Wright v. State, 10A01-0106-CR-221.

Citation766 N.E.2d 1223
Decision Date29 April 2002
Docket NumberNo. 10A01-0106-CR-221.,10A01-0106-CR-221.
PartiesTracy L. WRIGHT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Jeffrey D. Stonebraker, Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.



Tracy Wright ("Wright") was arrested and charged with Possession of Cocaine, a Class A felony,1 and sentenced to an enhanced thirty-five-year sentence with ten years suspended. Wright appeals, raising three issues for our review:

I. Whether the trial court erred in denying Wright's motions to suppress;

II. Whether the trial court improperly refused Wright's jury instruction on lesser-included offenses; and III. Whether the trial court properly balanced Wright's aggravating and mitigating circumstances during sentencing.

We affirm.

Facts and Procedural History

The facts most favorable to the trial court's judgment reveal that on June 20, 1999, at approximately 5:00 a.m., Officers Tony Lehman ("Officer Lehman") and Jamie Craig ("Officer Craig"), while on routine patrol in Ashland Park in Clarksville, Indiana, noticed two cars illegally parked in front of "no parking" signs. The officers approached one of the cars and found a male, later identified by Officer Lehman as Wright, seated in the driver's seat, and a female seated in the front passenger seat. The officers proceeded to ascertain the identity of the individuals inside the vehicle. Officer Lehman requested Wright's identification while Officer Craig went with the female passenger to her vehicle to obtain her identification.

While Officer Lehman was running Wright's identification, he asked Wright if there were "any guns or anything illegal in his vehicle." Tr. p. 7. According to Officer Lehman's testimony, Wright became agitated after this question was asked, and "started feeling his pockets, reaching under the seat, just reaching everywhere," making Officer Lehman very nervous. Id.

Officer Lehman described Wright's movements as "fidgety." Id. Officer Lehman informed Wright that his actions were making him nervous and that he should stop reaching around inside the car. However, Wright continued to "feel around" inside the vehicle. Id. After Officer Lehman again notified Wright that his actions were making him nervous, Officer Lehman instructed Wright to exit the vehicle, but instead of complying, Wright said, "Why you want me out of the car?" and continued to reach around inside the vehicle. Id. Officer Lehman responded by indicating that Wright simply needed "to get out of the car," opened Wright's car door, and escorted Wright from the vehicle. Id. at 7-8.

Upon opening the vehicle door, and without giving Wright his Miranda warnings, Officer Lehman proceeded to handcuff Wright. Officer Lehman informed Wright that he was not under arrest, but that he was being handcuffed for officer safety, and that Officer Lehman was going to perform a pat down, because Wright's actions had made him very nervous. While conducting the pat down, Officer Lehman felt an object, located in Wright's left front pants pocket, which he recognized, based on its packaging, shape, and feel, to be rock cocaine. Before reaching inside Wright's pants pocket, Officer Lehman stated aloud, "That's rock cocaine right there." Tr. p. 8. Wright immediately stated, "Oh, that's my own use, that's my own stash. You know, that's my own personal stash." Id. Officer Lehman then proceeded to remove the object from Wright's pants pocket, which was later identified as several baggies of rock cocaine, totaling 4.18 grams.

Wright was subsequently charged with Possession of Cocaine, as a Class A felony. Prior to trial, Wright moved to suppress the cocaine and his incriminating statement on the grounds that there was no legal justification for Officer Lehman's pat down search and that Wright's statement was given without the benefit of a Miranda warning. After evidentiary hearings, the trial court denied Wright's motions. Following a two-day jury trial, Wright was found guilty as charged. Following a sentencing hearing, on April 11, 2001, the trial court sentenced Wright to the Department of Correction for thirty-five years with ten years suspended. Wright now appeals. Additional facts will be provided as necessary.

Discussion and Decision
I. Motions to Suppress

Wright first argues that the trial court erred when it denied his Motions to Suppress. Specifically, Wright argues that because he was never properly Mirandized, the statements he made during Officer Lehman's pat down search should have been excluded. Wright also argues that Officer Lehman's pat down search exceeded the scope of the Fourth Amendment as it did not result from a reasonable belief that Wright was armed and dangerous. Wright therefore argues that the seizure of cocaine was not justified under the "plain feel" doctrine and should have been excluded.

A. Standard of Review

The admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent a showing that the trial court abused its discretion. Johnson v. State, 710 N.E.2d 925, 927 (Ind.Ct.App.1999). Our review of a denial of a motion to suppress is similar to our review of other sufficiency matters. Goodner v. State, 714 N.E.2d 638, 641 (Ind.1999). We will disturb the trial court's ruling only upon a showing of abuse of discretion. Walker v. State, 661 N.E.2d 869, 870 (Ind.Ct.App.1996). When reviewing a trial court's ruling on a motion to suppress, we will examine the evidence most favorable to the ruling, together with any uncontradicted evidence. State v. Joe, 693 N.E.2d 573, 574-75 (Ind.Ct.App.1998), trans. denied. We will not judge witness credibility, or reweigh the evidence. Burkett v. State, 691 N.E.2d 1241, 1244 (Ind.Ct.App.1998), trans. denied.

B. Miranda Warnings

Miranda warnings are based upon the Fifth Amendment of the U.S. Constitution and require that a suspect be informed of the right to the presence and advice of counsel during custodial interrogation by the police. Loving v. State, 647 N.E.2d 1123, 1125 (Ind.1995). Miranda requires that officers advise a person who has been "taken into custody or otherwise deprived of his freedom of action in any significant way" that he has the right to remain silent and that any statement he makes may be used as evidence against him. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (as quoted by Loving, 647 N.E.2d at 1125). Statements elicited in violation of Miranda are generally inadmissible in a criminal trial and subject to a motion to suppress. Loving, 647 N.E.2d at 1125. Wright argues that the incriminating statements that he made during Officer Lehman's pat down, specifically that the cocaine seized by Officer Lehman was his "own personal stash," should be excluded because he was not given his Miranda warnings. Tr. p. 8.

However, Miranda safeguards only attach when the suspect is subjected to custodial interrogation. Curry v. State, 643 N.E.2d 963, 976 (Ind.Ct.App.1994),trans. denied. Absent custodial interrogation, there is no infringement of the Fifth Amendment rights identified in Miranda. Id. To determine whether a person was in custody, we examine all of the circumstances surrounding the interrogation. Loving, 647 N.E.2d at 1125 (citing Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994)). While, no "bright line" test has developed to determine when an investigatory detention moves beyond a mere Terry stop2 and becomes a custodial interrogation, the "ultimate inquiry is simply whether there [has been] a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." Id. (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (citation omitted)).

An arrest is defined as "the taking of a person into custody, that he may be held to answer for a crime," Ind. Code § 35-33-1-5 (1998). "An arrest occurs when `police officers interrupt the freedom of the accused and restrict his liberty of movement.'" Taylor v. State, 464 N.E.2d 1333, 1335 (Ind.Ct.App.1984) (quoting Armstrong v. State, 429 N.E.2d 647, 651 (Ind.1982) (citation omitted)). Whether a person is in custody at a given time depends not upon the subjective views of either the interrogating officer or the subject being questioned, but upon the objective circumstances. Loving, 647 N.E.2d at 1125 (citing Stansbury, 114 S. Ct at 1529). An officer's knowledge and beliefs are only relevant to the question of custody if adequately conveyed, through words or actions, to the individual being questioned. Id. (citing Stansbury, 114 S.Ct. at 1530). The test is how a reasonable person in the suspect's circumstances would understand the situation. Id. (citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).

Here, Officer Lehman observed Wright's vehicle illegally parked in Ashland Park at approximately 5:00 a.m. while routinely patrolling the area, and approached Wright's vehicle after observing the vehicle in front of a "no parking" sign. After obtaining Wright's identification, and inquiring as to whether Wright had any weapons or anything illegal inside the vehicle, Wright became very nervous and began feeling his pockets, reaching under the seat and "feeling around" inside the vehicle. Tr. p. 7. After Officer Lehman informed Wright that his actions were making him apprehensive and ordered Wright to stop, Wright continued to act "fidgety." Id. Officer Lehman then ordered Wright to exit the vehicle, but instead of complying with the Officer's order, Wright questioned Officer Lehman and continued to feel around inside the vehicle. Officer Lehman then opened the car door and demanded that Wright exit the vehicle. Upon removing Wright from the...

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