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Barker v. State

Court of Appeals of Indiana

March 19, 2018

Isiah L. Barker, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the Lake Superior Court The Honorable Samuel L. Cappas, Judge Trial Court Cause No. 45G04-1211-MR-12

          Attorney for Appellant Kristin A. Mulholland Appellate Public Defender Crown Point, Indiana.

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana.

          Brown, Judge.

         [¶1] Isiah L. Barker appeals his convictions for murder and feticide as a class B felony. Barker raises one issue which we revise and restate as whether the trial court abused its discretion in admitting certain evidence. We affirm.

         Facts and Procedural History

         [¶2] In June 2011, Cynthia Funches, a certified nursing assistant employed at Renaissance Park South, was in a relationship with Barker and was pregnant with his child. Funches lived in an apartment in Highland, Indiana, and her lease listed her as the only resident and provided in part that "[t]he premises shall be occupied solely for residential purposes by Resident and those persons listed in the Application for the Lease" and that "[v]isitors will be limited to 2 persons staying with Resident for a maximum of 14 days, whether consecutive or individually during each year of the Lease term." State's Suppression Hearing Exhibit 3. Funches listed Barker as her emergency contact on her application for residency and his address as 9350 South Green.

         [¶3] On June 21, 2011, Funches called Genett Clay, a nurse, and told her that she wanted to call off from work because she was bleeding and needed to go to the hospital. Clay heard a male voice instructing Funches to "hang up the damn phone, because we have to go." Trial Transcript Volume 2 at 34. Funches called Clay again, and Clay heard the same male voice state: "I don't have time for this shit. Hang up the phone. We have to go to the hospital." Id.

         [¶4] Around 11:00 p.m. on June 21, 2011, Vivian Pettigrew, who lived in the same apartment complex as Funches, left her apartment and went to her car to retrieve her laundry. She observed two men coming down the stairs with a bin and recognized one of the men as Funches's boyfriend, Barker. Pettigrew made eye contact with Barker, he "ducked his head real quick, " and "it troubled [her] spirit." Trial Transcript Volume 3 at 186, 202. She observed the men struggle with the bin and head towards a green Caravan that Pettigrew recognized as the same Caravan that Barker had previously driven. She also observed that the Caravan had two mattresses on top.

         [¶5] On June 22, 2011, Funches's sister, Shaunte Ruth, called the office of Funches's apartment complex, told a woman that she was trying to contact her sister and had not heard from her, and asked if she would go to the apartment and see if she received a response at the door. Laura Newton and her co-worker, Pamela Heeringa, went to Funches's apartment, knocked on the door, received no response, and then entered the door using a key.

         [¶6] Heeringa found the apartment in "complete disarray." Transcript of Suppression Hearing Volume 2 at 10. Newton and Heeringa looked for Funches, but did not find her. They observed a rolled-up carpet in the living room and that the carpet was missing from the dining room and the hallway area. Newton went into the dining room and down the hall where she could see in the bedroom and the bathroom and "went to where [she] would have been able to see [Funches] if she had been there." Trial Transcript Volume 2 at 94. Newton observed that there was furniture located in various areas of the apartment where it should not have been such as a dresser in the kitchen and that the apartment looked like it had been ransacked. Heeringa locked the door, returned to the leasing office, and called the police.

         [¶7] Highland Police Officer Brandon Norris received a dispatch regarding a welfare check or "[c]hecking the wellbeing of somebody that somebody hasn't had contact with in a little while or something of that nature." Id. at 121. Officer Norris spoke with the apartment employees, and they gave him information as to the apartment that he needed to check. At some point, Highland Police Officer Wright also arrived. The leasing agents informed Officer Norris that "a female had not been seen or heard from in a while, so they were going to let [them] into the apartment, if we could have a welfare check on her." Transcript of Suppression Hearing Volume 2 at 162. The leasing agents mentioned to Officer Norris that they had "peeked in and seen some things which then led them to believe that they should back out and call the police." Id. One of the leasing agents told Officer Norris that there were blood stains on some rolled-up carpet inside the apartment. Officer Norris inquired whether there were any co-tenants that lived there at that time and was advised that Funches was the only lessee. Heeringa let the officers into the apartment.

         [¶8] When Officer Norris first entered the apartment, he saw that the door trim looked as if it had been damaged. He observed that "everything was stacked up in the kitchen" and "everything was in disarray, " and the officers proceeded in "to make sure that there was no - nothing - you know, foul play or anything - anything crazy inside, because just how things were stacked up and everything was in disarray, and it looked a little suspicious." Id. at 165. Officer Norris called out "Hello Highland Police" to make sure no one was present and, as he and Officer Wright were going down the hallway, they noticed other things out of place or out of the ordinary. Id. at 168. Officer Norris smelled an odor "that could be recognizable as a cleaning product or bleach" and observed that the kitchen was full of furniture and what he thought was rolled-up fragments of carpet in the living room. Trial Transcript Volume 2 at 146. The bedroom did not have any mattresses or carpet, stains were present on the floor, and the closet mirror was cracked. Officer Norris believed he was standing in a crime scene. He canvassed the entire apartment and did not find Funches. He "went over to the carpet, pulled a piece or two and rolled it back and noticed immediately that there was some blood stain on the carpet." Transcript of Suppression Hearing Volume 2 at 175. Officer Norris then saw Corporal Potesta, his immediate supervisor, standing at the front of the apartment. Corporal Potesta took a look and then said, "[A]ll right, let's - no more touching anything. Let's call Detective Santino." Id. Officer Norris then stayed in the immediate hallway outside the door to secure the scene and spoke to Highland Police Detective Mark Santino when he arrived.

         [¶9] After speaking briefly with the family and with the knowledge that Funches apparently had been out of contact with her family and missing, Detective Santino entered the apartment as a "follow-up with patrol for their welfare check" or "an extension of their welfare check." Id. at 42. At that time, Detective Santino believed that Funches was alive. During his walkthrough of the living room, kitchen, and hallway, Detective Santino did not see a cot, a sleeping bag, or anything to indicate that someone was staying there that day. The apartment appeared abandoned "[f]or all practical purposes."[1] Id. at 85. In the bedroom, Detective Santino observed that there was not even a mattress or box spring and it did not appear to him that anyone was staying in the bedroom. Detective Santino also observed some sort of dark substance on the concrete which he believed to be blood, a couple of speckles of blood in the hallway, and a bucket with a liquid and a rag inside that had a red-like substance on it. Detective Santino did not collect any property during that initial walkthrough. He told a patrolman to close the door and secure it.

         [¶10] Detective Santino asked Heeringa who was on the lease, and she confirmed that Funches was the leaseholder. Detective Santino had contact with Funches's family and learned that Funches might be in the company of Barker and that she was potentially being held against her will. Detective Santino was not sure if the victim was deceased or still alive, and he then called the Lake County Crime Lab to obtain a second opinion and start processing the apartment with the goal of finding Funches. The crime lab took photographs of the apartment and collected pieces of carpeting, a piece of paper, and swabs of an unknown red substance.

         [¶11] Meanwhile that same day, Chicago Police Detective Stan Kalicki responded to a call regarding a body found in a garage in Chicago by a homeowner. Detective Kalicki arrived at the scene and observed it to be an abandoned house and garage. The homeowner informed the police that he had arrived there earlier in the day and observed the side door that he had just screwed shut was kicked up and a padlock had been placed on it to prevent access. The homeowner cut off the lock, entered the garage, opened a plastic tote container, and discovered a body. The police observed that the body had a uniform for Renaissance Rehabilitation Center, contacted the Center, and learned that Funches was employed there but was not there that day. The police observed a tattoo on the forearm and tentatively identified the body as Funches. It was later determined that Funches suffered stab wounds and died from multiple blunt force trauma[2] and the fetus within her died from asphyxiation anoxia.

         [¶12] Approximately "[a]n hour, ninety minutes, " after Detective Santino arrived at Funches's apartment, Chicago Police called Detective Santino and informed him that there was a tentative identification of a body found as being Funches based on tattoos of the victim. Trial Transcript Volume 3 at 28.

         [¶13] After the crime lab left and after Detective Santino learned that Funches was presumed dead, Officer Norris went back into the apartment and collected some pieces of evidence left behind by the crime lab. Detective Santino learned that Officers Norris and Munoz looked through some papers including a Highland Police traffic ticket and a ticket issued to Barker which listed Barker's address as 8350 South Green in Chicago. The police recovered a number of documents from the apartment including: a document containing a picture of Barker's identification listing his address as 8350 South Green in Chicago; a receipt dated May 20, 2010, for a vehicle tow for the City of Chicago listing Barker's address as 8350 South Green in Chicago; and a credit card statement for a time period of January 7th to February 5th, 2011, addressed to Barker listing his address as 8350 South Green Street in Chicago. Also on June 22, 2011, police impounded Barker's minivan found in Chicago.

         [¶14] On June 23, 2011, Highland Police Detective Lester John Siple prepared a warrant on the basis that the investigation went from a welfare check to a homicide investigation. The warrant was signed by a judge and issued at 11:13 a.m. That day, Indiana State Police Trooper Scott Gilbert focused on the blood stain evidence and collected swabs and a piece of drywall.

         [¶15] Also on June 23, 2011, La Porte County Sheriff Captain Patrick G. Cicero, a member of the International Association of Bloodstain Pattern Analysts, responded to Funches's apartment and completed a bloodstain pattern analysis. Captain Cicero took photographs of the apartment including a photograph of the floor with a "fairly significant[, ] stain, reddish brown in color" on the concrete floor and bloodstains on the wall. Trial Transcript Volume 4 at 24. Captain Cicero observed wooden tack strips for carpeting on the concrete floor, but the carpeting was not present. He also observed the glass on a panel of a folding closet door was cracked and there was dried blood in the channel or track of the door. He determined that the mirror had evidence of bloodstains that had been cleaned, and determined the presence of blood in the bedroom, hallway, and bathroom. He also determined that there were impact patterns in the bathroom and cast off patterns in the hallway.

         [¶16] The police learned that Barker dropped off a minivan that he typically drove with an Illinois license plate to Towanna Johnson's house in Chicago and took her green Taurus which had an Illinois license plate. The Taurus contained a parking permit with an expiration date of June 30, 2011, affixed to the windshield so the vehicle could be legally parked in Chicago. The police discovered a sixty pound bag of Quickrete concrete in the passenger seat as well as a spray cleaner and a brand new brush. In the rear seat of the vehicle, the police discovered a brand new bucket, a brand new gallon sized jug of Liquid Fire, and sulfuric acid. The police determined that these items were purchased from a True Value Hardware Store in Chicago and the bin in which Funches's body was discovered was purchased at Walmart. Video surveillance from these stores showed Barker and Octavius Barlow, Barker's childhood friend. Detective Santino also discovered that there was "a flurry of cell phone activity between" the cell phones of Barker and Barlow from midnight or the late night hours of June 21st into the early morning hours of June 22nd. Trial Transcript Volume 3 at 55.

         [¶17] On November 1, 2012, the State charged Barker with Count I, murder, and Count II, feticide as a class B felony. On October 7, 2013, Forest Park Police Officer Joseph Carrico executed a traffic stop on a vehicle in which Barker was traveling as a passenger in Georgia. When Officer Carrico asked Barker for his name, Barker told him it was Zoe Lyons. Barker attempted to flee but was eventually arrested.

         [¶18] On February 10, 2015, Barker filed a motion to suppress evidence seized from "Defendant's apartment located at 9059 Southmoor Street, Apartment 20, Highland, Indiana." Appellant's Appendix Volume 2 at 144. He alleged that he had an expectation of privacy in the apartment because he lived there with Funches and that evidence was collected without a warrant or exigent circumstances. On July 20, 2015, and January 22, 2016, the court held a hearing on the motion to suppress. Heeringa testified that she had the authority to enter the apartment as an employee and that an addendum in the lease required residents to agree that "at any time for pretty much any reason we're allowed to go in their apartment" and "by any means that we see suitable." Transcript of Suppression Hearing Volume 2 at 12. Heeringa testified that she never received any complaints of an unauthorized individual living with Funches. When asked if he recalled whether or not Funches's family said anything about Barker living with Funches, Detective Santino answered: "No. No one ever said anything about them." Id. at 57.

         [¶19] After the State rested, Barker presented the testimony of several witnesses. Tashika Walker, Barker's sister, testified that Barker and Funches lived together in the apartment on Southmoor Avenue, Barker paid the rent, and that Funches "was just putting it in her name and taking it in." Id. at 139. She testified that certain items in the apartment belonged to Barker. On cross-examination, she testified that she visited Barker and Funches at that apartment but "[n]ot too often" and that she last saw Barker and Funches "a few days before the 21st" in Chicago. Id. at 145, 149. She also testified that Barker received mail at her father's house at 8350 South Green Street in Chicago.

         [¶20] On June 1, 2016, the court entered an eight-page order concluding that Barker did not have standing to contest any possible unlawful search of the apartment and that, even if he did have standing, the search was reasonable under Litchfield and the Indiana Constitution, and denying Barker's motion to suppress. In part, the order states that Barker had not provided sufficient evidence to establish that he lived in the apartment and that "[i]n fact, if [Barker] claims to have lived in the apartment, that would be a violation of the lease agreement." Appellant's Appendix Volume 3 at 5. The court found that Barker "did not reside ...

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