Lashley v. State

• Decision Date: 26 March 2001
• Docket Number: No. 55A01-0009-CR-303.,55A01-0009-CR-303.
• Citation: 745 N.E.2d 254
• Parties: Randall J. LASHLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

745 N.E.2d 254

Randall J. LASHLEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 55A01-0009-CR-303.

Court of Appeals of Indiana.

March 26, 2001.

Transfer Denied June 14, 2001.

Loretta Lauer, Gregory T. Lauer, Lauer and Lauer, Martinsville, IN, Attorneys for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Randall J. Lashley ("Lashley") was convicted following a jury trial of Resisting Law Enforcement, as a Class A misdemeanor, and Failure to Identify Self, a Class C Misdemeanor. Lashley appeals, presenting the following issues for our review:

1. Whether the traffic stop of his vehicle was unreasonable under Article I, Section 11 of the Indiana Constitution.

2. Whether the State's charging information was defective, requiring the charges therein to be dismissed.

3. Whether the State presented sufficient evidence to support his convictions.

We affirm.

FACTS AND PROCEDURAL HISTORY

On the afternoon of November 29, 1999, Sergeant James Bolin of the Mooresville Police Department was driving his stepdaughter home from school on Highway 37 through Martinsville. He had just completed his shift and was in uniform and operating his marked police vehicle. Lashley passed Sergeant Bolin in his car traveling at a high rate of speed. Sergeant Bolin drove behind Lashley's car and paced it going 70 miles per hour, "sometimes a little over 70 miles per hour[,]" in a 55 mile-per-hour zone. Record at 121. Sergeant Bolin activated the lights of his police vehicle, intending to initiate a traffic stop and warn Lashley about his speed.¹ However, Lashley did not pull over until Sergeant Bolin activated his siren. Lashley traveled approximately one and a half miles before pulling over.

After coming to a complete stop, Lashley jumped out of his car and approached Sergeant Bolin's police vehicle, yelling profanities at the officer and demanding to know what he wanted. Sergeant Bolin asked to see Lashley's license and registration but Lashley refused, asserting that Sergeant Bolin's police vehicle was from Mooresville and that he "[did not] have any more jurisdiction than that girl in the car with you there." Record at 130. Lashley told Sergeant Bolin, "I'm not showing you anything," hurried back to his car, and drove away from the scene. Record at 130.

Sergeant Bolin proceeded to follow Lashley with his lights and siren activated. Lashley drove an additional two miles before pulling over again. He continued to challenge Sergeant Bolin's jurisdiction and refused to produce his license and registration. Deputies from the Morgan County Sheriff's Department arrived to assist Sergeant Bolin, who ultimately arrested Lashley for resisting law enforcement and refusing to identify himself.

The State charged Lashley with resisting law enforcement, as a Class D felony, and refusal to identify self, a Class C misdemeanor. A jury found Lashley guilty as charged. The trial court entered judgment of conviction on the resisting count as a Class A misdemeanor² and on the refusal to identify count as a Class C misdemeanor.

DISCUSSION AND DECISION

Issue One: Sergeant Bolin's Stop

Lashley first contends that Sergeant Bolin abused his authority under Indiana Code Section 34-28-5-3 when he stopped Lashley's car and that the traffic stop was, therefore, unreasonable under Article I, Section 11 of the Indiana Constitution. He argues this, however, for the first time on appeal.³ Prior to trial, Lashley filed a motion to suppress alleging that Sergeant Bolin "had no authority to stop the Defendant because he was not committing a felony or misdemeanor and had no warrant for the Defendant." Record at 13 (emphasis added). At trial, Lashley tendered a jury instruction on the Fourth Amendment to the United States Constitution, which the trial court read to the jury. His opening and closing arguments were also focused solely on Fourth Amendment jurisprudence, wherein he urged that Sergeant Bolin's traffic stop "was unreasonable and violates this specific amendment." Record at 300. It is well settled that a party cannot add to or change his grounds for objection on appeal and that any grounds not raised at trial are not available on appeal. Johnson v. State, 472 N.E.2d 892, 910 (Ind.1985) (concluding that defendant waived any alleged error where he raised different ground of error on appeal than raised at trial). Accordingly, Lashley's claim of error is waived.

Waiver of the issue notwithstanding, Indiana Code Section 34-28-5-3 provides:

Whenever a law enforcement officer believes in good faith that a person has committed an infraction or ordinance violation, the law enforcement officer may detain that person for a time sufficient to:

(1) inform the person of the allegation;

(2) obtain the person's:

(A) name, address, and date of birth; or

(B) driver's license, if in the person's possession; and

(3) allow the person to execute a notice to appear.

This statute clearly states that a law enforcement officer may, at any time, detain a person suspected of committing an infraction. State v. Russ, 480 N.E.2d 248, 251 (Ind.Ct.App.1985) (interpreting predecessor statute), trans. denied. There is no jurisdictional limitation on the authority of law enforcement officers, including city police officers, to detain or stop individuals for committing infractions.⁴ See id. Here, Sergeant Bolin observed Lashley traveling at a high rate of speed and paced him at speeds in excess of 70 miles per hour in a 55 mile-per-hour zone. Indeed, Lashley admitted that he had been speeding when Sergeant Bolin pulled him over. Sergeant Bolin was therefore within his authority under Indiana Code Section 34-28-5-3 to stop Lashley.

Nevertheless, Lashley maintains that Sergeant Bolin's "real reason [for stopping him] was to respond to what he perceived as Lashley's disrespect to his police car and for daring to pass the police car on a highway." Brief of Appellant at 7. Lashley thus argues that "the circumstances of this particular stop were unreasonable and amount to an abuse of [Sergeant Bolin's] authority [under Indiana Code Section 34-28-5-3]." Brief of Appellant at 8. We cannot agree.

It is well settled that a lawful stop for a bona fide traffic violation, even if pretextual, does not convert the stop into an unconstitutional search and seizure. Kenner v. State, 703 N.E.2d 1122, 1126 n. 1 (Ind.Ct.App.1999),trans. denied; State v. Voit, 679 N.E.2d 1360, 1363 (Ind. Ct.App.1997) (upholding search of vehicle where police stopped suspect for speeding, even though primary motivation was to investigate drug activity). A police officer's subjective motives for initiating an investigatory stop are irrelevant in Fourth Amendment analysis, and a stop will be valid provided there is an objectively justifiable reason for it. State v. Dodson, 733 N.E.2d 968, 972 (Ind.Ct.App.2000). If there is an objectively justifiable reason for the stop, then the stop is valid whether or not the police officer would have otherwise made the stop but for ulterior suspicions or motives. Voit, 679 N.E.2d at 1362. Lashley's undisputed violation of the speed limit provided Sergeant Bolin with an objectively justifiable reason to stop him. We conclude that Sergeant Bolin's stop of Lashley's vehicle was authorized by statute and not unreasonable.

Issue Two: Charging Information

Lashley next challenges the validity of the State's charging information. He asserts that the charging information was defective because Sergeant Bolin signed it, "I affirm under the penalties of perjury that the foregoing representations are true to the best of my knowledge and belief[,]" before the prosecutor had inserted the charges against him.⁵ Record at 3. This discrepancy was revealed during Lashley's cross-examination of Sergeant Bolin. Lashley argued at trial and argues again on appeal that the "improperly sworn signature to [the] charging information renders the charges therein void and subject to dismissal for not constituting a public offense." Brief of Appellant at 9. We cannot agree.

Indiana Code Section 35-34-1-2(b) provides that "[a]n information shall be signed by the prosecuting attorney or his deputy and sworn to or affirmed by him or any other person." We have held that the purpose of requiring the signature of the prosecuting attorney or his deputy to an information is "to assure that such prosecutions have been investigated by and approved by the only officer authorized to initiate criminal prosecutions, namely, the prosecuting attorney." Brown v. State, 403 N.E.2d 901, 910 (Ind.Ct.App.1980); Lynn v. State, 207 Ind. 393, 193 N.E. 380, 381 (1934) (observing that absence of prosecutor's signature on charging information requires trial court to sustain motion to quash in which it is alleged that facts stated in information do not constitute public offense). We have further noted that the requirement that a prosecutor indorse an information is not "a mere technical formality." Lynn, 193 N.E. at 382.

Here, for administrative convenience, Sergeant Bolin signed a blank charging information under oath, which was approved by Monte Kivett, then a Morgan County deputy prosecutor. On its face, the charging information satisfied the requirements of Indiana Code Section 35-34-1-2(b). See Adamovich v. State, 529 N.E.2d 346, 348 (Ind.Ct.App.1988); cf. Anderson v. State, 439 N.E.2d 558, 560 (Ind.1982) (finding information charging defendant as habitual offender defective because it was not sworn by anyone and was factually deficient). While Sergeant Bolin should have sworn to the contents of the information after the charges had been inserted, on these facts his failure to do so did not render the charging information fatally defective or require dismissal of the charges against Lashley.

Unlike a prosecutor's signature of approval, which is necessary because ...