Lander v. State

• Decision Date: 15 February 2002
• Docket Number: No. 49S00-0005-CR-297.,49S00-0005-CR-297.
• Citation: 762 N.E.2d 1208
• Parties: Jonathan W. LANDER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

762 N.E.2d 1208

Jonathan W. LANDER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S00-0005-CR-297.

Supreme Court of Indiana.

February 15, 2002.

Eric Koselke, Indianapolis, IN, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Janet Parsanko, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Defendant was convicted and sentenced for murder and conspiracy to commit robbery. We affirm his convictions, finding probable cause and consent justify his warrantless arrest in his home, hearsay statements admitted at trial were harmless error, and his claim of double jeopardy unsupported. We find the aggravating and mitigating circumstances here warrant maximum concurrent sentences.

Background

On February 18, 1999, Darrell Robinson and Adam Borton concocted a plan to rob Michael Strait as revenge for Strait's having been too friendly with Borton's girlfriend and soon-to-be mother of Borton's child. While at Borton's house, Strait had been seen with a wad of money and had been talking about a wave-runner that he had just bought. Robinson called Defendant and James Walker for help with the robbery. Borton was to ask Strait to drive him to James Walker's house at the Westbury Apartment complex on the pretext of picking up audio tapes from Walker. That night, Robinson drove Defendant and Walker (who had been at his girlfriend's house) to the Westbury Apartment complex.

Once there, Walker and Defendant got out of Robinson's car. Borton and Strait had arrived a little earlier, where Borton was supposedly waiting for Walker to bring out the audio tapes Borton was to pick up. Defendant loaded his gun, walked over to Strait's car, and entered the car from the passenger side door. He told Strait to drive to the bridge, the pre-arranged place at the complex where the robbery was to occur. Strait drove to the bridge. A few minutes went by, and then Walker got into the car. No money was found in the car. Robinson had Strait open his trunk to look for the money there. But there was nothing in the trunk. At that point, Robinson called off the robbery. Strait was later shot. As will be seen below, there is disagreement over how Strait was shot. Strait later died from his wounds.

Walker, Robinson, and Defendant fled the scene. Borton stayed behind and spoke with police officers as an eyewitness, not as an involved party. Robinson and Defendant were arrested in their homes and brought to the Marion County Jail. The gun used in the robbery was recovered from Defendant's home. Defendant was charged with the murder of Michael Strait and several other offenses. After a two-day jury trial, Defendant was convicted and sentenced for murder¹ and conspiracy to commit robbery, a class B felony.²

We will recite additional facts as necessary.

Discussion

I

Defendant contends that he was illegally arrested in his parents' home in the middle of the night. He argues that the seizure of the weapon found during the arrest and his subsequent statements to the police should have been suppressed.³ Defendant further argues that since the trial court denied his motion to suppress, his convictions should be reversed.

The Fourth Amendment of the United States Constitution protects persons from unreasonable searches and seizures.⁴ The Fourth Amendment has been made applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 650, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Under Fourth Amendment doctrine, a threshold question is whether the defendant who claims a violation had a reasonable expectation of privacy at the time of the alleged unreasonable search and seizure. Peterson v. State, 674 N.E.2d 528, 532 (Ind.1996), cert. denied, 522 U.S. 1078, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998) (citing Livingston v. State, 542 N.E.2d 192, 194 (Ind.1989)). In such matters, the defendant has the initial burden of establishing that he had a reasonable expectation of privacy. Id. This issue is not addressed by Defendant, and only summarily addressed by the State.⁵ For purposes of analysis, we assume Defendant had a reasonable expectation of privacy.

A warrantless search and seizure of a residence is presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Under such circumstances, the State bears the burden of proving that an exception to the warrant requirement of the Fourth Amendment was present at the time of the search and seizure. Krise v. State, 746 N.E.2d 957, 961 (Ind.2001) (citing Berry v. State, 704 N.E.2d 462, 465 (Ind.1998)). We have held that probable cause together with valid consent to be inside the defendant's home constitutes an exception to the arrest warrant requirement.⁶ Phillips v. State, 492 N.E.2d 10, 18 (Ind.1986), overruled on other grounds by Moore v. State, 498 N.E.2d 1, 10 (Ind.1986)

. "Whether a consent to entry is voluntary is therefore a question of fact to be determined from the totality of the circumstances." Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).

The police officers visited the Lander residence at 3:00 A.M. on February 19, 1999, on the basis of information provided by Borton and Robinson. Before visiting the Lander residence, the officers did not pause to obtain a warrant. Detective Turner explained, "As the investigation's ongoing, it's typical procedure if you're receiving information rapidly that you follow-up on the information that you're given."

A gentleman dressed in pajamas answered the door in response to the officers' knock. After identifying themselves, the officers told the gentleman that they were looking for Jonathan Lander Jr. The gentleman identified himself as Defendant's father, Jonathan Lander Sr., and invited the officers into the foyer of the house. Although the main purpose of the officers' visit was to arrest Defendant, the officers did not inform Lander Sr. of this before being invited into the house. Once the officers were inside the foyer, Lander Sr. turned to his immediate right and opened a door that led to a den/office area. Over Lander Sr.'s shoulder, the officers could see Defendant in the room. After verifying Defendant's identity, the officers went into the room "for obvious officer safety reasons," and immediately handcuffed Defendant. At this point, Lander Sr. was taken aside by Major Turk who told Lander Sr. that the officers needed to talk with Defendant. Major Turk also asked Lander Sr. to sign a written consent form to search the residence.

Here, the State has the burden to prove that, at the time of the arrest, the officers had both probable cause to arrest Defendant and Lander Sr.'s consent was valid. See Phillips, 492 N.E.2d at 18

. Although the State merely points to Detective Turner's affidavit for proof of probable cause, which was obtained after the arrest, the record does support a conclusion that probable cause existed at the time of Defendant's arrest.

"Probable cause exists when, at the time of arrest, the arresting officer has knowledge of facts and circumstances which would warrant a person of reasonable caution to believe that the defendant committed the criminal act in question." Snellgrove v. State, 569 N.E.2d 337, 341 (Ind.1991). The first officer to arrive at the crime scene, Sergeant Boydston, spoke with Borton who gave Sgt. Boydston the description of three individuals he claimed to be involved in the shooting of Strait, including Robinson and Defendant. Borton did not inform Sgt. Boydston that he had also been involved in the shooting. Based on Borton's information, Sgt. Boydston, Detective Turner, and two other officers first apprehended Robinson, and then Defendant. Robinson pointed out Defendant's house, and a check on the vehicle matching Borton's description showed that it was registered to both Jonathan Lander Sr. and Jr. Based on the "eye witness" and co-conspirator statements, the officers had probable cause to believe that Defendant was involved in the shooting.

We turn now to the more critical inquiry of Lander Sr.'s consent to the officers to enter his home. The State's Brief Opposing Defendant's Motion to Suppress cites to Lander Sr.'s testimony at the suppression hearing which indicates that he gave valid and voluntary consent to the officers to enter his home. Although the time was 3:00 in the morning, Lander Sr. was "awake enough" to remember the events. The officers were courteous and did not have their guns drawn when they asked to speak with Defendant. Lander Sr. testified, looking back at the incident with hindsight, that he would not have made any changes to what he did that night. There is no evidence that the officers used coercion or threats to force themselves into Defendant's home. And the officers waited in the foyer of the home until they happened to see Defendant in the den, the door to which Lander Sr. himself had opened.

We hold that Defendant's warrantless arrest in his home was proper because the police officers conducting the arrest had both probable cause and valid consent to be inside Defendant's home.⁷

II

Defendant contends that the trial court committed reversible error by allowing co-conspirator James Walker to testify about hearsay statements that were not related to the conspiracy.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c). A co-conspirator's statement is not hearsay, if the statement is one "by a co-conspirator of a party during the course and in furtherance of the conspiracy." Evid. Rule 801(d)(2)(E). We also require that the State prove that there is "independent evidence" of the conspiracy before the statements will be admissible as non-hearsay under Rule 801(d)(2)(E). Lott v. State, 690 N.E.2d 204, 209 (Ind.1997). This means that the State must show that (1) existence of a conspiracy between the declarant and the party...