ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
MICHAEL R. FISHER
Marion County Public Defender Agency
GREGORY F. ZOELLER
Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Jan 31 2012, 9:34 am
COURT OF APPEALS OF INDIANA
STATE OF INDIANA,
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa F. Borges, Judge
Cause No. 49G04-0903-MR-35798
January 31, 2012
OPINION - FOR PUBLICATION
of the supreme court,
court of appeals and
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
Facts and Procedural History
The relevant admissible evidence indicates that on Thursday, October 25, 2007, fortyfour-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.
Pepper did not report to work the next day or show up for the Purdue game that
Saturday. Similarly, Pepper did not report to work on Sunday, and calls from Brnardic and
friends went unanswered. On Monday, October 29, after friends and coworkers were unable
to contact Pepper for several days, Brnardic went to the apartment complex and enlisted the
aid of a leasing agent to gain access to Pepper‟s apartment. Upon entry, they discovered
Pepper‟s blood-soaked corpse lying on the bedroom floor.
Police were immediately
summoned. Pepper‟s blood-soaked corpse was found naked from the waist down. Her
bloody pajama bottoms, that had apparently been cut off her body, were found lying on the
bed. A small pink towel, obviously placed on her after her death, was draped across her
lower back. Blood was spattered on the bed, walls, and floor, and the bathroom window was
open. Officers found four bloody kitchen knives, one with a broken blade, near Pepper‟s
An autopsy revealed that Pepper sustained numerous stab wounds to her face, chest,
hands, and both sides of her neck. She also sustained a stab wound to her back, which
punctured her left lung. Although any number of the wounds could have been fatal, the stab
wound to the right side of her neck severed her jugular vein, lacerated her thyroid gland, and
cut completely across her esophagus. Examiners surmised that death occurred in minutes
rather than hours due to the nature of the injuries.
Vaginal swabs of Pepper‟s body along with the pink towel found on her body revealed
the presence of sperm cells and seminal material. Several of the spermatozoa remained
intact, indicating sexual intercourse within the timeframe of the murder. In November of
2007, the DNA profile developed from this material was uploaded in CODIS, a computer
software program that operates national databases of DNA profiles from convicted offenders
and unsolved crime scene evidence. No match resulted.
Following an unrelated incident, on August 25, 2008, Anderson was charged in
Marion County with class B felony criminal confinement, class C felony intimidation, class
D felony criminal confinement, class D felony pointing a firearm, and class A misdemeanor
domestic battery. Anderson pled guilty to class D felony criminal confinement and class A
misdemeanor domestic battery.
Pursuant to the open plea agreement, alternative
misdemeanor sentencing was available to the trial court for the class D felony.1 Accordingly,
the trial court entered judgment of conviction against Anderson on the confinement charge
and the domestic battery charge, both as class A misdemeanors. However, the abstract of
judgment and the order of probation issued by the trial court indicated that Anderson had
been convicted of class D felony criminal confinement.
Marion County Probation Officer Joe Smith performed an intake interview with
Anderson on December 22, 2008. After reviewing the order of probation and the abstract of
judgment, Smith determined that Anderson had been convicted of a felony and advised
Anderson that he was required to submit to a buccal swab for DNA. Anderson proceeded to
an administrative office, wherein a cotton swab was rubbed against the inside of his cheek.
Soon thereafter, Anderson implied to his girlfriend that he had killed someone and asked her
how long she thought DNA lasted.
In January 2009, Anderson moved to Longview, Texas and his probation was
transferred to the “NET caseload” to accommodate the move. State‟s Ex. 169 at 7. On
February 3, 2009, Anderson‟s DNA profile was loaded into CODIS, and a match with the
DNA found at the scene of Pepper‟s murder was detected on February 22, 2009. The Indiana
State Police laboratory performed independent testing which confirmed the DNA match. On
March 23, 2009, the Indianapolis Metropolitan Police Department (“IMPD”) was notified of
Anderson‟s identity. Because Anderson had also failed to appear for a probation violation,
See Ind. Code § 35-50-2-7.
officers obtained an arrest warrant as well as a search warrant to obtain a second buccal swab
from Anderson. IMPD Detectives Robert Flack and Marcus Kennedy flew to Texas to meet
with Anderson on March 25, 2009. The detectives met with Anderson in an interview room
at the Longview Police Department.
Before questioning began, Anderson signed an advisement of rights form provided by
the Longview Police Department. Detectives questioned Anderson from approximately 5:00
p.m. on March 25, 2009, until 3:00 a.m. on March 26, 2009. During questioning, Anderson
was permitted several breaks to use the restroom, smoke, make phone calls, and eat food.
Anderson was also permitted to meet privately with his father, an ordained minister and
resident of Longview, approximately two or three times during the questioning. During
questioning, officers told Anderson that they had his DNA from Pepper‟s murder scene and
that they knew he had sex with her around the time of her murder. Anderson told police that
he knew Pepper and that he and Pepper had an ongoing sexual relationship. As police
continued to question and challenge the credibility of Anderson‟s explanation for his DNA
being at the murder scene, the following colloquy occurred:
Detective Flack: You said you came inside of her before.
Mr. Anderson: I don‟t know. I really would like to talk to an attorney or
something because I don‟t know where this is going. I don‟t want y‟all to
feel that I‟m lying to you in any kind of way. I‟m confused and there‟s a lot
of stuff going on.
Detective Flack: All of a sudden you‟re confused?
Mr. Anderson: Yeah, because you say she‟s a homicide victim.
Detective Flack: Yeah.
Tr. at 1157; State‟s 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
the night in question, that he entered Pepper‟s apartment through the open bathroom window
with the intent of stealing money therein, that Pepper was sleeping and awoke when he
entered her apartment, that he murdered Pepper by stabbing her numerous times, and that he
had sexual intercourse with her dead body. Detectives obtained a second buccal swab of
Anderson and, on March 29, 2009, a second confirmatory analysis established Anderson‟s
DNA as the DNA from the scene of Pepper‟s murder.
On March 31, 2009, the State charged Anderson with murder, class B felony burglary,
and class D felony abuse of a corpse. Although Anderson, a diagnosed schizophrenic, was
initially found incompetent to stand trial, he was later declared competent in August 2010.
Prior to trial, Anderson filed motions to suppress his statement to police as well as the DNA
Following hearings, the trial court issued extensive findings of fact and
conclusions of law denying both motions to suppress. Thereafter, a five-day jury trial
ensued. The jury found Anderson guilty as charged. The trial court sentenced Anderson to
consecutive sentences of sixty-five years for murder, twenty years for burglary, and three
years for abuse of a corpse, resulting in an aggregate sentence of eighty-eight years. This
Discussion and Decision
I. Right to Counsel
Anderson first asserts that the trial court abused its discretion when it admitted into
evidence his statement made during questioning by police in which he confessed to murder,
burglary, and abuse of a corpse.
Specifically, Anderson asserts that he unequivocally
invoked his right to counsel during police questioning but that his request was ignored and
the interrogation continued in the absence of counsel. Accordingly, he argues that the
admission of his statement violated his right to counsel. We agree with Anderson.
As Anderson‟s claim involves the trial court‟s decision to admit evidence at trial, our
standard of review as to the admissibility of the evidence is for an abuse of discretion. Roush
v. State, 875 N.E.2d 801, 808 (Ind. Ct. App. 2007). An abuse of discretion occurs when a
trial court‟s decision is clearly against the logic and effect of the facts and circumstances
before the court. Id. Our supreme court recently considered the invocation of the right to
counsel pursuant to federal jurisprudence. Indeed, the Court explained:
As established in Miranda v. Arizona, prior to any questioning of a person
taken into custody, “the person must be warned that he has a right to remain
silent, that any statement he does make may be used as evidence against him,
and that he has a right to the presence of an attorney, either retained or
appointed.” 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706–
07 (1966). If the accused requests counsel, “the interrogation must cease until
an attorney is present.” Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct.
1880, 1883, 68 L. Ed. 2d 378, 384 (1981) (quoting Miranda, 384 U.S. at 474,
86 S. Ct. at 1628, 16 L. Ed. 2d at 723). An accused‟s request for counsel,
however, must be unambiguous and unequivocal. Berghuis v. Thompkins, 560
U.S.__, __, 130 S. Ct. 2250, 2259, 176 L. Ed. 2d 1098, 1110 (2010). The
cessation of police questioning is not required “if a suspect makes a reference
to an attorney that is ambiguous or equivocal in that a reasonable officer in
light of the circumstances would have understood only that the suspect might
be invoking the right to counsel.” Davis v. United States, 512 U.S. 452, 459,
114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362, 371 (1994).
Carr v. State, 934 N.E.2d 1096, 1102 (Ind. 2010). Indeed, “[i]nvocation of the Miranda right
to counsel requires, at a minimum, some statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney.” Davis, 512 U.S. at 459 (quotation
marks and citation omitted). The request must be made with sufficient clarity such that a
“reasonable police officer under the circumstances would understand the statement as a
request for an attorney.” 2 Id.
In this case, Anderson‟s invocation of his right to counsel was unequivocal. Once
Anderson stated, “I really would like to talk to an attorney or something,” State‟s Ex. 169 at
50-51, his right to counsel should have been “scrupulously honored.” Miranda, 384 U.S. at
479. We disagree with the trial court‟s determination that Anderson‟s request was expressed
with uncertainty. The addition of the words “or something” did not qualify or equivocate
Anderson‟s clear statement that he “really would like to talk to an attorney.” State‟s Ex. 169
at 50-51. The addition of “or something” would appear to be a habit of speech as opposed to
a statement of equivocation. Moreover, Anderson‟s subsequent statement that he was
“confused” was an indication that he was getting confused about the version of events that he
was giving police, not an indication that he was confused about wanting an attorney. Id.
Anderson‟s request was made with sufficient clarity such that a reasonable police officer
under the circumstances would understand that Anderson was unambiguously asserting his
right to counsel.
Here, at the outset of the interrogation Anderson signed an advisement of rights form acknowledging
that he had been advised of his Miranda rights. However, such form did not include a written waiver of those
rights. We note that an accused may waive the right to counsel, if done voluntarily, knowingly, and
intelligently. Miranda, 384 U.S. at 444. However, even if an accused elects to waive his rights orally or in
writing, the waiver may be rescinded at any time, and “[i]f the right to counsel or the right to remain silent is
invoked at any point during questioning, further interrogation must cease.” Berghuis, 560 U.S. at ___, 130 S.
Ct. at 2263-64.
The State directs us to cases in which language somewhat similar to that used by
Anderson was determined to be equivocal and ambiguous. For example, in Davis, the United
States Supreme Court determined that the defendant‟s statement “maybe I should talk to a
lawyer” was not an unequivocal request for counsel. Davis, 512 U.S. at 462. In Taylor v.
State, 689 N.E.2d 699 (Ind. 1997), the defendant stated, “I guess I really want a lawyer, but, I
mean, I‟ve never done this before so I don‟t know.” Id. at 703. Our supreme court
determined that the defendant‟s statement was “an expression of doubt, not a request” and
was merely the suspect choosing to “think out loud about whether to exercise his
constitutional right.” Id. at 703-05. In Powell v. State, 898 N.E.2d 328 (Ind. Ct. App. 2008),
trans. denied, this Court considered the defendant‟s statement “Could I see about getting a
lawyer or something man?” Id. at 337. We found the wording of that statement, which was
posed as a question to officers, to be ambiguous and not sufficiently clear as to constitute a
request for an attorney.3 We emphasized in Powell that officers immediately followed up
See also Collins v. State, 873 N.E.2d 149, 156 (Ind. Ct. App. 2007) (holding that defendant‟s
question “Do I need an attorney” and later observation “I probably need an attorney” were not unequivocal
requests for an attorney), trans. denied.
and asked the defendant if he, in fact, wanted an attorney. When directly asked, the
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,
nor expressed doubt as to whether he needed an attorney as in Davis and Taylor. To the
contrary, he clearly stated, “I really want to talk to an attorney or something.” The State
argues, or at the very least implies, that in order to make an unequivocal invocation of the
right to counsel a defendant must “start and end” with “I want to talk to an attorney” and say
nothing else. Appellee‟s Br. at 18. That would be clear and nice wouldn‟t it? However, the
State ignores the reality of an interrogation room, the naïveté of a defendant, and what often
may be the diminished mental capacity of a defendant. Anderson was a twenty-two-year-old
diagnosed schizophrenic, not a constitutional scholar. We are getting to the point in the
interpretation of our constitutional law where the exceptions are swallowing the rules. We
should not go further down the slippery slope the State urges and further eviscerate Miranda
and an accused‟s right to counsel. Anderson‟s request for counsel in this case was
unambiguous. The language used by Anderson was a clear invocation of the right to counsel,
We note that the United States Supreme Court has held that police have no duty to cease questioning
when an equivocal request for counsel is made, nor are they required to ask clarifying questions to determine
whether the suspect actually wants a lawyer. Davis, 512 U.S. at 461. However, the Davis court acknowledged
that it will often be good police practice to clarify an ambiguous or equivocal statement in order to protect the
rights of the suspect and minimize the chance of a confession being suppressed due to subsequent judicial
second-guessing. Id. at 452. The police officers in Powell followed this protocol. While the State argues that
officers here similarly followed up with Anderson when later asking him “So what do you want to do,” State‟s
Ex. 169 at 51, such minimal attempt at clarification is of no moment. First, as stated, Anderson‟s request for
an attorney was unequivocal, not requiring clarification, but instead requiring immediate cessation of further
questioning. Moreover, the purported clarification fails even to acknowledge or reference Anderson‟s request
for an attorney.
and the officers‟ continued interrogation violated his constitutional rights. Therefore, the
trial court abused its discretion when it admitted Anderson‟s statement into evidence at trial.5
Nevertheless, statements obtained in violation of the federal constitution and
erroneously admitted are subject to harmless error analysis. Storey v. State, 830 N.E.2d
1011, 1021 (Ind. Ct. App. 2005). We review a federal constitutional error de novo, and the
error must be harmless beyond a reasonable doubt. Id. The State has the burden to
demonstrate that the improper admission of a defendant‟s statement did not contribute to the
conviction. Alford v. State, 699 N.E.2d 247, 251 (Ind. 1998) (citation and quotation marks
omitted). “„To say that an error did not contribute to the verdict is … to find that error
unimportant in relation to everything else the jury considered on the issue in question, as
revealed in the record.”‟ Id. (quoting Yates v. Evatt, 500 U.S. 391, 403 (1991)). In other
words, if the State has presented other overwhelming evidence of the defendant‟s guilt, then
an erroneously admitted statement may be deemed harmless. Storey, 830 N.E.2d at 1021.
Regarding Anderson‟s murder conviction, notwithstanding the admission of his police
statement, the State presented other overwhelming evidence of Anderson‟s guilt sufficient to
render the erroneous admission of his statement harmless. First, the DNA evidence, the
admissibility of which we address in the next section, placed Anderson at the scene of
Because we conclude that Anderson‟s right to counsel pursuant to the federal constitution was
violated, we need not address whether his rights were similarly violated pursuant to Article 1, Section 13 of the
Indiana Constitution. It should be noted, however, that our supreme court has concluded that our state
constitution affords essentially the same protection regarding custodial interrogations as its federal counterpart.
See Taylor, 689 N.E.2d at 703-04.
Pepper‟s brutal murder. Anderson‟s intact sperm cells were found on vaginal swabs of
Pepper‟s body, indicating that Anderson had sexual intercourse with Pepper within the timeframe that she was also murdered. Because DNA evidence placed Anderson‟s sperm inside
Pepper‟s body, the key defense theory was that Anderson and Pepper had an ongoing
relationship and that Anderson merely had consensual sexual intercourse with Pepper just
prior to her murder. However, testimony of Pepper‟s friends and family indicated that the
then-twenty-one-year-old Anderson was an absolute stranger to forty-four-year-old Pepper.
There was no evidence to indicate that Pepper and Anderson had ever met or ever had the
opportunity to meet prior to the murder. By all accounts, Pepper was in a serious and
exclusive relationship with her boyfriend, Brnardic.
Pepper‟s body was found naked from the waist down, and her bloody pajama pants,
which had apparently been cut off her body, were found nearby. This evidence supports a
reasonable inference by the jury that the same individual who had murdered Pepper also had
sexual intercourse with her either just before or just after the murder. The only seminal fluid
or DNA recovered was that of Anderson. Anderson‟s seminal fluid and DNA were also
found on a small pink towel that was draped over Pepper‟s body after she was murdered.
Again, it was reasonable for the jury to conclude that Anderson‟s sexual intercourse with
Pepper occurred contemporaneously with her murder.
Additionally, the jury heard the testimony of Laura Cox, Anderson‟s girlfriend at the
time of the murder. Cox testified that shortly after Anderson was swabbed for DNA by the
probation department following his commission of unrelated crimes, Anderson asked Cox
about how long she thought DNA evidence lasted at a crime scene. Cox, who was earning a
bachelor‟s degree in criminal justice science, found this questioning strange. Anderson then
informed Cox that he had “done something that would earn him a teardrop” tattoo for his eye.
Tr. at 605. Cox explained to the jury that individuals get teardrop tattoos to signify that they
have murdered someone. Cox went on to testify that when she further questioned Anderson,
he told her that he had thrown a knife or knives over a bridge and assured her that she did not
need to worry about anything. When Cox later learned that DNA linked Anderson to
Pepper‟s murder, she decided to come forward and tell police what Anderson had told her.
The State presented overwhelming evidence from which a jury could reasonably
conclude beyond a reasonable doubt that Anderson murdered Pepper. The cumulative
admissible evidence satisfies the State‟s burden to demonstrate that the evidence was
sufficient without the improper admission of Anderson‟s police statement. Thus, Anderson‟s
police statement was unnecessary for his murder conviction, and its admission by the trial
court was harmless beyond a reasonable doubt.
We cannot say the same regarding Anderson‟s convictions for burglary and abuse of a
corpse. The key elements of those offenses were provided to the jury only through
Anderson‟s statement. Without his police statement, the jury would not have been able to
conclude beyond a reasonable doubt that Anderson broke into Pepper‟s apartment with the
intent to commit theft therein or that Anderson had sexual intercourse with Pepper‟s body
post mortem. Consequently, we must reverse Anderson‟s convictions for burglary and abuse
of a corpse. The State, however, may retry Anderson for these offenses. A reversal for
insufficient evidence bars retrial under the Double Jeopardy Clause, but analysis for such
sufficiency includes consideration of the erroneously admitted evidence. Carr, 934 N.E.2d at
1109. Although we must reverse here due to the trial court‟s error in the admission of
evidence, „“clearly with that evidence, there was enough to support”‟ the jury‟s verdicts and
Id. (quoting Lockart v. Nelson, 488 U.S. 333, 40 (1988)).
Accordingly, Anderson may be subject to retrial on these offenses if the State so chooses.
II. DNA Evidence
Next, we consider Anderson‟s challenge to the admission of the DNA evidence at
trial. Specifically, Anderson argues that the DNA evidence was obtained in violation of
Indiana Code Section 10-13-6-10, which requires only convicted felons to submit DNA
samples. Anderson maintains that the collection of his DNA was not a “mistake” within the
meaning of subsection (c) of that statute. Additionally, Anderson contends that the buccal
swab of his mouth violated his constitutional rights under the Fourth Amendment to the
United States Constitution and Article 1, Section 11 of the Indiana Constitution, and thus the
evidence should have been excluded. We will address each argument in turn.
We begin by reiterating that our standard of review as to the admissibility of evidence
is for an abuse of discretion. Roush, 875 N.E.2d at 808. An abuse of discretion occurs when
a trial court‟s decision is clearly against the logic and effect of the facts and circumstances
before it. Id. In reviewing the admissibility of evidence, we consider only the evidence in
favor of the trial court‟s ruling and any unrefuted evidence in the defendant‟s favor. Id.
A. Indiana Code Section 10-13-6-10 and the Mistake Exception
Indiana Code Section 10-13-6-10 provides, in relevant part, that a person convicted of
a felony, conspiracy to commit a felony, or attempt to commit a felony “shall provide a DNA
sample” to the “agency that supervises the person, or the agency‟s designee, if the person is
on conditional release in accordance with Indiana Code Section 35-38-1-27.” Subsection (c)
of the statute further states that “[t]he detention, arrest, or conviction of a person based on a
data base match or data base information is not invalidated if a court determines that the
DNA sample was obtained or placed in the Indiana DNA data base by mistake.” Ind. Code §
We agree with the trial court that what happened in this case fits squarely within the
“mistake” exception provided by Indiana Code Section 10-13-6-10. Ten months after Pepper
was murdered, Anderson was charged with various crimes, including class D felony criminal
confinement, in an unrelated case. Pursuant to a plea agreement, Anderson was sentenced
according to the alternate misdemeanor sentencing statute, Indiana Code Section 35-50-27(b).6 Therefore, the resulting judgment of conviction entered by the trial court was for a
class A misdemeanor. However, when Anderson appeared for his probation intake interview,
probation officer Smith reviewed the order of probation received from the trial court. That
document clearly indicated that Anderson had been convicted of criminal confinement as a
class D felony with no mention of alternate misdemeanor sentencing. The record also reveals
that the abstract of judgment received from the trial court stated that Anderson was convicted
That section provides that “if a person has committed a Class D felony, the court may enter judgment
of conviction of a Class A misdemeanor and sentence accordingly.”
of criminal confinement as a class D felony with no mention of alternate misdemeanor
sentencing. Unbeknownst to Smith, the information provided in those documents by the trial
court was inaccurate. Smith relied on the information when he advised Anderson that,
because he was convicted of a felony, he was required to submit a DNA sample. Anderson
did not correct Smith or state that he had been convicted of only a misdemeanor. Instead,
Anderson proceeded to another office and submitted to a buccal swab for DNA.
The record clearly establishes that Smith relied upon two court orders when advising
Anderson that he was required to submit a DNA sample. As noted by the State, as a
probation officer, Smith “serve[s] at the pleasure of the appointing court and [is] directly
responsible to and subject to the orders of the court.” Ind. Code § 11-13-1-1(c). We disagree
with Anderson‟s contention that the buccal swab was taken with intentional or reckless
disregard of his constitutional rights. Instead, the DNA evidence was obtained and placed in
the DNA database by mistake. Having determined that the DNA evidence was obtained by
mistake, we must now turn to the admissibility of the evidence pursuant to constitutional
B. The Mistake Exception and the Fourth Amendment
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
CONST. amend IV. We begin by noting that our supreme court recently declined to
affirmatively declare that a cheek swab for DNA constitutes a “search” for Fourth
Amendment purposes. Garcia-Torres v. State, 949 N.E.2d 1229 (Ind. 2010). This Court,
however, has held that while the taking of a biological sample, such as a DNA sample,
indeed constitutes a “search” for purposes of the Fourth Amendment, the statutory
requirement that a defendant convicted of a felony submit a DNA sample for the DNA
database comes within the special needs exception against suspicionless searches. Balding v.
State, 812 N.E.2d 169, 172 (Ind. Ct. App. 2004). 7 In Balding, we specifically considered a
buccal swab and determined that (1) a convicted offender had a reduced expectation of
privacy, (2) the character of the intrusion was minimal because the procedure was
noninvasive and pain free, and (3) the State has a substantial interest in creating a database of
DNA samples from convicted offenders. Accordingly, we concluded that the compulsory
collection of DNA samples from convicted offenders to be included in Indiana‟s DNA
database does not violate the Fourth Amendment.8 Id. at 173-74; see also Keeney v. State,
873 N.E.2d 187, 189 (Ind. Ct. App. 2007).
Anderson maintains that, unlike a convicted felon, as a convicted misdemeanant, he
did not possess a reduced expectation of privacy. Thus, he argues that admission of the DNA
evidence pursuant to the “mistake” exception of Indiana Code Section 10-13-6-10(c) violated
his Fourth Amendment rights. First, we do not agree with Anderson that a defendant who
commits and pleads guilty to a crime that is a felony but is merely sentenced pursuant to the
While arguably disagreeing with Balding and its progeny but ultimately deciding the case on other
grounds, the Garcia-Torres court merely acknowledged that “[m]ost courts that have addressed
constitutionality of cheek swabs have concluded that a cheek swab is a „search‟ for the purposes of the Fourth
Amendment.” Id. at 1232. Although Balding has not been overruled, we are unaware as to how our supreme
court may resolve this issue in the future.
grace of our alternate misdemeanor sentencing statute possesses a significantly greater
expectation of privacy than a convicted felon such that the compulsory collection of his DNA
sample would violate the Fourth Amendment. More importantly, we are compelled to note
that “[t]he touchstone of the Fourth Amendment is reasonableness.” Shotts v. State, 925
N.E.2d 719, 723 (Ind. 2010). Indeed, the amendment itself “contains no provision expressly
precluding the use of evidence obtained in violation of its commands.” Arizona v. Evans,
514 U.S. 1, 10 (1995)). The exclusionary rule rendering evidence obtained through an illegal
search or seizure inadmissible at trial is a judicially created remedy designed to safeguard the
right of people to be free from “unreasonable searches and seizures.” United States v.
Calandra, 414 U.S. 338, 348 (1974). Thus, the sole purpose of the exclusionary rule is to
deter future Fourth Amendment violations. Davis, __ U.S.__, 131 S. Ct. at 2426.
In Evans, the Supreme Court held that “[t]he exclusionary rule does not require
suppression of evidence seized in violation of the Fourth Amendment where the erroneous
information resulted from clerical errors of court employees.” Evans, 514 U.S. at 10.
Specifically, the exclusionary rule was historically designed as a means of deterring police
misconduct, not mistakes by court employees. Id. Here, even assuming that Anderson had a
greater expectation of privacy than those to which Indiana Code Section 10-13-6-10 was
intended to apply, and thus the collection of his DNA violated his Fourth Amendment rights,
exclusion of the DNA evidence would serve no deterrent purpose. The buccal swab here was
Interestingly, the Balding court repeatedly refers to a convicted “offender” as opposed to specifically
a convicted “felon.” However, as it stands, Indiana Code Section 10-13-6-13 requires DNA samples only from
persons “convicted of a felony,” “conspiracy to commit a felony,” “attempt to commit a felony,” or “burglary.”
performed and the DNA was collected due to an unintentional mistake by a court and its
employees when it issued an erroneous order of probation and abstract of judgment. As such,
exclusion was unnecessary and admission of the evidence did not violate Anderson‟s Fourth
C. The Mistake Exception and the Indiana Constitution
Although Article 1, Section 11 of the Indiana Constitution tracks the Fourth
Amendment verbatim, the Indiana provision in some cases confers greater protections to
individuals than the Fourth Amendment affords and focuses on what was “reasonable” under
the “totality of the circumstances.” Shotts, 925 N.E.2d at 726. However, Anderson offers us
no rationale, and we can find none for concluding that the Indiana Constitution demands a
different result here. Indiana search and seizure jurisprudence, like Fourth Amendment
doctrine, identifies deterrence as the primary objective of the exclusionary rule. Membres v.
State, 889 N.E.2d 265, 273 (Ind. 2008). As stated, exclusion of Anderson‟s DNA evidence
would serve no deterrent purpose, as it was collected inadvertently as the result of an
unintentional mistake by the court and court employees. Accordingly, admission of the
evidence did not violate Anderson‟s rights pursuant to the Indiana Constitution.
Anderson next contends that the trial court abused its discretion when it sentenced
him. Sentencing decisions are within the sound discretion of the trial court and are reviewed
only for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs if the decision is clearly
against the logic and effect of the facts and circumstances before the court, or the reasonable,
probable, and actual deductions to be drawn therefrom. Id. A trial court may abuse its
discretion in sentencing by failing to enter a sentencing statement, entering a sentencing
statement that explains reasons for imposing a sentence which the record does not support,
omitting reasons that are clearly supported by the record and advanced for consideration, or
giving reasons that are improper as a matter of law. Id.
Anderson argues that the trial court abused its discretion by finding an aggravating
factor not supported by the record and failing to find a mitigating factor that was clearly
supported by the record. Regarding aggravating factors, the trial court found the “extremely
violent nature of this offense” as an aggravating circumstance. Tr. at 1001. First, the facts
and circumstances surrounding Pepper‟s murder clearly support a finding that the murder was
extremely violent. Her stab wounds were almost too numerous to count, and several of the
wounds were inflicted so violently that any one of them could have been fatal.9 Indeed,
Anderson does not challenge the three additional aggravating factors found by the trial court,
which included his criminal history, prior probation violation, and past illegal substance
abuse. A single aggravating circumstance is sufficient to justify a sentence enhancement.
Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Accordingly, even if a
Anderson disputes the evidentiary support for the trial court‟s additional statement that he was “so
excited by the act of murdering Jane Pepper that he became erect and had to relieve that erection through a
sexual attack on Jane Pepper‟s body.” Tr. at 1001. We agree that there was no evidentiary support for this
statement. Nevertheless, the facts and circumstances surrounding the murder itself support the trial court‟s
general finding in aggravation as to the extremely violent nature of the offense, and we will not disturb that
sentencing court improperly applies an aggravating circumstance, but other valid aggravating
circumstances exist, a sentence enhancement may still be upheld. Id.
Regarding the sole mitigating factor, Anderson argues that although the trial court
specifically found his long history of mental illness as a mitigator, the court seemed to
entirely discount the mitigating relevance of this factor. Anderson‟s argument in this regard
is merely a challenge to the weight given to his mental illness. This argument is not available
on appeal. The trial court is no longer obligated to weigh mitigating and aggravating factors
when imposing sentence, and thus the trial court cannot be said to have abused its discretion
in failing to assign proper weight to certain factors. Anglemyer, 868 N.E.2d at 491.
Accordingly, Anderson has established no abuse of discretion.
As a final matter, Anderson requests that we review the appropriateness of his
sentence. Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence authorized by
statute if, after due consideration of the trial court‟s decision, we find that the sentence “is
inappropriate in light of the nature of the offense and the character of the offender.” The
defendant bears the burden to persuade this Court that his or her sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). “[W]hether we regard a sentence as
appropriate at the end of the day turns on our sense of culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other factors that come to light
in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
We have already reversed two of Anderson‟s convictions and vacated twenty-three
years of Anderson‟s sentence, leaving him with a sixty-five year sentence for murder.
Indiana Code Section 35-50-2-3 provides that a person who commits murder shall be
imprisoned for a fixed term of between forty-five and sixty-five years, with the advisory
sentence being fifty-five years. Under the circumstances presented here, we cannot say that
the maximum sixty-five year sentence is inappropriate. Pepper‟s murder is one of the most
disturbing that we have encountered. As noted earlier, this crime was incredibly violent. The
brutal and random nature of Anderson‟s murder of Pepper supports the trial court‟s
imposition of the maximum penalty available. Moreover, Anderson does not persuade us
that his character warrants a lesser sentence. While we acknowledge his history of mental
illness, there is insufficient evidence in the record connecting Anderson‟s mental illness to
his commission of this murder. Anderson has failed to meet his burden to show that his
sixty-five year sentence is inappropriate.
In sum, we affirm Anderson‟s conviction and sentence for murder. We reverse his
convictions for burglary and abuse of a corpse and vacate those sentences. As noted earlier,
the State may retry Anderson for those offenses if it so chooses.
Affirmed in part, reversed in part and remanded.
MAY, J., and BROWN, J. concur.