Tawdul v. State

• Decision Date: 20 December 1999
• Docket Number: No. 17A03-9903-CR-110.,17A03-9903-CR-110.
• Citation: 720 N.E.2d 1211
• Parties: A Joseph TAWDUL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

720 N.E.2d 1211

A Joseph TAWDUL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 17A03-9903-CR-110.

Court of Appeals of Indiana.

December 20, 1999.

Sarah L. Nagy, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

KIRSCH, Judge

A jury convicted A Joseph Tawdul of resisting law enforcement,¹ as a Class A misdemeanor. Tawdul now appeals, raising three issues for our review, which we restate as follows:

I. Whether the trial court erred in imposing an executed sentence of ten days imprisonment combined with one year of probation.

II. Whether it was reasonable for an officer to order Tawdul, a passenger in a lawfully stopped vehicle, to return to the vehicle that he immediately exited after the car was stopped.

III. Whether the trial court erred in allowing the State to cross-examine Tawdul about a prior traffic offense that he committed ten years earlier.

We affirm, but remand for sentencing.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the verdict reveal that on the evening of February 14, 1999, Tawdul was a passenger in his friend's car. Officer James Sloan, driving in a marked patrol car, approached the car in the opposite lane and noticed that its bright lights were illuminated. He flashed the headlights of his patrol car at the oncoming car to signal the driver to switch to low beams. When the driver of the car failed to dim its headlights, Sloan turned his car around and began to follow the car. After following the car for approximately one mile and waiting for the car to exit a curve, Sloan activated his emergency lights.

The driver of the car initially failed to pull over in response to the emergency lights even though other cars did yield. Sloan followed the car for less than a mile before the driver pulled into an alley and then onto a private drive. Sloan exited his patrol car and observed both the driver and Tawdul exit the car in which they were riding. Sloan asked them both to remain in the car. Both individuals refused to return to the car despite Sloan's repeated requests to remain inside the car. Tawdul told Sloan that he was going to go inside to use the restroom. Sloan responded that if he did he would be arrested for resisting law enforcement. Tawdul proceeded toward the house and told Sloan to shoot him if he had to. Tawdul returned outside a few moments later and was arrested by other officers who had arrived in response to a dispatch by Sloan.

Tawdul was charged with resisting law enforcement. A jury found him guilty. The trial court sentenced him to 180 days imprisonment with 170 days suspended for a total executed sentence of ten days. The trial court also imposed a probation period of one year. Tawdul now appeals.

DISCUSSION AND DECISION

I. Sentence

Tawdul first argues that the trial court erred in imposing a 180 day sentence combined with one year of probation. He claims that this sentence exceeds the statutory maximum one year sentence for a misdemeanor. IC XX-XX-X-X. Therefore, Tawdul requests us to remand the case to the trial court with instructions that "[t]he term of probation imposed should not exceed 185 days because [his] prison term was 180 days." Appellant's Brief at 5. The State concedes that the trial court erred, but argues that Tawdul can be placed on probation for up to 345 days. While we agree with Tawdul that the trial court erred, we disagree with his interpretation of the case law establishing the formulation for determining whether a sentence exceeds the maximum penalty authorized by statute. In Smith v. State, 621 N.E.2d 325 (Ind. 1993), our supreme court held that "a combined term of probation and imprisonment exceeding one year is inconsistent with the maximum term for conviction for a misdemeanor." Id. at 326. The court found that the trial court erred by extending the defendant's sentence of one year imprisonment with 255 days suspended by imposing a one-year probation period. The court vacated the Court of Appeals' majority opinion and instead agreed with Judge Barteau's dissenting opinion: "`[t]he trial court has the option, in sentencing a class A misdemeanant, to suspend the sentence in whole or in part and to place the defendant on probation, so long as the combination of the executed sentence and the probationary period do not exceed the maximum statutory sentence for that offense.'" Id. (citing Smith v. State, 610 N.E.2d 265, 272 (Ind.Ct.App. 1993) (Barteau, J., dissenting)) (emphasis added).

In Albright v. State, 708 N.E.2d 15, 16 (Ind.Ct.App.1999), this court recently held that the trial court erred by placing Albright on probation for one full year for each of two misdemeanor convictions after suspending the executed portion of the sentence to time served. We further determined that Albright was entitled to good time credit for the time he spent incarcerated awaiting trial. Id.

Here, the trial court sentenced Tawdul to 180 days imprisonment with 170 days suspended for a total executed sentence of ten days. In addition, the court placed him on probation for one year. Because the sentence imposed a term of probation that caused Tawdul to serve more than one year of combined imprisonment and probation, the trial court erred. We therefore remand this case to the trial court for a determination of the probationary period not to exceed 345 days.

II. Investigatory Stop of Passenger of Vehicle

Tawdul next alleges that his arrest was made in violation of the Fourth Amendment to the United States Constitution and Article One, Section Eleven of the Indiana Constitution. He argues that the initial stop was unlawful because the officer could not articulate any reasonable suspicion that he was involved in any criminal activity. According to Tawdul, the failure of the driver to dim her headlights and to yield to an emergency vehicle cannot be imputed to the passenger. Because the driver was independently culpable, and the officer could articulate no facts that he was involved in any criminality, Tawdul asserts that he had no obligation to return to the car and to be detained by the officer.

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the United States Supreme Court set forth the bright-line rule that law enforcement officers may, as a matter of course, order the driver to exit a lawfully stopped vehicle. Two decades later the Court in Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), extended this per se rule to apply to passengers of lawfully stopped vehicles. In both cases, the Court employed a balancing test to determine whether the police acted reasonably. Mimms, 434 U.S. at 109,98 S.Ct. 330; Wilson, 519 U.S. at 413,117 S.Ct. 882. The public interest in officer safety was weighed against the personal liberty interest that individuals have to be free from arbitrary government interference. Mimms, 434 U.S. at 109,98 S.Ct. 330; Wilson, 519 U.S. at 413,117 S.Ct. 882. The Mimms Court concluded that on the public interest side of the balance officer safety was a "legitimate and weighty" concern and that it would be unreasonable to require the police "to take unnecessary risks in the performance of their duties." Mimms, 434 U.S. at 110,98 S.Ct. 330 (internal citation omitted). On the other side of the balance, the Court considered the additional intrusion of asking the driver to exit the vehicle to be "de minimis." Id. at 111, 98 S.Ct. 330. Determining that a request by the police for the driver to exit a lawfully stopped vehicle was "at most a mere inconvenience," the Court concluded that the interest in officer safety outweighed an individual's privacy interest. Id.

This same balancing test was applied in Wilson where the court concluded:

"On the personal liberty side of the balance, the case for the passengers is in one sense stronger than that for the driver. There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers. But as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment. It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver."

Wilson, 519 U.S. at 413-14, 117 S.Ct. 882. The Court also noted that the risk of harm to the police is reduced when they "routinely exercise unquestioned command of the situation." Id. at 414, 117 S.Ct. 882 (internal citation omitted). Moreover, the dangers faced by the police in a traffic stop were likely greater when passengers were present in a stopped vehicle. Id. The Court ultimately held that even though "there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal" and thus the police could order passengers to exit the vehicle pending completion of the stop. Id. at 414-15, 117 S.Ct. 882.

Recently, in Walls v. State, 714 N.E.2d 1266 (Ind.Ct.App.1999), reh'g denied, a panel of this court held that when a passenger of a car that has been lawfully stopped exits the car and walks away, a police officer may not as a matter of routine practice order the passenger to return to the car. In Walls, a police officer observed a car make...