Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
February 15, 2002
Once there, Walker and Defendant got out of Robinsons car. Borton and
Strait had arrived a little earlier, where Borton was supposedly waiting for Walker
to bring out the a
udio tapes Borton was to pick up. Defendant
loaded his gun, walked over to Straits car, and entered the car from
the passenger side door. He told Strait to drive to the bridge,
the pre-arranged place at the complex where the robbery was to occur.
Strait drove to the bridge. A few minutes went by, and then
Walker got into the car. No money was found in the car.
Robinson had Strait open his trunk to look for the money there.
But there was nothing in the trunk. At that point, Robinson
called off the robbery. Strait was later shot. As will be
seen below, there is disagreement over how Strait was shot. Strait later
died from his wounds.
Walker, Robinson, and Defendant fled the scene. Borton stayed behind and spoke
with police officers as an eyewitness, not as an involved party. Robinson
and Defendant were arrested in their homes and brought to the Marion County
Jail. The gun used in the robbery was recovered from Defendants home.
Defendant was charged with the murder of Michael Strait and several other
offenses. After a two-day jury trial, Defendant was co
nvicted and sentenced for
and conspiracy to commit robbery, a class B felony.
We will recite additional facts as necessary.
The Fourth Amendment of the United States Constitution protects persons from u
The Fourth Amendment has been made applicable to the states
through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 650 (1961).
Under Fourth Amendment doctrine, a threshold question is whether the defendant who
claims a violation had a reasonable expectation of privacy at the time of
the alleged unreasonable search and seizure. Peterson v. State, 674 N.E.2d 528,
532 (Ind. 1996), cert denied, 522 U.S. 1078 (1998) (citing Livingston v. State,
542 N.E.2d 192, 194 (Ind. 1989)). In such matters, the defendant has
the initial burden of establishing that he had a reasonable expectation of privacy.
Id. This issue is not addressed by Defendant, and only summarily
addressed by the State.
For purposes of analysis, we assume Defendant had
a reasonable expectation of privacy.
A warrantless search and seizure of a residence is presumptively unreasonable.
v. New York, 445 U.S. 573, 586 (1980). Under such circumstances, the
State bears the burden of proving that an exception to the warrant requirement
of the Fourth Amendment was present at the time of the search and
seizure. Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001) (citing Berry
v. State, 704 N.E.2d 462, 465 (Ind. 1998)). We have held that
probable cause together with valid consent to be inside the defendants home constitutes
an exception to the arrest warrant requirement.
Phillips v. State, 492 N.E.2d
10, 18 (Ind. 1986), overruled on other grounds by Moore v. State, 498
N.E.2d 1, 13 (Ind. 1986). Whether a consent to entry is voluntary
is therefore a question of fact to be determined from the totality of
the circumstances. Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973)).
The police officers visited the Lander residence at 3:00 A.M. on February 19,
1999, on the basis of information provided by Borton and Robinson. Before
visiting the Lander residence, the officers did not pause to obtain a warrant.
Detective Turner explained, As the investigations ongoing, its typical procedure if youre
receiving information rapidly that you follow-up on the information that youre given.
A gentleman dressed in pajamas answered the door in response to the officers knock. After identifying themselves, the officers told the gentleman that they were looking for Jonathan Lander Jr. The gentleman identified himself as Defendants father, Jonathan Lander Sr., and invited the officers into the foyer of the house. Although the main purpose of the officers visit was to arrest Defendant, the officers did not inform Lander Sr. of this before being invited into the house. Once the officers were inside the foyer, Lander Sr. turned to his immediate right and opened a door that led to a den/office area. Over Lander Sr.s shoulder, the officers could see Defendant in the room. After verifying Defendants identity, the officers went into the room for obvious officer safety reasons, and immediately handcuffed Defendant. At this point, Lander Sr. was taken aside by Major Turk who told Lander Sr. that the officers needed to talk with Defendant. Major Turk also asked Lander Sr. to sign a written consent form to search the residence.
Here, the State has the burden to prove that, at the time of the arrest, the officers had both probable cause to arrest Defendant and Lander Sr.s consent was valid. See Phillips, 492 N.E.2d at 18. Although the State merely points to Detective Turners affidavit for proof of probable cause, which was obtained after the arrest, the record does support a conclusion that probable cause existed at the time of Defendants arrest.
Probable cause exists when, at the time of arrest, the arresting officer has
knowledge of facts and circumstances which would warrant a person of reasonable caution
to believe that the defendant committed the criminal act in question.
569 N.E.2d 337, 341 (Ind. 1991). The first officer to arrive at
the crime scene, Sergeant Boydston, spoke with Borton who gave Sgt. Boydston the
description of three individuals he claimed to be involved in the shooting of
Strait, including Robinson and Defendant. Borton did not inform Sgt. Boydston that
he had also been involved in the shooting. Based on Bortons information,
Sgt. Boydston, Detective Turner, and two other officers first apprehended Robinson, and then
Defendant. Robinson pointed out Defendants house, and a check on the vehicle
matching Bortons description showed that it was registered to both Jonathan Lander Sr.
and Jr. Based on the eye witness and co-conspirator statements, the officers
had probable cause to believe that Defendant was involved in the shooting.
We turn now to the more critical inquiry of Lander Sr.s consent to
the officers to e
nter his home. The States Brief Opposing Defendants Motion
to Suppress cites to Lander Sr.s testimony at the suppression hearing which indicates
that he gave valid and voluntary consent to the officers to enter his
home. Although the time was 3:00 in the morning, Lander Sr. was
awake enough to remember the events. The officers were courteous and did
not have their guns drawn when they asked to speak with Defendant.
Lander Sr. testified, looking back at the incident with hindsight, that he would
not have made any changes to what he did that night. There
is no evidence that the officers used coercion or threats to force themselves
into Defendants home. And the officers waited in the foyer of the
home until they happened to see Defendant in the den, the door to
which Lander Sr. himself had opened.
We hold that Defendants warrantless arrest in his home was proper because the
olice officers conducting the arrest had both probable cause and valid consent to
be inside Defendants home.
Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. Ind. Evidence Rule 801(c). A co-conspirators statement is not hearsay,
if the statement is one by a co-conspirator of a party during the
course and in furtherance of the conspiracy. Evid. Rule 801(d)(2)(E). We
also require that the State prove that there is independent ev
idence of the
conspiracy before the statements will be admissible as non-hearsay under Rule 801(d)(2)(E).
Lott v. State, 690 N.E.2d 204, 209 (Ind. 1997). This means that
the State must show that (1) existence of a conspiracy between the declarant
and the party against whom the statement is offered and (2) the statement
was made in the course and in furtherance of this conspiracy. Barber
v. State, 715 N.E.2d 848, 852 (Ind. 1999) (citing Wright v. State, 690
N.E.2d 1098, 1105 (Ind. 1997)).
Defendant contends that two lines of questioning by the State of Walker were
ppropriately allowed by the trial court. The first line of questioning was
Walkers conversation with Robinson about their plan to rob Strait and the second
line was Walkers conversation with his girlfriend telling her about the plan.
Defendant argues that the State failed to lay a foundation of independent evidence
of the conspiracy, aside from the statements made from Robinson to Walker.
We agree with Defendant.
Before using co-conspirator Walkers statement, or Walkers account of his own out-of-court statement
to his girlfriend, the State was required to establish, through first hand evidence,
that a conspiracy between Walker, Robinson, Defendant, and Borton existed.
690 N.E.2d at 209. Instead, the State merely established that Walker had
been friends with Robinson, Defendant, and Borton, and that the victim was known
to have some money with him. This was not first hand evidence
of the conspiracy. The State did not offer any independent evidence of
a conspiracy prior to its eliciting hearsay testimony from Walker. The State
also failed to link Defendant in with the conspiracy as required by Rule
801(d)(2)(E). Barber, 715 N.E.2d at 852. Since the State failed to
meet the requirements of Rule 801(d)(2)(E) with respect to Walkers testimony about his
conversations with Robinson and his girlfriend under the co-conspirator non-hearsay definition (or any
exception to the hearsay rule), these statements should have been ruled inadmissible as
However, we will not overturn Defendants conviction if this erroneous ruling is harmless.
Ind. Trial Rule 61. Harmless error is defined as errors that
affect the substantial rights of a party.
Fleener v. State, 656 N.E.2d
1140, 1141 (Ind. 1995). Walkers admission that he told his girlfriend of
the plan, though hearsay if offered to prove there was such a plan,
did not deprive Defendant of any substantial rights because he fairly clearly implied
there was an agreement to rob the victim. Later evidence confirmed this.
In addition, the jury had before it significant evidence with which it
could properly find Defendant guilty, aside from Walkers testimony about his conversations with
Robinson and his girlfriend. The gun that was found at Defendants home
matched the spent casings of the bullets shot at the crime scene.
The victim was shown to have died from a gunshot wound to his
abdomen. In addition, in evidence were statements admitting guilt given by Defendant
to police on the morning of his arrest both a handwritten statement
and an audio taped statement. With all this evidence in front of
the jury, we cannot conclude that Defendants substantial rights were violated. We
find that the improper admission of the hearsay statements was harmless error.
To establish that two challenged offenses constitute the same offense under the actual
evidence test and thus violate the Indiana Double Jeopardy Clause, the defendant must
monstrate 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. Richardson v. State,
717 N.E.2d 32, 53 (Ind. 1999).
The essential elements of the offense of murder are: (1) the defendant (2)
knowingly (3) killed (4) another human being. Ind. Code §35-42-1-1 (1998).
The essential elements of the o
ffense of conspiracy to commit robbery are: (1)
the defendant (2) agreed with one or more other persons to commit the
crime of robbery (3) with the intent to commit robbery and (4) the
defendant or one of the persons to the agreement performed an overt act
in furtherance of the agreement. Ind. Code § 35-41-5-2 (1998).
While Defendant asserts that there is a reasonable possibility that the jury used
the evidence of the Defendants taking a loaded handgun to the scene of
the crime and/or shoo
ting Michael Strait as part of a plan in establishing
both the offense of murder and conspiracy to commit robbery, he gives no
explanation as to why this is so. While there was evidence of
Defendants taking a loaded handgun to the scene, that evidence does not appear
to us to establish essential elements of either offense and Defendant does not
explain to us how it does. And while the evidence of his
shooting Strait does establish essential elements of the murder offense, that evidence does
not appear to us to establish essential elements of the conspiracy offense and
Defendant does not explain to us how it does.
We hold that Defendant has not made out a double jeopardy violation.
In general, the legislature has prescribed standard sentences for each crime, allowing the
sentencing court limited discretion to enhance sentence to reflect aggravating circu
mstances or reduce
it to reflect mitigating circumstances. The legislature also permits sentences to be
imposed consecutively if aggravating circumstances warrant. Morgan v. State, 675 N.E.2d 1067,
1073 (Ind. 1996) (citing Reaves v. State, 586 N.E.2d 847 (1992)). See
Ind. Code §35-38-1-7.1(b) (1998) (a court may consider aggravating circumstances in determining whether
to impose consecutive sentences).
When the trial court imposes a sentence other than the presumptive sentence, or
mposes consecutive sentences where not required to do so by statute, this Court
will examine the record to insure that the court explained its reasons for
selecting the sentence it imposed. Archer v. State, 689 N.E.2d 678, 683
(Ind. 1997) (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)).
The trial courts statement of reasons must include the following components: (1)
identification of all significant aggravating and mitigating circumstances; (2) the specific facts and
reasons that lead the court to find the existence of each such circumstance;
and (3) an articulation demonstrating that the mitigating and aggravating circumstances have been
evaluated and balanced in determining the sentence. Mitchem v. State, 685 N.E.2d
671, 678 (Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind.
At the sentencing hearing, the court identified four aggravating circumstances: (1) Defendant
attempted to escape while incarcerated at the Marion County Jail; (2) Defendant had
five incident reports at the jail since his arrest; (3) Defendant failed to
cooperate with the probation officer in the preparation of the Presentence Report; (4)
the circumstances of the crime, to wit, that there was no need to
kill the victim during the robbery. The court ident
ified two mitigating circumstances,
that is, the Defendants age at the time of the crime and his
lack of prior felonies. The trial court sentenced Defendant to sixty-five (65)
years for the murder, and twenty (20) years for conspiracy to commit robbery,
to be served consecutively for a total of eighty-five (85) years.
Defendant contends that the court gave undue weight to the victim impact evidence
at the sentencing hearing. Examining the record, it appears that the trial
court gave some weight to both the victim impact evidence, as well as
to the evidence of Defendants bac
kground. The court also gave substantial weight
to the nature of the crime itself based on the evidence at trial
and not from the impact statements. We conclude that the victim impact
evidence was not given undue weight.
Before the trial court can impose a consecutive sentence, the trial court must
ulate, explain, and evaluate the aggravating circumstances that support the sentence. Sanquenetti
v. State, 727 N.E.2d 437, 442 (Ind. 2000) (citing Mitchem, 685 N.E.2d at
678, and Ind. Code §25-50-1-2) (Dickson, J.). That was not done here
where the imposition of consecutive sentences was supported by a single statement that
the cold-blooded nature of the offense and the aggravating circumstances cited clearly warrant
consecutive sentences. (R. at 763.) See id. (holding that the trial
courts identification of the crime being a crime of violence fell short of
the requirement that the trial court identify, explain and evaluate the aggravating circumstances).
Because we find that the trial court improperly sentenced a defendant, we elect
to exercise our power to review and revise the sentence. Id. at
443; Ind. Const., art. VII, §4. Although the nature and circumstances of
a crime may be considered an aggravating factor, Scheckel v. State, 620 N.E.2d
681, 684 (Ind.1993), we do not find that the nature of Defendants crime
to warrant a consecutive sentence. Defendant was part of a botched robbery,
after which he shot the victim in the arm. Defendant was also
twenty years old and had never had a prior felony record. While
we find the aggravating circumstances outweigh the mitigating circumstances to a sufficient degree
to warrant imposing the maximum sentence for murder, we find sufficient mitigation to
dictate concurrent sentences.