ATTORNEY FOR APPELLANT
Jeffrey D. Stonebraker
Jeffersonville, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
JWAN A. CRAWFORD, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 10S00-0007-CR-456
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Jerome F. Jacobi, Jr., Judge
Cause No. 10D01-9912-CF-078
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
September 26, 2001
BOEHM, Justice.
Jwan Crawford was convicted of attempted murder, robbery as a Class A felony,
false informing, and of contributing to the delinquency of a minor. He
was sentenced to sixty-five years imprisonment. In this direct appeal, Crawford contends
that the trial court erred in denying his motion to suppress. He
also contends that the trial court’s enhancement of his sentence for attempted murder
because of the use of a firearm violates the Sixth and Fourteenth Amendments
of the United States Constitution under Apprendi v. New Jersey, 530 U.S. 466
(2000). We affirm the conviction for attempted murder, but reverse the enhancement
without addressing the Apprendi issue because attempted murder is not among the crimes
eligible for enhancement.
Factual and Procedural Background
On December 10, 1999, Loren Johnson was at work at Uncle Miltie’s Pawn
Shop in Jeffersonville when Crawford entered his store followed by two other men.
Crawford stated, “This is a hold-up,” and shot Johnson in the throat.
Crawford yelled at Johnson to get down while the other two took
between $1300 and $1500 from the cash register. All three then smashed
the glass cases in the shop and stole jewelry and handguns.
Sergeant Tim Deeringer learned of the robbery by radio and was told that
the suspects had fled to the alley behind the store. He proceeded
to the alley where he found six to eight people. Some of
the group were repairing vehicles, and three others—Darius Smith, Corey Parker, and Crawford—were
standing nearby. When questioned by Deeringer, Crawford claimed the three had been
in the alley about an hour. Antonio Ritchie, one of the workers,
told Deeringer that Crawford and the others had been in the alley only
a few minutes. After Deeringer repeated the question to Crawford, and Crawford
again stated that he had been there for an hour, Deeringer arrested the
three for false informing.
Parker later admitted that the three had committed the robbery and told police
that he had given Crawford the gun shortly before Crawford entered the store
and shot Johnson. Johnson was able to identify Crawford as the shooter
from a photo array.
Crawford was convicted of attempted murder, robbery as a Class A felony, contributing
to the delinquency of a minor, and false informing. He was sentenced
to an enhanced sentence of fifty years for attempted murder, and an additional
five years for use of a firearm in the commission of a violent
felony. He also received ten years for robbery as a Class B
felony, to run consecutive to the attempted murder conviction, one year for contributing
to the delinquency of a minor and 180 days for false informing, both
to run concurrently with the robbery sentence.
I. Motion to Suppress
Crawford first claims that the trial court erred by denying his motion to
suppress evidence obtained as a result of his arrest for false informing.
Deeringer arrived in the alley shortly after the shooting in full police uniform
and driving a marked police car. Deeringer approached the men and asked
if they had heard shots fired or seen anyone running. He then
asked Crawford how long he had been in the alley. Crawford responded
one hour. Deeringer then asked Ritchie how long Crawford had been in
the alley and Ritchie responded fifteen minutes. Deeringer requestioned Crawford as to
how long he had been in the alley and when Crawford again responded
one hour, Deeringer arrested him for false informing.
Crawford does not contest the sufficiency of the evidence of this conviction, but
rather argues that there was no probable cause to arrest him for false
informing. Therefore, he argues, the arrest was in violation of his search
and seizure rights under the Fourth Amendment and Article I, Section 13 of
the Indiana Constitution, and all the evidence obtained after he was taken to
the Clark County Jail should be suppressed.
See footnote
A warrantless arrest is permissible if a misdemeanor is committed in an officer’s
presence.
Chandler v. State, 581 N.E.2d 1233, 1238 (Ind. 1991). 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. Sears v.
State, 668 N.E.2d 662, 667 (Ind. 1996). The amount of evidence necessary
to meet the probable cause requirement is determined on a case-by-case basis.
Peterson v. State, 674 N.E.2d 528, 536 (Ind. 1996).
A person is guilty of false informing if he “gives false information in
the official investigation of the commission of a crime, knowing the report or
information to be false.” Ind. Code § 35-4-2-2 (1998). In this
case, Crawford does not contest that he gave false information, but alleges that
he did not know Deeringer was involved in “the official investigation of the
commission of a crime.” Deeringer approached the alley in his uniform and
marked car asking if anyone had heard shots or seen people running.
He then asked Crawford about his whereabouts. It is reasonable to assume
that Deeringer was investigating some criminal activity based on his questions and appearance
and that Crawford should have realized this. Crawford’s contention that he had
no basis to assume Deeringer was investigating a crime is without merit.
He does not contend that Richie’s statement was insufficiently reliable to constitute probable
cause. Accordingly, his arrest was not unlawful, and the trial court did
not err in denying the motion to suppress.
II. Sentence Enhancement for Use of a Firearm
Crawford contends that his right to due process and to a jury trial
was violated when his sentence for attempted murder was enhanced by five years
based on the trial court’s finding beyond a reasonable doubt that he had
used a firearm in the commission of this offense. Crawford bases his
argument on Apprendi v. New Jersey, 530 U.S. 466, 491-97 (2000), in which
the United States Supreme Court held that the Sixth and Fourteenth Amendments of
the United States Constitution are violated where a defendant’s sentence is enhanced beyond
the statutory range based on a fact not found beyond a reasonable doubt
by a jury. We need not address this issue because the statute
allowing an additional sentence for use of a firearm by its terms is
inapplicable to this case.
Indiana Code section 35-50-2-11 allows the trial court to enhance a sentence by
five years if the defendant used a firearm in the commission of “an
offense.” An offense is defined as “a felony under IC 35-42 that
resulted in death or serious bodily injury.”
See footnote In this case, the State
charged that Crawford “did knowingly or intentionally use a firearm in the commission
of said Attempted Murder.” No part of Chapter 42 defines the crime
of attempted murder. Because attempted murder is not “an offense” as the
statute defines that term, an enhancement may not be attached to it.
Attempted crimes are defined in Indiana Code section 35-41-5-1:
A person attempts to commit a crime when, acting with the culpability required
for commission of the crime, he engages in conduct that constitutes a substantial
step toward commission of the crime. An attempt to commit a crime
is a felony or misdemeanor of the same class as the crime attempted.
However, an attempt to commit murder is a Class A felony.
In
Ellis v. State, 736 N.E.2d 731, 736 (Ind. 2000), this Court held
that attempted murder was not a “crime of violence” for purposes of Indiana
Code section 35-50-1-2. The Court reasoned that “‘[c]rimes of violence’ is a
defined term, a straightforward list, including such crimes as murder and attempted battery.
It does not include attempted murder.” Id. Although this writer
dissented from Ellis, stare decisis requires that the same reasoning applies here.
The enhancement statute identifies a specific list of crimes that may be enhanced
by reference to Chapter 42 of Title 35. Because attempted murder is
not a crime found in Indiana Code 35-42, it is not “an offense”
eligible for the five-year enhancement pursuant to Indiana Code section 35-50-2-11.
See footnote Because
the statute by its terms is inapplicable, we do not address the
Apprendi
issue Crawford raises.
Conclusion
The judgment of the trial court is affirmed as to the conviction and
reversed as to the enhancement. The sentence for attempted murder is reduced
to fifty years to run consecutively with the ten year robbery sentence for
a total of sixty years. The concurrent sentences for contributing to the
delinquency of a minor and false informing are affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Footnote:
This includes clothing taken from Crawford, his fingerprints, glass fragments taken from
his shoes, and statements he made.
Footnote:
Also included as offenses are kidnapping and criminal confinement as a Class
B felony, neither of which is relevant here.
Footnote:
Presumably the trial court could have enhanced robbery as a Class A
felony by five years if the State had charged it.