Cain v. State

• Decision Date: 02 July 1992
• Docket Number: No. 79A02-9012-CR-00758,79A02-9012-CR-00758
• Parties: Michael Hill CAIN, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 835

594 N.E.2d 835

Michael Hill CAIN, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 79A02-9012-CR-00758.

Court of Appeals of Indiana,

Second District.

July 2, 1992.

Robert C. Perry, Steckler, Perry and Ryan, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Appellant Michael Hill Cain was sentenced to a term of forty (40) years after being convicted of two counts of Robbery while armed with a deadly weapon, ¹ two counts of Criminal Confinement while armed with a deadly weapon, ² one count of Conspiracy to Commit Robbery while armed with a deadly weapon, ³ all Class B felonies, and being found an habitual offender pursuant to I.C. 35-50-2-8. ⁴ Cain presents the following issues for our review:

I. whether the trial court erred in denying Cain's motion to suppress certain testimonial and physical evidence based upon his claim that the evidence was the fruit of an illegal arrest;

II. whether the prosecutor's extraction of testimony from a co-conspirator by threatening to bring charges against his girl-friend denied Cain a fair trial;

III. whether the testimony of an alleged co-conspirator was admitted without sufficient independent evidence to prove the existence of a conspiracy in which Cain was a participant;

IV. whether the evidence was sufficient to sustain the convictions upon the substantive charges; and

V. whether the evidence was sufficient to sustain the habitual offender determination?

We reverse the conviction upon one count of robbery and affirm in all other respects.

The facts most favorable to the judgment reveal that Cain, Edward Shepard and William Dean met on January 30, 1990 and discussed how they could obtain money. The three discussed the possibility of robbing a bank, a liquor store or a grocery store. They met again on February 1 and agreed to rob the Salin Bank in West Lafayette. Dean was to rob the bank and put the money in Shepard's car, which was to be parked near the bank. Cain was to drop Dean off at the bank and pick him up after the robbery.

Later that day, Dean entered the Bank, pulled a gun, approached Doris Wilkinson, a teller, and demanded that she give him the money in her drawer. She complied. Janice Marvin, a supervisor, entered the room, whereupon Dean demanded that she give him the money from a second teller window. Marvin gave Dean the money from her window, which included "bait" money with marked serial numbers. Dean then told the two to get on the floor. They did, and remained there for a few minutes. When they finally got up Dean was gone. Marvin called the police and locked the bank.

On February 2, Dean went to the home of Timothy Buck and asked to borrow Buck's car. Dean was carrying a red satchel around his waist. Buck refused to let Dean borrow his car, and shortly thereafter, the car was stolen. Later that day, the car was recovered. The police searched the car with Buck's permission and found Dean's satchel, which contained $2622.00, including some of the marked bills from the bank. In a separate search of Shepard's house pursuant to a warrant, the police recovered another $8000, including additional marked bills, in a tool box.

I.

Cain first alleges that the testimony of Shepard, the State's key witness, should have been suppressed as the fruit of an illegal arrest. Even assuming arguendo that Cain's detention amounted to an illegal arrest, the evidence which he seeks to suppress is not excludible as fruit of the poisonous tree because the causal link between the arrest and the discovery of Shepard as a witness is too attenuated to taint the testimony.

Officer Danny Money was on patrol in the vicinity of the Salin Bank when he received a radio report about the robbery. The report stated that a black male was involved. Money observed a black male driving a white Cadillac from the direction of the scene of the robbery and reported this information to his dispatcher. Money could not see any license plates on the car, although he later determined that the car had dealer plates laying down on the back deck of the car which were not visible from Money's vantage point. Lieutenant Jerry Loy, who was investigating the robbery, advised Money that the car was known to be operated by Cain, who was a suspect in another robbery. On the basis of these facts, Money stopped Cain.

Officer Money ordered Cain to step out of his car and to put his hands on his head. Money then ordered him to lay on the ground. Money searched Cain, hand-cuffed him, helped him up, and put him in the back of the patrol car. The officer held him there approximately 1/2 hour until Lieutenant Loy brought Wilkinson, one of the victims, to the scene. Wilkinson looked first at Cain's drivers' license and then directly at Cain, who was in handcuffs. Wilkinson stated that she was 90% certain that Cain matched the physical description of the man who robbed the bank (and whose face had been concealed by a ski mask) but stated that she could not be 100% certain. Later that evening, Cain appeared in a line-up at which Marvin, the other victim, attempted to identify him. At the line-up, Marvin erroneously picked out two persons not including Cain.

Sometime after Cain's arrest, Special Agent Franklin J. Fabian of the F.B.I. became involved in the robbery investigation. Fabian believed that more than one person had been involved the robbery. Since Cain was a suspect upon the basis of the foregoing facts, Fabian began contacting Cain's friends and associates. During the course of this investigation, Fabian discovered that Dean was Cain's friend and that Shepard was Cain's brother. Further investigation revealed the existence of the conspiracy and the involvement of each of the three.

Cain does not present specific arguments to demonstrate that Fabian's discoveries were fruits of the allegedly illegal arrest; rather, he appears to assume that Fabian would not have conducted any inquiry into his personal life if he had never been arrested, and therefore, none of the three would ever have been implicated.

Evidence may be excluded as fruit of the poisonous tree. Wong Sun v. United States (1963) 371 U.S. 471, 485, 83 S.Ct. 407, 417, 9 L.Ed.2d 441. In Wong Sun, the court discerned no distinction between testimonial and physical evidence. However in United States v. Ceccolini (1978) 435 U.S. 268, 279, 98 S.Ct. 1054, 1061, 55 L.Ed.2d 268. the Court, speaking through Justice Rehnquist, drew such a distinction and stated that a closer, more direct link between the illegality and the evidence is required for testimonial evidence. Where a defendant seeks to exclude testimonial evidence as the result of an illegal search, the court must inquire whether the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. Id., 98 S.Ct. at 1059. Even the dissenters in Ceccolini acknowledged that the taint might be dissipated by attenuation.

In the present case, the only "fruit" of the unlawful arrest was Wilkinson's identification. Cain did not make any incriminating statements, nor was any physical evidence recovered during the detention. Wilkinson later recanted her identification, however, and testified before the jury upon Cain's cross-examination that although she had identified Cain at the time of the detention, she was now sure that he was not in fact the man who committed the robbery. Special Agent Fabian was not present at the scene of the arrest, and only became involved in the investigation afterwards, at which time Cain had already stood in the line-up at which he was not identified. At the time Fabian began his inquiries, he knew Cain was seen driving away from the vicinity of the robbery shortly after it was committed, that Cain was suspected of another robbery, and that Cain had recently been released from prison. These facts appear independent of the arrest.

Thus, the only evidence directly arising out of the detention was Wilkinson's identification, which was not ultimately used against Cain at trial. Cain nevertheless asserts that Shepard's testimony should have been excluded on the basis of the illegal detention.

The exclusionary rule serves a broad purpose of deterring lawless police conduct. It also "serves another vital function--'the imperative of judicial integrity'," i.e., that the courts will not be a party to convictions obtained by virtue of lawless invasions of constitutional rights. Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889. These purposes must be weighed against the cost of encroaching upon the public interest in prosecuting those accused of crime and having them fairly convicted upon the basis of evidence which exposes the truth. Ceccolini, supra, 98 S.Ct. at 1060. Consideration of these competing policies has led the Court to carefully define the scope of the fruit of the poisonous tree doctrine and its exceptions. See United States v. Ramirez-Sandoval (1989) 9th Cir. 872 F.2d 1392, 1395-96. Whereas the Court has consistently excluded tainted evidence, it has avoided immunizing the victims of illegal arrests from all further investigation and prosecution for the crimes. It simply requires that the State use only "clean" evidence in proving its case before the jury. Thus, Ceccolini and its progeny require a careful inquiry into the causal connection between the illegal arrest and the discovery of the evidence, particularly where, as here, the evidence sought to be suppressed is testimonial.

As noted above, it is not demonstrated that Special Agent Fabian relied upon Wilkinson's identification in deciding to investigate Cain. There were ample independent facts and inferences to justify the further investigation of Cain. ⁵

The evidence uncovered through Special Agent Fabian's investigation was properly admitted into evidence...