ILNews

Stepson’s testimony, cell phone search invalidate stepdad’s drug conviction

Dave Stafford
September 24, 2012
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A man’s conviction on a drug dealing conspiracy charge was reversed Monday when an appeals court panel ruled that a Marion County court erred in admitting testimony and evidence about text messages from the defendant’s stepson.

In Gregory Kirk v. State of Indiana 49A02-1110-CR-979, the court found that the admission of 16-year-old stepson D.K.’s statements to an Indianapolis Metropolitan Police Department officer was harmless to three of Kirk’s convictions, but not to a conviction of conspiracy to commit dealing in a controlled substance.

In a jury trial, Kirk was convicted of conspiracy to commit dealing in cocaine as a Class B felony, conspiracy to commit dealing in a controlled substance as a Class B felony, neglect of a dependent as a Class C felony, and possession of marijuana as a Class A misdemeanor.

On appeal, Kirk argued that the court abused its discretion in admitting incriminating statements that D.K. made to police and in admitting evidence gathered during a warrantless search of Kirk’s cell phone.

The Indiana Court of Appeals found that D.K.’s statements to police constituted damaging hearsay, and that a warrantless police search of Kirk’s cell phone after he was arrested for neglect of a dependent and public intoxication went too far.

“There was no real law enforcement need to open the cell phone, press a button to access the inbox, and read six to eight text messages,” Judge James Kirsch wrote for the unanimous panel. “The state attempts to justify the search of the cell phone under the Indiana Constitution by stating that the search intruded only a small amount into Kirk’s ordinary activities and that law enforcement needs were great. On balance, we are not persuaded.”

The court found that police testimony connected to text messages they saw on Kirk’s phone was the only evidence that proved Kirk conspired to sell controlled substances.

“We therefore reverse Kirk’s conviction as to the count of conspiracy to commit dealing in a controlled substance and remand to the trial court so that his sentence may be changed accordingly,” Kirsch wrote.

Kirk unsuccessfully argued that a search warrant that turned up drugs in his home should not have been admitted. The appeals court found no error in allowing the search and resulting evidence.



 

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  1. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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