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Anderson v State of Indiana

Case No. 49A05-1105-CR-243 (IN Ct. App., Jan. 31, 2012)

Nathan Anderson entered Jane Pepper‟s apartment through a bathroom window. Anderson stabbed Pepper numerous times, killing her. He also had sexual intercourse with Pepper either just before or just after the murder. A jury found Anderson guilty of murder, class B felony burglary, and class D felony abuse of a corpse. The trial court sentenced Anderson to eighty-eight years in prison. On appeal, Anderson contends that the trial court abused its discretion when it admitted into evidence a statement he made to police in which he confessed to his crimes because officers continued to interrogate him despite a clear request for an attorney. Anderson also contends that the trial court abused its discretion in admitting DNA evidence linking him to the murder scene because that evidence was obtained with a buccal swab, which he alleges was taken in violation of the applicable Indiana statute and in violation of his federal and state constitutional rights.

We conclude that the admission of Anderson‟s police statement was error, but was harmless beyond a reasonable doubt with regard to the murder conviction alone. The erroneous admission of Anderson‟s police statement unquestionably influenced the jury verdicts as to his convictions for burglary and abuse of a corpse; therefore, we reverse those convictions. Additionally, we conclude that the DNA evidence was obtained by “mistake,” which constitutes a valid exception to the applicable statute and our federal and state exclusionary rules. Regarding Anderson‟s additional challenge to his sentence, we find no abuse of discretion on the part of the trial court and conclude that Anderson‟s murder sentence is appropriate in light of the nature of the offense and Anderson‟s character. Accordingly, although we vacate Anderson‟s burglary and abuse of a corpse sentences, we affirm Anderson‟s sixty-five year sentence for murder and decline the invitation for sentence revision.

Facts and Procedural History



The relevant admissible evidence indicates that on Thursday, October 25, 2007, forty-four-year-old Jane Pepper spent the evening alone in her Indianapolis apartment. Pepper‟s apartment was on the ground level of the apartment building, and Pepper often left her bathroom window open to allow her two cats to roam freely. Pepper spoke with her boyfriend on the phone around 11:00 p.m. and discussed her plan to attend a Purdue University football game with friends that Saturday. Pepper and her boyfriend, Charles Brnardic, had been in a serious and exclusive relationship since February of 2007. Shortly after 11:00 p.m., a neighbor saw Pepper lean out her apartment door to coax one of her cats inside. Pepper told the neighbor not to worry about the other cat because he could just use the open bathroom window to come in later.
 

 

Judge(s): Terry A. Crone
Jurisdiction: Indiana Court of Appeals
Related Categories: Constitutional Law
 
Trial Court Judge(s)
Lisa Borges

 
Court of Appeals Judge(s)
Elaine Brown
Terry Crone
Melissa May

 
Appellant Lawyer(s) Appellant Law Firm(s)
Michael Fisher Office of the Marion County Public Defender Agency

 
Appellee Lawyer(s) Appellee Law Firm(s)
Jodi Stein Office of the Indiana Attorney General
Gregory Zoeller Office of the Indiana Attorney General

 

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silent, that any statement he does make may be used as evidence against him, violated, we need not address whether his rights were similarly violated pursuant to article 1, section 13 of the corpse. the key elements of those offenses were provided to the jury only through data base match or data base information is not invalidated if a court determines that the database does not violate the fourth amendment.8 commits and pleads guilty to a crime that is a felony but is merely sentenced pursuant to the with the intent of stealing money therein, that pepper was sleeping and awoke when he 86 s. ct. at 1628, 16 l. ed. 2d at 723). an accuseds request for counsel, right of people to be free from "unreasonable searches and seizures." united states v. state ignores the reality of an interrogation room, the naïveté of a defendant, and what often no rationale, and we can find none for concluding that the indiana constitution demands a finding. verdicts as to his convictions for burglary and abuse of a corpse; therefore, we reverse those appropriate at the end of the day turns on our sense of culpability of the defendant, the 21 nevertheless, statements obtained in violation of the federal constitution and sample" to the "agency that supervises the person, or the agencys designee, if the person is harmless beyond a reasonable doubt with regard to the murder conviction alone. the hands, and both sides of her neck. she also sustained a stab wound to her back, which counsel pursuant to federal jurisprudence. indeed, the court explained: 1880, 1883, 68 l. ed. 2d 378, 384 (1981) (quoting miranda, 384 u.s. at 474, brnardic, had been in a serious and exclusive relationship since february of 2007. shortly state of indiana, ) an attorney was unequivocal, not requiring clarification, but instead requiring immediate cessation of further the longview police department. detectives questioned anderson from approximately5:00 cause no. 49g04-0903-mr-35798 114 s. ct. 2350, 2355, 129 l. ed. 2d 362, 371 (1994). misconduct, not mistakes by court employees. id. here, even assuming that anderson had a right to counsel a defendant must "start and end" with "i want to talk to an attorney" and say the state may retry anderson for those offenses if it so chooses. nathan anderson, ) persons "convicted of a felony," "conspiracy to commit a felony," "attempt to commit a felony," or "burglary." time of the murder. cox testified that shortly after anderson was swabbed for dna by the interpretation of our constitutional law where the exceptions are swallowing the rules. we of stuff going on. request for an attorney. anderson also contends that the trial court abused its discretion in statement. nevertheless, the facts and circumstances surrounding the murder itself support the trial courts to an attorney that is ambiguous or equivocal in that a reasonable officer in request for an attorney.3 ensued. the jury found anderson guilty as charged. the trial court sentenced anderson to statute if, after due consideration of the trial courts decision, we find that the sentence "is 1011, 1021 (ind. ct. app. 2005). we review a federal constitutional error de novo, and the 1109. although we must reverse here due to the trial courts error in the admission of as a final matter, anderson requests that we review the appropriateness of his const. amend iv. we begin by noting that our supreme court recently declined to ) cessation of police questioning is not required "if a suspect makes a reference affirmatively declare that a cheek swab for dna constitutes a "search" for fourth 3 been convicted of class d felony criminal confinement. 2 6 therefore, the resulting judgment of conviction entered by the trial court was for a saturday. similarly, pepper did not report to work on sunday, and calls from brnardic and case summary resident of longview, approximately two or three times during the questioning. during statement, the state presented other overwhelming evidence of andersons guilt sufficient to discretion in sentencing by failing to enter a sentencing statement, entering a sentencing mr. anderson: i dont know. i really would like to talk to an attorney or see also collins v. state, 873 n.e.2d 149, 156 (ind. ct. app. 2007) (holding that defendants 8 williams v. state, 891 n.e.2d 621, 633 (ind. ct. app. 2008). accordingly, even if a from anderson. impd detectives robert flack and marcus kennedy flew to texas to meet peppers body, the key defense theory was that anderson and pepper had an ongoing on conditional release in accordance with indiana code section 35-38-1-27." subsection (c) state, 889 n.e.2d 265, 273 (ind. 2008). as stated, exclusion of andersons dna evidence before questioning began, anderson signed an advisement of rights form provided by accordingly, which constitutes a valid exception to the applicable statute and our federal and state in failing to assign proper weight to certain factors. anglemyer, 868 n.e.2d at 491. at 50-51. the addition of "or something" would appear to be a habit of speech as opposed to and circumstances surrounding peppers murder clearlysupport a finding that the murder was is merely a challenge to the weight given to his mental illness. this argument is not available of conviction of a class a misdemeanor and sentence accordingly." nothing else. appellees br. at 18. that would be clear and nice wouldnt it? however, the conclusions of law denying both motions to suppress. thereafter, a five-day jury trial march 23, 2009, the indianapolis metropolitan police department ("impd") was notified of evidence. following hearings, the trial court issued extensive findings of fact and 23 appeal from the marion superior court sentence is appropriate in light of the nature of the offense and andersons character. the relevant admissible evidence indicates that on thursday, october 25, 2007, forty- imposition of the maximum penalty available. moreover, anderson does not persuade us february 3, 2009, andersons dna profile was loaded into codis, and a match with the regarding the sole mitigating factor, anderson argues that although the trial court indeed constitutes a "search" for purposes of the fourth amendment, the statutory however, must be unambiguous and unequivocal. berghuis v. thompkins, 560 revealed in the record." id. (quoting yates v. evatt, 500 u.s. 391, 403 (1991)). in other questioning. moreover, the purported clarification fails even to acknowledge or reference andersons request in balding, we specifically considered a may be the diminished mental capacity of a defendant. anderson was a twenty-two-year-old right to counsel. state police laboratory performed independent testing which confirmed the dna match. on following an unrelated incident, on august 25, 2008, anderson was charged in nathan anderson entered jane peppers apartment through a bathroom window. anderson stated, "i really would like to talk to an attorney or something," states ex. 169 at v. state, 875 n.e.2d 801, 808 (ind. ct. app. 2007). an abuse of discretion occurs when a court was harmless beyond a reasonable doubt. opportunity to meet prior to the murder. by all accounts, pepper was in a serious and was giving police, not an indication that he was confused about wanting an attorney. id. insufficient evidence bars retrial under the double jeopardy clause, but analysis for such as andersons claim involves the trial courts decision to admit evidence at trial, our principles. precluding the use of evidence obtained in violation of its commands." arizona v. evans, regarding andersons murder conviction, notwithstanding the admission of his police 873 n.e.2d 187, 189 (ind. ct. app. 2007). state, 689 n.e.2d 699 (ind. 1997), the defendant stated, "i guess i reallywant a lawyer, but, i see taylor, 689 n.e.2d at 703-04. sexual intercourse with her either just before or just after the murder. the only seminal fluid with anderson on march 25, 2009. the detectives met with anderson in an interview room admitting dna evidence linking him to the murder scene because that evidence was obtained suppression of evidence seized in violation of the fourth amendment where the erroneous although article 1, section 11 of the indiana constitution tracks the fourth b. the mistake exception and the fourth amendment states supreme court determined that the defendants statement "maybe i should talk to a 4 wounds were inflicted so violently that any one of them could have been fatal.9 tr. at 1157; states ex. 169 at 50-51. detectives did not cease the interview but continued questioning anderson until he eventually confessed that he had not known pepper prior to is for an abuse of discretion. roush, 875 n.e.2d at 808. an abuse of discretion occurs when for an attorney. erroneously admitted are subject to harmless error analysis. storey v. state, 830 n.e.2d individuals than the fourth amendment affords and focuses on what was "reasonable" under under the circumstances would understand that anderson was unambiguously asserting his pepper occurred contemporaneously with her murder. 5 anderson was determined to be equivocal and ambiguous. for example, in davis, the united "reasonable police officer under the circumstances would understand the statement as a against the logic and effect of the facts and circumstances before the court, or the reasonable, dna found at the scene of peppers murder was detected on february22, 2009. the indiana 15 before it. id. in reviewing the admissibility of evidence, we consider only the evidence in whether the suspect actually wants a lawyer. davis, 512 u.s. at 461. however, the davis court acknowledged be invoking the right to counsel." davis v. united states, 512 u.s. 452, 459, evidence did not violate andersons rights pursuant to the indiana constitution. constitution affords essentially the same protection regarding custodial interrogations as its federal counterpart. 10 confinement, in an unrelated case. pursuant to a plea agreement, anderson was sentenced on appeal. the trial court is no longer obligated to weigh mitigating and aggravating factors continued to question and challenge the credibility of andersons explanation for his dna writing, the waiver may be rescinded at any time, and "[i]f the right to counsel or the right to remain silent is circumstances exist, a sentence enhancement may still be upheld. id. prior to trial, anderson filed motions to suppress his statement to police as well as the dna officers here similarly followed up with anderson when later asking him "so what do you want to do," states probable, and actual deductions to be drawn therefrom. id. a trial court may abuse its mr. anderson: yeah, because you say shes a homicide victim. an administrative office, wherein a cotton swab was rubbed against the inside of his cheek. 8 the "totality of the circumstances." shotts, 925 n.e.2d at 726. however, anderson offers us peppers murder, she decided to come forward and tell police what anderson had told her. render the erroneous admission of his statement harmless. first, the dna evidence, the 14 united states constitution and article 1, section 11 of the indiana constitution, and thus the d felony criminal confinement, class d felony pointing a firearm, and class a misdemeanor police statement was unnecessary for his murder conviction, and its admission by the trial anderson argues that the trial court abused its discretion by finding an aggravating buccal swab and determined that (1) a convicted offender had a reduced expectation of and the domestic battery charge, both as class a misdemeanors. however, the abstract of here, at the outset of the interrogation anderson signed an advisement of rights form acknowledging id. at 173-74; see also keeney v. state, 4 argues, or at the very least implies, that in order to make an unequivocal invocation of the disturbing that we have encountered. as noted earlier, this crime was incrediblyviolent. the he knew pepper and that he and pepper had an ongoing sexual relationship. as police abuse of discretion on the part of the trial court and conclude that andersons murder we note that the united states supreme court has held that police have no dutyto cease questioning different result here. indiana search and seizure jurisprudence, like fourth amendment mistake, we must now turn to the admissibility of the evidence pursuant to constitutional 514 u.s. 1, 10 (1995)). the exclusionary rule rendering evidence obtained through an illegal anderson first asserts that the trial court abused its discretion when it admitted into trial courts decision is clearly against the logic and effect of the facts and circumstances with andersons contention that the buccal swab was taken with intentional or reckless revision. and the officers continued interrogation violated his constitutional rights. therefore, the punctured her left lung. although any number of the wounds could have been fatal, the stab extremely violent. her stab wounds were almost too numerous to count, and several of the rather than hours due to the nature of the injuries. crone, judge to contact pepper for several days, brnardic went to the apartment complex and enlisted the a. indiana code section 10-13-6-10 and the mistake exception interestingly, the balding court repeatedly refers to a convicted "offender" as opposed to specifically detective flack: yeah. admissibility of which we address in the next section, placed anderson at the scene of question "do i need an attorney" and later observation "i probably need an attorney" were not unequivocal grace of our alternate misdemeanor sentencing statute possesses a significantly greater supported by the record. regarding aggravating factors, the trial court found the "extremely opinion - for publication an erroneously admitted statement may be deemed harmless. storey, 830 n.e.2d at 1021. 3 imprisoned for a fixed term of between forty-five and sixty-five years, with the advisory the interrogation continued in the absence of counsel. accordingly, he argues that the anderson on december 22, 2008. after reviewing the order of probation and the abstract of sixty-five year sentence is inappropriate. and that he has a right to the presence of an attorney, either retained or we have already reversed two of andersons convictions and vacated twenty-three 20 of criminal confinement as a class d felony with no mention of alternate misdemeanor dna as the dna from the scene of peppers murder. he confessed to his crimes because officers continued to interrogate him despite a clear that it will often be good police practice to clarify an ambiguous or equivocal statement in order to protect the then-twenty-one-year-old anderson was an absolute stranger to forty-four-year-old pepper. rights. we note that an accused may waive the right to counsel, if done voluntarily, knowingly, and vaginal swabs of peppers bodyalong with the pink towel found on her bodyrevealed and unsolved crime scene evidence. no match resulted. collection of dna samples from convicted offenders to be included in indianas dna in evans, the supreme court held that "[t]he exclusionary rule does not require misdemeanor sentencing was available to the trial court for the class d felony.1 anderson that he was required to submit a dna sample. as noted by the state, as a dna samples from convicted offenders. accordingly, we concluded that the compulsory probation officer, smith "serve[s] at the pleasure of the appointing court and [is] directly aid of a leasing agent to gain access to peppers apartment. upon entry, they discovered 2 when an equivocal request for counsel is made, nor are they required to ask clarifying questions to determine initially found incompetent to stand trial, he was later declared competent in august 2010. reasonable inference by the jury that the same individual who had murdered pepper also had court was inaccurate. smith relied on the information when he advised anderson that, lawyer or something man?" id. at 337. we found the wording of that statement, which was dna sample was obtained or placed in the indiana dna data base by mistake." ind. code § appeal followed. consecutive sentences of sixty-five years for murder, twenty years for burglary, and three when imposing sentence, and thus the trial court cannot be said to have abused its discretion frame that she was also murdered. because dna evidence placed andersons sperm inside persons, houses, papers, and effects, against unreasonable searches and seizures." u.s. amendment purposes. garcia-torres v. state, 949 n.e.2d 1229 (ind. 2010). this court, trial. specifically, anderson argues that the dna evidence was obtained in violation of state, 812 n.e.2d 169, 172 (ind. ct. app. 2004).7 jodi kathryn stein january 31, 2012 court of appeals and sample would violate the fourth amendment. more importantly, we are compelled to note id. did not possess a reduced expectation of privacy. thus, he argues that admission of the dna sentencing court improperlyapplies an aggravating circumstance, but other valid aggravating the record clearly establishes that smith relied upon two court orders when advising indiana code section 10-13-6-10, which requires only convicted felons to submit dna of the statute further states that "[t]he detention, arrest, or conviction of a person based on a entered her apartment, that he murdered pepper by stabbing her numerous times, and that he with uncertainty. the addition of the words "or something" did not qualify or equivocate iii. sentencing peppers body, indicating that anderson had sexual intercourse with pepper within the time- software program that operates national databases of dna profiles from convicted offenders factor not supported by the record and failing to find a mitigating factor that was clearly something because i dont know where this is going. i dont want yall to bed. a small pink towel, obviously placed on her after her death, was draped across her trial court abused its discretion when it admitted andersons statement into evidence at trial.5 admissible evidence satisfies the states burden to demonstrate that the evidence was we conclude that the admission of andersons police statement was error, but was the fourth amendment protects "[t]he right of the people to be secure in their 2007, the dna profile developed from this material was uploaded in codis, a computer 9 probation officer smith reviewed the order of probation received from the trial court. that bachelors degree in criminal justice science, found this questioning strange. anderson then judgment, smith determined that anderson had been convicted of a felony and advised convictions. additionally, we conclude that the dna evidence was obtained by "mistake," employees when it issued an erroneous order of probation and abstract of judgment. as such, anderson disputes the evidentiary support for the trial courts additional statement that he was "so erroneous admission of andersons police statement unquestionably influenced the jury i. right to counsel andersons statement. without his police statement, the jury would not have been able to we emphasized in powell that officers immediately followed up exclusionary rules. regarding andersons additional challenge to his sentence, we find no evidence pursuant to the "mistake" exception of indiana code section 10-13-6-10(c) violated a convicted "felon." however, as it stands, indiana code section 10-13-6-13 requires dna samples onlyfrom wound to the right side of her neck severed her jugular vein, lacerated her thyroid gland, and indiana code section 10-13-6-10 provides, in relevant part, that a person convicted of illness, there is insufficient evidence in the record connecting andersons mental illness to exclusive relationship with her boyfriend, brnardic. anderson proceeded to another office and submitted to a buccal swab for dna. that they knew he had sex with her around the time of her murder. anderson told police that evidence, ,,"clearly with that evidence, there was enough to support" the jurys verdicts and privacy, (2) the character of the intrusion was minimal because the procedure was because he was convicted of a felony, he was required to submit a dna sample. anderson open. officers found four bloody kitchen knives, one with a broken blade, near peppers the presence of sperm cells and seminal material. several of the spermatozoa remained giving reasons that are improper as a matter of law. id. responsible to and subject to the orders of the court." ind. code § 11-13-1-1(c). we disagree nor expressed doubt as to whether he needed an attorney as in davis and taylor. to the anderson does not challenge the three additional aggravating factors found bythe trial court, document clearly indicated that anderson had been convicted of criminal confinement as a we agree with the trial court that what happened in this case fits squarely within the class d felony with no mention of alternate misdemeanor sentencing. the record also reveals 17 50-51, his right to counsel should have been "scrupulously honored." miranda, 384 u.s. at conviction. alford v. state, 699 n.e.2d 247, 251 (ind. 1998) (citation and quotation marks michael r. fisher gregory f. zoeller sufficiency includes consideration of the erroneouslyadmitted evidence. carr, 934 n.e.2d at him. sentencing decisions are within the sound discretion of the trial court and are reviewed bloody pajama bottoms, that had apparently been cut off her body, were found lying on the relationship and that anderson merely had consensual sexual intercourse with pepper just violent nature of this offense" as an aggravating circumstance. tr. at 1001. first, the facts request for an attorney."2 should not go further down the slippery slope the state urges and further eviscerate miranda statement that explains reasons for imposing a sentence which the record does not support, pepper either just before or just after the murder. a jury found anderson guilty of murder, and asked the defendant if he, in fact, wanted an attorney. when directly asked, the before the court. id. our supreme court recently considered the invocation of the right to have murdered someone. cox went on to testify that when she further questioned anderson, andersons request was made with sufficient clarity such that a reasonable police officer while arguably disagreeing with balding and its progeny but ultimately deciding the case on other anderson was also permitted to meet privately with his father, an ordained minister and the night in question, that he entered peppers apartment through the open bathroom window constitutionality of cheek swabs have concluded that a cheek swab is a ,,search for the purposes of the fourth omitted). ",,to say that an error did not contribute to the verdict is ... to find that error to counsel requires, at a minimum, some statement that can reasonably be construed to be an did not correct smith or state that he had been convicted of only a misdemeanor. instead, that section provides that "if a person has committed a class d felony, the court mayenter judgment pepper did not report to work the next day or show up for the purdue game that body. in the additionally, the jury heard the testimony of laura cox, andersons girlfriend at the words, if the state has presented other overwhelming evidence of the defendants guilt, then see ind. code § 35-50-2-7. information resulted from clerical errors of court employees." evans, 514 u.s. at 10. transferred to the "net caseload" to accommodate the move. states ex. 169 at 7. on inappropriate in light of the nature of the offense and the character of the offender." the expectation of privacy than a convicted felon such that the compulsorycollection of his dna indiana constitution. it should be noted, however, that our supreme court has concluded that our state sentencing. unbeknownst to smith, the information provided in those documents bythe trial informed cox that he had "done something that would earn him a teardrop" tattoo for his eye. meaning of subsection (c) of that statute. additionally, anderson contends that the buccal the state presented overwhelming evidence from which a jury could reasonably an attorney is present." edwards v. arizona, 451 u.s. 477, 482, 101 s. ct. ) abuse. a single aggravating circumstance is sufficient to justify a sentence enhancement. doctrine, identifies deterrence as the primary objective of the exclusionary rule. membres v. anderson to eighty-eight years in prison. on appeal, anderson contends that the trial court search or seizure inadmissible at trial is a judicially created remedydesigned to safeguard the 9 summoned. peppers blood-soaked corpse was found naked from the waist down. her unambiguous. the language used by anderson was a clear invocation of the right to counsel, invoked his right to counsel during police questioning but that his request was ignored and we begin by reiterating that our standard of review as to the admissibilityof evidence had sexual intercourse with her dead body. detectives obtained a second buccal swab of general finding in aggravation as to the extremely violent nature of the offense, and we will not disturb that detective flack: all of a sudden youre confused? next, we consider andersons challenge to the admission of the dna evidence at requests for an attorney), trans. denied. court may resolve this issue in the future. 16 amendment rights. marion county probation officer joe smith performed an intake interview with u.s.__, __, 130 s. ct. 2250, 2259, 176 l. ed. 2d 1098, 1110 (2010). the severity of the crime, the damage done to others, and myriad other factors that come to light anderson that he was required to submit to a buccal swab for dna. anderson proceeded to omitting reasons that are clearly supported by the record and advanced for consideration, or ii. dna evidence four-year-old jane pepper spent the evening alone in her indianapolis apartment. peppers 6 mean, ive never done this before so i dont know." id. at 703. our supreme court deter future fourth amendment violations. davis, __ u.s.__, 131 s. ct. at 2426. 07 (1966). if the accused requests counsel, "the interrogation must cease until accordingly, anderson has established no abuse of discretion. clerkof the supreme court, we cannot say the same regarding andersons convictions for burglaryand abuse of a unimportant in relation to everything else the jury considered on the issue in question, as the maximum sixty-five year sentence is inappropriate. peppers murder is one of the most about how long she thought dna evidence lasted at a crime scene. cox, who was earning a facts and procedural history 11 being at the murder scene, the following colloquy occurred: 1 officers obtained an arrest warrant as well as a search warrant to obtain a second buccal swab 22 burglary, and abuse of a corpse. specifically, anderson asserts that he unequivocally greater expectation of privacy than those to which indiana code section 10-13-6-10 was entirely discount the mitigating relevance of this factor. andersons argument in this regard filed in this case, andersons invocation of his right to counsel was unequivocal. once peppers brutal murder. andersons intact sperm cells were found on vaginal swabs of anderson next contends that the trial court abused its discretion when it sentenced "mistake" exception provided byindiana code section 10-13-6-10. ten months after pepper anderson maintains that, unlike a convicted felon, as a convicted misdemeanant, he determined that the defendants statement was "an expression of doubt, not a request" and accordingly, although we vacate andersons burglary and abuse of a corpse sentences, we class b felony burglary, and class d felony abuse of a corpse. the trial court sentenced was permitted several breaks to use the restroom, smoke, make phone calls, and eat food. 19 again, it was reasonable for the jury to conclude that andersons sexual intercourse with his commission of this murder. anderson has failed to meet his burden to show that his evidence should have been excluded. we will address each argument in turn. the state directs us to cases in which language somewhat similar to that used by lawyer" was not an unequivocal request for counsel. davis, 512 u.s. at 462. in taylor v. 13 appellee-plaintiff. ) defendant did not say yes or clarify that he wanted counsel.4 here, anderson neither posed a question regarding needing an attorney as in powell, marks and citation omitted). the request must be made with sufficient clarity such that a amendment verbatim, the indiana provision in some cases confers greater protections to childress v. state, 848 n.e.2d 1073, 1080 (ind. 2006). "[w]hether we regard a sentence as indiana code section 35-50-2-3 provides that a person who commits murder shall be would serve no deterrent purpose, as it was collected inadvertently as the result of an brutal and random nature of andersons murder of pepper supports the trial courts indeed, as established in miranda v. arizona, prior to any questioning of a person and class d felony abuse of a corpse. although anderson, a diagnosed schizophrenic, was deputy attorney general court of appeals of indiana vs. ) no. 49a05-1105-cr-243 invoked at any point during questioning, further interrogation must cease." berghuis, 560 u.s. at ___, 130 s. error must be harmless beyond a reasonable doubt. id. the state has the burden to evidence his statement made during questioning by police in which he confessed to murder, resulting convictions. id. (quoting lockart v. nelson, 488 u.s. 333, 40 (1988)). indianapolis, indiana 18 disregard of his constitutional rights. instead, the dna evidence was obtained and placed in in january 2009, anderson moved to longview, texas and his probation was tax court misdemeanor domestic battery. pursuant to the open plea agreement, alternative domestic battery. anderson pled guilty to class d felony criminal confinement and class a demonstrate that the improper admission of a defendants statement did not contribute to the the open bathroom window to come in later. noninvasive and pain free, and (3) the state has a substantial interest in creating a database of the dna database by mistake. having determined that the dna evidence was obtained by affirm andersons sixty-five year sentence for murder and decline the invitation for sentence ct. at 2263-64. performed and the dna was collected due to an unintentional mistake by a court and its at the longview police department. trans. denied, this court considered the defendants statement "could i see about getting a unintentional mistake by the court and court employees. accordingly, admission of the carr v. state, 934 n.e.2d 1096, 1102 (ind. 2010). indeed, "[i]nvocation of the miranda right with a buccal swab, which he alleges was taken in violation of the applicable indiana statute diagnosed schizophrenic, not a constitutional scholar. we are getting to the point in the 479. we disagree with the trial courts determination that andersons request was expressed a trial courts decision is clearly against the logic and effect of the facts and circumstances appointed." 384 u.s. 436, 444, 86 s. ct. 1602, 1612, 16 l. ed. 2d 694, 706­ anderson and, on march 29, 2009, a second confirmatory analysis established andersons expression of a desire for the assistance of an attorney." davis, 512 u.s. at 459 (quotation 7 ex. 169 at 51, such minimal attempt at clarification is of no moment. first, as stated, andersons request for there was no evidence to indicate that pepper and anderson had ever met or ever had the because we conclude that andersons right to counsel pursuant to the federal constitution was sexual attack on jane peppers body." tr. at 1001. we agree that there was no evidentiary support for this c. the mistake exception and the indiana constitution need to worry about anything. when cox later learned that dna linked anderson to intact, indicating sexual intercourse within the timeframe of the murder. in november of he told her that he had thrown a knife or knives over a bridge and assured her that she did not ) standard of review as to the admissibility of the evidence is for an abuse of discretion. roush anderson stabbed pepper numerous times, killing her. he also had sexual intercourse with which had apparently been cut off her body, were found nearby. this evidence supports a probation department following his commission of unrelated crimes, anderson asked cox specifically, the exclusionary rule was historically designed as a means of deterring police attorney for appellant: attorneys for appellee: sentence. pursuant to indiana appellate rule 7(b), we may revise a sentence authorized by was murdered, anderson was charged with various crimes, including class d felonycriminal n.e.2d 719, 723 (ind. 2010). indeed, the amendment itself "contains no provision expressly ) 7(b).6 andersons clear statement that he "really would like to talk to an attorney." states ex. 169 an autopsy revealed that pepper sustained numerous stab wounds to her face, chest, calandra, 414 u.s. 338, 348 (1974). thus, the sole purpose of the exclusionary rule is to andersons identity. because anderson had also failed to appear for a probation violation, lower back. blood was spattered on the bed, walls, and floor, and the bathroom window was apartment was on the ground level of the apartment building, and pepper often left her admission of his statement violated his right to counsel. we agree with anderson. and in violation of his federal and state constitutional rights. post mortem. consequently, we must reverse andersons convictions for burglaryand abuse samples. anderson maintains that the collection of his dna was not a "mistake" within the peppers body was found naked from the waist down, and her bloody pajama pants, intelligently. miranda, 384 u.s. at 444. however, even if an accused elects to waive his rights orally or in that the abstract of judgment received from the trial court stated that anderson was convicted grounds, the garcia-torres court merely acknowledged that "[m]ost courts that have addressed that "[t]he touchstone of the fourth amendment is reasonableness." shotts v. state, 925 after 11:00 p.m., a neighbor saw pepper lean out her apartment door to coax one of her cats sufficient without the improper admission of andersons police statement. thus, andersons defendant bears the burden to persuade this court that his or her sentence is inappropriate. found on a small pink towel that was draped over peppers body after she was murdered. specifically found his long history of mental illness as a mitigator, the court seemed to tr. at 605. cox explained to the jury that individuals get teardrop tattoos to signifythat they the honorable lisa f. borges, judge excited by the act of murdering jane pepper that he became erect and had to relieve that erection through a second-guessing. id. at 452. the police officers in powell followed this protocol. while the state argues that marion county with class b felony criminal confinement, class c felony intimidation, class appellant-defendant, ) bathroom window open to allow her two cats to roam freely. pepper spoke with her only for an abuse of that discretion. anglemyer v. state, 868 n.e.2d 482, 490 (ind. 2007), contrary, he clearly stated, "i really want to talk to an attorney or something." the state however, has held that while the taking of a biological sample, such as a dna sample, sentence being fifty-five years. under the circumstances presented here, we cannot say that 5 marion county public defender agency attorney general of indiana requirement that a defendant convicted of a felony submit a dna sample for the dna 7 abused its discretion when it admitted into evidence a statement he made to police in which light of the circumstances would have understood only that the suspect might affirmed in part, reversed in part and remanded. a statement of equivocation. moreover, andersons subsequent statement that he was p.m. on march 25, 2009, until 3:00 a.m. on march 26, 2009. during questioning, anderson exclusion was unnecessary and admission of the evidence did not violate andersons fourth a felony, conspiracy to commit a felony, or attempt to commit a felony"shall provide a dna rights of the suspect and minimize the chance of a confession being suppressed due to subsequent judicial of a corpse. the state, however, may retry anderson for these offenses. a reversal for soon thereafter, anderson implied to his girlfriend that he had killed someone and asked her inside. pepper told the neighbor not to worry about the other cat because he could just use posed as a question to officers, to be ambiguous and not sufficiently clear as to constitute a taken into custody, "the person must be warned that he has a right to remain boyfriend on the phone around 11:00 p.m. and discussed her plan to attend a purdue or dna recovered was that of anderson. andersons seminal fluid and dna were also conclude beyond a reasonable doubt that anderson murdered pepper. the cumulative university football game with friends that saturday. pepper and her boyfriend, charles his fourth amendment rights. first, we do not agree with anderson that a defendant who intent to commit theft therein or that anderson had sexual intercourse with peppers body that he had been advised of his miranda rights. however, such form did not include a written waiver of those the trial court entered judgment of conviction against anderson on the confinement charge and an accuseds right to counsel. andersons request for counsel in this case was feel that im lying to you in any kind of way. im confused and theres a lot convictions for burglary and abuse of a corpse and vacate those sentences. as noted earlier, years for abuse of a corpse, resulting in an aggregate sentence of eighty-eight years. this amendment." id. at 1232. although balding has not been overruled, we are unaware as to how our supreme years of andersons sentence, leaving him with a sixty-five year sentence for murder. discussion and decision clarified on reh'g, 875 n.e.2d 218. an abuse of discretion occurs if the decision is clearly constitutional right." id. at 703-05. in powell v. state, 898 n.e.2d 328 (ind. ct. app. 2008), detective flack: you said you came inside of her before. conclude beyond a reasonable doubt that anderson broke into peppers apartment with the friends went unanswered. on monday, october 29, after friends and coworkers were unable swab of his mouth violated his constitutional rights under the fourth amendment to the favor of the trial courts ruling and any unrefuted evidence in the defendants favor. id. class a misdemeanor. however, when anderson appeared for his probation intake interview, questioning, officers told anderson that they had his dna from peppers murder scene and 12 "confused" was an indication that he was getting confused about the version of events that he how long she thought dna lasted. exclusion of the dna evidence would serve no deterrent purpose. the buccal swab here was indianapolis, indiana intended to apply, and thus the collection of his dna violated his fourth amendment rights, according to the alternate misdemeanor sentencing statute, indiana code section 35-50-2- for publication database comes within the special needs exception against suspicionless searches. balding v. in a given case." cardwell v. state, 895 n.e.2d 1219, 1224 (ind. 2008). 10-13-6-10(c). accordingly, anderson may be subject to retrial on these offenses if the state so chooses. that his character warrants a lesser sentence. while we acknowledge his history of mental cut completely across her esophagus. examiners surmised that death occurred in minutes may, j., and brown, j. concur. judgment and the order of probation issued by the trial court indicated that anderson had was merely the suspect choosing to "think out loud about whether to exercise his peppers blood-soaked corpse lying on the bedroom floor. police were immediately in sum, we affirm andersons conviction and sentence for murder. we reverse his which included his criminal history, prior probation violation, and past illegal substance prior to her murder. however, testimony of peppers friends and family indicated that the jan 31 2012, 9:34 am on march 31, 2009, the state charged anderson with murder, class b felonyburglary,


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