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Neeley v. State

Court of Appeals of Indiana

February 16, 2017

Christopher A. Neeley, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the Elkhart Superior Court The Honorable Charles C. Wicks, Judge Trial Court Cause No. 20D05-1408-F6-126

          ATTORNEY FOR APPELLANT Elizabeth A. Bellin Elkhart, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

          Brown, Judge.

         [¶1] Christopher A. Neeley appeals his convictions for intimidation as a level 6 felony and resisting law enforcement as a class A misdemeanor. Neeley raises two issues, one of which we find dispositive and revise and restate as whether the trial court abused its discretion in admitting officer testimony. We reverse.

         Facts and Procedural History

         [¶2] On the evening of August 26, 2014, Linda Hooley was traveling to her home along County Road 35 when she observed a man walking on the road. She was concerned because County Road 35 does not have a lot of walkers and it was very foggy that evening. Linda believed that she had seen the same person walk past her home a few times in the past. The walker, later identified as Neeley, caught her attention because he appeared to be walking with "no purpose, " in which he proceeded very slowly and was looking at the cars that were passing by him. Transcript at 173. She also thought he looked like a stranger, which caused some alarm. Her husband Brad Hooley arrived home minutes later, Linda brought up the walker to him, and Brad responded that he had observed the walker as well. They decided to call the police.

         [¶3] Officer Cleo Sheppard with the Middlebury Police Department responded to the dispatch, which had posted at approximately 10:00 p.m. The dispatcher told Officer Sheppard that "they did have a couple calls of a peeping Tom . . . and a suspicious person in the area of County Road 22 and 35." Id. at 205. Officer Sheppard came upon an individual matching the description walking northbound with traffic on County Road 35, which did not have a shoulder. Noting the "minor traffic infraction" of walking with traffic, Officer Sheppard engaged with the walker "since this was the subject in question . . . ." Id. at 207. Officer Sheppard put his spotlight on Neeley and, using his PA system, told him to stop, but Neeley did not do so. Officer Sheppard exited his vehicle and attempted to stop him, again Neeley did not stop, and Officer Sheppard then returned to his car. Using his PA system Officer Sheppard then again asked Neeley to stop, believed Neeley might jump a fence and run, and he checked on the status of assisting officers.

         [¶4] After approximately ten minutes, Officer Andrew Ahlersmeyer of the Elkhart County Sheriff's Department arrived to assist from the opposite direction, from which Officer Sheppard advised him to approach and "light the subject up so we can get him to stop." Id. at 211. Figuring that Neeley might run, Officer Sheppard "grabbed" Neeley to "detain him." Id. at 212-213. Officer Sheppard pulled Neeley's hat upward and recognized him, as Officer Sheppard was familiar with Neeley based on previous encounters with him. While holding Neeley, Officer Sheppard told him to untense his muscles because in his experience an individual could "be setting you up for . . . a sucker punch or anything." Id. at 217. Officer Ahlersmeyer grabbed the other side of Neeley. Officer Sheppard asked Neeley where he was going, and Neeley responded "to a friend's house, " but Officer Sheppard believed that house was a former residence of his grandparents and was not occupied by someone Neeley currently knew. Id. at 218. At some point, Middlebury Police Officer Aaron Smartt also arrived on the scene.

         [¶5] The officers asked Neeley multiple times for a place they could transport him, or, alternatively, for a phone number so they could call his dad or someone else to come and pick him up. About thirteen minutes following Officer Ahlersmeyer's arrival and Neeley's detention, and after being threatened by Officer Sheppard, Neeley told Officer Sheppard: "If you didn't have that vest on I'd f--- you up." Officer Sheppard "took it as that that [Neeley] wants to do something to [him]." Id. at 224-225. At about the same time, Officer Sheppard observed that Neeley was still tensing his muscles, raising his arms, and "powering up." Id. at 225. The officers then did a pat down for officer safety, and Officer Sheppard had made the decision in his mind that Neeley "was going to jail" if he "couldn't find no where to go . . . ." Id. at 226. Neeley also began to directly stare at the officers giving Officer Sheppard "the feeling get ready cause it's going to happen, " but he did not believe there was "much of a problem" because at that point there were four officers on the scene. Id. at 228. Officer Sheppard believed that Neeley was "powering up again, " which would give Neeley "enough strength to forcibly activate himself" to potentially break a hold. Id. at 228-229. As the officers placed Neeley under arrest by placing him in handcuffs, Neeley "started to pull away again" or "stiffened up" and "wouldn't . . . put his hands behind his back" before Officer Smartt "took a better grip" and they "were able to secure him and place him in handcuffs . . . ." Id. at 229, 308.

         [¶6] On August 28, 2014, the State charged Neeley with intimidation as a level 6 felony and resisting law enforcement as a class A misdemeanor for forcible resistance. On January 15, 2015, Neeley filed a motion to suppress, asserting that information and evidence obtained from the search "was unlawfully obtained because police lacked authority to stop or search [him] under the 4thAmendment of the U.S. Constitution or Article I, [Section] 11 of the Indiana Constitution." Appellant's Appendix at 54. On May 21, 2015, the court held a hearing on the motion, and on July 21, 2015, it denied Neeley's motion.

         [¶7] On August 13, 2015, the court commenced a jury trial. The court granted Neeley a continuing objection to the testimony of the police officers as fruit of the poisonous tree in that the arrest was "unlawful" and "was made without probable cause" or due process under the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution. Transcript at 143. In granting Neeley's continuing objection, the court instructed Neeley's counsel: "You do not need to be jumping up and down and making continuous objections during the officer's testimony." Id. at 144.

         [¶8] During the testimony of Officer Sheppard, the court admitted into evidence a video recording taken by Officer Ahlersmeyer's dash cam depicting Officer Sheppard driving behind Neeley as he walked with traffic and Neeley attempting to walk past Officer Ahlersmeyer's police car. The recording captured audio of the interaction between Neeley while he was being detained by the officers, although the individuals are not shown. In the recording, which was played for the jury, Officer Sheppard can be heard asking Neeley to untense his muscles, and, after asking Neeley where he was headed, Officer Sheppard stated "I'd be damned if I let you hurt me, " to which Neeley replied "I ain't gonna hurt you." State's Exhibit 2 at 6:50-6:59. At one point, Officer Sheppard stated "I'll do the same damn shit again, beat your ass and put you in jail." Id. at 7:02-7:07. Officer Sheppard then asked Neeley again where he would like to go or if there was somewhere he could go. After again requesting that Neeley untense his muscles, one of the other officers informed Neeley: "There's three of us and there could potentially be a fourth here with a dog in a minute, " that "you're going to get hurt, " and that "we don't want to do that." Id. at 8:00-8:11. Soon after, one of the officers stated to Neeley: "It's your dad or jail." Id. at 10:19-10:21. Officer Sheppard also stated at one point: "Stop, Chris. You know I know that game and I know what you're thinking, so you better stop. I'm tellin' you right now. You do that again, you will kiss the ground. I'm not going to play that." Id. at 19:06-19:19.

         [¶9] Regarding the manner in which Officer Sheppard dealt with Neeley as depicted in the video, Officer Sheppard testified: "that is what he understands. That is what he reacts to and thirdly, he knows that I don't play that type of game especially at night like that." Transcript at 222. On cross-examination, Officer Sheppard testified that he did not have a report that Neeley was involved in being a peeping Tom or trespassing and that it was not illegal to walk at night. He also indicated that he "did not see [Neeley] committing any crimes" when he came upon Neeley walking along the roadway. Id. at 245. He indicated that he "did not have any articulable suspicion . . . about any criminal activity" on the part of Neeley when he was following Neeley along the road. Id. at 248. Officer Sheppard also admitted that he did not bring up the fact ...

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