Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER GREOGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Indianapolis, Indiana

JAMES B. MARTIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

NORMAN BARKER, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1201-CR-20

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Carol J. Orbison, Judge

Cause No. 49G22-1007-MR-56772

October 17, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
2

Appellant-Defendant Norman Barker appeals following his convictions of murder and 

felony murder, both felonies;1 Class A felony robbery;2 Class A felony conspiracy to commit 

robbery;3and Class A misdemeanor carrying a handgun without a license.

4

 Barker contends 

that the trial court abused its discretion in admitting certain evidence and that his aggregate 

sixty-five-year sentence is inappropriately harsh. We affirm. 

FACTS AND PROCEDURAL HISTORY

Approximately two weeks prior to July 20, 2010, Barker and his friend Eric Lipscomb 

were presented by Chelsea Stewart with the idea of robbing Robert Spaulding’s Indianapolis 

house. The duo believed that they would be able to take $20,000 and eleven pounds of 

marijuana from Spaulding. At Lipscomb’s house, Barker, Lipscomb, and Stewart discussed 

a plan to rob Spaulding with Lipscomb’s girlfriend Jessica Brackett and Barker’s girlfriend 

and Stewart’s cousin Jessica Owens. Stewart showed Barker and Owens where Spaulding 

lived and Barker provided firearms. 

On July 20, 2010, Barker, Lipscomb, Owens, and Bracket went to a Wal-Mart in 

Camby to purchase .40 caliber ammunition to be used in the robbery. The group planned to

use two guns, one of which was a black .40 caliber automatic handgun to be used by Barker. 

(Tr. 124). When it was dark, the quartet drove to Spaulding’s neighborhood in Brackett’s 

 

1

 Ind. Code § 35-42-1-1 (2010). 

2

 Ind. Code § 35-42-5-1 (2010).

3

 Ind. Code §§ 35-42-5-1; 35-41-5-2 (2010). 

4

 Ind. Code § 35-47-2-1 (2010). 
3

white Blazer but left when they observed too many cars in the area, retreating to Lipscomb’s 

for approximately one hour. When the quartet returned, Brackett parked the Blazer while 

Barker and Lipscomb proceeded on foot to Spaulding’s house, located at 219 West Southern 

Street. 

Once inside Spaulding’s house, Lipscomb ordered Spaulding to the ground and the 

duo asked where his “sack was that he’s supposed to keep his stuff in.” State’s Ex. 120 at 34.

Spaulding replied that there were some drugs in the kitchen, so Barker walked into the 

kitchen and retrieved a small bag of marijuana as well as Spaulding’s keys. When Barker 

returned, a struggle for his handgun ensued with Spaulding. Barker’s gun fired during the 

struggle, and he yelled for Lipscomb, telling him to “‘get him’”. State’s Ex. 120 at 36. 

Lipscomb shot, hitting Spaulding. Spaulding continued to struggle, managing to grab 

Barker’s handgun from his hand and take hold of his shirt. As Barker attempted to pull his 

shirt off, Lipscomb fired a second time, hitting both Barker and Spaulding. Barker and 

Lipscomb ran back to the blazer, Barker leaving his handgun and shirt behind. Barker also 

left a trail of blood as he ran from Spaulding’s house. As Barker and Lipscomb ran, a 

witness heard Barker say “the mother-f***** shot me.” Tr. p. 256. 

After neighbor Devon Watson witnessed Barker and Lipscomb flee, she called 911 at 

approximately 12:14 a.m. and ran to Spaulding’s house. Spaulding was still alive when 

Watson arrived and was coughing up blood and saying the name of his two-year-old 

daughter. Although emergency help arrived at approximately 12:21 a.m., Spaulding had 

already died, with his daughter asleep in the next room. 
4

Meanwhile, Barker, Lipscomb, Brackett, and Owens drove to a Village Pantry 

approximately one to one-and-one-half miles away, at 1402 South Meridian Street. Owens 

called 911 at approximately 12:16 a.m. and told the operator that Barker had been shot, and, 

in the background, Lipscomb can be heard saying, “[w]e can’t be this close to the 

property[,]” and Brackett can be heard saying, “[t]hrow that gun out the window.” Tr. p. 455.

The quartet decided that they would tell police that Barker had been wounded in a drive-by 

shooting. Owens was instructed to tell police that she and Barker were by a Burger King 

when Barker pushed her to the ground and was shot, at which point Owens called Brackett 

and Lipscomb to retrieve them. 

Indianapolis Metropolitan Police Detective Brian Schemenaur responded to 219 West 

Southern and spoke with Watson and additional witness Jenny Sterling, who each provided 

descriptions of the two males they saw fleeing Spaulding’s house. Detective Schemenaur 

was also told that one of the suspects had been shot and was able to corroborate the story by 

finding the trail of blood left by Barker. Detective Jeffrey Wager responded to 1402 South 

Meridian. Based on information relayed from 219 South Western, detective Wager noticed 

that Barker fit the description of one of the suspects. Detective Wager also learned at some

point that one of the suspects had been shot. By 1:00 a.m., Detective Wager had concluded

that there was a high probability that Barker was involved in the homicide at 219 West 

Southern. 

After Barker had been taken to the hospital, Sergeant Michael Duke, who did not 

know about the shooting at 219 West Southern, spoke with Barker about his wound. 
5

Sergeant Duke found it odd that Barker had supposedly called a friend to take him to the 

hospital instead of 911, that Barker could not really account for his activities prior to the 

shooting, and, that, according to Barker’s story, he and the others were not, in fact, headed in 

the direction of any nearby hospital. At approximately 3:40 a.m., Barker was transported to 

the homicide office along with his clothing, which had been removed at the hospital. 

Detective Wager inventoried Barker’s items and found Spaulding’s keys in the pocket of a 

pair of shorts. 

At 8:38 a.m., Detective Schemenaur interviewed Barker. Barker initially repeated the 

story that he had been shot in a drive-by. At 9:04 a.m., Detective Schemenaur Mirandized5

Barker and began questioning regarding the homicide at 219 West Southern. Barker denied 

being at 219 West Southern, but consented to a cheek swab for DNA when Detective 

Schemenaur told him that blood belonging to a suspect had been found at the scene. After 

Barker consented to the cheek swab, Detective Schemenaur told Barker that police had found 

Spaulding’s keys in the pocket of Barker’s shorts; that his story was not consistent with those 

of Lipscomb, Owens, and Brackett; and that witnesses saw Spaulding’s assailants running 

away. Barker then admitted that he had been at 219 West Southern during the robbery but 

that Lipscomb had shot Spaulding. Barker’s DNA was eventually found in samples 

recovered from the living room wall and porch of Spaulding’s house, the road next to 

Spaulding’s house, and the gray shirt found inside. 

 

5

 Miranda v. Arizona, 384 U.S. 436 (1966). 
6

On July 26, 2010, the State charged Barker with murder, felony murder, Class A 

felony robbery, and two counts of Class A misdemeanor carrying a handgun without a 

license.6 On August 9, 2010, the State added a charge of Class A felony conspiracy to 

commit robbery. On September 28, 2010, Barker moved to suppress evidence related to his 

clothing that had been taken from him at the hospital as well as all testimony related to the 

allegedly illegal search. On November 12, 2010, the trial court denied Barker’s suppression 

motion. On November 29, 2011, a jury found Barker guilty as charged. 

On December 14, 2011, the trial court sentenced Barker to sixty-five years of 

incarceration for murder, twenty years for robbery, one year of carrying a handgun without a 

license, and eight years for conspiracy to committed robbery, all sentences to be served 

concurrently, and imposed no sentence for felony murder. The trial court found Barker’s 

juvenile record and the circumstances of the crime to be aggravating circumstances. 

DISCUSSION AND DECISION

I. Whether the Trial Court Abused its Discretion in Admitting Certain Evidence

Barker contends that the trial court abused its discretion in admitting any evidence 

resulting from the seizure of Spaulding’s keys from his shorts pocket. The admissibility of 

evidence is within the sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 

(Ind. Ct. App. 2002), trans denied. We will reverse a trial court’s decision on the 

admissibility of evidence only upon a showing of an abuse of that discretion. Id. An abuse 

of discretion may occur if the trial court’s decision is clearly against the logic and effect of 

 

6

 At some point, one of the carrying a handgun without a license charges was apparently dropped. 
7

the facts and circumstances before the court, or if the court has misinterpreted the law. Id. 

The Court of Appeals may affirm the trial court’s ruling if it is sustainable on any legal basis 

in the record, even though it was not the reason enunciated by the trial court. Moore v. State, 

839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied. We do not reweigh the evidence, 

and consider the evidence most favorable to the trial court’s ruling. Hirsey v. State, 852 

N.E.2d 1008, 1012 (Ind. Ct. App. 2006), trans. denied. 

We need not address the merits of Barker’s arguments, however, if we conclude that 

even an erroneous admission of the evidence in question could only be considered harmless. 

“[A]n evaluation for harmless error involves considering the likelihood that the questioned 

evidence may have contributed to the conviction.” Davis v. State, 598 N.E.2d 1041, 1048 

(Ind. 1992). “Erroneously admitted evidence may be found to be harmless where a 

determination of guilt is supported by overwhelming independent evidence.” Id. 

Even if we assume that the keys were unconstitutionally seized, we conclude that 

admission of evidence regarding them and resulting from them was harmless. The keys 

represented evidence that placed Barker at the scene of Spaulding’s homicide, but this 

evidence was far from the only evidence against Barker and far from the most compelling. 

Most damning, of course, were the DNA samples found at the scene, which not only placed 

Barker at the scene but placed him at the scene at the time of the shooting and established 

that he was the assailant who was wounded during the incident. As previously mentioned, 

Barker’s DNA was found in a blood sample taken from a wall and a shirt inside Spaulding’s 

house, in a blood sample taken from the porch, and in the blood trail leading away from the 
8

house. The keys merely established that Barker had been in Spaulding’s house at some point, 

but the DNA established that Barker had been shot while there and was therefore one of the 

persons who had robbed and killed him. Barker agreed to allow a cheek swab to be taken 

before being told that Spaulding’s keys had been found in his clothing, which sample 

ultimately led to matching his DNA to that found at the scene. 

The DNA evidence is hardly the only other evidence tying Barker to Spaulding’s 

murder. Owens testified for the State and detailed how Barker and Lipscomb were taken to 

Spaulding’s neighborhood with the purpose of robbing him, were dropped off, went into his 

home, and ran back shortly after the sound of two gunshots, with Barker shot in the left arm. 

Owens also testified that the quartet decided to fabricate the story about the drive-by shooting 

at a Burger King. Barker’s appearance and dress the night of the shooting generally jibe with 

the eyewitness accounts of three persons who saw Spaulding’s assailants flee after the 

shooting. As the result of a 911 call made minutes after Spaulding’s murder, Barker was

found a mile to a mile-and-a-half away from Spaulding’s house suffering from a gunshot 

wound when there was ample evidence that one of Spaulding’s attackers had been shot. The 

stories told to police by Barker and his cohorts were not consistent, and portions of them, 

despite being generally consistent, were inherently suspect, including how Barker allegedly

called Brackett and Lipscomb to take him to the hospital instead of the authorities and that 

their alleged direction of travel before arriving at 1402 South Meridian was not in the 

direction of any nearby hospital. 

Finally, Barker incriminated himself in the statement taken on the morning of July 21, 
9

2010. Barker contends that this statement resulted from Detective Schemenaur telling him 

about the keys, but we consider this highly unlikely. Put another way, even if the seizure of 

the keys was unconstitutional, Barker’s confession was not the “fruit of the poisonous tree.” 

The “fruit of the poisonous tree” doctrine is one facet of the exclusionary rule 

of evidence which bars the admissibility in a criminal proceeding of evidence 

obtained in the course of unlawful searches and seizures. When applied, the 

doctrine operates to bar not only evidence directly obtained, but also evidence 

derivatively gained as a result of information learned or leads obtained during 

an unlawful search or seizure. To invoke the doctrine, a defendant must show 

that challenged evidence was obtained by the State in violation of the 

defendant's Fourth Amendment rights. Stated differently, the defendant must 

show that the search or seizure was illegal in the first instance. Where there is 

no illegal search or seizure, there can be no “fruit of the poisonous tree.” 

However, the “fruit of the poisonous tree” doctrine has no application 

when the derivative evidence has an “independent source[.]”

Hanna v. State, 726 N.E.2d 384, 389 (Ind. Ct. App. 2000) (citations omitted). 

For much the same reasons that we have concluded that the admission of evidence 

relating to Spaulding’s keys, even if erroneous, was harmless, we conclude that Barker’s 

confession was derived from other evidence. As previously mentioned, Barker agreed to 

submit to a cheek swab before even learning about the keys found in his pocket, and must 

have believed that DNA testing would establish that he was the suspect who was shot at 

Spaulding’s house. Detective Schemenaur also told Barker that he had already spoken to 

Lipscomb, Owens, and Brackett and that their stories did not match Barker’s and that 

witnesses had seen Spaulding’s assailants running away from his house. We conclude that 

Barker’s confession was not the result of being told that Spaulding’s keys were found in his 

pocket. Because of the overwhelming evidence of Barker’s guilt, any error the trial court 
10

may have made in admitting evidence regarding Spaulding’s keys can only be considered 

harmless. 

II. Whether Barker’s Sentence is Inappropriate

We “may revise a sentence authorized by statute if, after due consideration of the trial 

court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the 

offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate 

review of sentences must give due consideration to the trial court’s sentence because of the 

special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an 

authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. 

State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks 

omitted). “[W]hether we regard a sentence as appropriate at the end of the day turns on our 

sense of the 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). In addition to the “due consideration” we are required to give to the 

trial court’s sentencing decision, “we understand and recognize the unique perspective a trial 

court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. 

App. 2007). As previously mentioned, the trial court sentenced Barker to an aggregate sixtyfive years of incarceration. 

The nature of Barker’s offenses is that they were premeditated and involved being 

prepared to use deadly force during their commission. Barker secured the firearms used in 

the robbery and both his and Lipscomb’s handguns were loaded. One should not invade 
11

another’s home armed with a firearm and be surprised when violence is the result. Moreover, 

photographs of Spaulding’s house show toys and other items in plain view that indicate the 

presence of a child in the house. Finally, it should be noted that Barker and his cohorts had 

plenty of opportunities to rethink their plan, but did not. The robbery had been planned 

approximately two weeks beforehand, and the quartet even called off the robbery earlier in 

the evening on July 20, 2010, only to return later and try again. The nature of Barker’s 

offenses warrants a lengthy sentence. 

Barker’s character also justifies a harsh sentence. Although Barker, who was eighteen 

years old in July of 2010, had no prior adult criminal history, his juvenile record is extensive, 

to say the least. As a juvenile, Barker was charged with a total of twenty-nine counts of 

delinquency, resulting in six true findings, including three that would have been felonies if 

committed by an adult–auto theft, theft, and escape. Barker’s numerous contacts with the 

juvenile justice system did not cause him to reform himself. In a short time, Barker 

graduated from relatively minor property crimes to a robbery resulting in a man’s death. 

Barker’s complete lack of any remorse over Spaulding’s death also speaks ill of his character. 

In a telephone call to family from jail, Barker’s attempt to explain how he was not the shooter

consisted, in part, of the following statement: “I didn’t do that s*** ... like I said, if I’d shot 

f****** dude I’d have shot him right between his f****** eyes and got away.” State’s Ex. 

126. Barker’s character also fully justifies a harsh sentence. Barker has failed to establish 

that his sixty-five-year aggregate sentence was inappropriate. 

We affirm the judgment of the trial court. 
12

ROBB, C.J., and BAKER, J., concur.