Attorney for Appellant
Terrance W. Richmond
Milan, IN
Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
ALLAN K. HOLLOWELL,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S00-9912-CR-688
)
)
)
)
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable David J. Dreyer, Judge
Cause No. 49G20-9811-CF-177824
ON DIRECT APPEAL
August 20, 2001
SULLIVAN, Justice.
Defendant Allan K. Hollowell was convicted of drug dealing and
possession after the police found drugs and other paraphernalia during a
traffic stop. We affirm his convictions, finding the search pursuant to a
lawful arrest, Defendant’s claim that he was improperly prevented from
questioning a witness not available on appeal, and the State’s use of a
prior conviction’s case chronology in the habitual offender stage proper
despite his stipulation to that conviction.
Background
The facts most favorable to the trial court’s judgment indicate the
following. On November 14, 1998, Deputy Catherine Hedges stopped a truck
that was traveling 56 m.p.h in a 35 m.p.h zone. As she approached the
vehicle, Defendant “abruptly exited the [truck].” She told him to get back
inside the truck and he complied. Deputy Hedges noticed that while
Defendant was back in the truck he was taking his hand in and out of his
pockets. Because she felt threatened by Defendant’s movements, she called
for backup. Soon thereafter, Deputy Bennett arrived in response to her
call.
Deputy Hedges again approached Defendant’s vehicle. Defendant yelled
out his window that his driver’s license was suspended. Deputy Hedges told
Defendant to exit the vehicle and arrested him. Deputy Bennett then
searched Defendant, finding marijuana and crack cocaine in his pockets.
The officers searched the truck and found a set of scales, a laptop
computer, a box of plastic sandwich bags, and a large quantity of cocaine
inside the truck. Later, officers found an additional piece of crack
cocaine in Defendant’s jacket pocket.
A jury found Defendant guilty of Dealing Cocaine, a Class A
Felony;[1] Possession of Cocaine, a Class C Felony;[2] Possession of
Marijuana, a Class A Misdemeanor;[3] and Driving While Suspended, a Class A
Misdemeanor.[4] The jury also found Defendant to be a habitual
offender.[5]
Discussion
I
Defendant contends that the trial court committed reversible error by
refusing to exclude the evidence police discovered searching Defendant's
person and his truck.
Defendant argues that Deputy Bennett’s pat down search of Defendant in
which he found drugs violated the rules of Terry v. Ohio, 392 U.S. 1 (1968)
(holding that police may conduct a patdown search upon reasonable suspicion
that a person is carrying a weapon.) Additionally, Defendant maintains
that the trial court should have suppressed the evidence found in
Defendant’s vehicle because the authority to search was based on the
initial illegal search.
We find that the evidence was not seized based on the authority of
Terry but rather on the authority to search an individual incident to a
lawful arrest.
The Fourth Amendment[6] protects persons from unreasonable search and
seizure and this protection has been extended to the states through the
Fourteenth Amendment. U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643,
650 (1961). Generally, the Fourth Amendment prohibits warrantless searches
and seizures. See Trowbridge v. State, 717 N.E.2d 138, 143 (Ind. 1999),
reh’g denied. When a search is conducted without a warrant, the State has
the burden of proving that an exception to the warrant requirement existed
at the time of the search. See Berry v. State, 704 N.E.2d 462, 465 (Ind.
1998) (citing Brown v. State, 691 N.E.2d 438, 443 (Ind. 1998)). One well-
recognized exception to the warrant requirement is a search incident to a
lawful arrest. See Chimel v. California, 395 U.S. 752, 763 (1969). Under
this exception, the arresting officer may conduct a warrantless search of
the arrestee’s person and the area within his immediate control. Id.
Additionally, when officers arrest a defendant who is in an automobile,
they are permitted to search the entire passenger compartment of the
vehicle. See New York v. Belton, 453 U.S. 454, 460 (1981). Here, the
facts most favorable to the trial court’s ruling indicate that the officers
had probable cause to arrest Defendant because he told Deputy Hedges that
he was driving with a suspended license. The officers therefore conducted
a proper search incident to a lawful arrest.
II
Defendant contends that the trial court committed reversible error by
denying him the opportunity to present certain exculpatory evidence. See
Appellant’s Br. at 13.
In an interview following his arrest, Defendant told Detective Maxey
that the drugs discovered in the truck were not his. According to
Defendant, he found the marijuana, the cocaine, and the wad of money in the
glove box of the truck he was driving at the time of his arrest. Defendant
said that the truck belonged to his friend, Antwone Chaney.
Prior to trial, the trial court granted Defendant’s motion in limine
barring the State from offering any statements that Defendant made
concerning his prior association with Chaney. The trial court also
suppressed the statements Defendant made to Detective Maxey after being
taken into custody because Defendant had not been read his Miranda rights.
At trial, Defendant asked to cross-examine Detective Maxey in order to
elicit evidence of Defendant’s exculpatory statements. The trial court
responded that it would permit the questioning with the understanding that
it might well open the door for the State to elicit evidence of additional
statements that Defendant made to Detective Maxey that would have otherwise
been suppressed. The court said:
Well, if you’re gonna ask about his statements, it’s gonna open a bit
of a door. How much of a door, I guess it depends on what you ask …
what you ask him to say or what you ask somebody else to say about
him. You asked that his statements be suppressed, and therefore, they
can’t use them. If you’re gonna use them, you’re gonna open a bit of a
door. I don’t know how much it’s gonna open it.
(R. at 234.) Defendant did not pursue the matter further; he neither
questioned Detective Maxey about Defendant’s statements nor sought further
clarification from the trial court as to how far it would permit the
questioning to go.
In order to preserve an error for appellate review, a party must do
more than challenge the ruling on a motion in limine. Azania v. State, 730
N.E.2d 646, 651 (Ind. 2000), reh’g denied; Miller v. State, 716 N.E.2d 367,
370 (Ind. 1999). Absent either a ruling admitting evidence accompanied by
a timely objection or a ruling excluding evidence accompanied by a proper
offer of proof, there is no basis for a claim of error. See Ind. Evidence
Rule 103(a). Neither the trial court's ruling on the motion in limine nor
its subsequent comments on “opening the door” prevented the defense from
questioning Detective Maxey about Defendant’s statements. Defendant had a
choice between the perceived advantages of the evidence of his exculpatory
comments to police and the disadvantages of his other statements.
Defendant had successfully obtained a pretrial ruling preventing the State
from presenting evidence it deemed detrimental to Defendant's interests and
then made a strategic decision not to risk admission of such excluded
evidence. See Azania, 730 N.E.2d at 651. We find no error presented by
these facts.
III
Defendant contends that he was unfairly prejudiced during the
habitual offender stage when the trial court admitted, over his objection,
the chronological case summary (trial court docket) from a prior
conviction.
"The state may seek to have a person sentenced as a habitual offender
for any felony by alleging, on a page separate from the rest of the
charging instrument, that the person has accumulated two (2) prior
unrelated felony convictions." Ind. Code § 35-50-2-8. (1998) The State
sought such a habitual offender enhancement to Defendant's sentence in this
case.
After the jury’s verdict in the guilt phase of this case, but prior
to the habitual phase, Defendant stipulated to the two predicate felonies
charged by the State in the habitual offender count. These were a 1985
conviction for theft, a Class D felony, and a 1993 conviction for battery,
a Class C felony. Notwithstanding the stipulation, the State submitted
evidence regarding Defendant’s prior convictions. Defendant objected to
the introduction of the case chronology with respect to the 1993 battery
conviction but did not object the State’s other evidence.
The evidence admitted without objection consisted of the charging
information for each of Defendant’s prior convictions. For the first
conviction, the information indicated that the State charged Defendant of
burglary and theft. The information for the battery conviction indicated
that he had been charged initially with attempted murder.
As noted, the evidence that was admitted over Defendant’s objection
consisted of the case chronology with respect to the battery conviction. A
thorough reading of the chronology indicates that Defendant was charged
initially with attempted murder but subsequently pled guilty to and was
convicted of battery.[7] The principal problem with the chronology is that
the copy of the court’s order of judgment included with the chronology
mistakenly indicates that Defendant actually convicted of attempted murder
(rather than battery). At the top of the order, it states “The defendant
was found [g]uilty of the following crimes ... A/MURDER/F.” However, the
chronology itself indicates that Defendant in fact pled guilty to and was
convicted of battery and that the State dropped the attempted murder
charge.
Defendant challenges the admission of the case chronology on two
grounds. First, Defendant contends that the case chronology was
unnecessary because he stipulated to the prior convictions. Defendant also
contends that the chronology was unduly prejudicial because it indicated
that Defendant had been convicted of attempted murder.
Defendant notes that we have stated in the past that stipulations by
both parties may limit facts in issue, and consequently, admissibility of
evidence relevant to establishing those facts. See Butler v. State, 647
N.E.2d 631, 634 (Ind. 1995). Here, however, evidence of his prior
convictions was still relevant even after Defendant’s stipulation.
So long as done so consistent with applicable rules of evidence,
evidence of the two predicate felonies in the face of a stipulation is
admissible during the habitual offender stage of a trial. In the habitual
offender stage, the jury has discretion to determine whether a defendant is
a habitual offender “irrespective of the uncontroverted proof of prior
felonies.” Seay v. State, 698 N.E.2d 732, 737 (Ind. 1998). Because “the
jury is the judge of both the law and facts as to that issue,” see id., the
facts regarding the predicate convictions are relevant to the jury’s
decision whether or not to find a defendant to be a habitual offender.
We also find no prejudice from the inclusion of the case chronology.
Although there was a mistake on the judgment order with respect to the
prior battery conviction, we find no error. Defendant and the State both
clearly indicated to the jury that Defendant’s prior conviction was for
battery, not attempted murder. During the State’s closing argument, the
prosecutor said:
Ladies and gentlemen, you just heard the stipulation. The Defendant
just stipulated that he ... was convicted [and] sentenced for a felony
theft. Then he was charged, convicted, [and] sentenced for a felony
battery as a C felony, and then he was charged, and you just convicted
him of the offense in the first phase of the trial.
(R. at 431.) Defendant’s counsel also indicated to the jury that the prior
felonies were for theft and battery:
He has served his time on that D felony theft that was back in 1985.
He served his time, a minor felony. It’s done, it’s over with, it’s
finished. He served it. He has served his time on the C felony
battery. It is finished, it is done. It is over with. He paid his
price to you and to me and to whatever victims existed in those
particular cases. He did that. He’s not here for another felony
battery. He’s not here for another felony theft. He’s paid for
those.
(R. at 432-33.)
The State, in rebuttal, again referred to Defendant’s two
convictions, stating, “[Defendant] did serve his time for D felony theft.
.... He did serve his time for the C felony battery .... Today, he showed
you that he came back after he got finished doing his time on those other
two, came back and violated the law again.” (R. at 434.)
Given the repeated references to Defendant’s past crimes as being for
theft and battery, we find no likelihood that the jury thought that one of
the predicate offenses was attempted murder.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and BOEHM, J., concur.
RUCKER, J., concurs in part and dissents in part with separate opinion
in which DICKSON, J., concurs
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
TERRANCE W. RICHMOND KAREN M. FREEMAN-WILSON
Milan, Indiana Attorney General of Indiana
TIMOTHY W. BEAM
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
ALLAN K. HOLLOWELL, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-9912-CR-688
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
CRIMINAL DIVISION, ROOM 20
The Honorable David J. Dreyer, Judge
Cause No. 49G20-9811-CF-177824
ON DIRECT APPEAL
August 20, 2001
RUCKER, Justice, concurring in part and dissenting in part
Even though Hollowell stipulated to the predicate offenses underlying
the habitual offender allegation, the State nonetheless proceeded to
introduce the case chronology into evidence. The majority condones this
procedure because “the facts regarding the predicate convictions are
relevant to the jury’s decision whether or not to find a defendant to be a
habitual offender.” Slip op. at 10 (citing Seay v. State, 698 N.E.2d 732,
736-37 (Ind. 1998)). I disagree. Because of Article 1, Section 19 of the
Indiana Constitution, the jury is empowered to render a verdict that a
defendant is not a habitual offender even if it finds that the State proved
beyond a reasonable doubt that the defendant had accumulated two prior
unrelated felonies. Seay, 698 N.E.2d at 734. This right of an Indiana
jury in a criminal case not to be bound to convict even in the face of
proof beyond a reasonable doubt allows the jury to consider mercy in its
deliberations. See Pope v. State, 737 N.E.2d 374, 379 (Ind. 2000), reh’g
denied; Bivins v. State, 642 N.E.2d 928, 946, (Ind. 1994). Any
consideration of mercy in this case was very likely eliminated by the
erroneous and prejudicial information contained in the case chronology.
Therefore, I would reverse the habitual offender adjudication. In all
other respects I concur with the majority.
DICKSON, J., concurs.
-----------------------
[1] Ind. Code § 35-48-4-1 (1998).
[2] Id. § 35-48-4-6. (1998).
[3] Id. § 35-48-4-11 (1998).
[4] Id. § 9-24-18-5 (1998).
[5] Id. § 35-50-2-8 (1998).
[6] The Fourth Amendment to the United States Constitution provides as
follows:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
[7] It also clearly indicates numerous probation violations by Defendant.