ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kathleen M. Sweeney Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Deputy Attorney General
INDIANA SUPREME COURT
COREY HENDERSON, )
v. ) 49S00-0010-CR-616
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9904-CF-059686
On Direct Appeal
June 6, 2002
The defendant, Corey Henderson, was involved in an April 1999, Indianapolis drug related
armed robbery, and in the ensuing struggle, Jamar Reynolds, an accomplice, was fatally
wounded. The defendant was convicted on three counts: 1. felony murder;
See footnote 2.
conspiracy to commit robbery as a class A felony;See footnote and 3. robbery as
a class A felony.See footnote The trial court merged the defendant's conviction for
class A felony robbery count into the felony murder count,See footnote and sentenced the
defendant to sixty-five years for felony murder and a concurrent fifty years for
class A felony conspiracy to commit robbery.See footnote In his direct appeal the
defendant contends that the trial court erred in denying his motion to suppress,
that his convictions for murder and conspiracy to commit robbery violate the Indiana
Double Jeopardy Clause, that the trial court abused its discretion in sentencing, and
that his sentence is manifestly unreasonable.
1. Motion to Suppress
The defendant first contends that the trial court committed reversible error when it
denied his motion to suppress his statement to police because it was obtained
from a coerced search and a warrantless arrest. The defendant was arrested
in his home and later, after being given the standard warnings, gave a
statement to police at the jail. When the arrest was made, the
police did not possess an arrest warrant or a warrant to search the
home. The defendant claims that the warrantless entry into his home and
his subsequent warrantless arrest violate the Fourth Amendment to the United States Constitution
as an unreasonable search.
The Fourth Amendment protects against warrantless and nonconsensual entry into a residence by
police to search for a felony arrestee even when officers have probable cause
to make the arrest.
Payton v. New York, 445 U.S. 573, 576,
100 S.Ct. 1371, 1374-75, 63 L.Ed.2d 639, 644 (1980). The State concedes
that the police officers' arrest of the defendant amounted to a Payton violation.
It asserts, however, that the defendant's subsequent statement to police is not
thereby excluded from evidence.
Citing New York v. Harris, 495 U.S. 14, 21, 110 S.Ct. 1640, 1644-45,
109 L.Ed.2d 13, 22 (1990), and Cox v. State, 696 N.E.2d 853, 859
(Ind. 1998), the State argues the exclusionary rule does not prohibit the use
of a stationhouse statement made by a defendant in legal custody, even if
the statement is taken after a Payton violation. The State is correct
in this regard. "[W]here the police have probable cause to arrest a
suspect, the exclusionary rule does not bar the State's use of a statement
made by the defendant outside of his home, even though the statement is
taken after an arrest made in the home in violation of Payton."
Cox, 696 N.E.2d at 859 (quoting Harris, 495 U.S. at 21, 110 S.Ct.
at 1644-45, 109 L.Ed.2d at 22). For exclusion purposes, the relevant inquiry
is whether the defendant gave the statement while in lawful custody. See
Harris, 495 U.S. at 17-21, 110 S.Ct. at 1642-45, 109 L.Ed.2d at 19-22.
"It is well settled that a police officer may arrest a suspect
without a warrant if the officer has probable cause to believe that the
suspect has committed a felony." Ortiz v. State, 716 N.E.2d 345, 348
(Ind. 1999), Peterson v. State, 674 N.E.2d 528, 536 (Ind. 1996); Sears v.
State, 668 N.E.2d 662, 666-67 (Ind. 1996). "Probable cause exists when, at
the time of the arrest, the arresting officer has knowledge of facts and
circumstances that would warrant a person of reasonable caution to believe that the
suspect had committed a criminal act." Ortiz, 716 N.E.2d at 348 (citing
Peterson, 674 N.E.2d at 536).
During the police investigation of the death of Reynolds, three witnesses to the
shooting described the perpetrator as five feet, four inches tall, weighing 140-150 pounds,
with puffy permed hair, and solid gold teeth across the front top of
his mouth. The decedent's best friend stated that this description matched a
person named Corey, with whom Reynolds and Guilford Forney, a co-perpetrator,
See footnote had been
associating for the past few months. Forney's brother contacted the police and
stated he had heard that Corey was in the car at the time
of the homicide and confirmed the description given by the witnesses. From
this evidence the police had probable cause to believe that the defendant took
part in the crimes committed.
Forney's brother stated that Corey lived in a house around the corner on
Sunshine Avenue with a family that had a son named Kalief Martin.
He described the house where Corey was staying as well as the house
across the street from it. After determining the address of the former
house, the detective verified that Patty and Otis Martin lived there with their
son Kalief. Marion County Sheriff Mike Turner located Patty Martin, who confirmed
that Corey Henderson lived in her home. Det. Turner asked Martin to
take him to her house. She complied, and when she opened the
door, three police officers entered and arrested Henderson.
We hold that regardless of the warrantless police entry into the Martin home
where the defendant Corey Henderson was living, the police nevertheless had probable cause
to arrest the defendant, and his subsequent statement in police custody was not
rendered inadmissible by the warrantless entry.
2. Indiana Double Jeopardy
The defendant contends that his convictions and sentences for felony murder and conspiracy
to commit robbery as a class A felony violate the Indiana Double Jeopardy
Clause, Article 1, Section 14 of the Indiana Constitution. He seeks reduction
of his conspiracy conviction from a class A to a class B felony.
He expressly grounds his double jeopardy claim on the actual evidence test announced
in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Under this test,
to establish double jeopardy, the defendant must demonstrate "a reasonable possibility that the
evidentiary facts used by the fact-finder to establish the essential elements of one
offense may also have been used to establish the essential elements of a
second challenged offense." Id. at 53. The defendant argues that the same
injury, the fatal gunshot wound to Reynolds, was used "to both prove an
essential element of the murder and an essential element of the conspiracy to
commit robbery." Brief of Appellant at 15.
This argument does not prevail. Under the actual evidence test, "it is
not sufficient merely to show that the same evidence may have been used
to prove a single element of two criminal offenses." Redman v. State,
743 N.E.2d 263, 267 (Ind. 2001) (emphasis in original). To establish double
jeopardy, "it is necessary to show a [reasonable
] possibility that the same evidentiary
facts were used to prove the body of essential elements that comprised each
of two or more of the offenses resulting in convictions." Id.
(emphasis in original). This Court recently emphasized:
The test is not merely whether the evidentiary facts used to establish one
of the essential elements of one offense may also have been used to
establish one of the essential elements of a second challenged offense. In
other words, under the Richardson actual evidence test, the Indiana Double Jeopardy Clause
is not violated when the evidentiary facts establishing the essential elements of one
offense also establish only one or even several, but not all, of the
essential elements of a second offense.
Spivey v. State, 731 N.E.2d 831, 833 (Ind. 2002). 3. Sentencing
In the present case the jury was separately instructed as to the essential
elements of each of the challenged criminal offenses. One instruction advised that
to convict for felony murder under Count 1, the State must prove:
"(1) the defendant; (2) killed; (3) another person; and (4) while committing or
attempting to commit robbery, which is to knowingly take property from another person
or from the presence of another person by using or threatening the use
of force on another person, or by putting another person in fear."
Record at 128. As to conspiracy to commit robbery, the elements instruction
required the State to prove: "(1) the defendant (2) agreed with another
person (3) to commit the crime of robbery, which is to knowingly or
intentionally take property from the person or presence of another person by using
or threatening the use of force, or by putting any person in fear
and (4) one of the conspirators performed an overt act in furtherance of
the agreement." Record at 129-30. This instruction also advised that
"[i]f the State further proves an additional element beyond a reasonable doubt that
the crime resulted in serious bodily injury to any person other than a
defendant, you should find the defendant guilty of the crime of conspiracy to
commit robbery, a class A felony." Record at 130. The instruction
also explained that it would be a class B felony if the State
proved that it was committed by the defendant while armed with a deadly
In addition to instructing on the elements, the trial court also read to
the jury the charging information as to all three counts. As to
the murder count, the information charged that Henderson killed Reynolds while committing or
attempting to commit robbery (taking U.S. currency from Michael Cornner by putting Cornner
in fear or by using or threatening to use force). As to
the conspiracy count, the information specified the intended robbery to be the taking
of United States currency from Michael Cornner, it named the resulting serious bodily
injury as "a gunshot wound" to Reynolds's back, and for the overt act
alleged that Henderson "took possession of said handgun and placed it against the
side of Michael Cornner." Record at 125. In the present case,
the evidentiary facts that established the essential elements of felony murder did not
also establish the "agreement" element of conspiracy. Similarly analyzing the evidentiary facts
that may have been used to establish the essential elements of class A
felony conspiracy, such facts did not also establish that the defendant committed or
attempted to commit robbery, one of the elements of the charged felony murder.
It is less clear whether the evidentiary facts used to establish all
the essential elements of conspiracy to commit robbery may also have been used
to establish all the elements of felony murder. The evidentiary fact that established
the resulting serious bodily injury as described in the court's elements instruction (which
was broader than the charging information) was likely the death of Reynolds, which
would also have proven the resulting death element of felony murder. Furthermore,
it may initially appear that the evidentiary facts proving the charged overt act
(Henderson placed a handgun in the Cornner's side) could have used to establish
attempted robbery, one possible basis for felony murder under the court's instruction as
to the elements of felony murder. It is significant, however, that the
jury found the defendant guilty as to Count 3, robbery (which the trial
court merged with Count 1, felony murder), demonstrating that the jury found the
robbery to have been completed, rather than just attempted. The evidentiary facts
proving class A felony conspiracy to commit robbery did not also establish the
completed robbery used by the jury to establish felony murder. We conclude
that it is not reasonably possible that the jury used the same evidentiary
facts to establish all the elements of both class A felony conspiracy to
commit robbery and felony murder (the defendant killed Reynolds while committing the robbery
of Cornner). In other words, the offenses of felony-murder and class A
felony conspiracy were each established by the proof of a fact not used
to establish the other offense. We find no violation of the Double
Jeopardy Clause of the Indiana Constitution.
We note, however, that this appeal was initiated and the Brief of Appellant
was filed before this Court issued its clarifying opinions in Redman and Spivey.
Furthermore, Spivey expressly acknowledges that, apart from a state constitutional claim of
double jeopardy under Richardson, similar relief may be obtained under a series of
rules of statutory construction and common law. Spivey, 761 N.E.2d at 834.
In Pierce v. State, 761 N.E.2d 826 (Ind. 2002), issued contemporaneously with
Spivey, we applied one of these rules and granted relief.
We therefore elect, sua sponte, to review the defendant's claims under these rules
of common law and statutory construction. Among these is the doctrine that
where one conviction is based on the same bodily injury that forms the
basis for elevating another conviction to a higher penalty classification, the two cannot
stand. See Pierce, 761 N.E.2d at 830 (same injury used to establish
class A felony burglary and class B felony robbery); Moore v. State, 652
N.E.2d 53, 60 (Ind. 1995)(same injury used to establish class A felony robbery
The defendant's claim qualifies for consideration under this doctrine. The death of
Reynolds was the basis for his convictions of both murder and class A
felony conspiracy. The defendant argues that it would be proper to reduce
his conspiracy conviction from a class A felony to a class B felony.
Class B felony conspiracy to commit robbery requires the offense to be
committed while armed with a deadly weapon. Ind.Code § 35-41-5-2; Ind.Code §
35-42-5-1. The defendant's conspiracy conviction was based on the use of a
handgun. In this way, his murder conviction would not be based on
the same bodily injury that forms a basis for elevating his conspiracy conviction.
We agree that his conspiracy conviction should be reduced to a class
The defendant contends that in imposing enhanced sentences of sixty-five years for murder
and fifty years for class A felony conspiracy, the trial court abused its
discretion by ignoring certain mitigators and by relying on improper aggravators. In
general, sentencing determinations are within the trial court's discretion and are governed by
Indiana Code § 35-38-1-7.1. See Thacker v. State, 709 N.E.2d 3, 9
(Ind. 1999); Harris v. State, 659 N.E.2d 522, 527 (Ind. 1995). We
review trial court sentencing decisions only for abuse of discretion, including a trial
court's decisions to increase or decrease the presumptive sentence because of aggravating or
mitigating circumstances and to run the sentences concurrently or consecutively. See Archer
v. State, 689 N.E.2d 678, 683 (Ind. 1997); Smith v. State, 675 N.E.2d
693, 697 (Ind. 1996); Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996);
Mott v. State, 273 Ind. 216, 220, 402 N.E.2d 986, 988 (1980).
If a trial court relies upon aggravating or mitigating circumstances to enhance or
reduce the presumptive sentence, it must (1) identify all significant mitigating and aggravating
circumstances; (2) state the specific reason why each circumstance is determined to be
mitigating or aggravating; and (3) articulate the court's evaluation and balancing of the
circumstances. Harris, 659 N.E.2d at 527-28.
The defendant argued four mitigating circumstances at trial: (1) his young age,
(2) lack of prior criminal history, (3) the crime was the result of
circumstances unlikely to recur, and (4) the victim of the crime induced or
facilitated the offense. Record at 672-73. The trial court only afforded
weight to the first two. The defendant contends the trial court abused
its discretion in not addressing the other two proposed mitigating circumstances.
Although a sentencing court must consider all evidence of mitigating circumstances offered by
the defendant, the finding of a mitigating factor rests within the court's discretion.
Harris v. State, 659 N.E.2d 522, 528 (Ind. 1995)(citing Aguirre v. State,
552 N.E.2d 473, 476 (Ind. 1990)). "A court does not err in
failing to find mitigation when a mitigation claim is 'highly disputable in nature,
weight, or significance.'" Smith v. State, 670 N.E.2d 7, 8 (Ind. 1996)(quoting
Wilkins v. State, 500 N.E.2d 747, 749 (Ind. 1986)). While a failure
to find mitigating circumstances clearly supported by the record may imply that the
sentencing court improperly overlooked them, the court is obligated neither to credit mitigating
circumstances in the same manner as would the defendant, nor to explain why
he or she has chosen not to find mitigating circumstances. Crawley v.
State, 677 N.E.2d 520, 523 (Ind. 1997)(citing Johnson v. State, 580 N.E.2d 959,
961 (Ind. 1991); Hammons v. State, 493 N.E.2d 1250, 1254-55 (Ind. 1986)).
We discern no error in the failure to recognize the existence of these
two proposed mitigating circumstances.
The defendant also contends that the trial court improperly considered the facts comprising
the essential elements of the crimes as the only aggravating circumstance warranting imposition
of a sentence in excess of the presumptive sentence. At sentencing, after
the trial court discussed the mitigating factors, it provided its only description of
So, I think those are all good things. Unfortunately, the negative, the
aggravating circumstances do exist. This was a well-planned thought-out plot to rob
a drug dealer. Three or more of you engaged in a conspiracy,
obviously, a conspiracy to rob this person. You lured him into the
car. There was language used. Signal, from the evidence I heard,
for you to grab the gun which was done. As luck would
have it, or unluck would have it, the person who was killed was
apparently one of the participants. The target of the robbery escaped.
I see too many of these cases where young men sit here having
planned one bad thing and have the whole thing spiral out of control.
I suppose it's the nature of drug deals, this kind of illegal
behavior. I suppose that's why people take guns to these drug deals
and why they take guns to robberies because they know it's a dangerous
Record at 677. Conclusion
The "nature and circumstances" of a crime is a proper aggravator. See
Ind.Code § 35-38-1-7.1 (the nature and circumstances of a crime shall be considered
in determining what sentence to impose); Thacker, 709 N.E.2d at 10. While
a trial court may not use a factor constituting a material element of
an offense as an aggravating circumstance, Angleton v. State, 714 N.E.2d 156, 160
(Ind. 1999); Johnson v. State, 687 N.E.2d 345, 347 (Ind. 1997); Holmes, 642
N.E.2d at 972, a court may look to the particularized circumstances of the
criminal act, Ellis v. State, 707 N.E.2d 797, 804-05 (Ind.1999); Smith, 675 N.E.2d
at 698; Ector v. State, 639 N.E.2d 1014, 1015 (Ind. 1994); Williams v.
State, 619 N.E.2d 569, 573 (Ind. 1993). Although the particular manner in
which a crime is committed may constitute an aggravating factor, Jackson v. State,
697 N.E.2d 53, 56 (Ind. 1998); Johnson, 687 N.E.2d at 347; Widener v.
State, 659 N.E.2d 529, 532 (Ind. 1995), a trial court should specify why
a defendant deserves an enhanced sentence under the particular circumstances, Ellis, 707 N.E.2d
at 805; Wethington v. State, 560 N.E.2d 496, 510 (Ind. 1990).
Here the trial court's description of the aggravating circumstances fails to specify any
particular manner or circumstances related to the commission of the crimes beyond the
material elements of the crimes for which the defendant was convicted. Further,
there is nothing in the Record that demonstrates that the trial court weighed
the mitigating and aggravating circumstances. For these reasons, we vacate the enhanced
sentence and order the presumptive sentence imposed for the defendant's convictions for murder
and class B felony conspiracy to commit robbery. Because of the resulting
sentence reductions, we need not address the defendant's additional claim of manifestly unreasonable
Finding no error in the trial court's ruling on the defendant's motion to
suppress or in the admission of his post-arrest statement to police, we affirm
the convictions. However, we find that the defendant's conviction for class A
felony conspiracy to commit robbery must be reduced to a class B felony;
and we find that the trial court's finding and weighing of aggravating circumstances
do not support enhanced or consecutive sentences. We therefore remand for the
entry of a judgment of conviction of murder and conspiracy to commit robbery
as a class B felony, with concurrent statutory presumptive sentences to be imposed
for each offense.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, J.J., concur.
Ind.Code § 35-42-1-1.
Footnote: Ind.Code § 35-41-5-2; Ind.Code § 35-42-5-1.
Footnote: Ind.Code § 35-42-5-1.
Footnote: We note inconsistencies among the trial court's declarations at the sentencing hearing,
the Chronological Case Summary (CCS), and its Abstract of Judgment. The CCS
notes, "Count 3 [robbery] merges into Count 2 [conspiracy]." Record at 22.
The abstract of Judgment similarly indicates, "Count 3 [robbery] merges into Count
Id. at 26. However, at the sentencing hearing, the
trial court announced its decision to "impose sentence on count 1 [murder] of
sixty-five years. Count 2 [conspiracy], fifty years. Count 3 [robbery] merges
into count 1. There will be no sentence on that offense.
Count[s] 1 and 2 will be served concurrent to one another." Record
at 678. Attributing the notations on the CCS and Abstract of Judgment
to scrivener error, we deem the sentence to be as announced by the
judge in open court.
The defendant also received a three-year sentence for criminal contempt. Record
Footnote: The defendant also cites Article 1, Section 11 of the Indiana Constitution,
but because the defendant presents no authority or independent analysis supporting a separate
standard under the state constitution, any state constitutional claim is waived.
v. State, 724 N.E.2d 1093, 1097 n.5 (Ind. 2000); Brown v. State, 703
N.E.2d 1010, 1015 n.4 (Ind. 1998); Fair v. State, 627 N.E.2d 427, 430
n.1 (Ind. 1993).
Forney was convicted of felony murder, conspiracy to commit robbery, and robbery.
The convictions were upheld on appeal.
Forney v. State, 742 N.E.2d
934 (Ind. 2001).
See Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999)("[T]he possibility must
be reasonable, not speculative or remote.")