ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL B. TROEMEL STEVE CARTER
Lafayette, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JUDSTON McCLURE, )
vs. ) No. 79A05-0309-CR-437
STATE OF INDIANA, )
APPEAL FROM THE TIPPECANOE CIRCUIT COURT
The Honorable Donald Daniel, Judge
Cause No. 79C01-0009-CF-42
February 6, 2004
OPINION - FOR PUBLICATION
Judston McClure appeals his conviction for carrying a handgun as a Class C
felony. We affirm.
McClure raises two issues for review, which are:
I. whether the trial court properly denied his motion to suppress a statement he
made to police; and
II. whether the trial court properly entered the conviction as a Class C felony.
On September 23, 2000, Officer Brad Bishop initiated a traffic stop of a
vehicle driven by McClure. Upon learning there was an outstanding warrant for
McClures arrest, Officer Bishop placed McClure in the back seat of the patrol
An inventory search of the car revealed a marijuana pipe, ammunition, and a
handgun. Officer Bishop then returned to his patrol car while carrying the
items in his hand. He opened the drivers door and rolled down
the window where McClure was seated. As Officer Bishop turned toward McClure,
McClure blurted, thats my gun and no I dont have a permit for
it. Tr. pp. 29, 43.
On September 28, 2000, the State charged McClure with carrying a handgun without
a license, possession of marijuana, maintaining a common nuisance, and reckless possession of
paraphernalia. McClure moved to suppress his statement regarding the handgun on the
basis that it was inadmissible because he had not been given his Miranda
warnings. After a hearing, the trial court denied the motion. After
a jury trial, McClure was acquitted on all counts except the handgun charge.
The trial court then conducted the second phase of the trial to determine
whether McClure had a prior felony conviction that would support an enhancement of
the handgun charge to a C felony. The State presented evidence that
McClure had been convicted in 1998 of possession of marijuana as a Class
D felony pursuant to a plea agreement. The trial court
then found he had a prior conviction within fifteen years of the instant
offense and found him guilty of a Class C felony. This appeal
I. Motion to Suppress
We first note that McClure did not object to the admission of his
statement during trial. When the trial court denies a motion to suppress
evidence or takes the motion under advisement, the moving party must renew his
objection to admission of the evidence at trial. Wright v. State, 593
N.E.2d 1192, 1194 (Ind. 1992), cert. denied, 506 U.S. 1001, 113 S. Ct.
605. If the moving party does not object to the evidence at
trial, then any error is waived. Id. Here, defense counsel made
an oral motion to suppress the statement just prior to the States case-in-chief.
After hearing evidence, the trial court denied the motion. However, when
Officer Bishop testified during the trial about McClures statement, the defense did not
object. Thus, the issue is waived on appeal for failing to properly
preserve it below.
Waiver notwithstanding, McClures argument fails. We review the denial of a motion
to suppress in a manner similar to other sufficiency matters. Marlowe v.
State, 786 N.E.2d 751, 753 (Ind. Ct. App. 2003). We do not
reweigh the evidence, and we consider conflicting evidence most favorable to the trial
courts ruling. Id. However, unlike the typical sufficiency of the evidence
case where only the evidence favorable to the judgment is considered, we must
also consider uncontested evidence favorable to the defendant. Id.
In Miranda, the Supreme Court held that the prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612
(1966). These procedural safeguards include an advisement to the accused the he/she
has the right to remain silent, that anything said can be used against
him or her, that he or she has the right to an attorney,
and that one will be appointed if he or she cannot afford one.
Id. at 479, 86 S. Ct. at 1602. The Miranda warnings
are required only where a suspect in custody is subjected to interrogation.
Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689
(1980); White v. State, 772 N.E.2d 408, 412 (Ind. 2002).
There is no dispute here that McClure was in custody. He was
handcuffed and placed in the patrol car as a result of the outstanding
arrest warrant. Thus, the first element is fulfilled.
The question then becomes whether McClure was subjected to an interrogation by Officer
Bishop. Under Miranda, interrogation includes express questioning and words or actions on
the part of the police that the police know are reasonably likely to
elicit an incriminating response from the suspect. Innis, 446 U.S. at 301,
100 S. Ct. at 1689-90. Volunteered statements do not amount to interrogation.
White, 772 N.E.2d at 412; Hopkins v. State, 582 N.E.2d 345, 348
The State maintains that McClure voluntarily blurted out the confession without any sort
of prompting or questioning by Officer Bishop. McClure denies making the statement
to Officer Bishop at all. However, he makes the alternative argument that
even if he had made the statement, he was in custody at the
time and should have been advised of his Miranda warnings before the interrogation.
McClure argues that he did not voluntarily blurt out the confession and
that the statement was made as an immediate response to Officer Bishops action
of displaying the gun, while rolling down the back window of the squad
car in which [McClure] was handcuffed. Appellants Br. p. 6. He
Officer Bishop was carrying the gun in plain view. He opened the
front door of his squad car, but rolled down the rear window on
the side where [McClure] was handcuffed. It was clearly perceived by [McClure]
that the purpose of rolling down the rear window and having the officer
face him with the gun amounted to a demand for an explanation of
the gun. While it is true that the demand was communicated physically
rather than verbally, it was tantamount to interrogation.
Appellants Br. p. 6.
II. Class C Felony
Given the standard of review, we must consider the evidence most favorable to
the trial courts ruling and all undisputed evidence in favor of McClure.
Keeping that in mind, there is no evidence that Officer Bishop held the
gun up to McClure for him to see, that he asked McClure anything
relating to the weapon, or that he in any way solicited information from
McClure. Indeed, Officer Bishop did not even have the opportunity to give
the Miranda warnings before McClure stated that he owned the weapon. Officer
Bishop testified that McClure confessed his ownership of the gun before he had
a chance to say anything at all to McClure. Officer Bishop further
stated that he had not presented the weapon to McClure when McClure admitted
owning it, but rather only had it in his hand. Officer Bishop
also testified that he did not know if McClure saw the gun before
he blurted out his statement. Tr. pp. 31, 62-63. McClures statement
was an utterance not made in response to any questioning, words, or actions
on the part of Officer Bishop that he should have known were reasonably
likely to elicit an incriminating response.
White, 772 N.E.2d at 412.
The only way to find otherwise would be to conclude that the fact
that Officer Bishop approached the car and rolled down McClures window with the
handgun in his hand was tantamount to an interrogation.
Clearly, Officer Bishop may have been getting ready to say something to McClure
but had not done so when McClure had volunteered the information. However,
that does not render Officer Bishops conduct an interrogation given that he did
not even have an opportunity to advise McClure of his rights before the
statement was made. As a result, the Miranda warnings were not a
prerequisite to the admission of the statement, and the trial court properly denied
the motion to suppress.
The trial court convicted McClure of a Class C felony. To support
the Class C felony conviction, the trial court found that McClure had a
Class D felony conviction in 1998, which was within fifteen years of the
instant offense. McClure argues that his plea agreement for the 1998 conviction
precluded the entry of a Class C felony conviction in the instant case.
McClures plea agreement in the prior case stated in relevant part:
2. That this Court may impose whatever sentence it deems appropriate after
hearing any evidence or argument of counsel. However, the State of Indiana
would recommend alternative sentencing through Community Corrections Work Release or House Arrest programs
by imposed for any executed sentence, and if defendant completes any probationary period,
the State recommends his conviction be reduced to a Class A misdemeanor.
App. p. 316. McClure argues that the trial court accepted the plea
agreement and was, therefore, bound by its terms. He argues:
That agreement provided for misdemeanor treatment if defendant completes any probationary period.
To analyze that agreement requires waiting for a probationary period to expire, or
a judicial finding that the probation was revoked. At the time of
the instant sentence, neither had yet to occur. Therefore the Class C
felony finding was at best premature.
Appellants Br. p. 8. In other words, he argues that because the
probationary period terms had not yet been satisfied to know whether the felony
conviction would have been reduced to a misdemeanor, it was improper for the
trial court to rely upon the prior conviction as a felony conviction to
enhance the instant offense to a C felony because the prior one may
have been reduced to a misdemeanor.
The only relevant fact with respect to this issue is whether there was
in fact a prior felony conviction in the last fifteen years. It
is undisputed that the trial court in the prior case entered a conviction
for a Class D felony. It did so without mention of the
reduction to an A misdemeanor upon satisfaction of the probationary terms as recommended
by the State in the plea agreement. The fact that the State
made a sentencing recommendation in that case that included a reduction to a
misdemeanor if the probationary terms were satisfied is irrelevant.
See footnote The bottom line
is that McClure had a prior felony conviction at the time he committed
the instant offense that was sufficient to support the enhancement to a Class
C felony conviction in this case. The trial court properly enhanced the
conviction to a Class C felony.
The trial court properly denied McClures motion to suppress a statement made by
him to Officer Bishop even though he had not been advised of his
Miranda rights. In addition, the trial court properly relied upon McClures prior
Class D felony conviction to enhance this conviction to a Class C felony.
BROOK, C.J., VAIDIK, J., concur.
We note that oral argument was held on January 16,
2004, at Valparaiso University School of Law. We commend counsel on their
presentations and preparation.
Footnote: Typically, we consider the state of mind and the reasonable
interpretation of the police conduct by the defendant in determining whether an interrogation
took place. In other words, we consider the subjective view of the
defendant. Here, however, McClure testified that he did not make the statement
in the first place, and therefore, there is no evidence in the record
as to his subjective interpretation of Officer Bishops conduct.
Footnote: We would be remiss if we did not point out
that the best practice in a situation such as this one would be
to advise the defendant of the
Miranda warnings when he is initially placed
in custody. If Officer Bishop had done so in this case, this
issue would not be before us today.
To the extent McClure challenges the entry of a D
felony in the prior case or argues that the trial court was bound
by the plea agreement in that case, such issues are beyond the scope
of our review here. A substantive attack on that conviction should be
made through a post-conviction relief proceeding in that cause.