COLE v. STATE (2025)

MEMORANDUM DECISION

[1] Keith Cole appeals his conviction for murder following a jury trial. He contends the trial court erred by admitting evidence of two guns, as well as ammunition, seized during a search of his residence. One of the guns contained Cole's DNA and was determined to be the murder weapon. We affirm, concluding that any error from the admission of the seized evidence was harmless because the other, unchallenged evidence of Cole's guilt was overwhelming.

Facts

[2] Daniel Baxter was stopped at a red light in Indianapolis when a black Dodge Charger with distinctive red stripes pulled up behind him. Security footage from a nearby tow truck captured what happened next. A passenger wearing black pants with red stripes down the legs and a hoodie exited the Charger, approached Baxter's vehicle, and fired multiple shots through the passenger window. The shooter then returned to the Charger, which drove away northbound. Baxter died from his wounds.

[3] Multiple witnesses described seeing a black Charger with red stripes fleeing the scene. Police managed to trace the license plate to the Charger's owner, Curtis Carson. Carson also called his parole officer and revealed the details of the murder. According to Carson, he was driving the Charger and followed Baxter's vehicle at Cole's behest before Cole shot Baxter. Carson also reported that immediately after the shooting, he, Cole, and Carson's brother, Porter Tapps, attempted to conceal evidence. Carson began removing the red stripes from his Charger. Meanwhile, Cole confessed to Tapps that he shot Baxter with a revolver; he then enlisted Tapps’ aid in disposing of Cole's distinctive pants. The pants were thrown onto a carport roof at an apartment complex, and police later recovered them there with Carson's assistance.

[4] The police investigation uncovered security footage from the day of the murder showing Cole wearing the same distinctive pants as the shooter. Additionally, Cole's cell phone records placed Cole near the location of the shooting around the time of the offense.

[5] About 11/212 weeks after the murder, police arrested Cole and searched his home pursuant to a warrant. They found the .357 Magnum revolver used to kill Baxter in the outside trash bin, double wrapped in plastic bags. On one of the bags, police recovered Cole's fingerprint. And on the revolver itself, they recovered Cole's DNA. Additionally, police found a Smith & Wesson .40 semiautomatic pistol (second handgun) along with ammunition on the top shelf of a hallway closet in Cole's home.

[6] The State charged Cole with murder. During one recorded phone call from jail shortly after the search of his home, Cole said to an acquaintance, “Damn, they got it,” and “It's over.” Tr. Vol. IV, p. 96; State's Exhibit 165A. In another call weeks before his murder trial, Cole, through Tapps, attempted to bribe Carson against testifying. Cole said he would go to the bank and get whatever money Carson wanted.

[7] Cole was convicted of murder after a jury trial and sentenced to 63 years imprisonment. He appeals his conviction.

Discussion and Decision

[8] Cole raises only two evidentiary issues on appeal. First, he claims the trial court erroneously admitted the evidence seized ¹ during the search of his home because the search warrant was based on a probable cause affidavit containing allegedly unreliable hearsay from Carson and Tapps.² Second, Cole claims that even if the search was valid, the trial court erred by admitting allegedly irrelevant and prejudicial evidence of the second handgun, which was not used in the murder.

[9] We review a trial court's evidentiary rulings for an abuse of discretion. McCallister v. State, 91 N.E.3d 554, 561 (Ind. 2018). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017). However, even if an evidentiary ruling constitutes an abuse of discretion, we will not reverse if the error was harmless. Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023).

[10] Under Indiana Appellate Rule 66(A), an error is harmless if its “probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” The party seeking relief bears the burden of demonstrating how “the error's probable impact undermines confidence in the outcome of the proceeding below.” Hayko, 211 N.E.3d at 492. We consider the likely impact of improperly admitted evidence on a reasonable, average jury considering all evidence in the case. Id. If substantial independent evidence of guilt exists and our confidence in the outcome is not undermined, the error is harmless. Id.

[11] Even if we assume, without deciding, that the trial court erred in admitting the evidence obtained from Cole's residence, such error was harmless given the overwhelming independent evidence of Cole's guilt. The State presented substantial evidence identifying Cole as Baxter's killer including:

• Security footage showing the shooter wearing the same distinctive pants that Cole was filmed wearing earlier that day.

• Cell phone records placing Cole at the murder scene.

• Carson's eyewitness testimony that Cole was the shooter.

• Testimony about Cole's attempts to conceal evidence by discarding the pants.

• Tapp's testimony about Cole's confession to him.

• Cole's recorded jail calls demonstrating consciousness of guilt through attempts to prevent witness testimony and his reaction to the discovery of evidence.

[12] This evidence provides overwhelming proof of Cole's guilt independent of any evidence obtained from his residence. The admission of that evidence, even if erroneous, did not affect Cole's substantial rights because it was merely cumulative of the State's overwhelming evidence identifying Cole as the shooter. See, e.g., Bailey v. State, 979 N.E.2d 133, 135 (Ind. Ct. App. 2012) (conviction may be affirmed based only on the uncorroborated testimony of a single witness); Hubbell v. State, 754 N.E.2d 884, 890 (Ind. 2001) (finding admission of gun and bullets unrelated to murder was harmless error, given the other evidence of guilt).

[13] Because this overwhelming independent evidence of Cole's guilt rendered harmless the alleged error in the admission of evidence, we affirm Cole's conviction.

Affirmed

FOOTNOTES

1.   Cole appears to challenge all the evidence seized during the search, but his argument seems to be based on the admission of the seized guns, ammunition, plastic bags, and fingerprints.

2.   See Ind. Code § 35-33-5-2 (requiring probable cause affidavit for search warrant to contain facts known to affiant through personal knowledge or, if based on hearsay, to contain information regarding reliability of source or totality of circumstances that corroborate hearsay); Bailey v. State, 131 N.E.3d 665, 678-79 (Ind. Ct. App. 2019) (noting that search warrant affidavit must comply with Indiana Code § 35-33-5-2 and that probable cause for warrant does not exist if supporting affidavit consists solely of uncorroborated hearsay).

Weissmann, Judge.

Pyle, J., and Felix, J., concur.