Henderson v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Kathleen M. Sweeney Steve Carter

Indianapolis, Indiana Attorney General of Indiana

Robin Hodapp-Gillman

Deputy Attorney General

Indianapolis, Indiana

In The

INDIANA SUPREME COURT

COREY HENDERSON, )

Defendant-Appellant, )

)

v. ) 49S00-0010-CR-616

)

STATE OF INDIANA, )

Plaintiff-Appellee. )

________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Gary L. Miller, Judge

Cause No. 49G05-9904-CF-059686

________________________________________________

On Direct Appeal

June 6, 2002

DICKSON, Justice

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;[1] 2. conspiracy to commit robbery as a

class A felony;[2] and 3. robbery as a class A felony.[3] The trial court

merged the defendant's conviction for class A felony robbery count into the

felony murder count,[4] and sentenced the defendant to sixty-five years for

felony murder and a concurrent fifty years for class A felony conspiracy to

commit robbery.[5] 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.[6]

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,[7] 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[8]] 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).

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 weapon. Id.

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 and murder).

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 B felony.

3. Sentencing

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

aggravating circumstances:

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 thing.

Record at 677.

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 sentence.

Conclusion

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.

-----------------------

[1] Ind.Code § 35-42-1-1.

[2] Ind.Code § 35-41-5-2; Ind.Code § 35-42-5-1.

[3] Ind.Code § 35-42-5-1.

[4] 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 2 [conspiracy]." 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.

[5] The defendant also received a three-year sentence for criminal

contempt. Record at 78.

[6] 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. Williams 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).

[7] 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).

[8] See Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999)("[T]he

possibility must be reasonable, not speculative or remote.")