Porter v. State
| Decision Date | 15 March 2001 |
| Docket Number | No. 65A01-0007-CR-218.,65A01-0007-CR-218. |
| Citation | 743 N.E.2d 1260 |
| Parties | Fredrick James PORTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
William W. Gooden, Mt. Vernon, IN, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Janet L. Parsanko, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Frederick Porter ("Porter") appeals his conviction by jury of criminal recklessness as a class D felony.
We affirm.
1. Whether the trial court erred by denying Porter's motion to suppress.
2. Whether there was sufficient evidence to support Porter's conviction.
The facts most favorable to the judgment reveal that during the early morning hours of December 18, 1999, Porter and Deangelo Brewer ("Brewer") were waiting outside the rear entrance to the Lucky Linda tavern in Mt. Vernon. Porter was carrying a green duffle bag containing a pistol gripped pump action shotgun. When John Sydnor ("Sydnor") and Patricia Stewart ("Stewart"), Brewer's ex-wife, exited the tavern, Porter handed the shotgun to Brewer. Brewer fired a single shot striking Stewart in the head and back.
After police arrived, witnesses advised Officer Daniel Prow ("Officer Prow") that Brewer was the shooter. Sydnor informed Officer Prow that Porter was also involved. Subsequently, both men began searching the area for Brewer. The two came upon Porter and his girlfriend, Angelic Hobby. After a short conversation, Officer Prow proceeded to the Southwind Apartments to speak to Brewer's girlfriend, Stephanie Washington. She allowed Officer Prow to search the apartment, but he did not find Brewer.
Officer Prow then observed Porter walking to his apartment. Porter allowed Officer Prow to search his apartment for Brewer. However, Brewer was not there. After observing several photographs of Porter holding a pistol gripped pump action shotgun on the kitchen table, Officer Prow returned to the tavern. At the scene, he learned that a shotgun was used and read several witness statements implicating Porter's involvement in the shooting. Officer Prow returned to the Southwind Apartments and arrested Porter.
Porter was taken to the Posey County Jail and was advised of his Miranda rights. Porter began answering Officer Prow's questions. Officer Prow told Porter that witnesses had identified him as being at the scene of the shooting. Porter said that they were lying and that "people [had] been trying to run him out of Mt. Vernon for awhile." (R. 315). Porter also denied owning a shotgun. Shortly thereafter, Porter told Officer Prow that "he felt that he should talk to a lawyer before answering any more questions." (R. 111). After invoking his Fifth Amendment right to have an attorney present during questioning, Porter again stated that people had been trying to run him out of town, and that he would not be able to work and take care of "the cats and ... [his] apartment" if were put in jail. (R. 111).
Remembering the photographs in Porter's apartment, Officer Prow then asked Porter if he would consent to a search of his apartment. Officer Prow stated that it would be "real easy for [him] to go get a search warrant for" the apartment. (R. 123). Officer Prow told Porter that he would take someone trusted to the apartment, and advised Porter of his right to consult an attorney before consenting to the search. Porter then signed a consent to search form and Officer Prow went to the apartment, "looked through a few drawers," and seized the photographs. (R. 322).
Porter was subsequently charged by information on December 20, 1999 with aggravated battery as a class B felony. On January 21, 2000, the information was amended to include two additional counts of criminal recklessness as class C and D felonies. Porter filed a motion to suppress the photographs seized from his apartment claiming that his Fourth, Fifth, and Sixth Amendment rights had been violated. At a hearing on February 9, 2000, the trial court found that Porter had been advised of his right to counsel prior to consenting to the search and denied his motion to suppress.
On April 5, 2000, the jury heard evidence. At trial, Stewart testified that she and Brewer got into an argument earlier that evening. She stated that Brewer had called her a bitch and said that no one was going to mess with him because he had his gun. Stewart stated that after spending time at the tavern, she started to walk home, but returned to the tavern because Brewer was following her. Stewart testified that she eventually left the tavern with Sydnor. When Stewart exited the tavern, she saw Brewer "standing up against the building...." (R. 212). Stewart then heard a gunshot, noticed that her head hurt, saw the blood, and ran back into the tavern.
Sydnor testified that he arrived at the tavern around 2:30 a.m., and that he and Brewer did not get along with each other. Sydnor stated that he left to give Stewart a ride home. He testified that upon leaving the tavern, he saw Porter and Brewer "standing up against the wall." (R. 228). Sydnor then stopped to talk to a friend, Tabitha Smith ("Smith"), who was parked in the alley. When he turned, Sydnor stated that he heard a gunshot, ducked, and saw Porter and Brewer running away. Smith also testified that she observed two black men "come from behind the mini mall building." (R. 244). Smith also testified that after hearing the gunshot, she saw one of the men put a shotgun inside his vest. She described one of the men as stocky, wearing a vest with a hooded sweatshirt, and having bushy hair. The other man was taller and had fairer skin.
Alfred Kincaid, a regular patron, testified that he arrived at the tavern at around 1:30 a.m. He observed an argument between Porter's girlfriend and another patron, Jerry Lee ("Lee"). He escorted Lee outside through the rear exit and noticed Brewer and Porter "across from Lucky Linda's at the corner of a building looking out to see who was coming out...." (R. 150).
Additionally, Brewer, having already pleaded guilty to criminal recklessness for this shooting, testified that he and Porter were drinking together before they went to the tavern. Brewer said that they eventually left the tavern and went to see his girlfriend at Southwind Apartments. Brewer stated that prior to leaving the apartments, Porter came "out of the woods with a green bag." (R. 286). He said that they both then returned to the tavern where Porter waited outside. When Brewer returned to tell Porter he "was getting ready to leave," Sydnor came out of the tavern. (R. 288). Brewer stated that Porter produced a pump action shotgun. Brewer "[g]rabbed the gun from Mr. Porter, and just aimed." (R. 289). He testified, (R. 289).
Further, Donald Littlepage ("Littlepage"), a Mt. Vernon sanitation worker, testified that he found a pump action shotgun when picking up garbage on his route two days later. Littlepage also said that when he found out about the incident, he took Kenneth Rose ("Rose"), an investigator with the Posey County Prosecutor's Office, to the place were he found the shotgun. Additionally, Rose testified that he found a green bag on top of an air conditioning unit of a building behind the tavern. He also stated that during the night "a combination of street lights and dusk to dawn lights and flood lights" illuminated the area. (R. 272).
After evidence was heard, the jury found Porter not guilty of criminal recklessness as a class C felony, but guilty of criminal recklessness as a class D felony. Because of Brewer's conviction, the State dismissed the charge of aggravated battery.
Porter argues that the trial court erred by denying his motion to suppress. Specifically, he argues that Officer Prow's request for his consent to search the apartment violated his Fourth, Fifth, and Sixth Amendment rights. As a result, the trial court should have suppressed the admission of the photographs into evidence.
Moore v. State, 723 N.E.2d 442, 448 (Ind. Ct.App.2000) (quoting Willsey v. State, 698 N.E.2d 784, 789 (Ind.1998) (citations omitted)).
The Fifth Amendment of the Federal Constitution states, "No person shall be... compelled in any criminal case to be a witness against himself,...." The Amendment is applicable to the States through the Fourteenth Amendment. Avery v. State, 265 Ind. 417, 355 N.E.2d 395 (1976).
Addressing the Fifth Amendment, the United States Supreme Court has held "that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized." Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). If an individual is taken into custody and is going to be questioned, he must be advised, prior to any questioning, that he (1) has the right to remain silent; (2) that anything he says can be used against him; (3) that he has the right to the presence of an attorney; (4) that an attorney will be appointed if he cannot afford one; and (5) that he can exercise his rights at any time during questioning. Id. Failure to give this warning or show waiver renders any evidence obtained...
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