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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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