IN THE INDIANA COURT OF APPEALS __________________________ CAUSE NO.

49A04-0911-CR-000651

NEVIN BROOKS, Appellant v.

STATE OF INDIANA, Appellee

) ) ) ) ) ) ) ) ) ) ) ) )

Appeal from the Marion County Superior Court, Criminal Division 05 Lower Court Cause Numbers 49G05-0907-MR-061072 49D09-0812-JD-004015 The Honorable Grant Hawkins, Judge The Honorable Robert Altice, Jr., Special Judge

APPELLANTS BRIEF

VICTORIA L. BAILEY, #24082-49 Marion County Public Defender Agency 151 N. Delaware, Suite 200 Indianapolis, IN 46204 (317) 327-4488 [email protected]

Attorney for Appellant

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 The trial court erred in admitting the bullet found in Brooks pocket when the law enforcement officer lacked
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II.

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 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 The State presented insufficient evidence to sustain Brooks conviction ............................................................................45 Brooks 55-year sentence is inappropriate in light of his character and the nature of the offense ...........................................48

IV.

V.

VI.

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?

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.

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; States 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, States 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. Hardwicks body [Tr. 809-810]. However, a bullet was recovered from Mr. Hardwicks body during his autopsy *Tr. 812+. In an effort to determine Mr. Hardwicks time of death, Detective Hochman spoke with Mr. Hardwicks 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. Hardwicks 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. Hardwicks cell phone records, the police estimated Mr. Hardwicks time of death as 9:55 pm *Tr. 820+. At 10:22 pm, there were three attempted withdrawals made using Mr. Hardwicks 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 stations 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. Hardwicks 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 mothers 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. 10961101]. 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, Nevins 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. *Respondents 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
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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 its not unusual if they dont have family support, its 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 hes 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 *Respondents 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 didnt 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. Hardwicks 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 Cantrells encounter with Brooks, Cantrell placed Brooks in handcuffs for officer safety and then conducted the pat12

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 Cantrells. 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 Cantrells 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 dont like my ruling. I just fell that somehow there should be more but this is a case where the law doesnt 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 theres 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. Hardwicks younger brother was at the couples 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. Hardwicks fathers house to get a video game cord so that Mrs. Hardwicks brother could play a game *Tr. 209-210]. That was the last time Mrs. Hardwick saw her husband alive [Tr. 209]. Ciro Mucci, Mr. Hardwicks friend and co-worker, spoke with Mr. Hardwick on Mr. Hardwicks 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. Hardwicks ex-fiance Pamela KerstenBruenning sent Mr. Hardwick a text message on his cell phone but received no

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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 mans 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 mans feet were crossed and there was blood coming out of his mouth [Tr. 229-30, States 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. Hardwicks 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. Hardwicks 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
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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 States Exhibit 35 *Tr. 340-44; States 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. Hardwicks head at autopsy, which was States Exhibit 22 *Tr. 359-60; States Ex. # 22, Ex. Vol. I, p. 50; States Ex. #35, Ex. Vol. I, p. 68+. One of the bullets in States Exhibit 35 the 95 grain nickel colored bullet was similar in grain and morphology to States 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. 505509]. Sentencing Prior to sentencing, Brooks submitted his presentence memorandum and attachements, those attachments being: 1) Attachment A resume of Sophia
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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 McElderrys waiver hearing testimony; 4) Attachment D the transcript of Neil Wises 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. Foremans psychiatric evaluation of Brooks; 11) Attachment K the transcript of Dr. Foremans waiver hearing testimony; and 12) Attachment L ABA article from the Juvenile Justice Center entitled Adolescence, Brain Development and Legal Culpability *Defendants 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. Hardwicks death had on
19

her, her children, and Mr. Hardwicks 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. Hardwicks sister, Coral Nelson *Tr. 687+. Ms. Nelson is Mr. Hardwicks 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 hes 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. Hardwicks 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+. Brookss 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
20

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
21

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 officers 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 States witness constituted evidentiary harpoons. The States 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. Hardwicks ATM card. That, standing alone, is insufficient to prove the charged offenses.
22

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 31-303-4, 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;

23

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 courts 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 courts decision

24

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 courts 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

25

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 States 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 31-30-34. 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
26

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 defendants 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 communitys best
27

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 courts 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 childs 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. 11981203 (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
28

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. 11501188 (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 courts 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 Cantrells 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
29

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

30

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 courts 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 reasonablesuspicion 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, States 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
31

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 subjects 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 *States 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

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). 32

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 Cantrells 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 suspects+ description to a T. Id. The Court found the dispositive question is whether the tip Shockley provided to police was sufficient to support

Brooks would note that the officer who performed the illegal Terry stop in L.W. was Officer Cantrell. 33

an investigatory stop of L.W. Id. at *5. In finding Shockleys tip inadequate, the Court noted: there is no evidence in the record that law enforcement had verified Shockleys 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 suspects 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 Shockleys 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
34

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 Cantrells 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 Cantrells assertion at Brooks trial that Brooks fit the description almost to a T

35

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

36

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 citizens 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 Cantrells 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 [States 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.
37

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.

38

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 Cantrells 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)
39

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 courts 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 jurys decision. Leach v. State, 699 N.E.2d 641, 644 (Ind. 1998). Here, Officer Cantrells 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.
40

327-328+. At that point in Officer Cantrells testimony, Brooks objected, arguing that the parties had agreed that, in order to conform with 404(b), Officer Cantrells 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 Cantrells 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: A: What did you do with those bullets? I took them out after I handcuffed him at that point because where theres ammunition theres 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 States direct examination of Officer Cantrell, the following exchange occurred:

41

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? I transported him back to the police station and that was the last contact I had with Mr. Brooks. And thats to your knowledge, thats when those photographs were taken. Yes, sir.

A:

Q:

A:

[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 dont 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 were 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
42

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 Newlons 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 Cantrells 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 Cantrells contact with Mr. Brooks should not factor in to the jurys deliberation or decision in this case. *Tr. 466, States Ex. 44-C]. Officer Cantrells 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 Cantrells 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
43

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 Cantrells 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 Cantrells testimony regarding handcuffing Brooks and taking him off to jail. The gravity of peril in which Brooks was placed by Officer Cantrells comments was high. The States
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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
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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).

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The States case against Brooks for Robbery and Murder was entirely circumstantial. Taking the facts most favorable to the jurys verdict, Brooks must concede that a reasonable juror could have concluded it him in video footage attempting to use Mr. Hardwicks ATM card. Brooks does not dispute the fact that he possessed stolen property specifically, Mr. Hardwicks ATM card. However, possessing a murder victims 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 States 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 States Exhibit 35. Timothy Spears testified about the uniqueness of States Exhibit 35 and States Exhibit 22 the bullet recovered from Mr. Hardwicks 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 States Exhibit 35, either [Tr. 508-509]. Without the improperly
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admitted bullet, States Exhibit 35, there is insufficient evidence from which a reasonable juror could have concluded that Brooks was at or near the scene of Mr. Hardwicks 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: Its a delicate balancing act sometimes. Im not sure well, I am sure that if Mr. Brooks had been in a different environment, we wouldnt 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 thats 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 childs 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 whats happened here. And yet, Mr. Brooks is still protective of the environment that brings him here. He doesnt 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 theres hope, but we
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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 doesnt 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 dont see whats coming next. Its 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 its not the only factor I consider. I look at his juvenile record, I look at his the mitigating factors and I find they balance. Ill 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 courts 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
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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. Hardwicks loved ones. However, the evidence shows that there were other people involved in Mr. Hardwicks 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
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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 [email protected] Counsel for Appellant

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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

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