ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kathleen M. Sweeney Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Robin Hodapp-Gillman
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
COREY HENDERSON, )
Defendant-Appellant, )
)
v. ) 49S00-0010-CR-616
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9904-CF-059686
________________________________________________
On Direct Appeal
June 6, 2002
DICKSON, Justice
The defendant, Corey Henderson, was involved in an April 1999,
Indianapolis drug related armed robbery, and in the ensuing struggle, Jamar
Reynolds, an accomplice, was fatally wounded. The defendant was convicted
on three counts: 1. felony murder;[1] 2. conspiracy to commit robbery as a
class A felony;[2] and 3. robbery as a class A felony.[3] The trial court
merged the defendant's conviction for class A felony robbery count into the
felony murder count,[4] and sentenced the defendant to sixty-five years for
felony murder and a concurrent fifty years for class A felony conspiracy to
commit robbery.[5] In his direct appeal the defendant contends that the
trial court erred in denying his motion to suppress, that his convictions
for murder and conspiracy to commit robbery violate the Indiana Double
Jeopardy Clause, that the trial court abused its discretion in sentencing,
and that his sentence is manifestly unreasonable.
1. Motion to Suppress
The defendant first contends that the trial court committed
reversible error when it denied his motion to suppress his statement to
police because it was obtained from a coerced search and a warrantless
arrest. The defendant was arrested in his home and later, after being
given the standard warnings, gave a statement to police at the jail. When
the arrest was made, the police did not possess an arrest warrant or a
warrant to search the home. The defendant claims that the warrantless
entry into his home and his subsequent warrantless arrest violate the
Fourth Amendment to the United States Constitution as an unreasonable
search.[6]
The Fourth Amendment protects against warrantless and nonconsensual
entry into a residence by police to search for a felony arrestee even when
officers have probable cause to make the arrest. Payton v. New York, 445
U.S. 573, 576, 100 S.Ct. 1371, 1374-75, 63 L.Ed.2d 639, 644 (1980). The
State concedes that the police officers' arrest of the defendant amounted
to a Payton violation. It asserts, however, that the defendant's
subsequent statement to police is not thereby excluded from evidence.
Citing New York v. Harris, 495 U.S. 14, 21, 110 S.Ct. 1640, 1644-45,
109 L.Ed.2d 13, 22 (1990), and Cox v. State, 696 N.E.2d 853, 859 (Ind.
1998), the State argues the exclusionary rule does not prohibit the use of
a stationhouse statement made by a defendant in legal custody, even if the
statement is taken after a Payton violation. The State is correct in this
regard. "[W]here the police have probable cause to arrest a suspect, the
exclusionary rule does not bar the State's use of a statement made by the
defendant outside of his home, even though the statement is taken after an
arrest made in the home in violation of Payton." Cox, 696 N.E.2d at 859
(quoting Harris, 495 U.S. at 21, 110 S.Ct. at 1644-45, 109 L.Ed.2d at 22).
For exclusion purposes, the relevant inquiry is whether the defendant gave
the statement while in lawful custody. See Harris, 495 U.S. at 17-21, 110
S.Ct. at 1642-45, 109 L.Ed.2d at 19-22. "It is well settled that a police
officer may arrest a suspect without a warrant if the officer has probable
cause to believe that the suspect has committed a felony." Ortiz v. State,
716 N.E.2d 345, 348 (Ind. 1999), Peterson v. State, 674 N.E.2d 528, 536
(Ind. 1996); Sears v. State, 668 N.E.2d 662, 666-67 (Ind. 1996). "Probable
cause exists when, at the time of the arrest, the arresting officer has
knowledge of facts and circumstances that would warrant a person of
reasonable caution to believe that the suspect had committed a criminal
act." Ortiz, 716 N.E.2d at 348 (citing Peterson, 674 N.E.2d at 536).
During the police investigation of the death of Reynolds, three
witnesses to the shooting described the perpetrator as five feet, four
inches tall, weighing 140-150 pounds, with puffy permed hair, and solid
gold teeth across the front top of his mouth. The decedent's best friend
stated that this description matched a person named Corey, with whom
Reynolds and Guilford Forney, a co-perpetrator,[7] had been associating for
the past few months. Forney's brother contacted the police and stated he
had heard that Corey was in the car at the time of the homicide and
confirmed the description given by the witnesses. From this evidence the
police had probable cause to believe that the defendant took part in the
crimes committed.
Forney's brother stated that Corey lived in a house around the corner
on Sunshine Avenue with a family that had a son named Kalief Martin. He
described the house where Corey was staying as well as the house across the
street from it. After determining the address of the former house, the
detective verified that Patty and Otis Martin lived there with their son
Kalief. Marion County Sheriff Mike Turner located Patty Martin, who
confirmed that Corey Henderson lived in her home. Det. Turner asked Martin
to take him to her house. She complied, and when she opened the door,
three police officers entered and arrested Henderson.
We hold that regardless of the warrantless police entry into the
Martin home where the defendant Corey Henderson was living, the police
nevertheless had probable cause to arrest the defendant, and his subsequent
statement in police custody was not rendered inadmissible by the
warrantless entry.
2. Indiana Double Jeopardy
The defendant contends that his convictions and sentences for felony
murder and conspiracy to commit robbery as a class A felony violate the
Indiana Double Jeopardy Clause, Article 1, Section 14 of the Indiana
Constitution. He seeks reduction of his conspiracy conviction from a class
A to a class B felony.
He expressly grounds his double jeopardy claim on the actual evidence
test announced in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). Under
this test, to establish double jeopardy, the defendant must demonstrate "a
reasonable possibility that the evidentiary facts used by the fact-finder
to establish the essential elements of one offense may also have been used
to establish the essential elements of a second challenged offense." Id. at
53. The defendant argues that the same injury, the fatal gunshot wound to
Reynolds, was used "to both prove an essential element of the murder and an
essential element of the conspiracy to commit robbery." Brief of Appellant
at 15.
This argument does not prevail. Under the actual evidence test, "it
is not sufficient merely to show that the same evidence may have been used
to prove a single element of two criminal offenses." Redman v. State, 743
N.E.2d 263, 267 (Ind. 2001) (emphasis in original). To establish double
jeopardy, "it is necessary to show a [reasonable[8]] possibility that the
same evidentiary facts were used to prove the body of essential elements
that comprised each of two or more of the offenses resulting in
convictions." Id. (emphasis in original). This Court recently
emphasized:
The test is not merely whether the evidentiary facts used to establish
one of the essential elements of one offense may also have been used
to establish one of the essential elements of a second challenged
offense. In other words, under the Richardson actual evidence test,
the Indiana Double Jeopardy Clause is not violated when the
evidentiary facts establishing the essential elements of one offense
also establish only one or even several, but not all, of the essential
elements of a second offense.
Spivey v. State, 731 N.E.2d 831, 833 (Ind. 2002).
In the present case the jury was separately instructed as to the
essential elements of each of the challenged criminal offenses. One
instruction advised that to convict for felony murder under Count 1, the
State must prove: "(1) the defendant; (2) killed; (3) another person; and
(4) while committing or attempting to commit robbery, which is to knowingly
take property from another person or from the presence of another person by
using or threatening the use of force on another person, or by putting
another person in fear." Record at 128. As to conspiracy to commit
robbery, the elements instruction required the State to prove: "(1) the
defendant (2) agreed with another person (3) to commit the crime of
robbery, which is to knowingly or intentionally take property from the
person or presence of another person by using or threatening the use of
force, or by putting any person in fear and (4) one of the conspirators
performed an overt act in furtherance of the agreement." Record at 129-30.
This instruction also advised that "[i]f the State further proves an
additional element beyond a reasonable doubt that the crime resulted in
serious bodily injury to any person other than a defendant, you should find
the defendant guilty of the crime of conspiracy to commit robbery, a class
A felony." Record at 130. The instruction also explained that it would be
a class B felony if the State proved that it was committed by the defendant
while armed with a deadly weapon. Id.
In addition to instructing on the elements, the trial court also read
to the jury the charging information as to all three counts. As to the
murder count, the information charged that Henderson killed Reynolds while
committing or attempting to commit robbery (taking U.S. currency from
Michael Cornner by putting Cornner in fear or by using or threatening to
use force). As to the conspiracy count, the information specified the
intended robbery to be the taking of United States currency from Michael
Cornner, it named the resulting serious bodily injury as "a gunshot wound"
to Reynolds's back, and for the overt act alleged that Henderson "took
possession of said handgun and placed it against the side of Michael
Cornner." Record at 125. In the present case, the evidentiary facts that
established the essential elements of felony murder did not also establish
the "agreement" element of conspiracy. Similarly analyzing the evidentiary
facts that may have been used to establish the essential elements of class
A felony conspiracy, such facts did not also establish that the defendant
committed or attempted to commit robbery, one of the elements of the
charged felony murder. It is less clear whether the evidentiary facts used
to establish all the essential elements of conspiracy to commit robbery may
also have been used to establish all the elements of felony murder. The
evidentiary fact that established the resulting serious bodily injury as
described in the court's elements instruction (which was broader than the
charging information) was likely the death of Reynolds, which would also
have proven the resulting death element of felony murder. Furthermore, it
may initially appear that the evidentiary facts proving the charged overt
act (Henderson placed a handgun in the Cornner's side) could have used to
establish attempted robbery, one possible basis for felony murder under the
court's instruction as to the elements of felony murder. It is
significant, however, that the jury found the defendant guilty as to Count
3, robbery (which the trial court merged with Count 1, felony murder),
demonstrating that the jury found the robbery to have been completed,
rather than just attempted. The evidentiary facts proving class A felony
conspiracy to commit robbery did not also establish the completed robbery
used by the jury to establish felony murder. We conclude that it is not
reasonably possible that the jury used the same evidentiary facts to
establish all the elements of both class A felony conspiracy to commit
robbery and felony murder (the defendant killed Reynolds while committing
the robbery of Cornner). In other words, the offenses of felony-murder and
class A felony conspiracy were each established by the proof of a fact not
used to establish the other offense. We find no violation of the Double
Jeopardy Clause of the Indiana Constitution.
We note, however, that this appeal was initiated and the Brief of
Appellant was filed before this Court issued its clarifying opinions in
Redman and Spivey. Furthermore, Spivey expressly acknowledges that, apart
from a state constitutional claim of double jeopardy under Richardson,
similar relief may be obtained under a series of rules of statutory
construction and common law. Spivey, 761 N.E.2d at 834. In Pierce v.
State, 761 N.E.2d 826 (Ind. 2002), issued contemporaneously with Spivey, we
applied one of these rules and granted relief.
We therefore elect, sua sponte, to review the defendant's claims
under these rules of common law and statutory construction. Among these is
the doctrine that where one conviction is based on the same bodily injury
that forms the basis for elevating another conviction to a higher penalty
classification, the two cannot stand. See Pierce, 761 N.E.2d at 830 (same
injury used to establish class A felony burglary and class B felony
robbery); Moore v. State, 652 N.E.2d 53, 60 (Ind. 1995)(same injury used to
establish class A felony robbery and murder).
The defendant's claim qualifies for consideration under this
doctrine. The death of Reynolds was the basis for his convictions of both
murder and class A felony conspiracy. The defendant argues that it would
be proper to reduce his conspiracy conviction from a class A felony to a
class B felony. Class B felony conspiracy to commit robbery requires the
offense to be committed while armed with a deadly weapon. Ind.Code § 35-41-
5-2; Ind.Code § 35-42-5-1. The defendant's conspiracy conviction was based
on the use of a handgun. In this way, his murder conviction would not be
based on the same bodily injury that forms a basis for elevating his
conspiracy conviction. We agree that his conspiracy conviction should be
reduced to a class B felony.
3. Sentencing
The defendant contends that in imposing enhanced sentences of sixty-
five years for murder and fifty years for class A felony conspiracy, the
trial court abused its discretion by ignoring certain mitigators and by
relying on improper aggravators. In general, sentencing determinations are
within the trial court's discretion and are governed by Indiana Code § 35-
38-1-7.1. See Thacker v. State, 709 N.E.2d 3, 9 (Ind. 1999); Harris v.
State, 659 N.E.2d 522, 527 (Ind. 1995). We review trial court sentencing
decisions only for abuse of discretion, including a trial court's decisions
to increase or decrease the presumptive sentence because of aggravating or
mitigating circumstances and to run the sentences concurrently or
consecutively. See Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997); Smith
v. State, 675 N.E.2d 693, 697 (Ind. 1996); Morgan v. State, 675 N.E.2d
1067, 1072 (Ind. 1996); Mott v. State, 273 Ind. 216, 220, 402 N.E.2d 986,
988 (1980). If a trial court relies upon aggravating or mitigating
circumstances to enhance or reduce the presumptive sentence, it must (1)
identify all significant mitigating and aggravating circumstances; (2)
state the specific reason why each circumstance is determined to be
mitigating or aggravating; and (3) articulate the court's evaluation and
balancing of the circumstances. Harris, 659 N.E.2d at 527-28.
The defendant argued four mitigating circumstances at trial: (1) his
young age, (2) lack of prior criminal history, (3) the crime was the result
of circumstances unlikely to recur, and (4) the victim of the crime induced
or facilitated the offense. Record at 672-73. The trial court only
afforded weight to the first two. The defendant contends the trial court
abused its discretion in not addressing the other two proposed mitigating
circumstances.
Although a sentencing court must consider all evidence of mitigating
circumstances offered by the defendant, the finding of a mitigating factor
rests within the court's discretion. Harris v. State, 659 N.E.2d 522, 528
(Ind. 1995)(citing Aguirre v. State, 552 N.E.2d 473, 476 (Ind. 1990)). "A
court does not err in failing to find mitigation when a mitigation claim is
'highly disputable in nature, weight, or significance.'" Smith v. State,
670 N.E.2d 7, 8 (Ind. 1996)(quoting Wilkins v. State, 500 N.E.2d 747, 749
(Ind. 1986)). While a failure to find mitigating circumstances clearly
supported by the record may imply that the sentencing court improperly
overlooked them, the court is obligated neither to credit mitigating
circumstances in the same manner as would the defendant, nor to explain why
he or she has chosen not to find mitigating circumstances. Crawley v.
State, 677 N.E.2d 520, 523 (Ind. 1997)(citing Johnson v. State, 580 N.E.2d
959, 961 (Ind. 1991); Hammons v. State, 493 N.E.2d 1250, 1254-55 (Ind.
1986)). We discern no error in the failure to recognize the existence of
these two proposed mitigating circumstances.
The defendant also contends that the trial court improperly
considered the facts comprising the essential elements of the crimes as the
only aggravating circumstance warranting imposition of a sentence in excess
of the presumptive sentence. At sentencing, after the trial court
discussed the mitigating factors, it provided its only description of
aggravating circumstances:
So, I think those are all good things. Unfortunately, the negative,
the aggravating circumstances do exist. This was a well-planned
thought-out plot to rob a drug dealer. Three or more of you engaged
in a conspiracy, obviously, a conspiracy to rob this person. You
lured him into the car. There was language used. Signal, from the
evidence I heard, for you to grab the gun which was done. As luck
would have it, or unluck would have it, the person who was killed was
apparently one of the participants. The target of the robbery
escaped. I see too many of these cases where young men sit here
having planned one bad thing and have the whole thing spiral out of
control. I suppose it's the nature of drug deals, this kind of
illegal behavior. I suppose that's why people take guns to these drug
deals and why they take guns to robberies because they know it's a
dangerous thing.
Record at 677.
The "nature and circumstances" of a crime is a proper aggravator.
See Ind.Code § 35-38-1-7.1 (the nature and circumstances of a crime shall
be considered in determining what sentence to impose); Thacker, 709 N.E.2d
at 10. While a trial court may not use a factor constituting a material
element of an offense as an aggravating circumstance, Angleton v. State,
714 N.E.2d 156, 160 (Ind. 1999); Johnson v. State, 687 N.E.2d 345, 347
(Ind. 1997); Holmes, 642 N.E.2d at 972, a court may look to the
particularized circumstances of the criminal act, Ellis v. State, 707
N.E.2d 797, 804-05 (Ind.1999); Smith, 675 N.E.2d at 698; Ector v. State,
639 N.E.2d 1014, 1015 (Ind. 1994); Williams v. State, 619 N.E.2d 569, 573
(Ind. 1993). Although the particular manner in which a crime is committed
may constitute an aggravating factor, Jackson v. State, 697 N.E.2d 53, 56
(Ind. 1998); Johnson, 687 N.E.2d at 347; Widener v. State, 659 N.E.2d 529,
532 (Ind. 1995), a trial court should specify why a defendant deserves an
enhanced sentence under the particular circumstances, Ellis, 707 N.E.2d at
805; Wethington v. State, 560 N.E.2d 496, 510 (Ind. 1990).
Here the trial court's description of the aggravating circumstances
fails to specify any particular manner or circumstances related to the
commission of the crimes beyond the material elements of the crimes for
which the defendant was convicted. Further, there is nothing in the Record
that demonstrates that the trial court weighed the mitigating and
aggravating circumstances. For these reasons, we vacate the enhanced
sentence and order the presumptive sentence imposed for the defendant's
convictions for murder and class B felony conspiracy to commit robbery.
Because of the resulting sentence reductions, we need not address the
defendant's additional claim of manifestly unreasonable sentence.
Conclusion
Finding no error in the trial court's ruling on the defendant's
motion to suppress or in the admission of his post-arrest statement to
police, we affirm the convictions. However, we find that the defendant's
conviction for class A felony conspiracy to commit robbery must be reduced
to a class B felony; and we find that the trial court's finding and
weighing of aggravating circumstances do not support enhanced or
consecutive sentences. We therefore remand for the entry of a judgment of
conviction of murder and conspiracy to commit robbery as a class B felony,
with concurrent statutory presumptive sentences to be imposed for each
offense.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, J.J., concur.
-----------------------
[1] Ind.Code § 35-42-1-1.
[2] Ind.Code § 35-41-5-2; Ind.Code § 35-42-5-1.
[3] Ind.Code § 35-42-5-1.
[4] We note inconsistencies among the trial court's declarations at
the sentencing hearing, the Chronological Case Summary (CCS), and its
Abstract of Judgment. The CCS notes, "Count 3 [robbery] merges into Count
2 [conspiracy]." Record at 22. The abstract of Judgment similarly
indicates, "Count 3 [robbery] merges into Count 2 [conspiracy]." Id. at
26. However, at the sentencing hearing, the trial court announced its
decision to "impose sentence on count 1 [murder] of sixty-five years.
Count 2 [conspiracy], fifty years. Count 3 [robbery] merges into count 1.
There will be no sentence on that offense. Count[s] 1 and 2 will be served
concurrent to one another." Record at 678. Attributing the notations on
the CCS and Abstract of Judgment to scrivener error, we deem the sentence
to be as announced by the judge in open court.
[5] The defendant also received a three-year sentence for criminal
contempt. Record at 78.
[6] The defendant also cites Article 1, Section 11 of the Indiana
Constitution, but because the defendant presents no authority or
independent analysis supporting a separate standard under the state
constitution, any state constitutional claim is waived. Williams v. State,
724 N.E.2d 1093, 1097 n.5 (Ind. 2000); Brown v. State, 703 N.E.2d 1010,
1015 n.4 (Ind. 1998); Fair v. State, 627 N.E.2d 427, 430 n.1 (Ind. 1993).
[7] Forney was convicted of felony murder, conspiracy to commit
robbery, and robbery. The convictions were upheld on appeal. Forney v.
State, 742 N.E.2d 934 (Ind. 2001).
[8] See Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999)("[T]he
possibility must be reasonable, not speculative or remote.")