ATTORNEY FOR APPELLANT

Timothy P. Broden

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Bryan Gavin,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

August 11, 2015

Court of Appeals Case No.

79A02-1501-CR-27

Appeal from the Tippecanoe Superior 

Court

The Honorable Thomas H. Busch, 

Judge

Case No. 79D02-1311-FB-36

Vaidik, Chief Judge.

Case Summary

[1] Miranda warnings are subject to a public-safety exception. That is, Miranda

warnings are not required when police officers ask questions reasonably 

Court of Appeals of Indiana | Opinion 79A02-1501-CR-27 | August 11, 2015 Page 1 of 10
prompted by a concern for the public safety. Bryan Gavin appeals his multiple 

convictions stemming from an apartment-complex shooting. Specifically, he 

argues that the trial court erred by admitting his statement to police about the 

location of the gun because he made the statement before being informed of his 

Miranda rights. Because the police officer’s question to Gavin about the 

location of the gun was reasonably prompted by a concern for Gavin’s threeyear-old stepdaughter’s safety, we find that the trial court did not err in 

admitting Gavin’s statement. We therefore affirm Gavin’s convictions. 

Facts and Procedural History

[2] The facts most favorable to the verdict reveal that around 7:00 a.m. on October 

28, 2013, Michael Winston received a phone call from his girlfriend, Erica Veal, 

to pick her up at 2536 Richmond Court in Cambridge Estates, an apartment 

complex in Lafayette, Indiana. Michael arrived around 8:00 a.m. and parked

his car. He left the car running and knocked on the door. When a man, later 

identified as Gavin, came to the door, Michael asked for Erica. Gavin said she 

was not there. When Michael insisted that it was the address that Erica had 

given him and therefore she had to be there, Gavin responded, “she is not here 

and if you don’t get away from my door[,] I’m going to give you something to 

get away from my doorway.” Tr. p. 98. Believing Gavin was going to hurt 

him, Michael returned to his car. When Michael got to his car, he grabbed a 

tire iron from the back seat because he “didn’t know what [Gavin] was going to 

come out and do to [him].” Id. at 99. 

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[3] As Michael was getting ready to call Erica, Gavin pointed his hand out the 

front door of the apartment and started shooting his .40 caliber semi-automatic 

handgun. Michael ran. As he ran, two bullets struck him—one in the right hip 

and the other in the left shin. At some point during the shooting, the window 

of Gavin’s car was shattered. Neighbors heard the gunshots and called 911. 

[4] Meanwhile, Gavin ran back inside the apartment to get his three-year-old 

stepdaughter, J.M. Gavin then put J.M. in his maroon 1976 Cutlass and left

just as the police were arriving. Police found Michael lying in a grassy area, 

and he was taken to the hospital. Police also found bullets and bullet holes in 

various locations, including in cars and the apartment building across the street. 

[5] Dispatch broadcasted that there was an active shooting and gave a description 

of Gavin’s car. Several officers spotted a car that matched the description and 

pulled over Gavin at the Super Test gas station at the intersection of State Road 

38 East and U.S. 52 in Lafayette. With their guns drawn, the officers 

approached Gavin’s car and ordered him out. Gavin “jumped” out the driver’s 

side and said there was a baby in the car. Id. at 151. Officer Adam Burton of

the Lafayette Police Department ordered Gavin to the ground, where he was 

handcuffed. Officer Burton then conducted a pat down and found a box of 

ammunition in Gavin’s front sweatshirt pocket. 

[6] Because Officer Burton had located the box of ammunition and believed that a 

child was still inside the car, he asked Gavin “where the gun was.” Id. at 154. 

Gavin answered that the gun “was in the car.” Id. at 155. Another officer then 

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retrieved J.M. from Gavin’s car. The officer noted that the passenger-side 

window was shattered and that J.M. was not in a booster seat, was not wearing 

a seatbelt, and was sitting on shattered glass in the back seat. The officer also 

noted that although it was cold that morning, J.M. was wearing only a shirt and 

short skirt. Because J.M. was “very cold,” id. at 74, the officer transferred her 

to his patrol car until Department of Child Services arrived. Officer Burton 

took Gavin to the Lafayette Police Department. A later search of Gavin’s car 

revealed a .40 caliber semi-automatic handgun underneath the passenger seat. 

The seven cartridge cases found throughout the apartment complex were later 

determined to have been fired from the gun found in Gavin’s car. 

[7] The State eventually charged Gavin with Count I: Class C felony battery, 

Count II: Class C felony criminal recklessness, Count III: Class A misdemeanor 

carrying a handgun without a license; Count IV: Class D felony neglect of a 

dependent, Count V: Class B felony unlawful possession of a firearm by a 

serious violent felon, and Count VI: Class C felony carrying a handgun without 

a license by a convicted felon. 

[8] At trial, the State asked Officer Burton if Gavin had made any statements, and 

Officer Burton said he had asked Gavin where the gun was. At this point, 

defense counsel asked the trial court if he could ask Officer Burton “a couple 

foundational questions” about why he had asked Gavin where the gun was 

before Officer Burton was allowed to give Gavin’s answer. Id. at 155. Officer 

Burton then explained that he had asked Gavin about the gun “because of 

finding the ammo. I wanted to make sure that if the child still is in the vehicle 

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that . . . they weren’t able to get to the gun to possibly harm themselves.” Id. at

156; see also id. at 157 (Officer Burton reiterating that he had asked Gavin about 

the gun because of the “safety of the child inside the vehicle.”). Satisfied with 

this answer, defense counsel said, “I’m not going to object to that . . . question.” 

Id. at 157. Officer Burton then testified that Gavin said the gun was in his car. 

Id. 

[9] The jury found Gavin guilty as charged. Because of double-jeopardy concerns, 

the trial court did not enter judgments of conviction for Counts III and VI. 

Appellant’s App. p. 19. The court then sentenced Gavin to eight years for 

Count I, eight years for Count II, three years for Count IV, and ten years for 

Count V. The court ordered the sentences for Counts I, II, and V to be served 

concurrently but the sentence for Count IV to be served consecutively, for an 

aggregate sentence of thirteen years. 

[10] Gavin now appeals. 

Discussion and Decision

[11] Gavin contends that the trial court erred by admitting his statement to police 

about the location of the gun because he made the statement before being 

informed of his Miranda rights. The State responds that Gavin has waived this 

issue for review because defense counsel stated at trial that he had no objection 

and thus, Gavin must prove fundamental error, which he does not argue on 

appeal and, in any event, cannot prove. 

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[12] When the State asked Officer Burton if Gavin had made any statements, Officer 

Burton said he had asked Gavin where the gun was. Tr. p. 154. Defense 

counsel did not object but rather asked the trial court if he could ask “a couple 

foundational questions” before Officer Burton was allowed to give Gavin’s 

answer. Id. at 155. After asking Officer Burton questions about why he had 

asked Gavin where the gun was, defense counsel stated, “I’m not going to 

object . . . .” Id. at 157. Accordingly, because defense counsel said he had no 

objection, Gavin has waived this issue for review. See Hayworth v. State, 904 

N.E.2d 684, 693-94 (Ind. Ct. App. 2009). Gavin must therefore establish 

fundamental error in order to obtain relief. 

[13] Fundamental error is an extremely narrow exception to the waiver rule where 

the defendant faces the heavy burden of showing that the alleged errors are so 

prejudicial to the defendant’s rights as to “make a fair trial impossible.” Ryan v. 

State, 9 N.E.3d 663, 668 (Ind. 2014) (quotation omitted), reh’g denied. In other 

words, to establish fundamental error, the defendant must show that, under the 

circumstances, the trial judge erred in not sua sponte raising the issue because 

the alleged errors (a) “constitute clearly blatant violations of basic and 

elementary principles of due process” and (b) “present an undeniable and 

substantial potential for harm.” Id. (quotation omitted). The element of such 

harm is not established by the fact of ultimate conviction; rather, it “depends 

upon whether [the defendant’s] right to a fair trial was detrimentally affected by 

the denial of procedural opportunities for the ascertainment of truth to which he 

otherwise would have been entitled.” Id. (quotation omitted). In evaluating the 

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issue of fundamental error, our task is to look at the alleged misconduct in the 

context of all that happened and all relevant information given to the jury—

including evidence admitted at trial, closing argument, and jury instructions—

to determine whether the misconduct had such an undeniable and substantial 

effect on the jury’s decision that a fair trial was impossible. Id. Fundamental 

error is meant to permit appellate courts a means to correct the most egregious 

and blatant trial errors that otherwise would have been procedurally barred; it is 

not meant “to provide a second bite at the apple for defense counsel who 

ignorantly, carelessly, or strategically fail to preserve an error.” Id. 

[14] The State argues that even though Gavin made the statement about the location 

of the gun before being informed of his Miranda rights, the trial court properly 

admitted his statement under the public-safety exception to Miranda. The Fifth 

Amendment guarantees that “[n]o person . . . shall be compelled in any 

criminal case to be a witness against himself.” In Miranda, the United States 

Supreme Court extended the Fifth Amendment privilege against compulsory 

self-incrimination to individuals subjected to custodial interrogation by the 

police. New York v. Quarles, 467 U.S. 649, 654 (1984). The Fifth Amendment 

itself does not prohibit all incriminating admissions; “[a]bsent some officially 

coerced self-accusation, the Fifth Amendment privilege is not violated by even 

the most damning admissions.” Id. (quotation omitted). The Miranda Court, 

however, presumed that interrogation in certain custodial circumstances is 

inherently coercive and held that statements made under those circumstances 

are inadmissible unless the suspect is specifically informed of his Miranda rights 

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and freely decides to waive those rights. Id. “The prophylactic Miranda

warnings therefore are not themselves rights protected by the Constitution but 

[are] instead measures to insure that the right against compulsory selfincrimination [is] protected.” Id. (quotation omitted). Requiring Miranda

warnings before custodial interrogation provides “practical reinforcement” for 

the Fifth Amendment right. Id.

[15] But Miranda warnings are subject to a public-safety exception. Id. at 655. That 

is, Miranda warnings are not required when police officers ask questions 

reasonably prompted by a concern for the public safety. Id. at 656. “[T]he need 

for answers to questions in a situation posing a threat to the public safety 

outweighs the need for the prophylactic rule protecting the Fifth Amendment’s 

privilege against self-incrimination.” Id. at 657. Thus, in Quarles—where the 

police were responding to report that a woman had been raped by an armed 

man who had just entered a supermarket and were “confronted with the 

immediate necessity of ascertaining the whereabouts of a gun which they had

every reason to believe the suspect had just removed from his empty holster and 

discarded in [a] supermarket”—the United States Supreme Court 

decline[d] to place officers . . . in the untenable position of having to 

consider, often in a matter of seconds, whether it best serves society for 

them to ask the necessary questions without the Miranda warnings and 

render whatever probative evidence they uncover inadmissible, or for 

them to give the warnings in order to preserve the admissibility of 

evidence they might uncover but possibly damage or destroy their 

ability to obtain that evidence and neutralize the volatile situation 

confronting them.

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Id. at 657-58; see also Price v. State, 591 N.E.2d 1027, 1030 (Ind. 1992) 

(recognizing that the public-safety exception to Miranda exists when police 

officers “have an immediate concern for the safety of the general public [when] 

an armed weapon remain[s] undiscovered”).

[16] We find that the public-safety exception to Miranda applies here, too. The 

evidence shows that the officers were conducting a “high[-]risk stop” because 

they were responding to a call of shots fired. Tr. p. 151, 156. After Officer 

Burton handcuffed Gavin and located the box of ammunition in his front 

sweatshirt pocket, he asked Gavin where the gun was because he “believed the 

child was still in the vehicle” and “wanted to make sure that if the child still is in 

the vehicle that . . . they weren’t able to get to the gun to possibly harm 

themselves.” Id. at 154, 156 (emphasis added). Gavin answered that the gun 

was in his car. Because Officer Burton’s question to Gavin about the location 

of the gun was reasonably prompted by a concern for the safety of Gavin’s 

three-year-old stepdaughter, see Bailey v. State, 763 N.E.2d 998, 1002 (Ind. 2002) 

(“Though Officer Allender’s concern was not for the general public’s safety, as 

it was in Price and Quarles, it was for the safety of another possible victim. 

There is a fair amount of authority holding that questioning for the limited 

purposes of locating or aiding a possible victim falls within the ‘public safety 

exception’ to Miranda.”), we find that the trial court did not commit error, 

much less fundamental error, in admitting Gavin’s statement about the location 

of the gun. 

[17] Affirmed. 

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[18] Robb, J., and Pyle, J., concur.

 

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