

every such vehicle in the area. [12] But this is not the only fact linking Richard to criminal activity. We have

stressed that probable cause is a fluid concept that must be evaluated based on

the facts of each case. Bennett v. State, 5 N.E.3d 498, 506 (Ind. Ct. App. 2014).

Richard matched the physical description of the suspect, observed either by

witnesses or surveillance tape, for more than ten smash-and-grab robberies.

Moreover, Richard was observed by police on at least three separate occasions

near the scene of recent burglaries, all at different convenience stores. Finally,

both of Richard’s vehicles were seen in surveillance tapes. Such a confluence of

facts would lead a reasonably prudent person to believe that Richard was

involved in criminal activity, and the police acted appropriately to use a GPS

pursuant to a search warrant. Richard’s argument to the contrary—that the

police had to let him continue to commit burglaries until he forgot his mask,

parked his car with the license plate toward the surveillance camera, or was

caught in the act—is simply unavailing.

II. Evidence Destruction [13] Richard next argues that the State’s destruction of physical evidence compels a

reversal. We first note that it was clearly error to destroy evidence. Indiana

Code section 35-33-5-5(a) mandates that “all items of property seized by any

law enforcement agency as a result of an arrest, search warrant, or warrantless

search, shall be securely held by the law enforcement agency under the order of

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the court trying the cause. . . .” The question is what remedy, if any, Richard is

entitled to. [14] Richard frames his argument as a claim that the trial erred by admitting

photographs of the evidence in lieu of the destroyed evidence. But he makes no

argument that the photos were inherently inadmissible: he does not claim that

they were unduly prejudicial, or irrelevant, or barred by any rule of evidence.

Rather, his claim is that the destruction of the evidence mandates a finding that

his due process rights were violated. [15] To establish a due process violation, Richard must show either that the

evidence was “material exculpatory evidence” (rather than merely “potentially

useful evidence”) or that the State acted in bad faith to destroy it. Blanchard v.

State, 802 N.E.2d 14, 26-27 (Ind. Ct. App. 2004). To constitute material

exculpatory evidence, the “evidence must both possess an exculpatory value

that was apparent before the evidence was destroyed, and be of such a nature

that the defendant would be unable to obtain comparable evidence by other

reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984).

Where destroyed evidence could only have been subjected to tests, the results of

which might have exonerated the defendant, the evidence is merely potentially

useful. State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010). [16] Richard argues that the evidence was exculpatory because one sweatshirt

collected by the police was different in color than what was captured on

surveillance tape. But the factfinder was able to view both the tape and a

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photograph of the sweatshirt to determine whether there was a discrepancy in

the color. Moreover, Richard was tracked by GPS to the scene of a burglary

and then found with items stolen from the burglarized store; clearly, the precise

color of a sweatshirt appearing on surveillance tape would not exculpate him. [17] Richard is correct that the destroyed evidence was potentially useful in that the

pry bar and sledge hammer could have been tested to demonstrate whether or

not they were used in the burglary. Therefore, the inquiry turns to whether the

State acted in bad faith. Richard must show more than simple bad judgment or

negligence; he must show conduct that implies the conscious doing of wrong

because of dishonest purpose or moral obliquity. Land v. State, 802 N.E.2d 45,

52 (Ind. Ct. App. 2004). [18] Richard points to a letter written by the prosecutor’s office to the police

department, which requested that the evidence not be destroyed. He argues

that since the police destroyed the evidence anyway, they acted in bad faith. [19] We disagree: this is clearly a case of negligence rather than moral obliquity.

The police destroyed the evidence after the conclusion of the trial of the other

burglar. In fact, the letter from the prosecution demonstrates the absence of bad

faith, rather than its presence; there was no conscious plan by the State to

eliminate the evidence, it happened due to miscommunication and mistake. In

sum, we find no error, constitutional or otherwise, in the admission of this

evidence.

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III. Rule 7(B) Review [20] Richard received the maximum sentence available for Class C felony burglary:

eight years executed. Ind. Code § 35-50-2-6(a). The advisory sentence for that

crime is four years. Id. He argues that his sentence is inappropriate. [21] Indiana Appellate Rule 7(B) provides, “The Court may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” The principal role of such review is to

attempt to leaven the outliers, but not to achieve a perceived “correct” sentence.

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Sentencing is principally a

discretionary function in which the trial court’s judgment should receive

considerable deference. Id. at 1222. [22] Turning to Richard’s offense, we will concede that this particular crime was not

the worst of the worst. Richard broke into a gas station and stole money. If we

were only to consider the nature of the offense, a maximum sentence would

give us pause. [23] But we must also consider Richard’s character. Richard has an extensive

criminal history: he has four felony convictions and nine total convictions, not

to mention an extensive juvenile criminal history. Among his previous offenses

were robberies and burglaries. The present offense occurred not long after he

was released from parole for another crime. Despite repeated chances to turn

his life around and cease his criminal endeavors, Richard continued to

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burglarize businesses. Richard points to the several years leading up to his trial

in which he obtained a job and stayed out of trouble—but this was only done

after he was charged with the present felony, and is not necessarily indicative of

what he would have been doing otherwise. [24] Considering both the nature of the offense and Richard’s character, we cannot

say that the sentence imposed by the trial court is inappropriate. [25] The judgment of the trial court is affirmed.

May, J., and Brown, J., concur.

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