Lindsey v. State
| Decision Date | 09 November 2009 |
| Docket Number | No. 29A02-0902-CR-196.,29A02-0902-CR-196. |
| Citation | 916 N.E.2d 230 |
| Parties | Joshua P. LINDSEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
S. Neal Ziliak, Noblesville, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
In this case, we decide that the exigent circumstance of officer safety justified Officer Charles Kruse's actions in opening wider Joshua P. Lindsey's car door and visually inspecting the car's interior. Officer Kruse saw Lindsey run into a store, brandish a weapon, and leave the store heading in the direction of the car, which had its driver's side door ajar. Given these facts, it was reasonable for Officer Kruse to believe that the car may have been Lindsey's getaway car and that an accomplice, possibly also armed, may have been inside. Because the contents of the car were concealed by its tinted windows and the door was ajar, it was not unconstitutional for the officer to open the door wider and look inside. We affirm the trial court on this issue as well as those concerning jury selection and the appropriateness of Lindsey's sentence.
Due to recent robberies of CVS stores in the area, Officer Kruse from the Fishers Police Department was performing surveillance outside a CVS store on 116th Street in an unmarked car on an evening in March 2008. At around 9:45 p.m., Officer Kruse saw a man dressed in black first walking, then jogging across the CVS parking lot. The man broke into a run as he approached the sidewalk just short of the store entrance. As he entered the store at a run, the man raised his arm in such a manner that led Officer Kruse to believe he was brandishing a weapon. Officer Kruse radioed other police units that he believed an armed robbery was in progress at his location, and officers soon arrived.
Inside the store, Katlin Kline was working as a cashier when the man, whom she later identified as Lindsey, ran into the store. Lindsey was wearing black pants, a black hoodie with the hood up, and a black bandana that covered part of his face. He pointed the gun at her and asked, "Where's the money," Tr. p. 378, and Kline told him it was in the office. Lindsey then pointed the gun at her back and led her to the office. He made Kline knock on the door while he stood away from view of the door's window. The store supervisor, Beverly Helm, looked out the window, saw Kline, and opened the door. Lindsey shoved Kline in and ordered the two women to open the safe and move to the floor. Kline immediately moved to the floor. Helm opened the safe and moved to the floor. Lindsey ordered them to keep quiet and to keep their faces down. Kline and Helm heard him rummaging through the safe and taking money out. When Lindsey was done, he threatened, "[I]f you get up, you die," id. at 387, and then he left. The entire robbery was captured on surveillance cameras.
Officers Kruse, Shawn Wynn, and Mark Elder, each in separate cars, saw Lindsey run out of the store and across the parking lot. All three officers tried to stop Lindsey, and Officers Wynn and Elder yelled, "Police, stop," id. at 517, 580, but Lindsey continued to run. Officer Kruse drove his car ahead of Lindsey, who was still on foot, and stopped his car in a public lot near a car that was in the general direction to which Lindsey was running. He stepped out of his car and walked to the driver's side of the other car, intending to cut off and apprehend Lindsey. When Lindsey was within six to eight feet of the car, Officer Kruse identified himself as a police officer and ordered him to stop. At that point, Lindsey turned around and ran in a different direction. Officer Kruse saw other officers arriving and jumping out of their cars to pursue Lindsey on foot. His attention was drawn to the car to which Lindsey had been running, whose driver's side door was open approximately six inches and windows were tinted such that he could not see inside. Although the windshield was not tinted, Officer Kruse was unable to see into the back seat. Recognizing that there might be an accomplice in the car and concerned for officer safety, Officer Kruse opened the door wider so that he could "clear" the car out, that is, make sure "that there was nobody laying [sic] down in the back seat or on the back floorboard or in the driver or passenger area of the car." Id. at 313. While looking for a possible accomplice, Officer Kruse saw an activated handheld police scanner in the center console, a holster on the front floorboard, keys in the ignition, a plastic bag, and clothing. Without ever touching anything in the car or even sticking his head inside, Officer Kruse confirmed that no one was in the car. He then walked around to the front of the car, felt the hood, and found the engine compartment was still warm.
Meanwhile, other officers were still pursuing Lindsey. Although they lost sight of him for a few seconds when he entered a partially constructed building, the officers on foot could hear him hitting wood and other items as he ran through. Officer David Seward was chasing Lindsey in his car. As he closed in on Lindsey, he stepped out of his car, pointed his handgun at Lindsey, and told him to put his hands up. Lindsey finally complied after Officer Seward repeated the order multiple times. Officer Seward then ordered Lindsey down on the ground. Again, he had to repeat himself multiple times. At that point, Officer Wynn came up behind Lindsey and used physical force to get him to the ground. He then received assistance from another officer in handcuffing Lindsey.
After Lindsey was secured, the officers found a black BB gun in his pocket and a can of pepper spray in a holster on his waist. Upon following the path of the foot chase, a K-9 officer and his dog found a white garbage bag with cash in the amount of $3698 in the building through which Lindsey had run. The license plate number and the vehicle identification number verified that Lindsey was the owner of the car. Nothing was removed from the car until a search warrant was obtained. None of the officers saw any person who bore any resemblance to Lindsey during the chase.
The State charged Lindsey with robbery as a Class B felony,1 theft as a Class D felony,2 criminal confinement as a Class B felony,3 and resisting law enforcement as a Class A misdemeanor.4 Based on two prior unrelated felony convictions for battery and pointing a firearm, the State also alleged that Lindsey was a habitual offender.5 While Lindsey was incarcerated in the Hamilton County Jail, he confessed to his cellmate, Steven Grove, that he robbed CVS and provided details of the robbery and subsequent chase.
Before trial, Lindsey filed a motion to suppress all evidence discovered during the search of his car. He alleged that Officer Kruse's actions in opening the door wider and inspecting the car's interior constituted an illegal search, and thus all evidence obtained from that search should be excluded. Following a hearing, the trial court denied the motion, finding Officer Kruse's actions reasonable in light of officer safety and the minimal intrusion given that Officer Kruse did not enter or touch anything in the car.
Lindsey is black. During voir dire, three black men were in the jury pool: Juror # 5, Juror # 10, and Juror # 37. The State did not strike and had no reason to strike Juror # 5. Id. at 150-51. Instead, Lindsey moved to strike Juror # 5, a Noblesville police officer, for cause, but the trial court denied the motion. Lindsey then used a peremptory challenge to strike Juror # 5. The State used a peremptory challenge to strike Juror # 10, and Lindsey raised a Batson objection. The prosecutor explained that she felt no rapport with him, he had to think about his responses, he sat stone-faced and seemed uninvolved in the process, and he was using his Blackberry during voir dire, even when she was right in front of him. The trial court found that the State had provided a race-neutral reason for the strike and denied the Batson challenge.
Juror # 37 stated that his son was arrested and given a year of probation for marijuana possession after officers arrived at his son's apartment and were granted permission to search. Juror # 37 felt that the officers should not have asked to search, and although the incident did not leave a "bad taste in [his] mouth as far as police in general," id. at 287, he stated that the "bad taste would come from my being black," id. He then related his experience of being followed home by the police for four years and stated that he believed he was followed because he is black. He continued to relate another incident when he came to the aid of someone lying on the hood of a car in the middle of the road having a heart attack, and he explained that the police asked him questions about why he stopped, why he was in the area, where he lived, and treated him as if he had kidnapped the man. When asked if he could put these experiences behind him and be fair and impartial to the State, he responded, "That's one of many." Id. at 290. When asked the same question again, he responded, "I mean it's always in the back of your mind," id. at 291, and then related an incident when he was pulled over for speeding. The officer first asked what he was doing in the area and then gave him a speeding ticket, for which Juror # 37 felt there was no basis. Asked a third time if he could put these experiences behind him and be fair and impartial to the State, he responded, "And I'm being honest to you that would be hard to do, Sir." Id. at 292. The State challenged Juror #37 for cause on grounds that he was biased against the State, and the trial court granted that challenge.
The jury found Lindsey guilty as charged. After Lindsey stipulated to his prior felony convictions, the trial court found...
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