*1
461
in
ample
appellant
evidence
this record to
that
had
previously
There is
fact
twice
jury’s finding
appellant
the
sustain
been convicted of
a
felonies and that
fire
was an habitual offender.
perpetration
arm
used in
was
the
robbery.
gun
Inasmuch as the use of the
Appellant contends the trial court
robbery
was
raised the
B
what
to a Class
appellant
cross-examining
erred in
concern
felony
previous
and the two
felonies are
burglary
Jay County
in
conviction
supported
what
the habitual offender find
subject
on
because that
had
been raised
ing,
standing
ag
cannot
alone
judge
direct examination. At
time the
gravating
justify
circumstances to
the en
cross-examination,
question
asked the
robbery.
hanced sentence for the
v.
Green
proper proof
had
of
State
submitted
(1981), Ind., 424
State
N.E.2d 1014.
prior
appel
both
convictions. When
lant
the witness
and testified
took
stand
pointed
As
out in
beginning
concerning the one
and the fact
conviction
opinion,
of this
the trial court
also erred
appeal,
subjected
it
still on
he
sentencing appellant
separate twenty
to a
questioning
full
himself to
on the entire
(20) year
charge
term
on the
of
an
subject
matter
his habitual offender
(1986)
habitual offender. Dullen v. State
standing.
judge
question
a
is entitled to
Ind., 496 N.E.2d
As
381.
this Court has
long
improp
as it
not done
witness as
is
times,
repeated many
the status of habitual
erly
jury. Kennedy
influence
v. State
is
separate
offender
not a
If it
offense.
Ind.
Appellant claims trial court cedure is for the court trial to enhance the erred in its failure to consider circumstanc penalty by for the crime instant an amount mitigation it es when sentenced him. keeping with the statute. Appellant contends the trial court should youthful age, his have considered which This cause is remanded to the court twenty-four years, respectful his atti re-sentencing appellant not inconsist- trial, tude toward court opinion. ent with mitigating addiction circum appellant’s past In view of stances. crimi SHEPARD, C.J., DeBRULER, girl nal friend record the fact that his DICKSON, JJ., PIVARNIK concur. had testified that he remained unem had ployed year, hardly over can be said factors out those which sets mitigating con should have been so out by pointed
sidered the trial court. As State, entirely it is within the discre tion of the trial court as to the use DIGGS, Eugene Appellant, mitigating circumstances. Crandall (1986), Ind., N.E.2d 377. Indiana, Appellee. STATE of sentencing do observe that No. 46S00-8612-CR-1045. appellant the trial stated that court aggravating found circumstances sufficient Supreme Court of Indiana. presumptive year ten enhance Dec. B robbery, sentence armed felony, by years, making ten thus it a (20) year ag
twenty sentence. The gave
gravating circumstances he *2 King, King Meyer, Gary, L. for
Scott appellant. Pearson, Gen.,
Linley
Atty.
E.
Richard C.
Webster,
Gen.,
Deputy Atty.
Indianapolis,
appellee.
GIVAN, Justice.
posting
After
an officer to maintain sur-
veillance of the
Detective Kunkle
juryA
trial resulted in the conviction of
drove Howell back to the
station.
following
offenses: Deliv-
He
then returned to
house with
ering
(Cocaine),
a Controlled Substance
several other officers. When he knocked
felony,
B
which he received twen-
stated,
on the door
“Open up, police,”
ty
years;
counts
two
of Possession of
*3
no one answered. Detective Kunkle then
Cocaine,
felony,
a Class D
for which he
opened
entered,
the unlocked door and
fol-
(2) years
count;
received two
on each
Deal-
by
lowed
four other officers. The occu-
(Heroin),
in a Controlled Substance
pants of the house were informed
po-
felony,
Class B
for which he received twen-
lice were there to recover the “recorded
ty
years; Possession of a Narcotic
drug buy money.” Appellant, Harold Bow-
Drug (Heroin), a
felony,
Class C
for which
ers,
Victory,
Leonardo
Lipsey
and Russell
years;
received five
and Possession
were arrested and searched. The officers
Marijuana,
felony,
of
a Class D
for which
quantities
observed
suspected drugs
of
and
(2) years,
he received two
all sentences to
paraphernalia
plain
view.
concurrently.
run
securing
house,
After
Detective Kun-
26,
September
1985,
The facts are: On
kle left and obtained a search warrant.
Joyce Howell
custody
of the
Upon
return,
ensuing
search turned
Michigan City
Police for
of a
heroin,
up
cocaine, marijuana, “cutting”
handgun without a license. She revealed
equipment,
drug
and other
paraphernalia.
Larry
to Detective
Kunkle that she was a
Ten
buy money
dollars of the
was found on
heroin
Eugene “Boogie”
user and named
Lipsey
remainder, $65,
and the
was found
Diggs, appellant herein, as her source.
appellant.
While the
latter was
agreed
Howell
body
be wired with a
processed
police station,
at the
packet
transmitter and
buy
make a controlled
containing what turned out to be cocaine
appellant, using
from
in “buy money,”
$75
fell out of his shirtsleeve.
i.e., currency from which the serial num-
Appellant contends the initial
bers had been recorded.
warrant-
entry
police
less
into his home violat-
Howell,
searching
police
After
dropped
ed
right against
his Fourth Amendment
appellant’s house,
her near
then maintained
unreasonable search and seizure. He
visual surveillance and monitored her
maintains the
denying
trial court erred in
appel-
transmitter. She was seen to enter
suppress,
his motion to
and in later admit-
leave,
lant’s
then
and then reenter
ting into
objection,
evidence over his
at the behest of a man later identified as
evidence obtained as a
result of that
Harold Bowers. Howell later testified she
general,
In
pre-
searches are
“[warrantless
first was refused a sale but Bowers
unreasonable,
sumed
and the State bears
her,
back,
vouched for
called her
and a
showing
the burden of
that the search is
drug sale
body
was consummated. The
exceptions
within one of the
to the warrant
experienced
transmitter
localized interfer-
requirement.”
Murphy v. State
ence while inside
house and
1077,
499 N.E.2d
1081.
clearly
itself,
failed to transmit
the sale
but
police
identify
bar,
were able to
the voices of
In the case at
the State con
Bowers,
Victory,
appellant,
Leonardo
justified
tends the warrantless
stated,
who
“Give it to the loudmouth and
probable
the existence of
cause that a
get
committed,
then
her out of here.”
Howell rendez-
had been
as well as exi
police
voused with
gent
turned over three
making impractical
circumstances
packets
powder
paid
of
for which she had
wait until a search warrant could be issued.
$75;
(1986),Ind.,
field
tests revealed
contained Tata v. State
The
burden
MILLER,
Appellant,
conduct of
that the
demonstrate
Richard D.
fell
entering appellant’s
house
within one
general
requir-
to the
rule
exceptions
Indiana, Appellee.
STATE of
(1986),Ind.,
Tata
State
warrant.
The State contends that
ception warrant of evidence is
cases of destruction based quick
on the need for action because the actually process in the
evidence is
being destroyed or is about to de- be
stroyed. testimony of the State’s witnesses single there was but a en-
showed that It
trance to house. was under following by several officers
surveillance directly exit. None testified
Howell’s single through left person entered or
door the seventeen minute interval exit and Kunkle’s forc-
between Howell’s reality of entry. Surely
ible this situa- danger could no
tion was that there
loss of until someone the marked *6 apartment.
tried to leave the up
and the were bottled the house no reason at all to
and there is believe alerted to occupants
its the existence operation. Clearly,
of the undercover its justi-
State has failed to meet burden of
fying the warrantless
As into prior judicial approval
house without conduct, those of ev-
unconstitutional items the direct
idence which were as well products entry, of such should
indirect Segura v. United suppressed.
have been
States, 468 U.S. (1984).
L.Ed.2d 599