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McAnalley v. State

Court of Appeals of Indiana

October 18, 2019

Robert McAnalley, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court The Honorable Stanley Kroh, Magistrate Trial Court Cause No. 49G03-1711-F4-44873.

          ATTORNEYS FOR APPELLANT Valerie K. Boots Megan E. Shipley Marion County Public Defender Agency Indianapolis, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Caryn Nieman-Szyper Deputy Attorney General Indianapolis, Indiana.

          Darden, Senior Judge.

         Statement of the Case [1]

         [¶1] McAnalley appeals his conviction after a jury trial of Level 4 felony unlawful possession of a firearm by a serious violent felon[2] and his guilty plea to an habitual offender enhancement.[3] We affirm.

         Issues

         [¶2] McAnalley presents three issues, which we restate as the following questions:

I. Did the warrantless search of McAnalley's wife's vehicle and the seizure of the handgun found therein violate the protections afforded under the Fourth Amendment to the United States Constitution?
II. Was the search of McAnalley's wife's vehicle and seizure of the handgun found therein unreasonable under the protections afforded by article 1, section 11 of the Indiana Constitution?
III. Did the trial court commit reversible error by rejecting McAnalley's offer to stipulate to a prior conviction for a Class B felony qualifying him as a serious violent felon unable to lawfully possess a handgun, by allowing the jury to learn the name and nature of his prior conviction, and by discussing that robbery conviction in the jury instructions?

         Facts and Procedural History

         [¶3] After midnight on November 17, 2017, in the early morning hours of November 18, 2017, McAnalley and a friend, Elgin Wilson, were in Indianapolis at the home of another friend. McAnalley's wife, Desiree, called and offered to pick up Elgin and her husband because it was cold outside. On the way home, the three were pulled over in a traffic stop near the intersection of Raymond Street and Keystone Avenue by Officer Douglas Lepsky of the Indianapolis Metropolitan Police Department (IMPD).

         [¶4] Officer Lepsky was in a fully marked police vehicle and uniform patrolling an area that was described by him as follows:

Uh, give or take, it's north and south-let's see, East Raymond, so-the whole area's-especially around Keystone and Raymond can be a touch and go area sometimes. We get calls on narcotic investigations around that area. And-but normally the-the actually[sic] area I stopped them has been recently pretty quiet. . . . [it could be considered a high crime area]. . . (affirming that description posed in a question).

Tr. Vol. II, pp. 15, 17.

         [¶5] Officer Lepsky ran the license plate of the vehicle in front of him, and pulled the vehicle over after discovering that the license plate was registered to a different vehicle than the one he was following (i.e., the stop was for improper plates). The vehicle in front of him was a Chevy, but the license plate was registered for a Pontiac. He initiated the traffic stop in what he also described as a residential area by only activating his emergency lights and spotlight, but not his siren.

         [¶6] The vehicle commenced to a "slow roll, and then eventually stopped." Id. at 6. Officer Lepsky testified that as he observed the vehicle come to a stop, he saw the front-seat passenger, later identified as McAnalley, "leaning forward towards the dashboard." Id. at 74. The officer characterized those actions as a "furtive movement." Id. at 77. The State later used that same terminology in closing and rebuttal closing argument at trial; (furtive gestures when defendant leaned toward the dashboard where the glove box would be) Id. at 198-99; (furtive gestures when defendant moved toward the glove box before officer approached car) Id. at 214.

         [¶7] Officer Lepsky first approached the driver's side door of the vehicle and informed Desiree, the driver, that she had been pulled over for displaying an improper license plate. The officer obtained verbal identification from the three occupants of the vehicle. McAnalley was in the front passenger seat and Elgin was seated in the back behind Desiree. After searching the names and birthdates provided by the three occupants of the vehicle, Officer Lepsky learned that McAnalley had an active felony warrant for his arrest. The officer was unaware of the basis for the issuance of the warrant. Id. at 14.

         [¶8] Other officers were summoned to the scene, per normal IMPD procedure, to make the arrest on the active warrant. When Officers Matthew Coffing and Brent McDonald arrived, Officer Lepsky approached the passenger side of the vehicle, opened the door, and instructed McAnalley to step out of the vehicle. McAnalley complied, Officer Lepsky told him about the warrant, and placed McAnalley in handcuffs. The officer then patted McAnalley down and found an empty gun holster clipped to the front waistband of his pants.

         [¶9] Next, the officers had McAnalley stand, handcuffed, near the rear of the vehicle. Later Officer Lepsky instructed Desiree and Elgin to exit the Chevy. He testified that all three occupants of the vehicle were compliant. Id. at 13. They stood outside of the vehicle but were a slight distance from McAnalley.

         [¶10] Officer Lepsky and Officer Coffing then performed what Officer Lepsky called a "protective sweep" of the interior of the vehicle, while Officer McDonald stood near the rear of the vehicle "keeping an eye on everybody." Id. at 8, 15. In further explanation of what was described as a protective sweep, Officer Lepsky testified as follows:

All occupants were asked to exit the vehicle, and we did what's called a protective sweep where you just look around in plain view to make sure there are no guns or any weapons that could cause immediate threat or danger. . . .We did a sweep. I started on the, I believe it was the driver's side and Officer Coffing was on the passenger side. . . .[Answers affirmatively when asked:] When you're doing a protective sweep, you're just looking with your eyes to make sure that there's nothing that can be used to harm you. . . .[Answers in the negative when asked]: [W]hen you are performing a protective sweep, do you touch anything or manipulate anything with your hands? . . .

Id. at 8, 15, 16, 79.

         [¶11] During the course of the protective sweep, officers looked at a glove box directly in front of the front passenger seat. The glove box in this vehicle, however, was missing its cover. Inside the open glove box area, in plain view, the officers saw the handle and magazine of a handgun. Neither officer had observed the handgun when they first removed McAnalley from the vehicle. Id. at 16.

         [¶12] More specifically, the following testimony was offered by Officer Lepsky about the condition of the glove box, what was discovered, and what ensued.

Uh, we discovered that there was a-a glove box missing the front cover, and in plain view when you just looked at that glove box, you could see a handle and a magazine of a handgun. . . .There was no cover on the glove box. We didn't have to manipulate anything, open anything, there was no cover, no door on that glove box at that time. . . . I requested Officer Coffing, who is a gun liaison to secure the gun and do DNA swabs and fingerprints off of it. . . .Uhm, I read Miranda Rights to Mr. McAnalley off an index card I keep in my front right pocket, ma'am. . . .[Answers affirmatively to the question]: Did he indicate that he did understand his rights. . . .[Answers affirmatively to the question if he had asked about the gun found in the vehicle]. . . . He said that it was his. That he knew he did-he shouldn't have had it, but he bought it off of somebody because he needed protection for himself and his family. . . . He also admitted that he was a felon. [After stating he did not talk to the other two occupants of the vehicle in reference to the gun, Officer Lepsky testified that at that time neither one volunteered that the gun was theirs].

Id. at 8, 10, 12, 83, 84, 85.

         [¶13] Officer Lepsky testified that during the protective sweep the officers found "a black pistol, semi-automatic" that was located in the glove box which was missing the front cover. Id. at 79.

         [¶14] There were no outstanding warrants or incriminating information about Desiree and Elgin and they were allowed to leave the scene in the vehicle after the handgun was confiscated.

         [¶15] Officer Coffing secured the handgun in a gun box in his patrol car. He transported the handgun to the police station because he did not want to process the handgun in the rain. Once at the police station and while wearing protective gloves to preserve the evidence, Officer Coffing first swabbed it for DNA in an attempt to collect fingerprints. The DNA was submitted for further testing and the findings were "a complex mixture." Id. at 152.[4] Fingerprint samples, which were also submitted for testing, showed there was "insufficient ridge detail" to perform a comparison. Id. at 144.[5]

         [¶16] Subsequently, the State charged McAnalley with Level 4 felony unlawful possession of a firearm by a serious violent felon and with being an habitual offender.[6] After a pre-trial hearing and briefing by the parties on McAnalley's motion to suppress the handgun, the trial court denied the motion.

         [¶17] McAnalley's motion to suppress stated in pertinent part as follows:

1. Following a traffic stop, officers of the Indianapolis Metropolitan Police Department conducted a search of the vehicle in which Mr. McAnalley was a passenger;
2. That the actions of the Indianapolis Metropolitan Police Department amounted to an illegal search of the vehicle;
3. That the search amounted to an illegal search, in violation of Mr. McAnalley's rights as protected by the Fourth and Fourteenth Amendment to the United States Constitution and by Article I, Section 11 of the Indiana Constitution. Therefore, any evidence seized as a result of that illegal search should be suppressed and excluded from evidence at trial in this matter.

Appellant's App. Vol. II, p. 87.

         [¶18] The trial court stated in pertinent part as follows when denying the motion to suppress:

1. On March 27, 2018 the parties presented evidence and argument on Defendant's Motion to Suppress. The parties filed supporting memoranda on April 2, 2018.
2. The court has considered the officer's testimony that Defendant was the front seat passenger in a vehicle stopped due to an improper license plate. After obtaining the identification of the driver, the Defendant, and a back seat passenger, the officer learned Defendant had an outstanding warrant in a felony case. The officer testified he saw the Defendant lean forward in his seat in the direction of the glove box. In a search incident to arrest for the outstanding warrant the officer discovered an empty handgun holster tucked into Defendant's waist band. Assisting officers had the other occupants of the vehicle removed from the vehicle; the officers conducted what Officer Lepsky characterized as a protective sweep of the vehicle, in particular the front seat passenger area. The officer testified that the glove box directly in front of the front passenger seat was missing its door or cover. The contents of the glove box were visible without opening any compartments. Officer Lepsky saw in the left side of the glove box what he knew to be a handgun. The firearm was recovered. Defendant was arrested. The vehicle was released to the driver; driver and back seat passenger were released. At the hearing, photographs of the firearm in the glove box were admitted as evidence.
[Under Fourth and Fourteenth Amendment analysis the court held:] under the facts of this case the officer's brief examination of the glovebox[sic] does not run afoul of Defendant's constitutional protections when the officer is aware of the Defendant's active felony warrant, observes the Defendant make movements toward the glove box, and observes an empty firearm holster on Defendant's person.
[Under Indiana constitutional analysis the court held:] Considering the totality of the circumstances in this case, the court finds the police conduct to be reasonable. The initial stop was based upon an improper license plate. Upon identifying the individual in the vehicle, the officer learned Defendant had an outstanding felony warrant. Upon search incident to the arrest for the warrant the officer observed the empty firearm holster on Defendant's person. Having previously observed Defendant moving toward the glove compartment, it is reasonable for the officer to look at the glove compartment where the presence of the firearm was immediately apparent. At this time the officer was aware of the active felony warrant and therefore it would be illegal for Defendant to possess a firearm. The officer did not open any closed containers or open the glove box as the door was missing.

Id. at 114-17.

         [¶19] Next, prior to trial, McAnalley filed a motion in limine. In the motion, McAnalley argued in pertinent part as follows:

OTHER CRIMES, WRONGS AND ACTS
That the facts and circumstances of this case and the nature of the present charge may require the Defendant to exercise his constitutional right to testify on his own behalf;
1. That the State and its witnesses should be ordered to refrain from mentioning any and all character evidence regarding the Defendant in the following forms: other wrongs, prior bad acts, and non-charged conduct or criminal offenses not reduced to convictions and admissible pursuant to Ashton v. Anderson, (1972) 258 Ind. 51, 279 N.E.2d 210 and Indiana Rule of Evidence 404 (b);
2. That the State and its witnesses should be ordered to refrain from mentioning any and all evidence of criminal offenses and uncharged conduct of Defendant as such conduct is irrelevant, having no tendency to make the existence of any consequential fact more or less probable. Indiana Rule of Evidence 401. Irrelevant evidence is inadmissible. Indiana Rule of Evidence 101. The prejudicial effect of mentioning this uncharged conduct would substantially outweigh any probative value it may have and should be excluded. Indiana Rule of Evidence 403;
PRIOR CONTACT WITH CRIMINAL JUSTICE SYSTEM
3. That the Defendant has prior contact with the criminal justice system. Prior contact is irrelevant, because it would have no tendency to make the existence of any consequential fact more or less probable. Indiana Rule of Evidence 401. Irrelevant evidence is inadmissible. Indiana Rule of Evidence 101. That the prejudicial effect of evidence of prior contact with the criminal justice system would substantially outweigh any probative value it may have and should be excluded. Indiana Rule of Evidence 403;
CURRENT CONTACT WITH THE CRIMINAL JUSTICE SYSTEM
4. That the Defendant at the time of the arrest was serving a sentence on Marion County Community Corrections. That serving this sentence is irrelevant to the case at bar, because it would have no tendency to make the existence of any consequential fact more or less probable. Indiana Rule of Evidence 401. Irrelevant evidence is inadmissible. Indiana Rule of Evidence 101. That the prejudicial effect of evidence of current contact with the criminal justice system would substantially outweigh any probative value it may have and should be excluded. Indiana Rule of Evidence 403;=
5. That the Defendant had a violation filed against him from Marion County Community Corrections at the time of his arrest and an outstanding warrant. That this violation and warrant is irrelevant, because it would have no tendency to make the existence of any consequential fact more or less probable. Indiana Rule of Evidence 401. Irrelevant evidence is inadmissible. Indiana Rule of Evidence 101. That the prejudicial effect of evidence of prior contact with the criminal justice system would substantially outweigh any probative value it may have and should be excluded. Indiana Rule of Evidence 403;
6. That at the time the defendant was charged with this case, an empty gun holster was found on his person. That the fact that he had a holster on his person should be excludedff[sic], because it would have no tendency to make the existence of any consequential fact more or less probable. Indiana Rule of Evidence 401. Irrelevant evidence is inadmissible. Indiana Rule of Evidence 101. That the prejudicial effect of evidence of ongoing police investigations would substantially outweigh any probative value it may have and should be excluded. Indiana Rule of Evidence 403;
MISCELLANEOUS
7. That the State and its witnesses should be ordered to refrain from referring to Defendant's invocation of his right not to testify as well as the exercise of his right to remain silent. U.S. Constitution, Amendments[sic]; Indiana Constitution, Article I, § §[sic] 14;
8. That the State should be ordered to redact any inadmissible evidence from any taped statement, photographs, or other documents which may be introduced into evidence;
9. That the State of Indiana and its witnesses should be ordered to refrain from presenting any expert opinions without first establishing the credibility of such witnesses as experts. Indiana Rule of Evidence 701 and 702;
10. That the State and its witnesses should be ordered to refrain from mentioning any prior convictions which will be used for the purpose of enhancement until a later and separate phase of the trial;

Id. at 130-33.

         [¶20] At the start of his jury trial, McAnalley also objected to the use of the term "serious violent felon" and to reference of the specific name of his prior crime resulting in a conviction. Tr. Vol. II, pp. 27-28. McAnalley offered to stipulate to the fact that he is a serious violent felon and requested that the jury only be informed that he was a person who could not lawfully have a gun (a practice defense counsel suggested was used in another courtroom in criminal cases in Marion County). Id. at 28. In response, the State agreed to remove the language using the term serious violent felon from the instruction addressing the charged crime but argued that the language about McAnalley's prior Class B felony robbery conviction was an essential element of the charged offense. Id. at 29.

         [¶21] After hearing the arguments of the parties on the motion in limine and the proposed instructions, the trial court agreed that the language referring to McAnalley as a serious violent felon should be removed from the jury instruction and ordered the State not to refer to McAnalley as such during trial. Id. at 32.

         [¶22] To provide context for the discussions regarding how the trial court chose to address McAnalley's prior robbery conviction, we reproduce Preliminary Instruction Number 4 and Preliminary Instruction Number 5, which were given over his objection.

Instruction Number 4
In this case, the State of Indiana has charged the Defendant with Count: I: Possession of a firearm in violation of I.C. 35-47-4-5, a Level 4 felony. The charge reads as follows:
Count I:
On or about November 18, 2017, Robert McAnalley having previously been convicted of Robbery, a Class B felony, in Marion Superior Court under Cause Number 49G010907FB059960 on or about April 23, 2010 did ...

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