Henson v. State, No. 49A05-0302-CR-73.

• Docket Nº: No. 49A05-0302-CR-73.
• Citation: 790 N.E.2d 524
• Case Date: June 23, 2003
• Court: Court of Appeals of Indiana

790 N.E.2d 524

Timothy HENSON, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 49A05-0302-CR-73.

Court of Appeals of Indiana.

June 23, 2003.

790 N.E.2d 526

John (Jack) F. Crawford, Crawford & Devane, Indianapolis, IN, Attorney for Appellant

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

790 N.E.2d 525

OPINION

MATHIAS, Judge.

Timothy Henson ("Timothy") was convicted of attempted murder, a Class A felony,¹ in Marion Superior Court and sentenced to serve fifty years executed. At trial, Timothy moved to suppress evidence of a telephone conversation, which was illegally intercepted with a modified police scanner. The trial court denied the motion finding that although the conversation was illegally intercepted, the police played no part in that illegal interception, and therefore the evidence was admissible. Timothy appeals his conviction raising two issues, which we restate as:

I. Whether the trial court abused its discretion when it denied Timothy's motion to suppress the evidence of the illegally intercepted telephone conversation; and,

II. Whether the trial court abused its discretion when it denied Timothy's motion for a mistrial.

We conclude that the trial court erred when it recognized a "clean hands" exception to the use of illegally intercepted communications and denied Timothy's motion to suppress.² However, the admission of that evidence constitutes harmless error. Also, the trial court did not abuse its discretion when it denied Timothy's motion for a mistrial. We therefore affirm.

Facts and Procedural History

Timothy and Wesla Roberts ("Roberts") were engaged and living together until the end of September of 2001, when Roberts ended the relationship. On the day she moved out of their apartment, Roberts obtained a protective order against Timothy. After she ended the relationship, Timothy began to follow Roberts, call her at her workplace, and page her. Timothy also left messages for Roberts stating that he wanted to resume their relationship and that "he couldn't live without" her. Tr. p. 59.

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On November 9, 2001, at approximately 8:00 p.m., Roberts was in the parking lot of the American Bandstand restaurant on the northeast side of Indianapolis when she saw Timothy drive up behind her. Tr. p. 62. Therefore, she drove out of the parking lot and decided to go home. As she was stopped at a stoplight, Timothy pulled up along side her vehicle and starting yelling at her to pull over. Tr. pp. 64-65. Roberts became upset and started crying, and when the light changed, Roberts drove west onto 86th Street towards Keystone Avenue

After she passed Keystone Avenue, Roberts turned onto Woodfield Crossing and then pulled her vehicle over to the side of the road because she was upset and needed to calm down. Tr. p. 68. Timothy caught up with Roberts, and when he arrived at her vehicle, he reached in through her open driver's side window, grabbed her, and stabbed her in the neck. Tr. p. 69. Eventually, Roberts was able to put her vehicle in reverse and drive away. She then drove to a gas station on Keystone Avenue and was able to get help. After she was admitted to the hospital, Roberts, who was unable to speak, stated in writing that Timothy was responsible for the stabbing. Tr. p. 75, Ex. Vol., State's Ex. 4, 5.

On November 14, 2001, Timothy was charged with attempted murder and aggravated battery, but he was not taken into custody because he could not be found. Marion County Sheriff's Deputy Gregory Scheid ("Deputy Scheid") was assigned to investigate the attempted murder of Roberts. After an unidentified individual contacted the hospital to inquire about Roberts' status, the hospital contacted Deputy Scheid and gave him the caller's telephone number. The caller was later identified as Paul Carey ("Carey").

On November 27, 2001, Deputy Scheid, accompanied by Detective Dave Wilkes, went to Carey's residence to speak with him about the calls he had made to the hospital. When Deputy Scheid arrived at the residence, Carey grabbed his arm and dragged the deputy into his kitchen. As he was doing so, Carey told Deputy Scheid that he had information about a man who "had cut a woman's throat." Tr. p. 180. Carey explained that he had a police scanner, which "was on all day long," that was intercepting telephone conversations, and that he "knew all of the frequencies for [the phone numbers] of all of his neighbors." Tr. p. 33. Deputy Scheid and Carey then listened to a telephone conversation between Timothy and his sister, Kimberly Henson ("Kimberly"), which was intercepted by the police scanner.

During the conversation, Kimberly warned Timothy that the police were looking for him.³ Tr. p. 32. Also, Timothy told Kimberly that he needed clean clothing and money, and Kimberly arranged to take those items to Timothy at the house where he was staying. Tr. pp. 31-32. During the conversation, Timothy made

790 N.E.2d 528

several references to Roberts and stated that "if this went to trial, that he would attempt to make a[n] insanity plea." Tr. p. 33. After that telephone call ended, Timothy then made several telephone calls to various cell phone companies. Tr. p. 32. Both Deputy Scheid and Detective Wilkes remained at Carey's residence for over two hours listening to Timothy's various telephone calls over the police scanner. Timothy was taken into custody later that day

A jury trial commenced on September 16, 2002. At trial, Timothy moved to suppress from "evidence any and all testimony or evidence concerning a telephone conversation allegedly heard by police on November 27, 2001 at the home of Paul Carey." Appellant's App. p. 76. At the hearing on the motion to suppress, Deputy Scheid testified that he was aware that it was illegal to record the conversation, but that he did not know it was illegal for him to listen to it or for Carey to intercept it. Tr. pp. 37-38. Although he testified that at the time he did not feel it was necessary to obtain a warrant, Deputy Scheid admitted that it would have been possible for either himself or Detective Wilkes to have attempted to obtain a warrant, but that they did not do so. Tr. p. 38. The trial court determined that interception of the telephone call was illegal,⁴ but denied the motion as to the conversation between Timothy and Kimberly because Detective Scheid played no part in the illegal interception and "inadvertently" walked in and heard that conversation on the police scanner. Tr. pp. 43-44. However, the trial court granted the motion with regard to any conversations heard by Scheid after that initial conversation during the two hours Scheid remained in Carey's residence listening to the illegally intercepted communications. Id.

Also at trial, Timothy's mother, Bertha Shelton ("Shelton"), testified that on the evening of November 9, 2001, Timothy and Kimberly had dinner at her house, and Timothy remained at her home until approximately 8:00 p.m. Tr. p. 210. During cross-examination the State asked Shelton if the events that took place on November 9 "could also be corroborated" by Kimberly. Tr. p. 221. Timothy objected and moved for a mistrial because Kimberly, who was also facing criminal charges, could not be compelled to testify because of her Fifth Amendment privilege against self-incrimination. Tr. p. 222. The trial court denied the motion.

The jury found Timothy guilty of both attempted murder and aggravated battery. The trial court vacated Timothy's aggravated battery conviction and sentenced him to serve fifty years executed for his attempted murder conviction. Timothy now appeals. Additional facts will be provided as necessary.

I. Motion to Suppress

A. Standard of Review

When we review a trial court's ruling on a motion to suppress, we review the record for substantial evidence of probative value to support the trial court's determination. Willsey v. State, 698 N.E.2d 784, 789 (Ind.1998). We do not reweigh the evidence or reassess the credibility of witnesses. We resolve conflicting evidence in favor of the trial court and consider any substantial uncontroverted evidence. Id. However, where the issue presented on appeal is a question of law, we review the matter de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997).

B. The Historical Development of Title III of the Omnibus Crime Control and Safe Streets Act of 1968

During the prohibition era, law enforcement officers principally relied upon information

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obtained by wiretaps as the basis for prosecutions. Berger v. New York, 388 U.S. 41, 46, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). In 1928, the United States Supreme Court, faced with its first case involving wiretapping, held that where interception of the defendant's telephone line was accomplished without entry into his residence, there was no Fourth Amendment violation. Id. at 50-51, 87 S.Ct. 1873 (citing Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928)). Six years later, in 1934, possibly in response to the Olmstead decision, Congress passed section 605 of the Communications Act of 1934, which "outlawed the interception without authorization, and the divulging or publishing of the contents of wiretaps." Id. at 46, 51, 87 S.Ct. 1873.

Despite the federal law, the use of wiretaps in state law enforcement investigations continued under state statutes, and the constitutionality of New York's statute was challenged in Berger. The statute at issue in that case authorized "the issuance of an `ex parte order for eavesdropping'" if certain specified individuals would swear under oath "`that there is a reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded and the purpose thereof, and ... identifying the particular telephone number...