IN THE

INDIANA COURT OF APPEALS __________________________

CAUSE NO. 49A04-0911-CR-000651 NEVIN BROOKS, ) Appeal from the

) Marion County Superior Court, Appellant ) Criminal Division 05

) v. ) Lower Court Cause Numbers

) 49G05-0907-MR-061072 ) 49D09-0812-JD-004015

STATE OF INDIANA, ) ) The Honorable Grant Hawkins,

Appellee ) Judge ) ) The Honorable Robert Altice, Jr., ) Special Judge

APPELLANT’S BRIEF

VICTORIA L. BAILEY, #24082-49 Marion County Public Defender Agency 151 N. Delaware, Suite 200 Indianapolis, IN 46204 (317) 327-4488 vbailey@indygov.org

Attorney for Appellant

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TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................... iv STATEMENT OF THE ISSUES .................................................................................... 1 STATEMENT OF THE CASE ....................................................................................... 2 CAUSE NUMBER 49D09-0812-JD-004015 ...................................................... 2 CAUSE NUMBER 49G05-0907-MR-061072 .................................................... 3

STATEMENT OF THE FACTS ..................................................................................... 4 Waiver Hearing – Cause No. 49D09-0812-004015 ........................................ 4 Probable Cause ................................................................................... 4 Best Interests ...................................................................................... 6 Pre-Trial, Trial, and Sentencing – Cause No. 49G05-0907-MR-061072 ........ 11 Pre-Trial/Motion to Suppress ............................................................ 11 Trial ................................................................................................... 15 Sentencing ........................................................................................ 18 SUMMARY OF THE ARGUMENTS .......................................................................... 21 ARGUMENTS ......................................................................................................... 23 I. The juvenile court abused its discretion by waiving jurisdiction over Brooks .................................................................... 23 II. The trial court erred in admitting the bullet found in Brooks’ pocket when the law enforcement officer lacked

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reasonable suspicion to conduct the pat down of Brooks in violation of the Fourth Amendment ................................................. 29 III. The trial court erred in admitting the bullet found in Brooks’ pocket when the law enforcement officer who patted Brooks down acted unreasonably under the totality of the circumstances pursuant to Article I, Section 11 of the Indiana Constitution ......................................................................... 36 IV. The trial court erred in denying Brooks’ motion for a mistrial because Officer Cantrell gave testimony which constituted evidentiary harpoons and they placed Brooks in grave peril ............. 39 V. The State presented insufficient evidence to sustain Brooks’ conviction ............................................................................ 45 VI. Brooks’ 55-year sentence is inappropriate in light of his character and the nature of the offense ........................................... 48 CONCLUSION ........................................................................................................ 51 WORD COUNT CERTIFICATE .................................................................................. 52 CERTIFICATE OF SERVICE ....................................................................................... 52 ABSTRACT OF JUDGMENT ...................................................................... end of brief

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TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000) ........................................................ 20

Armfield v. State, 918 N.E.2d 316 9Ind. 2009) ....................................................... 31

Blakely v. Washington, 542 U.S. 296 (2004) .......................................................... 20

Boner v. State, 796 N.E.2d 1249 (Ind. Ct. App. 2003) ............................................ 44

Booher v. State, 773 N.E.2d 815 (Ind. 2002) .......................................................... 40

Burkett v. State, 736 N.E.2d 304 (Ind. Ct. App. 2000) ............................................ 30

Cartwright v. State, 344 N.E.2d 83 (Ind. Ct. App. 1976)......................................... 28

Chubb v. State, 640 N.E.2d 44 (Ind. 1994) ............................................................. 46

Flores v. Flores, 658 N.E.2d 95 (Ind. Ct. App. 1995) ............................................... 26

Florida v. J.L., 529 U.S. 266 (2000)......................................................................... 32

Fortson v. State, 919 N.E.2d 1136 (Ind. 2010) ....................................................... 47

Frentz v. State, 875 N.E.2d 453 (Ind. Ct. App. 2007) .............................................. 50

Gaddis v. State, 251 N.E.2d 658 (Ind. 1969) .......................................................... 46

Gregory v. State, 386 N.E.2d 675 (Ind. 1979) ........................................................ 24

Hall v. State, 870 N.E.2d 449 (Ind. Ct. App. 2007) ........................................... 25, 26

Hagan v. State, 682 N.E.2d 1292(Ind. Ct. App. 1996) ............................................ 24

Houchen v. State, 632 N.E.2d 791 (Ind. Ct. App. 1994) .......................................... 44

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Illinois v. Wardlow, 528 U.S. 119 (2000) ................................................................ 31

In re Winship, 397 U.S. 358 (1970) ........................................................................ 45

Kirby v. State, 774 N.E.2d 523 (Ind. Ct. App. 2002).......................................... 43, 44

L.W. v. State, 2010 Ind. App. LEXIS 700 (Ind. Ct. App. 2010) ...................... 30, 33-36

Leach v. State, 699 N.E.2d 641 (Ind. 1998) ............................................................ 40

Litchfield v. State, 824 N.E.2d 356 (Ind. 2005) ................................................. 36-38

Luginbuhl v. State, 507 N.E.2d 620 (Ind. Ct. App. 1987) ........................................ 46

Mapp v. Ohio, 367 U.S. 643 (1961)........................................................................ 36

McEwen v. State, 695 N.E.2d 79 (Ind. 1998) ......................................................... 27

Moore v. State, 723 N.E.2d 442 (Ind. Ct. App. 2000) ............................................. 24

Moultry v. State, 808 N.E.2d 168 (Ind. Ct. App. 2004) ........................................... 30

Perez v. State, 728 N.E.2d 234 (Ind. Ct. App. 2000) ............................................... 44

Pirtle v. State, 323 N.E.2d 634 (Ind. 1975) ...................................................... 32, n.1

Robinson v. State, 835 N.E.2d 518 (Ind. Ct. App. 2005) ......................................... 46

State v. Glass, 769 N.E.2d 639 (Ind. Ct. App. 2002) ......................................... 34, 35

State v. Schlechty, 2010 Ind. LEXIS 208 (Ind. 2010) ............................................... 31

Stewart v. State, 866 N.E.2d 858 (Ind. Ct. App. 2007) ........................................... 50

Terry v. Ohio, 392 U.S. 1 (1968) ................................................ 11, 12, 29, 31, 32, 36

Thomas v. State, 562 N.E.2d 43 (Ind. Ct. App. 1990) ....................................... 25, 28

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United States v. Arvizu, 534 U.S. 266 (2002) ................................................... 30, 31

United States v. Booker, 579 F.3d 835 (7th Cir. 2009) ............................................ 31

United States v. Broomfield, 417 F.3d 654 (7th Cir. 2005) ...................................... 33

United States v. Goodrich, 450 F.3d 552 (3rd Cir. 2006) ......................................... 33

Vandivier v. State, 822 N.E.2d 1047 (Ind. Ct. App. 2005) ....................................... 46

Wallace v. State, 725 N.E.2d 837 (Ind. 2000) ........................................................ 27

Webster v. State, 908 N.E.2d 289 (Ind. Ct. App. 2009) .......................................... 36

Wright v. State, 593 N.E.2d 1192 (Ind. 1992) ........................................................ 40

STATUTES Ind. Code 31-30-3-4 ................................................................................... 23-24, 26 Ind. Code 31-32-5-1 ....................................................................................... 32, n.1 Ind. Code 35-42-1-1 ............................................................................................ 2, 3 Ind. Code 35-42-5-1 ............................................................................................ 2, 3 FEDERAL CONSTITUTIONAL PROVISIONS U.S. Const. amend. IV............................................................................................ 29 U.S. Const. amend. XIV.................................................................................... 27, 45 STATE CONSTITUTIONAL PROVISIONS Ind. Const. Art 1, § 11 ..................................................................................... 36, 39 Ind. Const. Art 1, § 12 ..................................................................................... 27, 45

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Ind. Const. Art VII, § 4 ........................................................................................... 49 Ind. Const. Art VII, § 6 ............................................................................... 26, 27, 49 RULES Indiana Appellate Rule 7(b) ................................................................................... 49 Indiana Rule of Evidence 404(b) ............................................................................ 39

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STATEMENT OF THE ISSUES

I. Whether the juvenile court abused its discretion by waiving jurisdiction

over Brooks?

II. Whether the trial court erred in admitting the bullet found in Brooks’

pocket when the law enforcement officer lacked reasonable suspicion to

conduct the pat down of Brooks in violation of the Fourth Amendment?

III. Whether the trial court erred in admitting the bullet found in Brooks’

pocket when the law enforcement officer who patted Brooks down acted

unreasonably under the totality of the circumstances pursuant to Article I,

Section 11 of the Indiana Constitution?

IV. Whether the trial court erred in denying Brooks’ motion for a mistrial

because Officer Cantrell gave testimony which constituted evidentiary

harpoons and they placed Brooks in grave peril?

V. Whether the State presented insufficient evidence to sustain Brooks’

conviction?

VI. Whether Brooks’ 55-year sentence is inappropriate in light of his character

and the nature of the offense?

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STATEMENT OF THE CASE

CAUSE NUMBER 49D09-0812-JD-004015

On January 5, 2009, the State of Indiana filed a Petition in the Marion

Superior Court Juvenile Division alleging that Nevin Brooks was a delinquent child

[App. 181-182]. In that Delinquency Petition, the State alleged that Brooks had

committed the following crimes: 1) Murder, in violation of Ind. Code § 35-42-1-1;

2) Felony Murder, in violation of Ind. Code § 35-42-1-1; and 3) Robbery, as a Class

A Felony, in violation of Ind. Code § 35-42-5-1 [App. 181]. Also on January 5,

2009, the State filed its Motion to Waive Juvenile Jurisdiction. [App. 195-196].

On February 5, 2009, the Presiding Judge of the Marion Superior Court

Juvenile Division issued Notice that she was recusing herself from the case and

ordered the parties to proceed, under Indiana Trial Rule 79, with the selection of

a Special Judge [App. 227-228]. On April 8, 2009, the parties, via written notice,

informed the trial court that they had agreed that the Honorable Robert Altice,

Jr., of the Marion Superior Court, Criminal Division 2, should be appointed as

Special Judge in Brooks’ case *App. 234+.

On June 22 and 23, 2009, Special Judge Altice held a Waiver Hearing in

Brooks’ case *App. 38; Tr. 767-1348]. Following that hearing, in July 1, 2009,

Special Judge Altice ordered jurisdiction over Brooks waived from the Marion

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Superior Court, Juvenile Division to the Marion Superior Court, Criminal Division

pursuant to Ind. Code 31-30-3-4 [App. 38-43].

CAUSE NUMBER 49G05-0907-MR-061072

On July 2, 2009, the State of Indiana charged Brooks in a three-count

Information as follows: Count I, Murder, in violation of Ind. Code § 35-42-1-1;

Count II, Felony Murder, in violation of Ind. Code § 35-42-1-1; and Count III,

Robbery, as a Class A Felony, in violation of Ind. Code § 35-42-5-1 [App. 22-24].

On August 26, 2009, the trial court held a Motions Hearing wherein, among

other things, the parties were heard on Brooks’ oral motion to suppress evidence

that had been seized from Brooks during a pat-down search [Tr. 21-60]. Following

that hearing, the parties submitted briefs in support of their respective positions

on the suppression issue [App. 79- 91, 92-104]. On September 3, 2009, the trial

court denied Brooks’ oral motion to suppress *App. 10].

The case proceeded to jury trial on September 8, 2009 and lasted through

September 9, 2009, with the jury returning verdicts of guilty for all three counts

[App. 11-13+. At Brooks’ sentencing hearing on October 15, 2009, the trial court

merged the convictions into a single conviction – Count II, Felony Murder – and

imposed a sentence of 55 years in the Indiana Department of Correction [App.

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15]. Brooks timely filed his Notice of Appeal on November 13, 2009 [App. 1].

Brooks filed his Amended Notice of Appeal on March 1, 2010 [App. 168].

STATEMENT OF THE FACTS

WAIVER HEARING – CAUSE NO. 49D09-0812-JD-004015

Probable Cause

On March 17, 2009, Indianapolis Metropolitan Police Department Detective

Claire Hochman was assigned to investigate the death of David Hardwick in the

3900 block of Breen Drive in Indianapolis, Marion County, Indiana [Tr. 796-97].

Upon arriving at the scene, which was inside the Lexington Park Apartments,

Detective Hochman came upon the body of David Hardwick, lying in the grass on

his back with his legs crossed” and his hand on his stomach *Tr. 798, 802; State’s

Waiver Ex. #6, Ex. Vol. II, p. 156]. Mr. Hardwick had been shot once in the head,

with the entrance wound near the hairline on his forehead *Tr. 804, State’s

Waiver Exhibit #10, Ex. Vol. II, p. 160]. Mr. Hardwick was preliminarily identified

by a paycheck stub he had in his pocket that gave his name and address and was

later identified visually by his wife, Danielle Hardwick, through a photograph [Tr.

808, 810]. In doing an inventory of what Mr. Hardwick had in his possession, the

police found “an iPod . . .a telephone or cellular phone, some Carmax, some gum,

a five-hour energy drink, and some tobacco” *Tr. 809+. After speaking with Mrs.

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Hardwick, the police determined that Mr. Hardwick “always carried a brown

Tommy Hilfiger wallet on him and he always wore a Whittenauer watch” and that

he would have been wearing a gold bracelet [Tr. 809-810]. No wallet, watch, or

bracelet was found on Mr. Hardwick’s body [Tr. 809-810]. However, a bullet was

recovered from Mr. Hardwick’s body during his autopsy *Tr. 812+.

In an effort to determine Mr. Hardwick’s time of death, Detective Hochman

spoke with Mr. Hardwick’s co-worker Ciro Mucci who indicated that he had

spoken with Mr. Hardwick at approximately 9:45 pm on the night of March 16 [Tr.

814-15+. Police also spoke with Pamela Kirsten, the mother of Mr. Hardwick’s

children, who indicated that she called shortly before 10:00 pm on March 16 but

that Mr. Hardwick did not answer [Tr. 816-817]. Based on their conversations

with Mucci and Kirsten, as well as a review of Mr. Hardwick’s cell phone records,

the police estimated Mr. Hardwick’s time of death as 9:55 pm *Tr. 820+.

At 10:22 pm, there were three attempted withdrawals made using Mr.

Hardwick’s ATM card at the Marathon gas station at 8005 East 42nd Street [Tr.

821-22]. Detective Hochman recovered a surveillance video from the Marathon

station which purported to show Brooks getting out of the passenger side of a car

at the Marathon station at approximately 10:22 pm, entering the station’s

convenience store, attempting to use the ATM machine, exiting the store, getting

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back into the vehicle, and leaving [Tr. 824-25]. Some of the video footage was

released to the media on March 19, 2008 [Tr. 841-42]. Later that evening,

Detective Hochman received a phone call from Dectective Zentz of the Lawrence

Police Department who indicated that they had Brooks in custody and his clothes

appeared to match the clothes on the person in the video [Tr. 842-43]. Brooks’

mother, September Benson, identified Brooks from some still photographs that

were made off the Marathon video [Tr. 857].

The Lawrence Police Department seized some property from Brooks when

he was arrested [Tr. 848]. Included in the seized property were four bullets, one

of which was consistent in “caliber, morphology and type” to the bullet removed

from Mr. Hardwick’s head at autopsy *Tr. 849-852]. The bullets seized from

Brooks were .38 caliber, which are typically fired from revolvers [Tr. 855].

September Benson told Detective Hochman that she had seen Brooks with a

“wheel gun” which, according to Detective Hochman is another way of saying

revolver [Tr. 857-58].

Best Interests

Linda Commons, the superintendent at the Pendleton Juvenile Correctional

facility testified regarding the various programs available for juvenile offenders

who were found true of having committed serious offenses including murder,

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including extensive counseling and educational programs, and that 81.6% of

juveniles who go through the programs at the Pendleton Juvenile Correctional

facility do not reoffend within three years of their release [Tr. 1009-1034].

Brandy Valdez, a juvenile probation officer with the Marion Superior Court,

Juvenile Division, testified regarding the struggles Brooks went through when he

was placed on probation in his mother’s home and at Resource residential facility

[Tr. 1049-1060]. More importantly, though, Ms. Valdez talked about the success

Brooks had at Boys Town in Nebraska, where Brooks was placed when another

placement failed, how he was progressing through the various stages of the Boys

Town program – from more to less restrictive – and how Brooks was seen as a

leader among his peers and was a support for other children [Tr. 1062-1065].

Dr. Tonya Foreman, a psychiatrist board certified in adult and forensic

psychiatry and board eligible in child and adolescent psychiatry, was retained by

Brooks’ counsel to evaluate Brooks for relevant psychological issues [Tr. 1096-

1101]. In the report from her evaluation of Brooks, Dr. Foreman came to the

following conclusion:

After spending several hours with Nevin and reviewing collateral information, I am convinced that he has tremendous potential for rehabilitation. His innate qualities of tenacity, curiosity, and intelligence improve his prognosis. However, his prognosis is poor if those

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qualities are not cultivated. He is a canvas on which much negative has already been written. Nevin has a few precious years left in which it is possible to fill in the blank spots on that canvas with positive experiences – a family-oriented lifestyle, consistent education, and positive role models. If he goes to prison, Nevin’s canvas will be filled with the graffiti that represents what is worst about our world. He is at a crossroads. In my opinion, Nevin and society would both be better served by fostering his strengths rather than giving up on him.

*Respondent’s Exhibit E, Exhibits Vol. III, p. 471-472]. Dr. Foreman also testified at

length how the lack of adult supervision and guidance Brooks experienced

contributed to his social developmental issues but also how once he was placed in

the safe, stable, and family-like environment at Boys Town, he began to thrive [Tr.

1108, 1111-1115].

Dr. Donna Bishop holds a PhD in criminal justice from SUNY – Albany and

has been a professor of criminal justice, specializing in juvenile justice, since 1982

[Tr. 1150]. In recent years, her particular area of specialization has been the study

of waiver of juveniles into adult court and “the impact of that on the young

people who are [waived] on the communities that they end up in after they are

released . . .” *Tr. 1151+. Dr. Bishop concluded the following regarding the impact

of waiver on community:

They effect a community negatively in terms of rising rates of unemployment. They effect a community

9

negatively in terms of often being homeless and so they may be people wondering about in the streets and making other people in the neighborhoods more fearful of living in the neighborhoods where inmates are returning. They tend to return from prison with very little money in their pockets, and they return usually and go to flop houses, boarding houses, and, you know, they just try to make it as best they can. And it’s not unusual if they don’t have family support, it’s not unusual for them to end up turning to drug sales or burglary or something like that.

[Tr. 1187-88].

Professor Frances Watson, of the Indiana University School of Law at

Indianapolis, was appointed by the juvenile court to serve as Brooks’ guardian ad

litem throughout the waiver proceedings and visited with Brooks frequently [Tr.

1198-1201+. She described Brooks as “always polite and courteous, always, and

he’s a caring young man from what I can tell he definitely cares about his family

[Tr. 1202]. While in detention pending the waiver hearing, Brooks was a good

student and was able to set and achieve goals [Tr. 1203].

Ellen McElderry, a 10-year employee of Boys Town and Licensed Mental

Health Practitioner is a Program Coordinator for a Specialized Treatment Group

Home at Boys Town [Tr. 1213-14]. Brooks came under her supervision when he

entered the second component of his treatment at Boys Town and he was in her

component for approximately five months [Tr. 1221-22]. While there, Brooks got

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straight As on his report card *Respondent’s Exhibit I, Exhibits Vol. III, p. 529].

When Brooks first came to the Group Home, he experienced some incidents of

acting out toward staff, but as Ms. McElderry indicated, this was not uncommon

among children coming from a non-family oriented background [Tr. 1232-38].

When Brooks came into the program, she was skeptical of his ability to be

successful because of his criminal history [Tr. 1239-40]. However, Brooks had

“the ability to learn replacement behavior and he showed *them+ that” *Tr. 1240+.

While in the group home, Brooks took on a protective role for a physically

disabled boy who was often bullied in the house [Tr. 1241]. His peers even voted

him into “The Top 5 Club” – a group of the top five percent of the boys in terms of

being a positive role model for other boys [Tr. 1245]. When Brooks was informed,

while at Boys Town, that he was being charged with murder, he was kept in the

group home, an unlocked facility, and “he did not run away, he didn’t hurt himself

*or+ anyone else” *Tr. 1255+. After Brooks was brought to Indiana from Boys Town

to face charges in the instant case, Boys Town kept his bed open for a month or

two and were prepared to welcome him back if the courts would have permitted

it [Tr. 1259].

Neil Wise, Brooks’ counselor at Boys Town, is a twenty-year U.S. Air Force

veteran with a Masters degree in counseling [Tr. 1279-80]. Mr. Wise engaged

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Brooks in intensive therapy to deal with, among other things, his feelings of

detachment from when he was in foster care as a young child extending through

the familial instability he experienced as an older child [Tr. 1287-1290]. At the

beginning of his treatment, Brooks was extremely resistant to authority figures,

but by working with Wise on issues of control and choices, Brooks was able to

redirect the energy he had previously spent on resistance to more positive

pursuits, like being a leader among his peers [Tr. 1296-1300]. Wise was a positive

role model for Brooks – something Brooks had lacked in his life since his brother

James had been murdered and his father was incarcerated [Tr. 1308]. Even after

he learned that the State was seeking to waive him into adult court, Brooks

continued to work well with Wise [Tr. 1311-12].

PRE-TRIAL, TRIAL, AND SENTENCING – CAUSE NO. 49G05-0907-MR-061072

Pre-Trial/Motion to Suppress

At a pre-trial hearing on August 26, 2009, Brooks orally moved to suppress

ammunition that had been found in Brooks’ pocket during an alleged Terry stop

almost two days after Mr. Hardwick’s death *Tr. 24-25]. The trial court held a

suppression hearing and the State called Lawrence Police Department Officer

Tracey Cantrell [Tr. 31]. On March 18, 2009, Officer Cantrell was dispatched to

the Pinnacle Square Apartment Complex, near 42nd and Post Road on a call for a

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possible assault with a weapon [Tr. 32-33]. The alleged perpetrator was

described as wearing a jacket with a dragon emblem on it [Tr.34]. Because the

dispatch indicated that the alleged perpetrator was headed east toward another

apartment complex that was where Officer Cantrell headed [Tr. 34]. Once

arriving at that other complex, the 42nd Place Efficiencies, Officer Cantrell saw Mr.

Brooks, who he believed matched the description, standing at the entrance to the

42nd Place Efficiencies talking to a maintenance man *Tr. 35+. “*B+ecause of the

nature of what had happened at Pinnacle Square and Mr. Brooks fitting that

description, I did a Terry stop on him.” *Tr. 35+.

Officer Cantrell proceeded to pat Brooks down and, while doing so,

recognized the feel of ammunition in one of Brooks’ front pockets *Tr. 36-37].

According to Officer Cantrell, “*o+nce I felt that there was ammunition in there, I

proceeded to go in his pockets, remove the items, [sic] place them in his hat that

he had on the hood of my car” *Tr. 37+. In addition to the ammunition, Officer

Cantrell also removed cell phones from Brooks’ pockets [Tr. 41]. Once Officer

Cantrell removed the items from Brooks’ pockets, Brooks was placed in handcuffs

and Officer Cantrell continued his search [Tr. 41-42]. However, according to the

police report that was generated from Officer Cantrell’s encounter with Brooks,

Cantrell placed Brooks in handcuffs for officer safety and then conducted the pat-

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down search of Brooks [Tr. 47; Defense Suppression Exhibit #A (Exhibit Vol. I, p.

115). At no time during the pat-down search did Officer Cantrell find any

weapons on Brooks [Tr. 47-48]. While Officer Cantrell was engaged with Brooks,

the alleged victim of the assault was brought to the scene for a “show-up

identification” and identified Brooks as the perpetrator *Tr. 39-40]. At that time,

Brooks was taken into custody [Tr. 40].

Brooks’ version of events differs from Officer Cantrell’s. According to

Brooks, he was standing at the 42nd Street Efficiencies speaking with a

maintenance man [Tr. 53]. After Brooks had finished speaking with the

maintenance man, he had begun to walk away when a police car pulled up [Tr.

53+. Officer Cantrell told him to “come back” *Tr. 53+. The first thing Officer

Cantrell did was put him in handcuffs [Tr. 54]. Officer Cantrell went and spoke

with the maintenance man Brooks had been speaking with earlier and then came

back to Brooks and began to pat him down [Id.]. Officer Cantrell then began

pulling everything out of Brooks’ pockets – including his cell phones, his money,

his Bluetooth, other personal items, as well as four bullets – and put everything

on top of the police car [Tr. 54-55]. Brooks was then put in the back of Officer

Cantrell’s police car until another police car arrived *Tr. 55+. The alleged victim of

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the assault was in the police car and identified Brooks as the perpetrator [Id.].

Brooks was taken into custody [Id.].

In post-hearing briefing, Brooks filed, as part of his memorandum of law, an

affidavit from Sean Jointer, the maintenance man who Brooks was speaking with

when Officer Cantrell arrived on the scene [App. 90]. According to Mr. Jointer, he

was driving his vehicle through the apartment complex when he saw a young man

running [Id.]. Mr. Jointer pulled up next to the young man and told him to stop

running, which the young man did [Id.]. While they were talking, a security guard

or police officer came up and started talking to the young man [Id.]. When they

finished talking, the young man began to walk away when “a Lawrence Police car

pulled up, and an officer got out and told the male to come back. The young man

turned around and walked back toward the officer” *Id.+. “The officer proceeded

to put on what looked like blue gloves and began to reach into the boys pockets

and remove items” *Id.]. Mr. Jointer left the area and when he looked back a few

minutes later, he saw the officer putting the young man in the back of his police

car [Id.].

At a pre-trial hearing on September 3, 2009, the trial court denied Brooks’

motion to suppress [Tr. 84]. In explaining his ruling, the trial court said the

following:

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I don’t like my ruling. I just fell that somehow there should be more but this is a case where the law doesn’t set out what the more should be. We have a mishmash of cases, federally and from other states. But in terms of what the very minimum is that the State needs – or the officer needs to do what he did, this is the very minimum and I expect to get a lot of scholarship if there’s an appeal.

[Tr. 84-85].

Trial

David and Danielle Hardwick were married on September 12, 2007 and

lived in the Lexington Park Apartments at 38th Street and Post Road in

Indianapolis, Marion County, Indiana [Tr. 208]. On the evening of March 16,

2008, Mrs. Hardwick’s younger brother was at the couple’s apartment *Tr. 210+.

When Mrs. Hardwick left for work at 9:30 pm, Mr. Hardwick told her good-bye

and was planning on going to Mrs. Hardwick’s father’s house to get a video game

cord so that Mrs. Hardwick’s brother could play a game *Tr. 209-210]. That was

the last time Mrs. Hardwick saw her husband alive [Tr. 209]. Ciro Mucci, Mr.

Hardwick’s friend and co-worker, spoke with Mr. Hardwick on Mr. Hardwick’s cell

phone at 9:48 pm on March 16, 2008 for approximately ten minutes [Tr. 248-50].

At 9:58 pm on March 16, 2008, Mr. Hardwick’s ex-fiancée Pamela Kersten-

Bruenning sent Mr. Hardwick a text message on his cell phone but received no

16

response [Tr. 240]. She tried calling Mr. Hardwick at 10:55 pm but Mr. Hardwick

did not answer his phone [Id.].

On March 16, 2008, Candace Pernell, her boyfriend Dominic McCoy, and

their two children were living in the Lexington Park Apartments [Tr. 267-68]. At

around 10:00 pm on March 16, 2008, Ms. Pernell was home, heard a gunshot, and

the gunshot sounded close [Tr. 268]. Mr. McCoy was at work at the convention

center that evening and got off work around midnight [Tr. 273]. He arrived home

at the Lexington Park Apartments between 12:40 am and 1:00 am on March 17,

2008 [Id.]. Upon arriving home, Mr. McCoy saw a man lying on the ground

bleeding from his head *Tr. 273+. The man’s eyes were open and he was not

breathing [Tr. 275]. Mr. McCoy called the police [Id.].

In the early morning hours of March 17, 2008, IMPD Patrol Officer Sara

Lapadat received a radio call regarding an injured person near 38th Street and Post

Road [Tr. 226]. She arrived on the scene at 1:15 am and was the first officer to

arrive [Tr. 228]. Upon arriving, she saw a white male lying on the ground [Tr.

228]. He had one arm at his side and the other arm was across his stomach [Tr.

229+. The man’s feet were crossed and there was blood coming out of his mouth

[Tr. 229-30, State’s Ex. # 7 & 9+. Officer Lapadat secured the scene, spoke with

Mr. McCoy, and called the homicide detectives [Tr. 231-33].

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IMPD Detective Claire Hochman was assigned to investigate the homicide

by virtue of her place in the case rotation [Tr. 474]. When she got the call about

Mr. Hardwick, she went to the scene *474+. Missing from Mr. Hardwick’s person

were a watch and a bracelet and found on his person were his iPod, cell phone,

keys, and some tobacco [Tr. 479]. That property was returned to Mrs. Hardwick

[Tr. 480].

During her investigation, Detective Hochman concluded that Mr. Hardwick

was killed at approximately 10:00 pm [Tr. 481]. She also learned that someone

had tried to use Mr. Hardwick’s ATM card at a Marathon gas station at 42nd and

Franklin Road [Tr. 482]. According to bank records, there were two more later

attempts to use the ATM card at another location [Tr. 426]. When Detective

Hochman went to the Marathon, she discovered they had video cameras and she

was able to retrieve the video from the night of March 16, 2008 [Tr. 483]. The

person in the video was wearing some items of clothing similar to some of the

clothes recovered from Brooks by the Lawrence Police Department on March 18,

2008 [Tr. 500-503].

On March 18, 2010, Officer Cantrell of the Lawrence Police Department got

called on a run to the Pinnacle Square Apartments at 42nd and Post Road [Tr. 325].

He had the description of a black male wearing a hat, pants, and a dark coat with

18

a huge logo on the back [Tr. 327]. Officer Cantrell came across an individual who

“matched” that description in the complex to the east of Pinnacle [Tr. 328].

Officer Cantrell did a pat-down frisk of that individual, who was Brooks, and

recovered four bullets from his pocket [Tr. 333]. David Newlon, also with the

Lawrence Police Department, took possession of the bullets, which were admitted

at trial as State’s Exhibit 35 *Tr. 340-44; State’s Ex. # 35, Ex. Vol. I, p. 68+.

Timothy Spears, a firearms analyst with the Marion County Crime Lab, did a

comparison between the bullets recovered from Brooks and the bullets recovered

from Mr. Hardwick’s head at autopsy, which was State’s Exhibit 22 *Tr. 359-60;

State’s Ex. # 22, Ex. Vol. I, p. 50; State’s Ex. #35, Ex. Vol. I, p. 68+. One of the

bullets in State’s Exhibit 35 – the 95 grain nickel colored bullet – was similar in

grain and morphology to State’s Exhibit 22 *Tr. 366-367]. Mr. Spears did internet

research and looked in some stores but could not find similar bullets [Tr. 368].

Likewise, during her investigation, Detective Hochman went to eight different gun

and ammunition stores looking for similar bullets, but could not find any [Tr. 505-

509].

Sentencing

Prior to sentencing, Brooks submitted his presentence memorandum and

attachements, those attachments being: 1) Attachment A – resume of Sophia

19

Mustaklem, Juvenile Alternative Placement Coordinator for the Marion County

Public Defender Agency; 2) Attachment B – Brooks’ report card from Boys Town;

3) Attachment C – the transcript of Ellen McElderry’s waiver hearing testimony; 4)

Attachment D – the transcript of Neil Wise’s waiver hearing testimony; 5)

Attachment E – Brooks’ Certificate of Excellence from Boys Town; 6) Attachment F

– Letter about Brooks’ positive Boys Town progress from Ms. McElderry to Brandy

Valdez, Brooks’ juvenile probation officer, dated December 19, 2008; 7)

Attachment G – Letter about Brooks’ positive Boys Town progress from Ms.

McElderry to Brandy Valdez, Brooks’ juvenile probation officer, dated January 14,

2009; 8) Attachment H – Brooks’ juvenile detention center certificate for reaching

“Honor Level 5”; 9) Attachment I – resume of Dr. Tonya Foreman, M.D.; 10)

Attachment J – Report of Dr. Foreman’s psychiatric evaluation of Brooks; 11)

Attachment K – the transcript of Dr. Foreman’s waiver hearing testimony; and 12)

Attachment L – ABA article from the Juvenile Justice Center entitled

“Adolescence, Brain Development and Legal Culpability *Defendant’s Sentencing

Exhibit A, Ex. Vol. IV].

The State admitted four letters as evidence and called two witnesses, the

first being Mrs. Hardwick [Tr. 682-684]. Mrs. Hardwick read a letter to the trial

court in which she discussed the terrible impact that Mr. Hardwick’s death had on

20

her, her children, and Mr. Hardwick’s children and how she sees so much of her

husband in his children *Tr. 686+. “*Brooks+ took a father, a husband, a son, a

brother, and a friend and we are all left with memories.” *Tr. 686+. The second

witness for the State was Mr. Hardwick’s sister, Coral Nelson *Tr. 687+. Ms.

Nelson is Mr. Hardwick’s older sister *Tr. 688+. She also read a letter to the trial

court in which she talked about how close she and Mr. Hardwick were and how

she finds herself picking up the telephone to call him before remembering he’s

gone [Tr. 689]. Her family lost Mr. Hardwick around the same time that her other

brother, Tony, died an accidental death [Id.]. Their family was already dealing

with so much and the Mr. Hardwick’s death “ripped each member of our family to

shreds.” *Id.]. She feels hatred and wants revenge, but she knows that nothing

that happens to Brooks will “repair the damage he has inflicted on out family.”

[Tr. 690].

Brooks objected to his juvenile true findings being considered as

aggravating factors pursuant to Blakley v. Washington, 542 U.S. 296 (2004) and

Apprendi v. New Jersey, 530 U.S. 466 (2000) *Tr. 677+. Brooks’s grandmother,

Bridget Hayes, testified on Brooks’ behalf and told the Court about how Brooks’

being incarcerated has negatively impacted his younger siblings [Tr. 694]. Brandy

Valdez, Brooks’ juvenile court probation officer testified about her professional

21

relationship with Brooks [Tr. 697-708]. Ms. Valdez further testified that she

believed Brooks had been learning to make positive choices while at Boys Town

and that she believed Brooks was “on the way to becoming a positive member of

our community.” *Tr. 708+. Sophia Mustaklem talked about the positive progress

that Brooks made while at Boys Town [Tr. 714-715]. She acknowledged that

Brooks did have some write-ups while at the juvenile detention center, but that

those were typical of juvenile offenders in general [Tr. 716-717].

Additional facts will be included in Brooks arguments below as needed.

SUMMARY OF ARGUMENTS

The juvenile court abused its discretion when it waived Brooks into adult

court. Brooks presented sufficient evidence to show that waiver not in his best

interests or in the best interests of the safety and welfare of the community.

Under the current standard of review, however, this Court is unable to conduct a

meaningful review of Brooks’ waiver order, thus making the standard of review

unconstitutional. Under a constitutionally appropriate standard of review, such

as is employed by the court in self-defense cases, the trial court abused its

discretion in order Brooks waived.

The trial court erred in admitting as evidence a bullet that was seized from

Brooks under an illegal Terry stop. The officer who performed the stop did not

22

have reasonable suspicion to believe that Brooks was or had engaged in any legal

wrongdoing. Brooks did not match the suspect description that the officer had

and, moreover, there was nothing to indicate that the description came from a

reliable source.

The admission of the bullet was also an error under the Indiana

Constitution. The officer’s searching Brooks was unreasonable under the totality

of the circumstances because the degree of suspicion was low and the degree of

intrusion on Brooks was very high.

The trial court erred in denying Brooks’ motion for a mistrial when the

testimony of a State’s witness constituted evidentiary harpoons. The State’s

witness volunteered information that was inadmissible under Indiana Rule of

Evidence 404(b) and was unresponsive to the questions asked. While the trial

court did give an admonishment, that admonishment was untimely and

incomplete and is, thus, not entitled to a presumption of having cured the error.

Without the improperly admitted bullets, the State failed to present

sufficient evidence to sustain Brooks’ convictions. Without the bullet, the only

information linking Brooks to the crime was his possession and use of Mr.

Hardwick’s ATM card. That, standing alone, is insufficient to prove the charged

offenses.

23

Finally, Brooks’ sentence is inappropriately high. Although the this was a

horrible and senseless crime, that has to be balanced against who Brooks was

when he was sentenced. Simply put, he was not the same person that he was

when the crime was committed and has shown promise both academically and

psychologically.

ARGUMENTS

I. The juvenile court abused its discretion by waiving jurisdiction over Brooks

Juvenile jurisdiction over Brooks was waived pursuant to Ind. Code § 31-30-

3-4, which states:

Upon motion of the prosecuting attorney and after full investigation and hearing, the juvenile court shall waive jurisdiction if it finds that:

(1) the child is charged with an act that would be murder if committed by an adult;

(2) there is probable cause to believe that the child has committed the act; and

(3) the child was at least ten (10) years of age when the act charged was allegedly committed;

24

unless it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.

Under Ind. Code § 31-30-3-4, proof of elements 1, 2, & 3 “creates a presumption

in favor of waiver.” Moore v. State, 723 N.E.2d 442, 446 (Ind. Ct. App. 2000),

citing Hagan v. State, 682 N.E.2d 1292, 1295 (Ind. Ct. App. 1996). Once the State

proves these three elements by a preponderance of the evidence, “the burden is

on the juvenile to present evidence and prove that waiver is not in his best

interest or that of the safety and welfare of the community.” Moore, 723 N.E.2d

at 446, citing Hagan, 682 N.E.2d at 1295.

A trial court’s findings in determining waiver of juvenile jurisdiction must

“be sufficiently clear to permit review.” Gregory v. State, 386 N.E.2d 675, 679

(Ind. 1979). Additionally, a panel of this Court has noted:

When reviewing a claim of the sufficiency of a waiver order, we will not weigh the evidence or judge the credibility of the witnesses. We look only to the evidence most favorable to the State and the reasonable inferences to be drawn therefrom, considering both the waiver hearing and the findings of fact given by the court. Unlike criminal proceedings, juvenile proceedings are of a general civil nature, and the burden upon the State is to establish by a preponderance of the evidence that juvenile jurisdiction should be waived. The juvenile court is entitled to give the evidence before it what weight it deems appropriate. A juvenile court’s decision

25

to waive its jurisdiction is reviewed for an abuse of discretion.

Hall v. State, 870 N.E.2d 449, 455 (Ind. Ct. App. 2007) (citations omitted). Thus,

the contents of the waiver order are important for a meaningful review. “*T+he

waiver order and record must allow a meaningful review which is not based on

assumptions about the state of mind of the judge. We recognize that conclusory

statements or mere recitations of statutory requirements without further

explanation will not suffice.” Thomas v. State, 562 N.E.2d 43, 46 (Ind. Ct. App.

1990) (citations omitted). Here, as to whether waiver was in Brooks’ best

interests and of the safety and welfare of the community, the trial court’s order is

not sufficient for this Court to engage in meaningful appellate review.

In its Waiver Order, the trial court made lengthy and detailed findings that

Brooks was charged with a crime that would be murder if committed by an adult,

that there was probable cause to believe that Brooks committed the charged

offense, and that Brooks was at least ten (10) years of age at the time the alleged

offense was committed [App. 38-42]. However, regarding the best interests of

the child and the safety and welfare of the community, the trial court made the

following cursory finding – “The Court has not found from the evidence that it

would be in the best interest of the child and the safety and welfare of the

26

community for him to remain in the juvenile justice system” *App. 42+. This

finding was an abuse of discretion

The current standard for reviewing the propriety of juvenile waiver orders

is unconstitutional under both the Indiana and United States Constitutions.

Under the current standard, the appellate court will only consider the evidence

most favorable to the State’s position in favor of waiver. Hall, 870 N.E.2d at 455.

However, the State is only required to prove elements 1-3 of Ind. Code § 31-30-3-

4. That means the State is never required to present any evidence to show why

waiver is not in the best interests of the child and/or the safety and welfare of the

community. The burden shifting to the child to produce such evidence is highly

problematic. It necessarily means the appellate court is entitled to review only

have of the waiver hearing evidence. This proposition is palpable when looking at

Brooks’ waiver hearing. The State presented its evidence first. After that, the

trial court found that the State had met its burden on elements 1-3 [Tr. 916].

Then, and only then was Brooks able to put on his evidence.

“The Indiana Constitution grants an absolute right to one appeal.” Flores v.

Flores, 658 N.E.2d 95 (Ind. Ct. App. 1995), citing Ind. Const., Art. VII, Sec. 6.

However, the standard of review for waiver hearings renders the right to appeal

illusory when a child is seeking to appeal a waiver order, thus denying the child his

27

right to appeal in violation of his right to due process. See U.S. Const. Amend. XIV;

Ind. Const. Art. I, Sec. 12; Art. VII, Sec. 6. The more appropriate and

constitutionally sound standard of review would be analogous to that applied in

criminal cases where self-defense is raised at trial.

In Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000), the Indiana Supreme

Court noted that when a criminal defendant raises a self-defense claim in the trial

court, he is required to prove three things: “1) that he was in a place he had a

right to be; 2) he acted without fault; and 3) he had a reasonable fear of death or

great bodily injury.” Citing McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998). “The

issue on appellate review is typically whether the State presented sufficient

evidence to support a finding that at least one of the elements of the defendant’s

self-defense claim was negated.” Wallace, 725 N.E.2d at 840. This is a

constitutionally appropriate standard of review because it takes into account the

shifting burdens in the trial court when a claim of self-defense is raised – from the

State after proving the elements of the offense, to the defense to prove the

elements of self-defense, and then back to the State to negate the proof on one

of the elements of self defense. See McEwen, 695 N.E.2d at 90.

Similarly, in waiver cases, once the State has proved its three elements, the

burden shifts to the child to show why it is in his and the community’s best

28

interest that he not be waved. Once the child has made such a showing, the

burden should shift back to the State to disprove an element of what the child

showed.

This approach is sound in light of the appellate court’s duty to conduct

“meaningful review” of the waiver order. See Thomas v. State, 562 N.E.2d 43, 46

(Ind. Ct. App. 1990) (citing Cartwright v. State, 344 N.E.2d 83, 87 (Ind. Ct. App.

1976))(“*T+he waiver order and record must allow a meaningful review”). On the

contrary, there can be no meaningful review under the current standard of review

because it compels the court to ignore half of the proceeding, namely the child’s

evidence.

Under a constitutionally sound standard of review, like in Wallace, Brooks

has indeed demonstrated that waiver was neither in his best interest nor in the

best interests of the community. Brooks presented extensive evidence showing

that he could be rehabilitated and even thrive in a constructive, therapeutic

setting for juveniles. See Waiver Testimony of Dr. Tonya Foreman, Tr. 1096-1115

(discussed supra at p. 7-8); Waiver Testimony of Professor Fran Watson, Tr. 1198-

1203 (discussed supra at p. 9; Waiver Testimony of Ellen McElderry, Tr. 1213-1259

(discussed supra at p. 9-10); Waiver Testimony of Neil Wise, Tr. 1279-1312

(discussed supra at p. 10-11). The State did not rebut this. Additionally, as to the

29

best interests of the community, Brooks presented the testimony of Linda

Commons, who spoke at length about the programs available for juvenile

offenders and the intensive treatment and educational programs that the

juveniles will go through so that they are prepared to reenter the community and

be productive [Tr. 1009-1034 (discussed supra at p. 6-7)]. Brooks also presented

the testimony of Dr. Donna Bishop who spoke about her research conclusions

that waiver of juveniles into adult court actually damages communities [Tr. 1150-

1188 (discussed supra at p. 8-9)]. The State did not rebut this evidence either.

Accordingly, this Court should find that Brooks presented sufficient

evidence to show that waiver was not in his best interest or in the best interests

of the community and reverse the juvenile court’s order of waiver.

II. The trial court erred in admitting the bullet found in Brooks’ pocket when the law enforcement officer lacked reasonable suspicion to conduct the pat down of Brooks in violation of the Fourth Amendment

The trial court committed reversible error by admitting as evidence the

bullets seized from Brooks by Officer Cantrell on March 18, 2008 [Tr. 343-344].

Although Officer Cantrell’s encounter with Brooks purported to be a Terry stop,

the evidence demonstrates it was actually an unlawful seizure under the

The Fourth Amendment “imposes a standard of reasonableness upon the

discretion of law enforcement agents in order to protect individual privacy from

30

arbitrary invasions.” Burkett v. State, 736 N.E.2d 304, 305 (Ind. Ct. App. 2000).

Under the doctrine set out in Terry v. Ohio, an officer is permitted to “stop and

briefly detain a person for investigative purposes if the officer has a reasonable

suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even

if the officer lacks probable cause.” 392 U.S. 1, 30 (1968).

“Reasonable suspicion is a ‘somewhat abstract’ not readily reduced to ‘a

neat set of legal rules.’” L.W. v. State, 2010 Ind. App. LEXIS 700, * 4 (Ind. 2010),

citing Moultry v. State, 808 N.E.2d 168, 171 (Ind. Ct. App. 2004) (quoting United

States v. Arvizu, 534 U.S. 266, 274 (2002). The Court in L.W. went on to note:

When making a reasonable suspicion determination, reviewing courts examine the totality of the circumstances of the case to see whether the detaining officer had a particularized and objective basis for suspecting legal wrongdoing. The reasonable suspicion requirement is met where the facts known to the officer, together with the reasonable inferences arising from such facts, would cause an ordinarily prudent person to believe criminal activity has occurred or is about to occur.

L.W., 2010 Ind. App. LEXIS 700 at 4 (internal quotations omitted)(citations

omitted). Recently, the Indiana Supreme Court wrote, “*r+easonable suspicion is a

less demanding standard than probable cause and requires a showing

considerably less than preponderance of the evidence, but it still requires at least

31

a minimal level of objective justification and more than an inchoate and

unparticularized suspicion or ‘hunch’ of criminal activity.” State v. Schlechty, 2010

Ind. LEXIS 208, * 7 (Ind. 2010), citing Illinois v. Wardlow, 528 U.S. 119, 123-24

(2000). Put another way, “*w+hen an officer initiates a Terry stop, he must be able

to point to ‘specific and articulable facts’ that suggest criminality so that he is not

basing his actions on a mere hunch.” United States v. Booker, 579 F.3d 835, 838

(7th Cir. 2009).

On appeal, a reviewing court reviews a trial court’s determination of

reasonable suspicion de novo. Armfield v. State, 918 N.E.2d 316, 319 (Ind. 2009).

“The U.S. Supreme Court has also directed reviewing courts to ‘make reasonable-

suspicion determinations by look*ing+ at the “totality of the circumstances” of

each case to see whether the detaining officer has a “particularized and objective

basis” for suspecting legal wrongdoing.’” Id., citing Arvizu, 534 U.S. at 273-74.

Reviewing the issue de novo, Officer Cantrell lacked a particularized and objective

basis for suspecting that Brooks was engaged in legal wrongdoing. Therefore, the

trial court erred in admitting the bullet, State’s Exhibit 35.

The record is undisputed that, at the time Officer Cantrell encountered

Brooks on March 18, 2008, Brooks was standing outside at the 42nd Place

Efficiencies speaking with a maintenance man [Tr. 35]. It is also undisputed that

32

when Officer Cantrell told Brooks to come to him, Brooks did so; moreover,

Brooks was totally cooperative1 [Tr. 35]. At the suppression hearing, Officer

Cantrell testified that upon responding to a call regarding a possible assault with a

weapon, he saw an individual who “matched” the subject’s description [Tr. 33].

According to Officer Cantrell, the description was an individual wearing a jacket

with a dragon emblem on the back [Tr. 34]. The photographs taken of Brooks

following his arrest show Brooks was not wearing a jacket with a dragon emblem

on it *State’s Ex. 33, Exhibit Vol. I, p. 64+. At trial, however, Officer Cantrell

expanded the description to black male wearing a dark coat with a “huge” logo on

the back, a hat, and pants [Tr. 327]. Officer Cantrell testified that the reason he

performed the Terry stop was because Brooks “matched” description [Tr. 35].

However, the description Officer Cantrell had was not specific enough to establish

reasonable suspicion to conduct a Terry stop on Brooks.

“The reasonableness of official suspicion must be measured by what the

officers knew before they conducted their search.” Florida v. J.L., 529 U.S. 266,

271 (2000). The relevant factors to assess reasonable suspicion include the

1 Officer Cantrell testified that Brooks said he had no objection to being searched [Tr. 36].

However, as a matter of law, this could not have been a consensual encounter. First, Brooks is a

juvenile and, as such, may not waive rights on his own unless he has been emancipated, which he

has not. See Ind. Code § 31-32-5-1. Also, Brooks could not have consented to being search

because he was not advised of his rights under Pirtle v. State, 323 N.E.2d 634 (Ind. 1975).

33

specificity of the description of the suspect, the number of people in the area,

where the person was stopped, and how long ago the crime occurred. See United

States v. Goodrich, 450 F.3d 552, 561 (3d Cir. 2006); United States v. Broomfield,

417 F.3d 654, 655 (7th Cir. 2005). Here, the record is silent regarding the number

of people in the area as well as how much time passed between the alleged

assault and Officer Cantrell’s encounter with Brooks. Brooks concedes that the

stop occurred close in geographic proximity to the assault. But, what this case

really comes down to is specificity of the description or, as a panel of this Court

discussed in L.W., the reliability of the description.

In L.W., a panel of this Court reversed a delinquency true finding because

the evidence against L.W. had been seized via a Terry stop that lacked a

foundation of reasonable suspicion.2 2010 Ind. App. LEXIS 700. In L.W., the

description of an alleged burglar as a “tall black male wearing *a+ black shirt and

black shoes” came from a man named Brandon Shockley. 2010 Ind. App. LEXIS

700 at *2. When the law enforcement officer encountered L.W., he “thought that

L.W. ‘fit *the suspect’s+ description to a ‘T’’.” Id. The Court found “the dispositive

question is whether the tip Shockley provided to police was sufficient to support

2 Brooks would note that the officer who performed the illegal Terry stop in L.W. was Officer

Cantrell.

34

an investigatory stop of L.W.” Id. at *5. In finding Shockley’s tip inadequate, the

Court noted:

there is no evidence in the record that law enforcement had verified Shockley’s identity or that his reliability was known prior to the investigatory stop of L.W. On this record, while Shockley identified himself, he was nonetheless a virtual stranger. Neither Officer Cantrell nor the police department knew whether he was “a concerned citizen, a prankster, or an imposter.” And there is no evidence that Shockley identified himself in such a way that would place his credibility at risk or subject himself to criminal penalties. Nor is there any indication that the tipster indicated that he had inside knowledge about the burglary or the suspect. Shockley merely described the suspect’s general build, shirt, and shoes. That same information was available to the general public and did not provide the police with sufficient information to corroborate Shockley’s assertions.

Id. at *8-9, citing State v. Glass, 769 N.E.2d 639, 643 (Ind. Ct. App. 2002). The

L.W. Court continued by noting:

We must consider both the content and reliability of the information provided by Shockley. At trial, Officer Cantrell testified that at the time he stopped L.W., the only information he had about the burglary suspect was that he was a “tall black male wearing *a+ black shirt and black shoes.” * + As the dissent observes, and as we stated in Glass, “an investigative stop may be based upon the collective information known to the law enforcement organization as a whole.” Such information may be imputed to the officer in the field. But, while the police may have possessed more information about the

35

suspect, “we must base our decision on the record before us.”

2010 Ind. App. LEXIS 700 at *17, citing Glass, 769 N.E.2d at 643-44. In reversing

the true finding and excluding the fruits of Officer Cantrell’s Terry stop of L.W.,

the Court held that “on the record before us, the State has not demonstrated that

based on specific and articulable facts Officer Cantrell had a particularized and

objective basis to suspect that L.W. had committed, was committing, or was

about to commit legal wrongdoing.” Id. at 20. This is the same thing the State

failed to demonstrate in Brooks’ case.

In Brooks’ case, the description Officer Cantrell had was of a black male,

with no further description about age or height, with a dragon or large logo on

the back of his jacket, pants, and a hat. However, the State offered no evidence

regarding the source of this description, other than it came from dispatch [Tr. 33].

There was no indication as to whether that description came from the victim or a

witness. Additionally, there was nothing about the description that went beyond

what was readily observable by the general public. On this record, there is

nothing to established that Officer Cantrell had a particularized and objective

basis to suspect that Brooks had committed legal wrongdoing, despite Officer

Cantrell’s assertion at Brooks’ trial that Brooks “fit the description almost to a T”

36

[Tr. 328], see L.W.. 2010 Ind. App. LEXIS at *2. Accordingly, the bullets seized

during Officer Cantrell’s illegal pat-down search of Brooks should not have been

admitted into evidence pursuant to the exclusionary rule. See Mapp v. Ohio, 367

U.S. 643 (1961) (a violation of the Fourth Amendment, as applicable to the States

through the Fourteenth Amendment, requires the exclusion of evidence seized in

violation of the Fourth Amendment in State prosecutions). Without the bullets,

there was insufficient evidence to sustain Brooks’ conviction. See Argument V,

infra. In the alternative, Brooks is entitled to a new trial wherein the illegally

obtained evidence would be excluded.

III. The trial court erred in admitting the bullet found in Brooks’ pocket when the law enforcement officer who patted Brooks down acted unreasonably under the totality of the circumstances pursuant to Article I, Section 11 of the Indiana Constitution

While the language of Article I, Section 11, of the Indiana Constitution

tracks the language of the Fourth Amendment, the analysis of the propriety of a

search or seizure under the Indiana Constitution is different than in the Fourth

Amendment context. “The legality of a governmental search under the Indiana

Constitution turns on an evaluation of the reasonableness of the police conduct

under the totality of the circumstances.” Webster v. State, 908 N.E.2d 289, 292

(Ind. Ct. App. 2009). In Litchfield v. State, the Indiana Supreme Court set out a

37

three-part balancing test for determining whether a search was reasonable,

looking at “1) the degree of concern, suspicion, or knowledge that a violation has

occurred, 2) the degree of intrusion the method of the search or seizure imposes

on the citizen’s ordinary activities, and 3) the extent of law enforcement needs.”

824 N.E.2d 356, 361 (Ind. 2005). Under an Indiana Constitutional analysis, it is

clear that Officer Cantrell’s was unreasonable under the totality of the

circumstances.

Regarding the degree of concern, suspicion, or knowledge that a violation

had occurred, Brooks cannot and does not dispute that Officer Cantrell had

received information from dispatch that a crime had been committed. Thus,

Officer Cantrell had reason to believe that a violation had occurred. What Officer

Cantrell did not have, however, was a reasonable degree of concern, suspicion, or

knowledge that Brooks was the one who had committed the crime. Officer

Cantrell had only a vague description of the suspect and no information regarding

the reliability of the description. Moreover, the description Officer Cantrell had,

of an individual with a dragon emblem on his jacket, did not match what Brooks

was wearing [State’s Ex. 33, Exhibit Vol. I, p. 64]. Brooks did not act suspiciously

and gave Officer Cantrell no problems [Tr. 35]. Thus, it was unreasonable for

Officer Cantrell to suspect that Brooks had or was committing any violation.

38

Regarding the degree of intrusion the method of search and seizure

imposed on Brooks’ ordinary activities, that degree of intrusion was very high.

Brooks was walking away from the area when Officer Cantrell stopped him [Tr.

35]. Officer Cantrell, after feeling the bullets in Brooks’ pocket – items which

were not contraband – removed all the items from Brooks’ pockets, placed the

items on the hood of his car and placed Brooks in handcuffs [Tr. 37, 41]. Officer

Cantrell acknowledged that his search was completed when he felt the

ammunition, yet Brooks was detained, in handcuffs, for an unspecified amount of

time, until the alleged victim of the assault showed up and identified Brooks as

the perpetrator [Tr. 39]. The degree of intrusion on Brooks’ ordinary activities

simply cannot be justified under the circumstances with which Officer Cantrell

was faced.

Regarding the extent of law enforcement needs, clearly law enforcement

has a need to investigate alleged crimes. However, as the Court noted in

Litchfield, “the degree of intrusion may render a search unreasonable, even

where law enforcement needs are obviously present.” 824 N.E.2d at 360. That is

exactly what happened here. The degree of intrusion was so high that it

completely overwhelmed the obvious need of law enforcement.

39

Thus, under the totality of the circumstances, the degree of suspicion that

Brooks had committed a crime was low, the degree of intrusion into Brooks’

activities was extremely high, and the extent of law enforcement needs, while

present, were insufficient to counter-balance the level of intrusion of Officer

Cantrell’s seizure and search of Brooks. Under the totality of the circumstances,

Brooks rights under Article I, Section 11 of the Indiana Constitution were violated.

Accordingly, Brooks convictions should be reversed and the Court should find

that, without the bullets as evidence, there was insufficient evidence to support

Brooks’ conviction. See Argument V, infra. In the alternative, the Court should

reverse Brooks’ convictions and remand for a new trial wherein the illegally seized

bullets would be excluded as evidence.

IV. The trial court erred in denying Brooks’ motion for a mistrial because Officer Cantrell gave testimony which constituted evidentiary harpoons and they placed Brooks in grave peril

Indiana Rule of Evidence 404(b) states that “*e+vidence of other crimes,

wrongs, or acts, is not admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, intent, plan, knowledge, identity, or absence of

mistake or accident . . .” In Brooks’ case, the trial court erred in denying Brooks’

motion for a mistrial after Officer Cantrell testified regarding inadmissible 404(b)

40

evidence. That testimony constituted an evidentiary harpoon. Although the

parties stipulated to and the trial court gave an admonishment to the jury, said

admonishment was insufficient to cure the harm from the evidentiary harpoon

and the trial court should have granted a mistrial.

“A mistrial is an extreme remedy granted only when no other method can

rectify the situation.” Booher v. State, 773 N.E.2d 815, 820 (Ind. 2002) (citations

omitted). A trial court’s decision not to grant a mistrial is reviewed for an abuse

of discretion. Wright v. State, 593 N.E.2d 1192, 1196 (Ind. 1992). “In determining

whether a mistrial is warranted, we consider whether the defendant was placed

in a position of grave peril to which he should not have been subjected; the

gravity of the peril is determined by the probable persuasive effect on the jury’s

decision.” Leach v. State, 699 N.E.2d 641, 644 (Ind. 1998). Here, Officer Cantrell’s

evidentiary harpoon placed Brooks in as position of great peril to which he should

not have been subjected.

During his testimony, Officer Cantrell testified that, on March 18, 2008, he

was dispatched to the area of 42nd and Post Road “regarding an incident that had

occurred at the Pinnacle Square Apartments” and that he was given a description

of somebody that “was of interest” to him *Tr. 325, 327+. Officer Cantrell also

confirmed that he was “given the direction of travel of this person of interest” *Tr.

41

327-328+. At that point in Officer Cantrell’s testimony, Brooks objected, arguing

that the parties had agreed that, in order to conform with 404(b), Officer

Cantrell’s testimony would indicate only that Brooks had an encounter with law

enforcement and that now, Brooks was being referred to as a person of interest

*Tr. 329+. The trial court was troubled by the “phrase person of interest,”

intimated that the State may have gone too far, and ordered the State to “*d+o it

bare bones and lead” *Tr. 329-331].

Officer Cantrell’s testimony continued with him indicating that he had a

“reason” to do a pat-down frisk on Brooks and then explaining to the jury that the

purpose of a pat-down frisk is to search for things that “could be used as a

weapon against an officer” [Tr. 332]. At that point in his testimony, Officer

Cantrell was asked the following question and gave the following response:

Q: What did you do with those bullets? A: I took them out after I handcuffed him at that

point because where there’s ammunition there’s either somewhere in that area or could be somewhere close a firearm, so he was cuffed at that point in time.

[Tr. 334, emphasis added]. Then, at the end of the State’s direct examination of

Officer Cantrell, the following exchange occurred:

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Q: After the bullets were recovered by you and another officer took possession and bagged them, did you have any further substantial contact with Nevin Brooks on that day?

A: I transported him back to the police station and

that was the last contact I had with Mr. Brooks. Q: And that’s to your knowledge, that’s when those

photographs were taken. A: Yes, sir.

[Tr. 336-37]. At that point, Brooks moved for a mistrial, arguing that Officer

Cantrell had “basically walk*ed+ through the facts that *Brooks+ was a suspect of

interest, he was detained and then he was transported to the police station. I

don’t know what else that is but 404(b) and prior crimes” [Tr. 337]. The trial court

denied Brooks’ motion for a mistrial and told Brooks that he could “make as full a

record as you want when we’re done for the day” *Tr. 338+.

When the trial broke for the end of the day, the parties were heard on the

issue and agreed to try and work out a stipulated admonishment to the jury [Tr.

373-381]. The next day, the trial court read the following stipulated

admonishment to the jury:

You heard testimony from Officer Cantrell and Officer Newlon yesterday and Detective Zentz today. Their testimony included references to an event that occurred on March 18, 2008 at or near Pinnacle Square

43

Apartments. This testimony is not to be used to infer or speculate as to whether Mr. Brooks was actually involved in any improper or illegal activity. You shall only consider Officer Cantrell and Officer Newlon’s testimony for the sole purpose for which it was introduced, that was to establish that during contact with Mr. Brooks, Officer Cantrell found bullets in Mr. Brooks*‘+ pocket and Officer Newlon retained and transported those bullets. The basis for Officer Cantrell’s dispatch on that day or whether Mr. Brooks was in any way involved in or related to any activity that led to that dispatch is not relevant. Speculation about Officer Cantrell’s contact with Mr. Brooks should not factor in to the jury’s deliberation or decision in this case.

*Tr. 466, State’s Ex. 44-C].

Officer Cantrell’s testimony that he transported Brooks “back to the police

station” was an evidentiary harpoon. “An evidentiary harpoon is the placing of

inadmissible evidence before the jury with the deliberate purpose of prejudicing

the jurors against the defendant.” Kirby v. State, 774 N.E.2d 523, 535 (Ind. Ct.

App. 2002). Officer Cantrell was asked what he “did with the bullets,” not what

he did with Brooks. Officer Cantrell was asked if he had “any further substantial

contact with Nevin Brooks on that day,” not what that contact was. Officer

Cantrell’s volunteering to the jury that he had handcuffed Brooks and taken him

to the police station was not responsive to the questions he had been asked and

was clearly prejudicial to Brooks – informing the jury that Brooks had been

44

arrested on an another matter. Voluntary statements by witnesses that are

unresponsive to the question posed and which put inadmissible evidence in front

of the jury can be evidentiary harpoons. See Perez v. State, 728 N.E.2d 234, 237

(Ind. Ct. App. 2000); Houchen v. State, 632 N.E.2d 791, 794 (Ind. Ct. App. 1994).

Whether intentional or not, Officer Cantrell volunteered statements which

informed the jury of other crimes or bad acts by Brooks which were not relevant

to the issues at trial. Given that Officer Cantrell’s statement was an evidentiary

harpoon, the issue becomes whether or not said harpoon placed Brooks in grave

peril. The evidence shows that it did.

“*A+ timely and accurate admonishment is presumed to cure any error in

the admission of evidence even assuming that the offending statement may have

been an evidentiary harpoon.” Boner v. State, 796 N.E.2d 1249, 1252 (Ind. Ct.

App. 2003), citing Kirby, 774 N.E.2d at 535-36. However, the admonition was not

timely and not accurate enough to warrant a presumption of cured error. First,

the admonishment in this case was not timely, but rather came the next day and

after several more witnesses had testified. Second, the admonishment was not

accurate in as much as it did not specifically address Officer Cantrell’s testimony

regarding handcuffing Brooks and taking him off to jail. The gravity of peril in

which Brooks was placed by Officer Cantrell’s comments was high. The State’s

45

case against Brooks was circumstantial and, as such, testimony that he was jailed

for an unrelated offense two nights after Mr. Hardwick was killed could certainly

have made the jury more likely presume that Brooks was a “criminal” rather than

innocent. Brooks should never have been placed in such peril. Accordingly, this

Court should reverse Brooks’ convictions and remand for a new trial wherein

Brooks would not have to dodge the evidentiary harpoon being tossed by Officer

Cantrell.

V. The State presented insufficient evidence to sustain Brooks’ conviction

“Lest there remain any doubt about the constitutional stature of the

reasonable-doubt standard, we explicitly hold that the Due Process Clause

protects the accused against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with which he is charged. In

re Winship, 397 U.S. 358, 364 (1970). See also, U.S. Const. amend. XIV, § 1; Ind.

Const. Art 1, § 12.

Evidence that does not rise to the reasonable-doubt standard is insufficient

to support a conviction. When analyzing an argument that the evidence

presented at a trial was insufficient to support a conviction, this Court “will

neither reweigh the evidence nor assess the credibility of witnesses [and] will

consider only the evidence most favorable to the judgment together with all

46

reasonable and logical inferences to be drawn therefrom.” Robinson v. State, 835

N.E.2d 518, 523 (Ind. Ct. App. 2005). A conviction will be affirmed “if a reasonable

trier of fact could find the defendant guilty beyond a reasonable doubt.” Chubb v.

State, 640 N.E.2d 44, 47 (Ind. 1994). It is not enough that the State, at trial,

provided some evidence that supports the conviction. Rather, the record must

reflect “substantial evidence of probative value to support the judgment of the

trier of fact.” Robinson, 835 N.E.2d at 523. Despite the demanding standard of

review, this Court has held that “in every case where *sufficiency of the evidence+

is raised on appeal we have an affirmative duty to make certain that the proof at

trial was, in fact, sufficient to support the verdict beyond a reasonable doubt. The

Due Process Clause of the Fourteenth Amendment protects an accused against

conviction” except upon such proof. Vandivier v. State, 822 N.E.2d 1047, 1053

(Ind. Ct. App. 2005) (citations omitted) (emphasis in original). Although the

sufficiency standard of review is deferential to factual determinations by the trial

court, the appellate court nevertheless has a “duty to examine the evidence

closely,” Luginbuhl v. State, 507 N.E.2d 620, 622 (Ind. Ct. App. 1987), which “may

require a probing and sifting of the evidence to determine whether the residue of

facts warrants a conviction.” Gaddis v. State, 251 N.E.2d 658, 660 (1969).

47

The State’s case against Brooks for Robbery and Murder was entirely

circumstantial. Taking the facts most favorable to the jury’s verdict, Brooks must

concede that a reasonable juror could have concluded it him in video footage

attempting to use Mr. Hardwick’s ATM card. Brooks does not dispute the fact

that he possessed stolen property – specifically, Mr. Hardwick’s ATM card.

However, possessing a murder victim’s ATM alone does not support an

assumption that the possessor either stole the ATM card or killed the person from

whom the card was stolen. See e.g., Fortson v. State, 919 N.E.2d 1136, 1143 (“the

mere unexplained possession of recently stolen property standing alone does not

automatically support a conviction for theft.”). The State’s key piece of evidence,

the linchpin of their case, was the nickel-colored, 95-grain bullet recovered from

Brooks by Officer Cantrell and admitted at trial as State’s Exhibit 35. Timothy

Spears testified about the uniqueness of State’s Exhibit 35 and State’s Exhibit 22 –

the bullet recovered from Mr. Hardwick’s body at autopsy – and how the

morphology of the bullets was similar and how he did extensive research,

including going to stores and checking the internet, but could not find similar

bullets anywhere [Tr. 366-368]. Detective Hochman testified that she went to

eight separate gun/ammunition stores and could not find a bullet similar to the

nickel bullet in State’s Exhibit 35, either [Tr. 508-509]. Without the improperly

48

admitted bullet, State’s Exhibit 35, there is insufficient evidence from which a

reasonable juror could have concluded that Brooks was at or near the scene of

Mr. Hardwick’s death at the time Mr. Hardwick was killed. Accordingly, given that

the bullet should not have been admitted, Brooks’ conviction should be reversed

due to insufficient evidence.

VI. Brooks’ 55-year sentence is inappropriate in light of his character and the nature of the offense

At the close of Brooks’ sentencing hearing, the trial court made the

following sentencing statement:

It’s a delicate balancing act sometimes. I’m not sure – well, I am sure that if Mr. Brooks had been in a different environment, we wouldn’t be here this way. He would have been a good student, he would have been a leader and hopefully would have used those abilities to help rather than harm for the gain of all instead of the gain of one. But that’s not what happened. He had a tragic background, born to a mother who was 13, born to a father who was going to be convicted of murder within the first five years of the child’s life. Bounced from household to household, in and out of foster homes. Sometimes society creates its own toxic waste and that, in a way, is what’s happened here. And yet, Mr. Brooks is still protective of the environment that brings him here. He doesn’t hold ill will to those who, in my estimation, failed him. He is capable of being a good person even though your witness, Ms. Foreman, stated in her testimony at the wavier hearing that he is a canvass on which much that is negative has already been written. We have to hope there’s hope, but we

49

also have to protect society. Mr. Hollingsworth has practiced in front of me enough that sometimes he channels me. If this were an adult defendant yes, he would be the worst of the worst and the maximum sentence would be totally appropriate. The theft as an 11-year-old is nothing special, a lot of 11-year-olds walk out with something that doesn’t belong to them. The criminal mischief D felony by fire is a little bit more problematic. We see that at age 13, I think. Using fire to cause that kind of damage is sometimes a predictor. Then we have February and March of 2008 when there are three unrelated armed robberies and one murder. Now, in hindsight you can see the spiral but at each step of his involvement in the juvenile justice system we don’t see what’s coming next. It’s not his fault he is who he is and the Supreme Court of the United States has recognized that. But the fact remains that his age is a mitigating factor but it’s not the only factor I consider. I look at his juvenile record, I look at his – the mitigating factors and I find they balance. I’ll impose the advisory sentence of 55 years, sentence to be served at the Department of Correction, 300 days credit as agreed on by the parties, find him indigent as to fines and costs.

[Tr. 760-762].

Under the Indiana Constitution, this Court has the authority to review and

revise sentences. See Ind. Const. Art. VII, Sections 4 & 6. Moreover, Indiana

Appellate Rule 7(B) provides that 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.” It is under this authority that Brooks asks this Court to

50

revise his sentence downward. However, “*A+ defendant bears the burden of

persuading the appellate court that his or her sentence is inappropriate.” Stewart

v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007), cited in Frentz v. State, 875

N.E.2d 453, 472 (Ind. Ct. App. 2007). In this instance, Brooks can meet his burden.

Regarding the nature of the offense, clearly this was an awful crime that

had a profoundly negative impact on Mr. Hardwick’s loved ones. However, the

evidence shows that there were other people involved in Mr. Hardwick’s murder,

even if they remain unknown. Here, the jury was instructed on accomplice

liability and thus could have concluded that Brooks played a relatively minor role

in the crimes [App. 145]. Brooks asks the Court to consider this in determining

whether his sentence is appropriate.

Regarding Brooks’ character, he had a difficult childhood and was, for a

time, a foster child. He had little parental guidance during his formative years and

his life was marked by chaos and instability. He got into trouble, was placed with

his mother and, when that placement did not work, was placed at Resource. The

placement at Resource did not work either and he ended up at Boys Town, in a far

away state where he knew no one and had little contact with his family. And

there, he thrived. He built positive relationships with adults and peers and

excelled academically. He showed that he was more than just the sum of his bad

51

actions. Most importantly, however, he was a child when this happens and is a

child still today. Living the life he had been forced to live, he never had a chance.

With all that in mind, Brooks respectfully asks this Court revise his sentence

downward to 45 years.

CONCLUSION

For all the foregoing reasons, Brooks respectfully requests the trial court

reverse his conviction. In the alternative, he respectfully asks the Court to revise

his sentence to 45 years.

Respectfully Submitted,

___________________________________

Victoria L. Bailey, #24082-49 Marion County Public Defender Agency 151 N. Delaware, Suite 200 Indianapolis, IN 46204 (317) 327-4488 vbailey@indygov.org

Counsel for Appellant

52

WORD COUNT CERTIFICATE

I verify that this brief contains no more than 14,000 words. I verify that this

brief contains 11,828 actual words.

___________________________________ Victoria L. Bailey, #24082-49

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing have been served by

depositing same in the U.S. Mail, first class postage prepaid to Indiana Attorney

General Gregory Zoeller, Indiana Government Center South, 302 W. Washington

St., Indianapolis 46204, this 20th day of May, 2010.

____________________________________ Victoria L. Bailey, #24082-49 Attorney for Appellant