Hunt v. State

• Decision Date: 08 March 1990
• Docket Number: No. 71A03-8906-CR-267,71A03-8906-CR-267
• Citation: 550 N.E.2d 838
• Parties: Johnny B. HUNT, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 838

550 N.E.2d 838

Johnny B. HUNT, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 71A03-8906-CR-267.

Court of Appeals of Indiana Third District.

March 8, 1990.

Susan K. Carpenter, Public Defender, Kathleen A. Leseur, Deputy Public Defender, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Danielle Sheff, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Johnny B. Hunt (Hunt) appeals from his conviction following a jury trial for murder and class C robbery. Hunt was sentenced to fifty years on the murder charge and eight years for robbery with such sentences to be served consecutively. We affirm.

ISSUES

Hunt presents five issues for our review which we restate as follows:

(1) Whether the trial court erred in denying Hunt's motion to suppress his statement as given to the police on the grounds that (a) his warrantless arrest in the house where he resided as ordered by the prosecutor's office was in violation of the fourth amendment, (b) he demanded counsel when arrested but was never given the opportunity to consult therewith prior to questioning, or (c) the waiver of his right to silence and counsel was not knowingly, intelligently, or voluntarily made as he is educationally limited and functionally illiterate;

(2) Whether the trial court erred in overruling Hunt's relevancy objection to testimony that (a) Hunt had possession of the murder weapon more than a month prior to the crime and (b) that Hunt had previously expressed a willingness to hurt or kill if necessary;

(3) Whether the trial court erred in refusing to read to the jury Hunt's final instruction number five concerning the matter of reasonable doubt as to an essential element of the crime arising from evidence of subsidiary facts;

(4) Whether the jury's written question to the court during deliberation concerning the distinction between armed robbery as charged and a class C robbery as submitted to the jury indicated that the jury was considering matters not submitted to it such that the trial court should have ordered a new trial; and

(5) Whether the trial court's imposition of enhanced and consecutive sentences was manifestly unreasonable and not supported by the record.

FACTS

The facts supporting the jury's verdict show that in the early morning hours of August 7, 1983 Gregory White and his friend Peter Davis were sitting along the retaining wall which surrounds the island in South Bend's Leeper Park. White and Davis were drinking beer and snorting cocaine. Hunt, a 23 year old black man, and a juvenile white male named Lee Eddy approached White and Davis from behind. After engaging in casual conversion with the two, Hunt demanded that White and Davis give up their money. Hunt held a gun to the back of Davis' head and forced him to lie down. Eddy held something, later believed to be an unopened lockblade knife, to White's neck. After the victims surrendered their wallets, Eddy pushed White off the wall and Hunt killed Davis with a single-shot muzzle loading pistol. White crouched along the retaining wall until Hunt and Eddy left. Because it was so dark, White could not identify the assailants beyond noting that one was black and the other was white.

The record is unclear as to how the police first came to focus their attention upon Eddy. Nonetheless, Eddy's August 8, 1983 statement to police implicated Hunt. The police acquired the gun and White and Davis' wallets when the SBPD's Sergeant Bassell accompanied Eddy and his father to the home of Feliz Vasquez. Hunt and Eddy had gone to Vasquez's house after the crime. Carol Horning let Hunt and Eddy into the Vasquez home that morning and gave them the bag into which the items were placed. Horning testified that Hunt then told her that they had just shot a man. Horning also testified that Hunt and Eddy were laughing and bragging about the crime.

Based on White's and Eddy's statements and the items recovered from the Vasquez home, the prosecutor's office instructed the SBPD's homicide officers to detain Hunt for questioning. In the late evening hours of August 8, 1983, five SBPD officers met at the Sanders residence at 121 Elm Street. Hunt had been living there with Loretta Sanders for two to three months. The evidence presented at the suppression hearing is in conflict as to the events that took place near and in the Sanders residence.

Three SBPD officers testified that, after knocking and asking to be invited in by Sanders, they arrested Hunt and removed him from the house. The Sanders house was full of people that evening with several of the adults either consuming alcohol or smoking marijuana. Sanders testified that she first encountered the officers while outside the house and that they followed her into the home. Sanders' sister, Georgetta, testified that Loretta was outside when the police arrived and they followed her back inside. Georgetta's husband, Cephus Phillips, testified along with Hunt that at the time of the arrest Hunt said "Get me a lawyer" without addressing that comment to anyone in particular. The officers testified that they heard no such request.

Hunt was taken to the police station for questioning. There he signed a rights waiver form and a statement as prepared allegedly from Hunt's own words. In this statement, Hunt characterizes the killing as one of self defense. Hunt claimed later that he believed the document he signed (on each page) was not a statement but rather a property inventory sheet completed as part of the booking process. Everyone is in agreement that Hunt cannot read very well. Hunt claims he made no statement to the police. The circumstances surrounding the taking of that statement were the focus of Hunt's unsuccessful suppression motion.

Hunt's case went to trial. Eddy did not testify despite the fact that he had previously been found guilty of various crimes for his participation in this matter. The jury returned a guilty verdict and the court ordered Hunt to serve consecutive sentences of fifty years for the murder of Peter Davis and eight years for the robbery of Gregory White. Hunt's motion to correct errors was denied; however, Hunt did not then perfect a timely direct appeal. On June 29, 1989 this court granted Hunt's petition to file a belated appeal.

Issue I: The Motion to Suppress Hunt's Statement.

As noted above, Hunt's argument on appeal concerning the denial of his motion to suppress has three aspects. We address each in turn.

a. Illegal arrest.

Hunt argues that his arrest was illegally conducted, so the statement he gave police was inadmissible "fruit of the poisonous tree." We disagree. Hunt's arrest was within the dictates of the fourth amendment. Regardless of whether Hunt was initially so informed or not, he was under arrest when he was frisked and removed from the Sanders home. See Phillips v. State (1986), Ind., 492 N.E.2d 10. However, that arrest, though warrantless, was permissible as the officers, particularly Homicide Detective Darrell Grabner, had both probable cause to believe that Hunt had committed a felony and the consent of the owner/possessor to enter those premises.

Even if Hunt had a legitimate expectation of privacy in the Sanders residence so as to raise a fourth amendment challenge to his arrest, see Burris v. State (1984), Ind., 465 N.E.2d 171, 182-83; Rakas v. Illinois (1978), 439 U.S. 128, 142, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 400, we find that Sanders' consent to the officers' entry is sufficient to overcome Hunt's fourth amendment claim. ¹ That is, the holding in Payton v. New York (1980), 445 U.S. 573, 584, 100 S.Ct. 1371, 1378, 63 L.Ed.2d 639, 649, with respect to a warrantless entry into a suspect's home is not controlling here because, as Justice Stevens' majority opinion specifically pointed out, in Payton the court was "dealing with entries into homes made without the consent of any occupant." Here the facts, although disputed, support to the requisite level of proof the trial court's conclusion that Loretta Sanders voluntarily consented to the entry of the police officers, one of whom was in uniform. The consent to the entry of a suspect's home by police officers as given by even an unrelated co-occupant is sufficient to overcome the accused's fourth amendment claim. See 2 LaFave, Search and Seizure Sec. 6.1(c), 582, n. 81. See also United States v. Briley (8th Cir.1984), 726 F.2d 1301 (occupant of apartment, defendant's girl friend, consented to the entry); State v. Gerlaugh (1982), 134 Ariz. 164, 654 P.2d 800, opinion supplemented 135 Ariz. 89, 659 P.2d 642 (another occupant invited police in); People v. Adams (1980), 91 Ill.App.3d 1059, 47 Ill.Dec. 605, 415 N.E.2d 610 (another tenant admitted the police); State v. Ferguson (Mo.1981), 624 S.W.2d 840 (consent by co-occupant); Feaster v. State (Okl.Crim.App.1981), 635 P.2d 617 (consent by co-occupant).

b. Hunt's alleged demand for counsel.

The second rationale Hunt offers for labelling as error the trial court's refusal to suppress his statement arises from his claim that he requested counsel at the time of his arrest. Consequently, Hunt argues, because he was questioned before being provided counsel, the statement he gave police is inadmissible on the grounds that such questioning violated his rights under the fifth and sixth amendments.

However, Hunt misses the point. The analysis he offers us would be applicable if it was established that he had in fact demanded counsel when he was arrested. As the matter sits before us, the issue is whether the record supports the trial court's conclusion that Hunt either did not demand that he be given counsel or that the officers did not hear that demand. That is, on appeal from the denial of a motion to suppress, the question is one of the sufficiency of the evidence, so we merely look at the evidence most favorable to the trial court's ruling to determine whether it supports that ruling. See Zimmerman v. State (1984),...