Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
August 20, 2001
Deputy Hedges again approached Defendants vehicle. Defendant yelled out his wi
his drivers license was suspended. Deputy Hedges told Defendant to exit the
vehicle and arrested him. Deputy Bennett then searched Defendant, finding marijuana and
crack cocaine in his pockets. The officers searched the truck and found
a set of scales, a laptop computer, a box of plastic sandwich bags,
and a large quantity of cocaine inside the truck. Later, officers found
an additional piece of crack cocaine in Defendants jacket pocket.
A jury found Defendant guilty of Dealing Cocaine, a Class A Felony; See footnote Possession of Cocaine, a Class C Felony; See footnote Possession of Marijuana, a Class A Misdemeanor; See footnote and Driving While Suspended, a Class A Misdemeanor. See footnote The jury also found Defendant to be a habitual offender. See footnote
Defendant argues that Deputy Bennetts pat down search of Defendant in which he
found drugs violated the rules of
Terry v. Ohio, 392 U.S. 1 (1968)
(holding that police may conduct a patdown search upon reasonable suspicion that a
person is carrying a weapon.) Additionally, Defendant maintains that the trial court
should have suppressed the evidence found in Defendants vehicle because the authority to
search was based on the initial illegal search.
We find that the evidence was not seized based on the authority of
Terry but rather on the authority to search an individual incident to a
The Fourth Amendment See footnote protects persons from unreasonable search and seizure and this protection has been extended to the states through the Fourteenth Amendment. U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643, 650 (1961). Generally, the Fourth Amendment prohibits warrantless searches and seizures. See Trowbridge v. State, 717 N.E.2d 138, 143 (Ind. 1999), rehg denied. When a search is conducted without a warrant, the State has the burden of proving that an exception to the warrant requirement existed at the time of the search. See Berry v. State, 704 N.E.2d 462, 465 (Ind. 1998) (citing Brown v. State, 691 N.E.2d 438, 443 (Ind. 1998)). One well-recognized exception to the warrant requirement is a search incident to a lawful arrest. See Chimel v. California, 395 U.S. 752, 763 (1969). Under this exception, the arresting officer may conduct a warrantless search of the arrestees person and the area within his immediate control. Id. Additionally, when officers arrest a defendant who is in an automobile, they are permitted to search the entire passenger compartment of the vehicle. See New York v. Belton, 453 U.S. 454, 460 (1981). Here, the facts most favorable to the trial courts ruling indicate that the officers had probable cause to arrest Defendant because he told Deputy Hedges that he was driving with a suspended license. The officers therefore conducted a proper search incident to a lawful arrest.
In an interview following his arrest, Defendant told Detective Maxey that the drugs
discovered in the truck were not his. According to Defendant, he found
the marijuana, the cocaine, and the wad of money in the glove box
of the truck he was driving at the time of his arrest.
Defendant said that the truck belonged to his friend, Antwone Chaney.
Prior to trial, the trial court granted Defendants motion
in limine barring the
State from offering any statements that Defendant made concerning his prior association with
Chaney. The trial court also suppressed the statements Defendant made to Detective
Maxey after being taken into custody because Defendant had not been read his
At trial, Defendant asked to cross-examine Detective Maxey in order to elicit evidence of Defendants exculpatory statements. The trial court responded that it would permit the questioning with the understanding that it might well open the door for the State to elicit evidence of additional statements that Defendant made to Detective Maxey that would have otherwise been suppressed. The court said:
Well, if youre gonna ask about his statements, its gonna open a bit of a door. How much of a door, I guess it depends on what you ask what you ask him to say or what you ask somebody else to say about him. You asked that his statements be suppressed, and therefore, they cant use them. If youre gonna use them, youre gonna open a bit of a door. I dont know how much its gonna open it.
(R. at 234.) Defendant did not pursue the matter further; he neither
questioned Detective Maxey about Defendants statements nor sought further clarification from the trial
court as to how far it would permit the questioning to go.
In order to preserve an error for appellate review, a party must do
more than challenge the ruling on a motion in limine. Azania v.
State, 730 N.E.2d 646, 651 (Ind. 2000), rehg denied; Miller v. State, 716
N.E.2d 367, 370 (Ind. 1999). Absent either a ruling admitting evidence accompanied
by a timely objection or a ruling excluding evidence accompanied by a proper
offer of proof, there is no basis for a claim of error.
See Ind. Evidence Rule 103(a). Neither the trial court's ruling on the
motion in limine nor its subsequent comments on opening the door prevented the
defense from questioning Detective Maxey about Defendants statements. Defendant had a choice
between the perceived advantages of the evidence of his exculpatory comments to police
and the disadvantages of his other statements. Defendant had successfully obtained a
pretrial ruling preventing the State from presenting evidence it deemed detrimental to Defendant's
interests and then made a strategic decision not to risk admission of such
excluded evidence. See Azania, 730 N.E.2d at 651. We find no error
presented by these facts.
"The state may seek to have a person sentenced as a habitual offender
for any felony by alleging, on a page separate from the rest of
the charging instrument, that the person has accumulated two (2) prior unrelated felony
convictions." Ind. Code § 35-50-2-8. (1998) The State sought such
a habitual offender enhancement to Defendant's sentence in this case.
After the jurys verdict in the guilt phase of this case, but prior
to the habitual phase, Defendant stipulated to the two predicate felonies charged by
the State in the habitual offender count. These were a 1985 conviction
for theft, a Class D felony, and a 1993 conviction for battery, a
Class C felony. Notwithstanding the stipulation, the State submitted evidence regarding Defendants
prior convictions. Defendant objected to the introduction of the case
chronology with respect to the 1993 battery conviction but did not object the
States other evidence.
The evidence admitted without objection consisted of the charging information for each of
Defendants prior convictions. For the first conviction, the information indicated that the
State charged Defendant of burglary and theft. The information for the battery
conviction indicated that he had been charged initially with attempted murder.
As noted, the evidence that was admitted over Defendants objection consisted of the
case chronology with respect to the battery conviction. A thorough reading of
the chronology indicates that Defendant was charged initially with attempted murder but subsequently
pled guilty to and was convicted of battery.
See footnote The principal problem with
the chronology is that the copy of the courts order of judgment included
with the chronology mistakenly ind
icates that Defendant actually convicted of attempted murder (rather
than battery). At the top of the order, it states The defendant
was found [g]uilty of the following crimes ... A/MURDER/F. However, the chronology
itself indicates that Defendant in fact pled guilty to and was convicted of
battery and that the State dropped the attempted murder charge.
Defendant challenges the admission of the case chronology on two grounds. First,
Defendant contends that the case chronology was unnecessary because he stipulated to the
prior convictions. Defendant also contends that the chronology was unduly prejudicial because
it indicated that Defendant had been convicted of attempted murder.
Defendant notes that we have stated in the past that stipulations by both parties may limit facts in issue, and consequently, admissibility of evidence relevant to establishing those facts. See Butler v. State, 647 N.E.2d 631, 634 (Ind. 1995). Here, however, evidence of his prior convictions was still relevant even after Defendants stipulation.
So long as done so consistent with applicable rules of evidence, evidence of
the two predicate felonies in the face of a stipulation is admissible during
the habitual offender stage of a trial. In the habitual offender stage,
the jury has discretion to determine whether a defendant is a habitual offender
irrespective of the uncontroverted proof of prior felonies. Seay v. State, 698
N.E.2d 732, 737 (Ind. 1998). Because the jury is the judge of
both the law and facts as to that issue, see id., the facts
regarding the predicate convictions are relevant to the jurys decision whether or not
to find a defendant to be a habitual offender.
We also find no prejudice from the inclusion of the case chronology. Although there was a mistake on the judgment order with respect to the prior battery conviction, we find no error. Defendant and the State both clearly indicated to the jury that Defendants prior conviction was for battery, not attempted murder. During the States closing argument, the prosecutor said:
Ladies and gentlemen, you just heard the stipulation. The Defendant just stipulated
that he ... was convicted [and] sentenced for a felony theft. Then
he was charged, convicted, [and] sentenced for a felony battery as a C
felony, and then he was charged, and you just convicted him of the
offense in the first phase of the trial.
(R. at 431.) Defendants counsel also indicated to the jury that the prior
felonies were for theft and battery:
He has served his time on that D felony theft that was back in 1985. He served his time, a minor felony. Its done, its over with, its finished. He served it. He has served his time on the C felony battery. It is finished, it is done. It is over with. He paid his price to you and to me and to whatever victims existed in those particular cases. He did that. Hes not here for another felony battery. Hes not here for another felony theft. Hes paid for those.
(R. at 432-33.)
The State, in rebuttal, again referred to Defendants two convictions, stating, [Defendant] did
serve his time for D felony theft. .... He did serve
his time for the C felony battery .... Today, he showed you
that he came back after he got finished doing his time on those
other two, came back and violated the law again. (R. at 434.)
Given the repeated references to Defendants past crimes as being for theft and
battery, we find no likelihood that the jury thought that one of the
predicate offenses was attempted murder.
SHEPARD, C.J., and BOEHM, J., concur.
RUCKER, J., concurs in part and dissents in part with separate opinion in
which DICKSON, J., concurs
ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEES:
TERRANCE W. RICHMOND KAREN M. FREEMAN-WILSON
Milan, Indiana Attorney General of Indiana
TIMOTHY W. BEAM
Deputy Attorney General
ON DIRECT APPEAL
August 20, 2001