CARTER v. STATE (2024)

MEMORANDUM DECISION

[1] Zachary Carter appeals his convictions for Level 6 felony possession of child pornography and Class A misdemeanor contributing to the delinquency of a minor. Carter raises two issues for our review, which we restate as follows:

1. Whether the trial court abused its discretion when it denied Carter's motions for mistrial.

2. Whether the State violated Carter's right to be free from unreasonable search and seizure under Article 1, Section 11 of the Indiana Constitution when the State connected Carter's cell phone to a search program prior to obtaining a search warrant for the phone but did not run that program until after the State had obtained the search warrant.

[2] We affirm.

Facts and Procedural History

[3] In 2021, fourteen-year-old M.H. lived in Marion County with his father and stepmother. M.H. had access to the Snapchat app, and through that app he located and contacted Carter, who appeared to be using the app to sell alcohol. Carter supplied M.H. with alcohol along with vape pens.

[4] In mid-August, M.H.’s stepmother discovered the items in M.H.’s room and took his phone away. Within the next few days, however, M.H. used a friend's phone to reconnect with Carter. M.H. asked Carter to drop off a new phone for him at M.H.’s high school.

[5] On August 19, Carter attempted to drop off a new phone at M.H.’s high school under the pretense of being M.H.’s father. However, Carter went to the wrong high school. When M.H. followed up with Carter to say that M.H. had not received the phone, Carter realized his mistake. The next day, he returned to the high school to retrieve the phone, this time under the pretense that M.H. was his brother.

[6] A school resource officer who was present in the high school's office on both days was suspicious, took Carter's photograph, and forwarded it to Detective Stacy Hinshaw of the Lawrence Police Department. Detective Hinshaw interviewed M.H. and then interviewed Carter. During his interview with Detective Hinshaw, Carter admitted to having supplied M.H. with the alcohol and vape pens. Detective Hinshaw then asked Carter if he had supplied M.H. with those items in exchange for nude photographs of M.H.; Carter denied that he had done so.

[7] Detective Hinshaw obtained a warrant to seize Carter's cell phone, which she did. She then sought a second warrant to search the phone. After seizing the phone and while awaiting approval on the second warrant, Detective Hinshaw delivered the phone to Lieutenant David Gordon. Lieutenant Gordon connected the phone, which remained locked, to a device called a “GrayKey.” Tr. Vol. 3, p. 26. Upon connecting a cell phone to the GrayKey, the GrayKey immediately discerns the phone's “lock state,” that is, whether the phone has recently been restarted and not unlocked by the user since that restart or whether the phone has been unlocked since the last restart, even if the phone is currently locked when it is connected to the GrayKey. Id. at 185. There is no dispute that Carter's phone had been unlocked since its last restart even though it was locked at the time that Lieutenant Gordon connected it to the GrayKey. The GrayKey also keeps the phone's battery from dying and prevents the phone from being accessed remotely.

[8] From there, the GrayKey has the ability to “brute force” its way through a locked phone to obtain data from the phone. Id. at 183. However, at least as used by the Lawrence Police Department, the GrayKey requires an officer to enter a command to perform a brute force extraction; the GrayKey does not do so automatically. Id. at 220-21. And, here, a judicial officer approved the second warrant to search Carter's cell phone at noon on August 25. An officer entered the command for the GrayKey to perform a brute force extraction from the phone at 12:50 p.m. that same day. Id. at 226-27. The extraction took two days and resulted in the discovery of nude photographs of M.H. on Carter's phone.

[9] The State charged Carter with Level 6 felony possession of child pornography and Class A misdemeanor contributing to the delinquency of a minor. Prior to Carter's first trial, M.H. committed suicide. And Carter's first trial resulted in a mistrial.

[10] At Carter's second trial, Carter objected to the admission of the nude photographs of M.H. that had been seized from his phone on the ground that the seizure violated his rights under the Indiana Constitution. The trial court denied Carter's objection and admitted the photographs of M.H. into evidence. And, when testifying about the extraction of the data from Carter's phone, Lieutenant Gordon stated that the extraction included “nude ․ or pornographic images of [the] victim ․” Id. at 192. Carter objected to the use of the word “victim,” which word the trial court had previously instructed the State in a motion in limine to not use at trial. Id. at 192-93. Carter further moved for a mistrial. The trial court denied the motion for a mistrial but did admonish the jury to disregard Lieutenant Gordon's use of the word “victim” on the ground that that word was “argumentative” and it was for the jury alone to determine “whether there was a victim.” Id. at 194.

[11] After the State had rested its case, Carter's counsel brought to the court's attention that Detective Hinshaw had appeared in the courtroom wearing a teal ribbon on her clothing. Carter's counsel recognized the ribbon to symbolize suicide and sexual-assault prevention and again moved for a mistrial. The State responded that Detective Hinshaw had immediately removed the ribbon upon request and that there was no reason to think any of the jurors had actually seen the ribbon.

[12] After sharing its thoughts with Detective Hinshaw directly, the trial court noted that it had not seen the ribbon and would not have known its significance even if the court had seen it. The court thus asked Carter's counsel what harm in fact may have occurred, and Carter's counsel responded that the harm was that “we don't know” what the jury may have seen and that, if the jurors were polled, it would “draw attention to it.” Tr. Vol. 4, p. 37. The trial court, noting the State's substantial evidence of Carter's guilt and the speculative nature of the jury having both seen and understood the ribbon, denied the motion for a mistrial.

[13] Thereafter, the jury found Carter guilty as charged. The trial court entered its judgment of conviction and sentenced Carter accordingly. This appeal ensued.

1. The trial court did not abuse its discretion in denying Carter's motions for mistrial.

[14] On appeal, Carter first argues that the trial court abused its discretion when it denied his motions for mistrial. “Because the trial court evaluates first-hand the relevant facts and circumstances at issue and their impact on the jury, it is in the best position to evaluate whether a mistrial is warranted.” Weisheit v. State, 26 N.E.3d 3, 15 (Ind. 2015). Accordingly, we review the denial of a motion for mistrial for an abuse of the trial court's discretion, and we will reverse only if the defendant demonstrates that he was so prejudiced by the conduct at issue that he was placed in a position of “grave peril.” Inman v. State, 4 N.E.3d 190, 198 (Ind. 2014). Grave peril occurs when the questioned conduct was “so prejudicial and inflammatory” that the defendant was “placed in a position to which he should not have been subjected.” Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 2008) (quotation marks omitted). The gravity of the peril turns on the probable persuasive effect of the misconduct on the jury's decision, not on the degree of impropriety of the conduct. Inman, 4 N.E.3d at 198 (quotation marks omitted).

[15] Carter argues on appeal that Detective Hinshaw silently conveyed to the jury that M.H.’s absence at the trial was the result of suicide and that that message was exacerbated by Lieutenant Gordon's reference to M.H. as Carter's “victim.” Appellant's Br. at 10. In support of his argument, Carter relies on our Supreme Court's opinion in Moore v. State, 440 N.E.2d 1092 (Ind. 1982). In Moore, the State charged the defendant with the rape of Debra Davis. Shortly before the defendant's trial, Debra shot herself and committed suicide. She left a note that stated she was taking her own life because she was despondent; the note made no mention of her rape or the upcoming trial.

[16] At the defendant's trial, the State sought to admit prior testimony of Debra against the defendant. In front of the jury, the trial court permitted the State to introduce Debra's death certificate as evidence of her absence. The death certificate, in turn, attributed Debra's death to having been shot, but it made no mention of her death having been the result of suicide. The defendant then moved to introduce evidence that Debra's death had been by suicide, but the trial court denied that request.

[17] Our Supreme Court held that the trial court committed fundamental error by allowing the State to argue in front of the jury that the reason for Debra's absence was that she had been killed by a gunshot while also denying the defendant's request to clarify that her death had been by suicide. Id. at 1094. As our Supreme Court explained, there was “no need to inform the jury of any of the factors relating to the witness’[s] absence.” Id. Further, the manner in which the trial court proceeded “undeniably left [the jury] free to infer [the defendant] had arranged for, or himself committed[,] the murder of [Debra] to prevent her from testifying against him.” Id. Accordingly, our Supreme Court reversed the defendant's conviction and remanded for a new trial. Id. at 1095.

[18] We conclude that Moore is inapposite. Unlike in Moore, here there is nothing in the record to establish that any juror had in fact observed Detective Hinshaw's teal ribbon, let alone understood either the general meaning of the ribbon or any connection to M.H. Carter's argument to the contrary is based on speculation, which is insufficient to establish reversible error. See, e.g., Nix v. State, 158 N.E.3d 795, 799-801 (Ind. Ct. App. 2020), trans. denied. Further, immediately following Lieutenant Gordon's reference to Carter's “victim,” the trial court admonished the jury to disregard his use of that word. Tr. Vol. 3, p. 194. A proper admonishment is presumed to cure any error, and we are not persuaded that the court's admonishment here did not achieve that purpose. See Isom v. State, 31 N.E.3d 469, 481 (Ind. 2015).

[19] Accordingly, the trial court did not abuse its discretion when it denied Carter's motions for mistrial.

2. The State's mere connection of Carter's phone to the GrayKey did not violate his rights under Article 1, Section 11 of the Indiana Constitution.

[20] Carter also argues that the State violated his rights under Article 1, Section 11 of the Indiana Constitution when the State connected his cell phone to the GrayKey prior to obtaining the second warrant. Our standard of review for constitutional questions is well settled. We consider the evidence most favorable to the trial court's judgment and review any factual findings of the court for clear error. See, e.g., Jacobs v. State, 76 N.E.3d 846, 849 (Ind. 2017). We review de novo whether those facts are sufficient to pass constitutional muster. See id.

[21] Under Article 1, Section 11, we ask “whether the State has shown that a particular search or seizure was reasonable based on the totality of the circumstances.” Ramirez v. State, 174 N.E.3d 181, 191 (Ind. 2021) (quoting Hardin v. State, 148 N.E.3d 932, 942 (Ind. 2020)). In doing so, we employ the framework provided in Litchfield v. State, 824 N.E.2d 356, 361 (Ind. 2005). Id. In particular, we evaluate the reasonableness of a law enforcement officer's search or seizure by balancing three factors: “1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs.” Id. (quoting Litchfield, 824 N.E.2d at 361).

[22] Carter's argument is not well taken. He asserts that some search occurred the moment his phone was connected to the GrayKey. And, although he concedes that the incriminating photographs discovered on his phone were obtained after the issuance of the second warrant, he argues that that evidence should have been excluded as fruit of the poisonous tree based on the search that occurred at the moment of connection. He likewise argues that the incriminating photographs are not admissible under a theory of attenuation from the initial connection to the GrayKey.

[23] We agree with the State that Carter's arguments fail because the incriminating photographs—the only evidence Carter asserts should have been excluded—were obtained pursuant to a valid and unchallenged warrant. Accordingly, Carter's Article 1, Section 11 argument seeking to exclude evidence pursuant to a warrantless search is a nonstarter.

[24] Carter's argument also fails under the Litchfield factors. First, the State's degree of suspicion that Carter's phone contained the incriminating photographs was, in Carter's own words, “admittedly high.” Appellant's Br. at 13. Second, the degree of intrusion—here, the mere connection of the phone to the GrayKey without the entry of the additional prompt to brute-force search the phone—was low. The only information revealed in the record that the GrayKey obtained from the phone by the act of connection was the phone's lock state, and Carter does not suggest that that information has any privacy value to him or to anyone else. Carter asserts instead that the ability of the GrayKey to search his phone is a high degree of intrusion; but, as that ability here could not be realized without the additional entry of the prompt to execute the search, which, again, did not happen until after the issuance of the second warrant, Carter's concern is not real. Third, the degree of law-enforcement needs to connect the phone to the GrayKey was significant: in connecting to the phone, the GrayKey preserved the phone's lock state and battery life and prevented the phone from being accessed remotely. Thus, the balance of the Litchfield factors weighs in favor of the State.

[25] Accordingly, the trial court did not err when it admitted the incriminating photographs seized from Carter's phone into evidence.

Conclusion

[26] For all of these reasons, we affirm Carter's convictions for Level 6 felony possession of child pornography and Class A misdemeanor contributing to the delinquency of a minor.

[27] Affirmed.

Mathias, Judge.

Brown, J., and Kenworthy, J., concur.