Huspon v. State

Decision Date06 November 1989
Docket NumberNo. 49S00-8705-CR-495,49S00-8705-CR-495
Citation545 N.E.2d 1078
PartiesJames L. HUSPON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Walter E. Bravard, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. and Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in appellant's conviction of Murder, for which he received a sentence of sixty (60) years, Burglary, a Class A felony, for which he received a sentence of fifty (50) years, and Robbery, a Class A felony, for which he received a sentence of fifty (50) years, his sentences to be served consecutively.

The facts are: At approximately 5:30 a.m. on December 12, 1985, Juana Scott was delivering the morning newspaper to homes on Moreland Avenue in Indianapolis. She saw three black males running out of a house on Moreland, and when they saw her, they stopped and huddled together. When the three men proceeded down an alley, Scott continued delivering her newspapers. When she delivered the paper to 936 Moreland, the home of Boris Tom, she noticed that the lights were on in the home, which was unusual. She looked inside the home and saw a man lying face down on the floor. She realized that this was the home from which she had seen the three men running. She called the police.

When police arrived at Tom's home, his car engine was still warm, and he was still alive. However, Tom later died from a gunshot wound to the chest. In Tom's home, police found obscene handwritten messages on the walls indicating the victim was homosexual and that they intended to kill him.

Later in the morning on December 12, 1985, appellant's neighbor saw two young black men, who were carrying what appeared to be a gun, enter a vacant house on the block. Police were called and they arrested the two men, who were appellant's brother and appellant's cousin, outside of appellant's home. Police obtained permission from appellant's mother to search his home for the purpose of conducting an investigation for stolen or sawed-off weapons. In appellant's room, police found a pair of binoculars which were later identified as belonging to Tom. Also they found a commemorative coin and a car key belonging to Tom. Several miniature liquor bottles were found hidden in appellant's home and in the vacant house next door. Tom had possessed similar bottles. The police found more bottles in the binocular case which they found outside of Tom's home.

A handwriting expert compared the handwriting of appellant and his brother with that of the handwriting on the walls in Tom's home. The expert testified that most of the writing on the walls was done by appellant. A fingerprint found on a tissue box in Tom's home was determined to be that of appellant's brother.

Kenneth Edwards, an acquaintance of appellant, testified that before Tom was killed, appellant told him that he was going to break into the house at 936 Moreland and that Tom was a "fag."

Robert Henson testified that when he was incarcerated with appellant in the Marion County Jail, he heard appellant say that he, his brother, and his cousin went into the man's house, took stuff, and left. They came back later when the man was there and appellant's brother shot him.

Appellant argues that his convictions are not sustained by sufficient evidence. He concedes that evidence was presented which established that he had been in Tom's home, but he claims that no evidence proved he was in his home at the time he was killed, or that he was connected to the killing at all. He also states that the testimony of Juana Scott, Kenneth Edwards, and Robert Henson was not credible, he was denied his lawful presumption of innocence, and his convictions rest upon unreliable circumstantial evidence.

On a claim involving the sufficiency of the evidence, this Court will not reweigh the evidence nor judge the credibility of the witnesses. Moore v. State (1987), Ind., 515 N.E.2d 1099. We note that the jury was instructed on the presumption of appellant's innocence; thus, a claim of denial of that presumption cannot stand. Oates v. State (1982), Ind., 429 N.E.2d 949.

The State's burden of proof on each element of an offense charged may be established by circumstantial evidence and the logical inferences drawn therefrom. Watkins v. State (1984), Ind., 468 N.E.2d 1049. On review, this Court need not determine that circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence but only that an inference may reasonably be drawn which supports the finding of guilt. Kremer v. State (1987) Ind., 514 N.E.2d 1068; Smith v. State (1984), Ind., 468 N.E.2d 512.

Appellant possessed the property stolen from Tom, including his car key, and an expert testified that appellant had done most of the writing on the walls, which included such sayings as, "Kill Fags," and "Dear Tom why are you gay I'm gonna kill you." From the evidence, the jury may have reasonably inferred that appellant broke into Tom's home to steal his property, either left and came back, or lay in wait for Tom to come home, then took his car key and killed him. Even if appellant's brother shot Tom, appellant is responsible for his murder under accomplice liability principles. Ford v. State (1988), Ind., 521 N.E.2d 1309. These facts support appellant's conviction of burglary, robbery, and murder.

Appellant asserts reversible error occurred when the trial court admitted into evidence items police found in appellant's bedroom. He contends that he was not given his Miranda rights before he gave his consent to police for the search of his room. Because the State failed to prove he explicitly waived his right to counsel before he consented to the search, appellant concludes the articles found during the search should have been excluded.

During the motion to suppress hearing, Officer Aurs testified that they responded to a call directing them to a vacant house into which a witness had seen two black males carry what he believed were sawed-off shotguns. When police located the witness, he told them the men left the vacant house and went into appellant's house. A brief search of the vacant house revealed no weapons.

Police saw two men exit appellant's house and they were arrested. Officer Aurs then approached appellant's residence and told appellant's mother that they had received information that sawed-off shotguns had been carried into her home. She told him that there was nothing in the house, and they were welcome to search it. She signed a consent to search form, and they searched the house. When they approached appellant's bedroom, police asked her whether anyone was in there, and she said her son was and that it was his room. They asked appellant whether they could enter and search his room, and he consented. He also consented to their search of a suitcase in his room. Inside, Detective Aurs found a bottle of Seagram's Bicentennial Edition 7 Crown, which matched three bottles he had found in investigating the burglary of Tom's house, and other items belonging to Tom.

Appellant asserts he had an expectation of privacy in his bedroom and he was entitled to the advice of counsel before giving his consent, citing Pirtle v. State (1975), 263 Ind. 16, 323 N.E.2d 634. This Court held in Pirtle that a consent to search was invalid when given by one under full custodial arrest, after having stopped a formal police interrogation by requesting the opportunity to confer with an attorney. Peterson v. State (1987), Ind., 514 N.E.2d 265.

Appellant was not in custody at the time he gave his consent. Officer Aurs testified that during the search, appellant remained in his bedroom and made no attempt to leave the room. He stated that appellant was not in custody at any time, but that if he had attempted to leave the room, he probably would have stopped him because of the possibility that weapons could be found in other parts of the house. However, appellant was unrestrained and had no reason to believe he could not leave. It is appellant's perception of his position as to whether he reasonably believed his freedom of movement would have been curtailed by police which is relevant in determining whether he was in custody. Scott v. State (1987), Ind., 510 N.E.2d 170. We find that appellant was not in custody at the time he gave his consent; thus the rule in Pirtle does not apply to his case.

Additionally, appellant's mother signed a consent to search form and thereby obviated the search warrant requirement. Stallings v. State (1987), Ind., 508 N.E.2d 550. The record shows that appellant's mother was a co-lessee of the residence with her boyfriend. At the time of the search, appellant was approximately eighteen years old and shared a room with his brothers in his mother's home, without paying rent. We find the warrantless search was proper because appellant's mother had the authority to consent to a search of the entire house, and appellant himself consented to the search of his room. United States v. Wright (8th Cir.1977), 564 F.2d 785. Therefore, the evidence seized pursuant to that search was properly admitted at trial.

Appellant contends that because the warrantless search was illegal, the fruits of that search should not have served as a basis for a later search warrant, and his motion to quash the search warrant and suppress the evidence found pursuant to the second search should have been granted. We stated above that the warrantless search was proper. Therefore, appellant's argument is without merit.

Appellant argues reversible error occurred when the trial court admitted into evidence State's Exhibits Nos. 80, 81, and 82 and testimony relating to these exhibits.

After appellant's arrest, the State obtained an order for a sample of his handwriting. The State's handwriting expert determined that appellant had attempted to disguise his handwriting in part of the sample. Therefore, the State obtained a warrant to...

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9 cases
  • Kubsch v. State
    • United States
    • Supreme Court of Indiana
    • 14 March 2003
    ......State, 673 N.E.2d 472, 474 (Ind.1996) (quotation omitted). Further, a person is not in custody where he is "unrestrained and ha[s] no reason to believe he could not leave." Huspon v. State, 545 N.E.2d 1078, 1081 (Ind.1989) . We conclude that no reasonable person in Kubsch's position would have believed that he was under arrest. Not only did he have reason to believe he could leave, he was unrestrained and actually did leave, after both the first and second interview. ......
  • Clarke v. State
    • United States
    • Supreme Court of Indiana
    • 26 June 2007
    ......Accordingly, his Pirtle rights were not violated. See also Peterson v. State, 514 N.E.2d 265 (Ind.1987) (holding that the defendants' consent was a valid waiver of Fourth Amendment rights because they were not in custody); Huspon v. State, 545 N.E.2d 1078 (Ind.1989) (same).         Sellmer v. State, 842 N.E.2d 358 (Ind. 2006), is consistent with our holding today. In that case we concluded that a reasonable person in Sellmer's circumstances would believe either that she was under arrest or, at least, that she was ......
  • Thomas v. State
    • United States
    • Court of Appeals of Indiana
    • 1 November 1990
    ...... . Page 47. Martinez Chavez, supra, at 738; Ford v. State (1988), Ind., 518 N.E.2d 1082, 1084. Additionally, a person may be convicted of felony murder even though it was her accomplice who killed the victim. Martinez Chavez, supra, at 735; Huspon v. State (1989), Ind., 545 N.E.2d 1078, 1081; Splunge v. State (1988), Ind., 526 N.E.2d 977, 982, cert. denied --- U.S. ----, 109 S.Ct. 3165, 104 L.Ed.2d 1028. An accomplice is a person who aids another person to commit an offense and will be treated as if she committed the same offense. IC ......
  • Joyner v. State, 20S00-9804-CR-225.
    • United States
    • Supreme Court of Indiana
    • 4 October 2000
    ......Even where a person freely and voluntarily accompanies officers to police headquarters, there is no arrest. Williams v. State, 611 N.E.2d 649, 651 (Ind.Ct.App.1993) . Here, Joyner was not accompanied by police officers. Further, Joyner was not detained when he decided to leave. See Huspon v. State, 545 N.E.2d 1078, 1081 (Ind.1989) (appellant not in custody where he "was unrestrained and had no reason to believe he could not leave."). We conclude that a reasonable person in the circumstances Joyner found himself would believe that he was free to resist the entreaties of the police. ......
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