Kendall v. State, No. 49A02-0312-CR-1032.

Docket NºNo. 49A02-0312-CR-1032.
Citation825 N.E.2d 439
Case DateApril 18, 2005
CourtCourt of Appeals of Indiana

825 N.E.2d 439

Joshua KENDALL, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 49A02-0312-CR-1032.

Court of Appeals of Indiana.

April 18, 2005.


825 N.E.2d 443
Lesa Lux Johnson, Indianapolis, IN, Attorney for Appellant

Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Joshua Kendall appeals his convictions and sentence for dealing in cocaine as a class A felony and resisting law enforcement as a class A misdemeanor. The State cross-appeals the trial court's failure to enter a judgment of conviction on the jury's additional guilty verdict for one count of possession of cocaine and a firearm, a class C felony. We affirm in all respects.

Issues

Kendall raises the following issues for our review:

I. whether the trial court abused its discretion when it denied his motion for severance of his trial from that of his co-defendant and brother, Thomas Kendall;
II whether the trial court abused its discretion when it denied his Batson
825 N.E.2d 444
challenge to the State's peremptory strikes of African-American jurors;
III. whether the trial court abused its discretion when it denied his motion to suppress evidence;
IV. whether the trial court erred when it made an alleged nunc pro tunc entry regarding its ruling on the motion to suppress; and
V. whether his sentence is inappropriate.1

The State's sole cross-appeal issue is whether the trial court erred when it vacated Kendall's possession of cocaine and a firearm conviction on double jeopardy grounds.

Facts

The facts most favorable to the judgment reveal that at around 8:00 p.m. on December 5, 2000, Indianapolis Police Department Officers Jack Tindall and Christopher Lawrence were dispatched to 407 North Hamilton in Indianapolis to investigate an anonymous tip that someone in that house was "cooking drugs." Tr. at p. 272.2 The residence is a duplex, with 407 North Hamilton on the left side (looking from the front) and 405 North Hamilton on the right. There is a sidewalk that runs from the front porch of 407 North Hamilton, along the north side of the house, to the back door.

After Officers Tindall and Lawrence arrived at the residence, they walked to the front porch. When no one answered Officer Tindall's first knock, he knocked again and said, "Police Department[.]" Id. at 278. At that point, Albert Hardister and an unidentified man came to the window and pulled aside a sheet covering it to look outside. Officer Tindall shined his flashlight on his uniform and badge and repeated, "Police Department[.]" Id. Hardister and the other man then took off running toward the back of the house.

Believing that the persons inside the house would try to flee out the back door, Officers Tindall and Lawrence ran along the sidewalk on the north side of the home. Officer Lawrence stopped and looked through a window on the north side of the house that was partially covered with newspaper. He saw three African-American males standing together in what appeared to be a kitchen. Meanwhile, Officer Tindall ran to the back of the house, and through an uncovered window near the back door, he observed Hardister pouring what appeared to be cocaine down the drain of the kitchen sink while the water was running. The officer yelled at Hardister to open the door, but Hardister and another person ran toward the front of the house.

Next, both officers proceeded back to the front of the house. By that time, other officers had arrived at the scene and ordered two persons who had crawled out a second-story window, later identified as Thomas Kendall and Kyle Kendall, to kneel down on the roof. Joshua Kendall had also crawled out the window, but he refused to comply with the officers' commands.

825 N.E.2d 445
He dropped one bag of what was later determined to be cocaine on the ground. He then ran to the edge of the roof and tossed another bag of cocaine. Next, he ran along the roof and jumped to the roof of the neighboring duplex. He then ran back and re-entered the second-story window at 407 North Hamilton

In the meantime, several officers had received permission from the residents at 405 North Hamilton to enter so that the officers could reach the roof. Once on the roof, the officers entered 407 North Hamilton through the same second-story window and yelled for everyone to come out. Frederick Pace came out of a bedroom, and the police placed him under arrest. The officers found Kendall and Hardister hiding in the attic and arrested them both. During a pat down search, the officers found $1,600 on Kendall.

Subsequently, and pursuant to a search warrant, the officers searched the entire residence and recovered the following: cocaine on a shelf in a bedroom closet; approximately $1,700 in a bathroom cabinet; a surveillance system that included a camera, video monitor, and a warning light that lit when someone pushed the doorbell; a loaded handgun and cocaine packaged for sale in the basement; a shotgun behind the couch in the living room; and a digital scale and cocaine in the kitchen. The officers recovered a total of 319.46 grams of cocaine from the home, including the cocaine Kendall had thrown from the roof.

On December 7, 2000, the State filed an eight-count information which named Kendall, his brother Thomas, Hardister, and Pace as defendants. In particular, the State charged Kendall with dealing in cocaine by possession with intent to deliver, possession of cocaine, possession of cocaine and a firearm, and resisting law enforcement. Before trial, Kendall filed a motion to suppress the evidence the officers had recovered from the home. Following a hearing, the trial court denied his motion.3 Kendall also filed a motion to sever his trial from that of his co-defendants, Thomas and Hardister, which was also denied.4 Kendall renewed both motions at trial, and both were again denied.

After the jury was selected, Kendall joined in an oral motion for a new trial based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Kendall claimed that the State violated the Fourteenth Amendment to the United States Constitution because it peremptorily struck several African-Americans from the jury pool. The trial court denied the motion.

On July 21, 2003, the jury found Kendall guilty as charged. On August 26, 2003, following a sentencing hearing, the trial court identified the following aggravating circumstances: (1) Kendall's criminal history; (2) the particular facts and circumstances of his crimes, including the substantial amount of cocaine, large amounts of money, and the weapons; and (3) at some point during the proceedings, Kendall threatened to kill his brother Thomas. The court identified Kendall's difficult family life as mitigating, but determined that that factor was not given much weight since Kendall had been offered services throughout his life that he had declined to accept. The court sentenced him to forty

825 N.E.2d 446
years for dealing in cocaine, eight years for possession of cocaine and a firearm, and one year for resisting law enforcement, with all sentences to be served concurrently. The court did not enter judgment on the possession of cocaine charge

Thereafter, Kendall filed a motion to correct error alleging in part that the trial court had erred when it found as aggravating that Kendall had threatened his brother. The trial court agreed there was insufficient evidence to support that allegation. It also decided not to enter judgment on the possession of cocaine and a firearm charge because of double jeopardy concerns. It then proceeded to impose an identical forty-year aggregate sentence as it had done before. Kendall now appeals.

Analysis

I. Severance Motion

Kendall first asserts that the trial court abused its discretion when it denied his motion to sever his trial from that of his co-defendants Thomas and Hardister. Specifically, he claims that his defense and his brother Thomas' defense were mutually antagonistic and, therefore, the trial court was required to grant his motion for severance.

Several defendants may be joined in a single prosecution. Lee v. State, 684 N.E.2d 1143, 1147 (Ind.1997) (citing Ind.Code § 35-34-1-9). However, upon a motion by a defendant, the trial court may order a separate trial "whenever the court determines that a separate trial is necessary to protect a defendant's right to a speedy trial or is appropriate to promote a fair determination of the guilt or innocence of a defendant." Id. (quoting Ind.Code § 35-34-1-11(b)). The trial court has discretion to grant or deny a motion for separate trials. Id. However, a trial court must grant severance of trials where there are mutually antagonistic defenses and the acceptance of one defense would preclude the acquittal of the other. Id. Upon review, the trial court's decision is measured by what actually occurred at trial rather than what is alleged in the motion. Id.

Kendall moved for a separate trial because he claimed that his brother would testify that he was visiting Kendall at his house on the night in question and that he had no knowledge of the contraband found inside the house. Thomas did, in fact, testify to that effect. Thus, Thomas' defense that he was merely visiting the home and that Kendall lived there did implicate Kendall.

However, "the mere fact that one defendant implicates another does not entitle the latter to a separate trial," and "there is not a constitutional right to be protected from damaging evidence." Id. "Such protection would result in separate trials as a matter of right for all cases with more than one defendant." Id. We conclude that the trial court did not abuse its discretion when it denied Kendall's motion for a separate trial because Kendall was merely implicated by his co-defendant's defense.5

Further, even if this were a case of mutually antagonistic defenses, Kendall must show...

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12 practice notes
  • Hardister v. State, No. 49S05-0507-CR-319.
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 2006
    ...of Appeals affirmed his convictions and sentence in an opinion that is substantially consistent with this opinion. Kendall v. State, 825 N.E.2d 439, 455-56 I. Suppression of Evidence Under the State and Federal Constitutions Hardister argues that the officers' accounts of what they observed......
  • Brown v. State, No. 11A04-0904-CR-213.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 30, 2009
    ...unlawful, it is a dangerous short-cut around the bedrock requirement that police have probable cause to enter a home." Kendall v. State, 825 N.E.2d 439, 460 (Ind.Ct.App.2005) (Najam, J., dissenting), aff'd on other grounds in part and summarily aff'd in part by 849 N.E.2d 1109 The legality ......
  • Phillips v. State, Court of Appeals Case No. 20A-CR-1962
    • United States
    • Indiana Court of Appeals of Indiana
    • August 12, 2021
    ...and dealing in methamphetamine violated double jeopardy under Art. I, § 14 of the Indiana Constitution ); Kendall v. State , 825 N.E.2d 439, 453 (Ind. Ct. App. 2005), summarily aff'd in part and aff'd on other grounds in part by 849 N.E.2d 1109 (Ind. 2006) (possession of cocaine is lesser i......
  • Rush v. State, No. 35A02-0709-CR-772.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 19, 2008
    ...during the course of a legitimate investigation does not necessarily result in an unconstitutional search); see also Kendall v. State, 825 N.E.2d 439 (Ind.Ct.App.2005), aff'd in part and vacated in part on other grounds (holding that when a police officer observes something from an area whe......
  • Request a trial to view additional results
12 cases
  • Hardister v. State, No. 49S05-0507-CR-319.
    • United States
    • Indiana Supreme Court of Indiana
    • June 28, 2006
    ...of Appeals affirmed his convictions and sentence in an opinion that is substantially consistent with this opinion. Kendall v. State, 825 N.E.2d 439, 455-56 I. Suppression of Evidence Under the State and Federal Constitutions Hardister argues that the officers' accounts of what they observed......
  • Brown v. State, No. 11A04-0904-CR-213.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 30, 2009
    ...unlawful, it is a dangerous short-cut around the bedrock requirement that police have probable cause to enter a home." Kendall v. State, 825 N.E.2d 439, 460 (Ind.Ct.App.2005) (Najam, J., dissenting), aff'd on other grounds in part and summarily aff'd in part by 849 N.E.2d 1109 The legality ......
  • Phillips v. State, Court of Appeals Case No. 20A-CR-1962
    • United States
    • Indiana Court of Appeals of Indiana
    • August 12, 2021
    ...and dealing in methamphetamine violated double jeopardy under Art. I, § 14 of the Indiana Constitution ); Kendall v. State , 825 N.E.2d 439, 453 (Ind. Ct. App. 2005), summarily aff'd in part and aff'd on other grounds in part by 849 N.E.2d 1109 (Ind. 2006) (possession of cocaine is lesser i......
  • Rush v. State, No. 35A02-0709-CR-772.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 19, 2008
    ...during the course of a legitimate investigation does not necessarily result in an unconstitutional search); see also Kendall v. State, 825 N.E.2d 439 (Ind.Ct.App.2005), aff'd in part and vacated in part on other grounds (holding that when a police officer observes something from an area whe......
  • Request a trial to view additional results

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