Johnson v. State

• Decision Date: 08 June 2005
• Docket Number: No. 49A04-0409-CR-477.,49A04-0409-CR-477.
• Parties: Donald JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

829 N.E.2d 44

Donald JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0409-CR-477.

Court of Appeals of Indiana.

June 8, 2005.

COPYRIGHT MATERIAL OMITTED

Victoria Ursulskis, Marion County Public Defender, Indianapolis, for Appellant.

Steve Carter, Attorney General of Indiana, Kelly A. Miklos, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

RILEY, J.

STATEMENT OF THE CASE

Appellant-Defendant, Donald Johnson (Johnson), appeals his convictions for robbery, a Class B felony, Ind.Code § 35-42-5-1; and carrying a handgun without a license, a Class A misdemeanor, Ind.Code § 35-47-2-1.

We affirm.

ISSUE

Johnson raises one issue on appeal: whether the trial court erred when it denied his Motion to Suppress and admitted his confessions at trial.

FACTS AND PROCEDURAL HISTORY

On December 6, 2003, L.P. Steward (Steward), the assistant manager of Popeye's Chicken (Popeye's), was making a deposit at a local bank when he was approached by two men, later identified as Jason Byrd (Byrd) and Johnson. Johnson, who was brandishing a gun, ordered Steward to give him the money. Steward complied and then fled. Byrd and Johnson then ran to a car driven by Dejaun Kilpatrick (Kilpatrick). Kilpatrick drove them to the apartment of Kelanda Honeycutt (Honeycutt), Byrd's girlfriend. There, the men divided the money.

After Steward had fled, he called the Indianapolis Police Department. Two days later, Detective John Correll (Detective Correll) was assigned to the case. Detective Correll first contacted Steward, who gave a detailed account of the robbery. On December 10, 2003, Detective Correll was contacted by another Popeye's employee, Andre McEachaem (McEachaem), who claimed that he had information about the robbery. After speaking with McEachaem, Detective Correll learned that McEachaem had taken statements from two Popeye's employees, Honeycutt and Al Nissah Rainey (Rainey). In her statement, Honeycutt claimed that three men, "Don-Don, Juan and Jason Byrd[,] had been involved in the robbery." (Transcript p. 17). Honeycutt further stated that the men used a green Chevy Caprice, which she believed had been towed a couple days after the robbery in an unrelated incident. Rainey also implicated a man named "Don-Don" in the robbery. (Tr. p. 18).

After receiving the information, Detective Correll checked police records to determine the validity of Honeycutt's statement concerning the Chevy Caprice. Although Detective Correll was unable to confirm whether a green Chevy Caprice had been used in the robbery because the victim had not seen the vehicle, he did learn that a vehicle matching Honeycutt's description had been towed a few days after the robbery. Further investigation revealed that the towed vehicle had been driven by Johnson and Kilpatrick.

On December 17, 2003, Detective Correll interviewed Kilpatrick, who implicated Johnson in the robbery. As a result, Detective Correll entered Johnson's name in a computer database to alert other officers that Johnson was wanted for questioning. However, no charges were filed against Johnson and no warrant was issued for his arrest.

Several weeks later, on January 10, 2004, Indianapolis Police Officer Kevin Kern (Officer Kern) responded to a call that three males, one of whom was Johnson, were sitting in a parked car drinking alcohol. After approaching the vehicle, Officer Kern asked the men for identification. Officer Kern's investigation revealed that Johnson was under twenty-one years of age and "had an odor of alcohol on his breath." (Tr. p. 8). Officer Kern then checked the names in the computer database and learned that Johnson was wanted for questioning. As a result, Officer Kern immediately contacted Detective Correll, who instructed Officer Kern to bring Johnson in for questioning. Johnson was placed in handcuffs and transported to the Indianapolis Police Department.

When Johnson arrived, he was taken to Detective Correll's office. There, Detective Correll read Johnson his Miranda¹ rights and informed him that he was a suspect in a robbery. However, Detective Correll did not have Johnson sign a waiver of his Miranda rights at that time. Although Johnson initially denied any involvement in the robbery, he later indicated his willingness to give a statement after learning that Kilpatrick, Honeycutt, and Rainey had implicated him in the robbery. To determine if his statement was going to be relevant, Detective Correll conducted a pre-tape interview. After Johnson began to admit his involvement in the robbery, Detective Correll stopped Johnson and told him that he was going to tape his statement. Detective Correll turned on the tape and again advised Johnson of his Miranda rights. Detective Correll then had Johnson read a "Waiver of Rights" form aloud and sign it. (State's Exhibit 1). When Detective Correll asked Johnson if he understood his waiver, Johnson responded that he did. In his statement, Johnson admitted to robbing Steward at gunpoint.

On January 12, 2004, Johnson was charged with Count I, robbery, a Class B felony, Ind.Code § 35-42-5-1; and Count II, carrying a handgun without a license, a Class A misdemeanor, I.C. § 35-47-2-1. On July 8, 2004, Johnson filed a motion to suppress both statements. The hearing on the motion was held July 12, 2004, the morning of Johnson's jury trial. Following the hearing, the trial court denied Johnson's motion. Thereafter, Johnson waived his right to a jury trial and proceeded to a bench trial. The trial court found Johnson guilty as charged. On August 6, 2004, Johnson was sentenced to eight years imprisonment with two years suspended, to be served on probation, for the robbery. He was also ordered to serve a one-year concurrent sentence for carrying a handgun without a license.

Johnson now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

We review the denial of a motion to suppress similar to claims challenging the sufficiency of the evidence. We do not reweigh the evidence. Wessling v. State, 798 N.E.2d 929, 934 (Ind.Ct.App.2003). Rather we consider the evidence most favorable to the trial court's ruling and any uncontested evidence favorable to the defendant. Id.

II. Admissibility of the Confessions

A. Probable Cause

Johnson first contends that Officer Kern did not have probable cause to arrest him for robbery when he was apprehended in the parking lot. Johnson concedes that a police officer may make a warrantless arrest when he has probable cause to believe the defendant committed a felony. See Ind.Code § 35-33-1-1(a)(2) ("A law enforcement officer may arrest a person when the officer has ... probable cause to believe the person has committed or attempted to commit, or is committing or attempting to commit, a felony."). Johnson also concedes that Detective Correll testified at the suppression hearing and related the information he had concerning Johnson's involvement in the robbery. Nevertheless, Johnson maintains that the information provided by Detective Correll was "without detail, corroboration, or any semblance of connectivity of a criminal act to Johnson...." (App.Br. p. 19). Thus, Johnson contends that the trial court did not have sufficient facts before it on which to make an independent determination of probable cause for robbery. Consequently, Johnson contends that his confessions should have been suppressed under the federal and state constitutions.

The Fourth Amendment protects against unlawful seizures. Winebrenner v. State, 790 N.E.2d 1037, 1040 (Ind.Ct.App.2003). Thus, as a general rule, a confession, which is the product of an illegal arrest, must be suppressed. Hughes v. State, 179 Ind.App. 336, 385 N.E.2d 461, 465 (1979), trans. denied. The State responds, however, that Officer Kern lawfully arrested Johnson for consumption of alcohol by a minor.

Pursuant to statute, a warrantless arrest is permitted if a police officer has "probable cause to believe the person is committing or attempting to commit a misdemeanor in the officer's presence." I.C. § 35-33-1-1(a)(4). "Probable cause adequate to support a warrantless arrest exists when, at the time of the arrest, the officer has knowledge of facts and circumstances that could warrant a person of reasonable caution to believe that the suspect committed a criminal act." Wessling, 798 N.E.2d at 934-35. The offense of illegal possession is a Class C misdemeanor and is committed by a minor who knowingly consumes alcohol. I.C. § 7.1-5-7-7(a)(2). "The term `minor' means a person less than twenty-one (21) years of age." I.C. § 7.1-1-3-25.²

At the suppression hearing, Officer Kern testified that Johnson's identification card revealed that Johnson was under twenty-one years of age. Officer Kern further testified that he smelled alcohol on Johnson's breath. Thus, Officer Kern had sufficient knowledge of facts and circumstances that would cause a reasonable person to believe that Johnson had committed illegal possession in his presence. See Walker v. State, 764 N.E.2d 741, 743 (Ind.Ct.App.2002) (holding that consumption of alcohol by a minor is committed in police officer's presence when "evidence of consumption is readily apparent from the minor's person to an officer in the minor's presence"), reh'g denied.³

While lawfully in custody on the consumption charge, Johnson confessed to the robbery. While it is evident that the police were interested in questioning Johnson concerning his suspected involvement in the robbery, we find nothing unlawful with Johnson's arrest. See Cornett v. State, 536 N.E.2d 501, 504-05 (Ind.1989) (finding defendant's warrantless arrest for public intoxication lawful when police observed defendant in intoxicated state in public place, even though arrest was made while police were investigating defendant's suspected involvement in a robbery and evidence discovered after arrest was admitted at defendant's trial for robbery); Foster v. State, 633 N.E.2d...