Robinson v. State

• Court: Indiana Appellate Court
• Writing for the Court: BROOK.
• Citation: Robinson v. State, 730 N.E.2d 185 (Ind. App. 2000)
• Decision Date: 08 June 2000
• Docket Number: No. 49A04-9907-CR-331.,49A04-9907-CR-331.
• Parties: Everett M. ROBINSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

730 N.E.2d 185

Everett M. ROBINSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-9907-CR-331.

Court of Appeals of Indiana.

June 8, 2000.

Transfer Denied September 5, 2000.

Jodi Kathryn Stein, Marion County Public Defender Agency, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney

General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BROOK, Judge

Case Summary

Appellant-defendant Everett M. Robinson ("Robinson") appeals from his convictions for two counts of attempted murder,¹ a Class A felony; possession of a handgun with an obliterated serial number,² a Class C felony; possession of cocaine³ as a Class D felony; and criminal gang activity,⁴ a Class D felony. We affirm in part and reverse in part.

Issues

Robinson raises six issues for review, which we restate as follows:

I. whether the trial court erred in denying his motions to suppress evidence seized from his apartment;

II. whether the trial court erred in admitting statements of his co-defendant, Lamont Wright ("Wright");

III. whether his convictions for attempted murder are supported by sufficient evidence;

IV. whether his conviction for criminal gang activity is supported by sufficient evidence;

V. whether the trial court erred in denying his motion to sever the criminal gang activity charge;

VI. whether the trial court erred in instructing the jury on the elements of criminal gang activity; and

VII. whether the trial court erred in admitting certain evidence under the motive exception to Indiana Evidence Rule 404(b).

Facts and Procedural History

The facts most favorable to the convictions indicate that on February 28, 1997,⁵ undercover officers from the Indianapolis Police Department purchased crack cocaine from Donyall Stewart ("Stewart") in the 3900 block of North Grand Avenue in a "buy-bust" operation. After the officers drove away from the buy and identified Stewart via radio, several undercover officers wearing vests emblazoned with "POLICE" arrived in two unmarked cars to make the bust and pursued the fleeing Stewart on foot. During the pursuit, Stewart discarded a quantity of cocaine. Officer Raymond Koons ("Koons") broke off the chase and stood over the contraband to prevent its unauthorized removal from the scene.

Lamont Wright ("Wright") saw the officers chase Stewart and went to Robinson's apartment at 3903 North Grand Avenue to apprise him of the situation. Wright told Robinson to "grab the heat" and that the "narcos got" Stewart. Robinson responded that he was "tired of bein' messed with," and both men equipped themselves with firearms from Robinson's apartment. Wright and Robinson went out to the porch and fired repeatedly at Koons and Officer Jeffrey Goodin ("Goodin"), who was driving the second unmarked car. Goodin stopped the car in a parking lot across the street from Robinson's apartment, and the two officers took cover behind the car as bullets struck the pavement within a yard of them. Both officers heard two distinctive gunshot reports, with the louder shots sounding as if they originated from a shotgun or rifle and the remainder from a handgun. Police established a protective perimeter and surrounded Robinson's apartment building after the gunfire ceased. Officers ordered all occupants out of the building, but they received no response from Robinson's apartment. A neighbor, Shantel Burrell ("Burrell"), gave Robinson's telephone number to the police. An officer telephoned Robinson and asked him to exit his apartment walking backward with his hands over his head. Robinson complied. Officer Steven Staal ("Staal") approached Robinson, explained the reason for the police presence, and asked to search his apartment; Robinson consented. Staal and other officers searched Robinson's apartment and found ammunition in the bedroom.

When Officer Andrew Gillespie ("Gillespie") entered the apartment, Robinson was sitting handcuffed on the couch. An officer informed Gillespie that the apartment's attic access was open, and Gillespie asked Robinson if he could search the attic; Robinson consented. Before entering the attic, Gillespie sprayed a burst of chemical repellent into the access opening to flush out any potential ambushers. When he heard no movement, Gillespie peered into the attic and saw four firearms and a cooler less than a foot from the access opening. An evidence technician later removed these items and ammunition from the attic and opened the cooler, revealing a small quantity of crack cocaine.

When Koons heard about the weapons, he entered Robinson's apartment and read him his Miranda rights before questioning him about the firearms. Robinson said he knew nothing about them and that he had not fired a gun within the last few hours. Koons responded that the police would conduct a gunshot primer residue test, to which Robinson responded, "[G]o ahead, I'm clean."⁶ Evidence technicians subsequently determined that Robinson's right palm tested positive for gunshot primer residue and detected his fingerprint on a handgun with an obliterated serial number that police seized from the attic. Inside the apartment, police also found a letter containing gang symbols allegedly written by Robinson and several photographs of him dressed in attire of the Vice Lords criminal gang.⁷ Outside the apartment, police found spent shell casings that matched two of the guns seized from Robinson's attic.

On June 10, 1997, the State charged Stewart, Wright, and Robinson with numerous offenses arising from the February incident. On October 16, 1997, Robinson filed a motion for severance of the criminal gang activity count, which the trial court denied. On April 27, 1998, Robinson filed a motion in limine to exclude certain evidence, which the trial court granted in part and denied in part. That same day, the State filed a motion pursuant to Indiana Evidence Rule 404(b) to allow Burrell to testify about Robinson's alleged gang membership.

Wright and Robinson's first jury trial ended in mistrial on April 30, 1998. On November 25, 1998, Robinson filed a motion to suppress evidence that had been obtained during the search of his apartment. The trial court denied this motion, finding that Robinson had consented to the search and that his consent had not been coerced. On November 30, 1998, the State filed an amended information to reflect only the charges pending against Wright and Robinson. The State also filed a motion for the court to reconsider its ruling excluding Burrell's testimony that she had seen someone cooking cocaine in Robinson's kitchen on the morning of the incident in question. Upon reconsideration, the trial court ruled this evidence admissible.

On November 30, 1998, a second jury tried Robinson and Wright.⁸ Before trial, Robinson orally renewed his motion to suppress evidence seized during the search of his house, which the trial court denied. On December 4, 1998, the jury found Robinson not guilty on two counts of conspiracy to commit murder, but found him guilty of possession of a handgun with an obliterated serial number, possession of cocaine, and criminal gang activity. The jury was unable to reach a verdict on two counts of attempted murder. On January 29, 1999, the trial court sentenced Robinson to six years on the handgun conviction and three years on the cocaine conviction, with these sentences to be served concurrently, and imposed a consecutive three-year sentence for the criminal gang conviction.

Prior to his third trial, Robinson filed a motion in limine to exclude evidence relating to the previously adjudicated charges; the trial court granted the motion with respect to the handgun's obliterated serial number, Robinson's tattoos, and photos of Robinson in gang attire, but denied it with respect to the contents of the cooler, the cocaine, the handgun, and references to cocaine being cooked in his apartment. Robinson again renewed his motion to suppress the evidence seized during the search of his apartment, which the trial court denied. After a four-day jury trial, Robinson was found guilty on both counts of attempted murder on February 11, 1999. On February 19, 1999, the trial court sentenced Robinson to thirty years with five years suspended on each count, to be served concurrently to those sentences already imposed. Robinson now appeals; additional facts will be supplied as necessary.

Discussion and Decision

I. Denial of Motions to Suppress

Robinson first argues that the trial court erred in denying his successive motions to suppress evidence obtained during the warrantless search of his apartment. Among other reasons, he contends that his consent to the search was invalid because it was involuntarily given as a "submission to the supremacy of the law." Thus, Robinson asserts that the State violated his right to be secure against unreasonable searches and seizures under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution.⁹

When reviewing a trial court's ruling on the validity of a search and seizure, "we consider the evidence most favorable to the ruling and any uncontradicted evidence to the contrary to determine whether there is sufficient evidence to support the ruling." Melton v. State, 705 N.E.2d 564, 566 (Ind.Ct.App.1999).

If the evidence is conflicting, we consider only the evidence favorable to the ruling and will affirm if the ruling is supported by substantial evidence of probative value. Generally, a search warrant is a prerequisite to a constitutionally proper search and seizure. In cases involving a warrantless search, the State bears the burden of proving an exception to the warrant requirement.

Id. (citations omitted). We may affirm a trial court's ruling on a motion to suppress if it is sustainable on any legal grounds apparent in the record. See Alford v. State, 699 N.E.2d 247, 250 (Ind.1998).

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