Supreme Court Cause No.

49S00-0106-CR-00317
Supreme Court of Indiana

Jones v. State
783 N.E.2d 1132 (Ind. 2003)
Decided Mar 5, 2003

Supreme Court Cause No. 49S00-0106-CR-00317 occupants exited the car and fled into a nearby
field. Police searched the car, registered to
March 5, 2003
Gregory Jones ("Greg"), and found Greg's Indiana
APPEAL FROM THE MARION SUPERIOR drivers license and Department of Correction
COURT, The Honorable Cale Bradford, Judge, identification card; they also found an Indiana
1133 Cause No. 49G03-9803-CF-32696 *1133 identification card for Jerry Jones ("Jones"). The
car's trunk contained a garbage bag filled with
JANICE L. STEVENS, Marion County Public
money from the bank.
Defender Agency, Indianapolis, IN, ATTORNEYS
FOR APPELLANT The police learned that Greg's relative J.P. also
worked for the Department of Correction, and they
STEVE CARTER, Attorney General of Indiana,
conducted a residential surveillance of all three
ARTHUR THADDEUS PERRY, Deputy Attorney
suspects.1 Officers apprehended J.P. but later
General of Indiana, Office of the Attorney
eliminated him as a suspect because his size and
General, Indianapolis, IN, ATTORNEYS FOR
stature were inconsistent with the description of
APPELLEE
the robbers. The investigation of Greg and Jones
continued.
1134 *1134
1 The residential surveillance included the

SHEPARD, Chief Justice Governours Court residence as the primary

residence for Greg , Venice Court as the
A trial court found Jerry Jones guilty of murdering primary residence for J.P, and a home on
a pawn shop owner and sentenced him to life the northwest side of town as the primary
without the possibility of parole. He now appeals, residence for Jones. (T.R. 640-45.) The
arguing that the trial court erred when it dismissed police focused surveillance on the

his motion to suppress evidence obtained during a Governours Court address after receiving a

1135 search and seizure, allowed him to *1135 represent tip that the suspects were in the area. J.P.
also informed police that Jerry would
himself pro se, and convicted him based on
sometimes reside at Greg's apartment. (T.R.
insufficient evidence. We affirm.
682-83.)

Facts and Procedural History

As for the pawn shop, Ron Conner ("Conner")
The investigation of the murder became owned and operated the Lawrence Gold and Coin
intertwined with that of an earlier bank robbery. Shop at 8160 Pendleton Pike in Lawrence, Marion
On the morning of September 3, 1997, there was a County. On the morning of August 13, 1997, a
bank robbery in Chesterfield. Police pursued the worker in an adjacent shop looked through the
suspected robbers in a car until the car crossed window in the side of the building, noticed the
several lanes and landed in a ditch. The three

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 Jones v. State 783 N.E.2d 1132 (Ind. 2003)

owner's leg lying behind the counter, and connected to the pawn shop offense. An officer
immediately called for assistance. Police took familiar with several of the missing rings
fingerprints at the shop and also collected a spent identified some of the items in Greg's apartment.
cartridge casing and a .32 caliber cartridge. A casing collected at the pawn shop contained
similar characteristics as those fired from the
Detective Don Deputy of the Lawrence police
handgun found in the apartment.
conducted the initial homicide investigation.
Conner's son informed the police that there were The police obtained yet a third warrant seizing
several valuables missing from the display case, additional contraband related to the pawn shop
including a Masonic ring and a ladies cluster ring. robbery and murder, and they seized the jewelry, a
He also said that fold-over tags were attached to a .32 caliber Lorcin gun, various papers, and other
substantial amount of the missing jewelry. items.

On September 4, 1997, the Lawrence police On September 8, after Jones denied that he had
sought a warrant to search Greg's apartment for ever been in the store, Detective Don Deputy
three suspects and items related to the bank informed Jones that his prints were identified in
robbery. A Madison county judge issued the the Lawrence Gold and Coin Shop. Police found
warrant for Greg's apartment, at 3663 Governours Jones' fingerprints on a ring tray in the rear of the
Court, Apt. A in the Wingate Village apartment shop, and his palm print on a display case.
complex. The police watched the Governours
Jones waived trial by jury and in due course the
Court address periodically while the initial search
trial court concluded beyond a reasonable doubt
warrant was obtained.
that Jones was a major participant in the robbery
Shortly after the police obtained the warrant, the and murder of Conner at the Lawrence Gold and
Emergency Response Team entered Greg's Coin. Furthermore, the court found that Jones
apartment to look for the suspects, but the house intentionally killed Conner and sentenced Jones to
was empty. The Emergency Response Team life without parole.
discovered a weapon under the bed and placed it
on the bed. I. Illegal Search and Seizure
After denying Jones' motion to suppress, the trial
Thereafter, the police entered the apartment to
court admitted into evidence the tray of jewelry
search for additional weapons and other items
and .32 caliber Lorcin, found at the Governours
connected with the bank robbery. While searching,
Court address. Jones claims the warrant
they discovered additional guns and ammunition.
authorizing the search was illegally obtained.
One officer noticed several rings in a display case
with white tags attached to them. The rings were In asserting such claims, we focus on whether a
later connected to the robbery and murder of "substantial basis" existed for a warrant
Conner, the pawn shop owner. An officer authorizing a search or seizure. Houser v. State,
conducting the bank robbery investigation 678 N.E.2d 95 (Ind. 1997). Where a presumption
informed the Lawrence police about the tray of of the validity of the search warrant exists, the
rings they saw during the initial search. This burden is upon the defendant to overturn that
1136 officer *1136 knew that the Lawrence police were presumption. Snyder v. Snyder, 460 N.E.2d 522
investigating a pawn shop crime. (Ind.Ct.App. 1984). If the evidence is conflicting,
we consider only the evidence favorable to the
Subsequently, the Lawrence police obtained a
ruling and will affirm if the ruling is supported by
second warrant for the Governours Court
substantial evidence of probative value. Melton v.
residence to search for weapons and evidence
State, 705 N.E.2d 564 (Ind.Ct.App. 1999).

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 Jones v. State 783 N.E.2d 1132 (Ind. 2003)

Jones argues that the first warrant was invalid entire premises. Furthermore, the warrant
because the police officer failed to inform the indicates that "probable cause exists to believe that
issuing judge that the Governours Court apartment the items seized were located at the Governours
was under surveillance. A warrant is not invalid Court address. These include the goods, chattels,
simply because it contains slightly inaccurate items or any part described and found as a result
material that is immaterial to the warrant's of the law enforcement agency whose officer
validity. executes the search warrant " (Appellant's Exhibit
C.) Thus, to search and seize any person or item
In Franks v. Delaware, 438 U.S. 154, 171-72
that the police believed was connected with the
(1978), the U.S. Supreme Court held that a
bank robbery did not exceed the scope of the
warrant is invalid where the defendant can show
initial warrant or invalidate it.
by a preponderance of the evidence that the
affidavits used to obtain the warrant contain Plain View Doctrine and Subsequent Warrants.
perjury by the affiant, or a reckless disregard for Jones petitioned the court to suppress the jewelry,
the truth by him, and the rest of the affidavit does asserting that a warrantless search and seizure
not contain materials sufficient to constitute occurred when the police moved trays of jewelry
probable cause. See Id. at 171-72. Furthermore, and placed them on the bed, and arguing that the
fruits of the search will be excluded just as if the plain view doctrine did not apply.
affidavit did not contain allegations sufficient to
Police may seize evidence not identified in a
constitute probable cause. Id., at 155.
warrant under the plain view doctrine. The plain
In this case, however, the officer who obtained the view doctrine allows a police officer to seize items
initial search warrant hardly committed perjury to when he inadvertently discovers items of readily
obtain the warrant, nor did he display a reckless apparent criminality while rightfully occupying a
disregard by failing to inform the judge of the particular location. Garrett v. State, 466 N.E.2d 8
surveillance during the probable cause hearing. As (Ind. 1984.) See Coolidge v. New Hampshire, 403
we observed in Taylor v. State, 659 N.E.2d 535, U.S. 443 (1971). First, the initial intrusion must
539 (Ind. 1995), probable cause requires only that have been authorized under the Fourth
the information available to the officer would lead Amendment. Daniels v. State, 683 N.E.2d 557,
a person of reasonable caution to believe the items 558 (Ind. 1997.) Second, the items must be in
1137 could be useful as evidence of a crime. *1137 plain view. Id. Finally, the incriminating nature of
Based on the descriptions of the suspects and the the evidence must be immediately apparent.Id.
identification discovered in the car, probable cause
In Arizona v. Hicks, 480 U.S. 321, 324-25 (1987),
existed to issue a search warrant for the
the Supreme Court ruled the police conducted a
Governours Court address.
warrantless search when they moved a stereo to
Jones also argues that there is no substantial basis collect the serial numbers that were on the
to support a finding of probable cause because the backside of the equipment. The present case
first warrant obtained applied only to the seizure differs from Hicks because the police did not
of the three persons, and any items discovered as a move the jewelry to collect additional information.
result of the search are invalid as fruits of the The fold-over tags on the jewelry in the display
unlawful search. We disagree. case were visible without any movement. The
police did not acquire any additional information
It is true that the warrant specifically directs the
or benefit that they could not see before they
police to search and seize the three suspects whom
moved the jewelry tray.
police believed were at the Governours Court
address, but the warrant also grants a search of the

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 Jones v. State 783 N.E.2d 1132 (Ind. 2003)

Moreover, the police obtained a subsequent search 2 The right to counsel can only be
warrant. Had the police relied solely on the first relinquished by a knowing, voluntary, and

warrant to seize the jewelry, perhaps the outcome intelligent waiver of the right. Russell v.
State, 383 N.E.2d 309, 312 (Ind. 1978);
would be different. Nevertheless, the jewelry was
McKeown v. State, 556 N.E.2d 3, 6
in plain view during the initial search. The police
(Ind.Ct.App. 1990) (citations omitted).
obtained a second warrant, which included
additional facts to justify probable cause to seize In Dowell v. State, 557 N.E.2d 1063 (Ind.Ct.App.
the jewelry. We think this sequence of events is 1990), the Court of Appeals suggested several
consistent with the plain view doctrine. guidelines for a court to advise the defendant
when he considers self-representation. The
Jones further argues that the gun was not included
guidelines include:
in the search warrant. Seizure of the .32 caliber
handgun is integrated into the "other evidence of (1) The defendant should know the nature
the crime" segment of the search warrant. Conner of the charges against him, the possibility
was shot during the robbery at close range. It is that there may be lesser included offenses,
reasonable to infer that a gun would likely be and the possibility of the defenses and
seized as a natural extension of "other evidence of mitigating circumstances; (2) the
1138 the crime" for a homicide and robbery. *1138 defendant should be aware that self
representation is almost always unwise,
The trial court properly admitted the evidence.
that he may conduct a defense which is to
II. Waiver of Counsel his own detriment, that he will receive no
Jones suggests that the trial court allowed him to special treatment from the court and will
represent himself without satisfactorily advising have to abide by the same standards as an
him of the dangers of self-representation. attorney, and that the State will be
represented by experienced legal counsel;
The Sixth Amendment to the U.S. Constitution (3) the defendant should be instructed that
and Article 1, section 13 of the Indiana an attorney has skills and expertise in
Constitution guarantee a criminal defendant the preparing for and presenting a proper
right to appointed counsel. Faretta v. California, defense; and (4) the trial court should
422 U.S. 806, 835 (1975);Callahan v. State, 719 inquire into the defendant's educational
N.E.2d 430, 439 (Ind.Ct.App. 1999). Accordingly, background, familiarity with legal
when a criminal defendant waives his right to procedures and rules of evidence and
counsel and elects to proceed pro se, we must mental capacity.
decide whether the trial court properly determined
that the defendant's waiver was knowing, Id., 557 N.E.2d at 1066-67.
intelligent, and voluntary.Greer v. State, 690 Although this Court has endorsed these guidelines,
N.E.2d 1214, 1216 (Ind.Ct.App. 1998), trans. we held in Leonard v. State, 579 N.E.2d 1294,
denied.2 Waiver of assistance of counsel may be 1296 (Ind. 1991) that the guidelines do not
established based upon the particular facts and "constitute a rigid mandate setting forth specific
circumstances surrounding the case, including the inquiries that a trial court is required to make
background, experience, and conduct of the before determining whether a defendant's waiver
accused. Jackson v. State, 441 N.E.2d 29, 32 of right to counsel is knowing, intelligent, and
(Ind.Ct.App. 1982.) voluntary." Accordingly, we noted it is sufficient

4
 Jones v. State 783 N.E.2d 1132 (Ind. 2003)

for the lower court to acquaint the defendant with 60.) Finally, the appointed attorneys for Jones
the advantages to attorney representation and the indicated that each had discussed the matter with
drawbacks of self-representation. Id. Jones, and both of them told the court they
believed Jones understood what his decision
In Faretta, the U.S. Supreme Court mandated that
involved. (T.R. at 62-63.)4
a record of waiver be established and also advised
that the pro se defendant should be told about the 4 Such moments present judges with a

dangers and disadvantages of self-representation. potential "Catch 22." Though the judge
Dowell, 557 N.E.2d 1066. We recently re- must ensure that a defendant acts in a

emphasized the importance of such warnings. See knowing, intelligent, and voluntary

Poynter v. State, 749 N.E.2d 1122, 1129 (Ind. manner, he cannot coerce him to change
his mind about pro se representation. Jones
2001) (new trial ordered where judge did not
has an absolute right to represent himself
advise defendant about dangers of self-
pro se, regardless of whether his
representation).
representation equates to the quality of his
The record here demonstrates that the trial court court appointed attorneys. In Sherwood v.

questioned Jones and his counsel several times to State, 717 N.E.2d 131, 134 (Ind. 1999), we

establish whether Jones knowingly, willingly, and observed that "respect for the individual,
which is the life blood of the law, requires
1139 voluntarily *1139 exercised his right to self-
that the accused's choice be honored
representation. (See Appendix 458, 514; T.R. 59-
although he may conduct his own defense
63).
to his detriment." Id. quotingFaretta, 422
The court explicitly informed Jones regarding the U.S. at 834 (1975).

potential danger of pro se litigation.3 The judge

The court's inquiry and the responses were
reminded Jones that he was not trained in the law
adequate to establish that Jones exercised his right
and that his attorneys were. (T.R. at 59.) It
to represent himself pro se knowingly, willingly,
cautioned him that he would be held to the same
and voluntarily.
standard as a lawyer "as far as the rules of
evidence and arguments go. I'm not going to cut III. Sufficiency of Evidence on
you any slack in this regard." (T.R. at 60.) It Intentionality
warned him that if he were convicted he would not
Jones contends the State failed to prove an
be able to claim ineffective assistance on appeal.
intentional killing, a necessary finding for
(T.R. at 62.)
sentencing to life without the possibility of parole.
3 The court's inquiry regarding whether
When reviewing the claim of sufficiency of the
Jones knowingly, willingly, and voluntarily
evidence, we do not reweigh the evidence or judge
wanted to represent himself pro se is
reflected in the trial record pp. 58 64.
the credibility of the witnesses. Jordan v. State,
656 N.E.2d 816 (Ind. 1995), reh'g denied. We look
The court asked Jones more than three times only to the probative evidence supporting the
whether he wanted to represent himself and Jones verdict and the reasonable inferences therein to
said he did. Jones acknowledged that he realized determine whether a reasonable trier of fact could
he would be held to the same standard as an conclude the defendant was guilty beyond a
attorney. The court attempted to discourage Jones reasonable doubt. Fields v. State, 679 N.E.2d 898
from self-representation: "I advise you [Jones] I (Ind. 1997). If there is substantial evidence of
don't think it's a good idea. If I was charged with probative value to support the conviction, it will
this, I wouldn't want to represent myself." (T.R. at not be set aside. Id.

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 Jones v. State 783 N.E.2d 1132 (Ind. 2003)

Moreover, it is well settled that a conviction for the agreed fact that Conner was shot behind and
murder may be sustained on circumstantial below the ear at intermediate range was sufficient
evidence. Green v. State, 587 N.E.2d 1314 (Ind. to support the court's finding of intentional killing.
1992). If a reasonable inference can be drawn
from the circumstantial evidence, the verdict will IV. Conclusion
not be disturbed. Id. Furthermore, intent to kill We affirm the trial court's judgment.
may be inferred where evidence establishes that
DICKSON, SULLIVAN, BOEHM, and
the mortal wound was inflicted upon the victim by
RUCKER, JJ., concur.
a deadly weapon in the hands of the defendant.
Landress v. State, 600 N.E.2d 938 (Ind. 1992).

The circumstantial evidence directs us towards

1140 Jones.Police found the murder *1140 weapon, .32
caliber Lorcin, under a pile of clothing in the room
in the apartment where Jones kept his belongings.
(T.R. at 289-90.) It was the gun that fired the fatal
bullet. (T.R. 514-17.) Jones' fingerprints were
located in the store on the ring tray that was in the
rear of the store, where presumably few customers
had access. A display case at the pawn shop
contained Jones' palm print, yet Jones denies ever
entering the store.

Jones complains that the court found an

intentional killing based on its conclusion that the
victim was shot from behind while bending over,
execution-style, the court said. Actually, the bullet
entered the victim's neck from the side and
traveled slightly upward, never entering the skull.

Thus, says Jones, the court's finding of

intentionality rests on an inference that is solely
based on another inference, contrary to our
decision in the capital case of Landress. 600
N.E.2d at 942.

This puts too fine a point on the matter. While the

trial court's description of the killing may not have
fit precisely with the stipulated coroner's report,