Hawkins v. State
626 N.E.2d 436
Ind.
1993
Check Treatment

*1 HAWKINS, Appellant, Marvin S. Indiana, Appellee.

STATE

No. 18S02-9312-CR-1379.

Supreme Court of Indiana.

Dec. *2 Brumfield, Special S. De-

John Public fender, Muncie, appellant. Carter, Indiana, Atty.

Pamela Gen. Secrest, Gen., Deputy Atty. Gary Damon Indianapolis, appellee. TO TRANSFER

ON PETITION DeBRULER, Justice.

Following jury Marvin Dealing convicted of S. Cocaine, A felony, a class Ind.Code 35- The him to 48-4-1. trial sentenced (20) twenty years, plus and interven- costs decision, fees. In a memorandum tion District) Appeals (Second Indiana Court of grant his Peti- affirmed conviction. We following and consider the tion Transfer issues: erred in ad-

I. Whether the trial court mitting during a obtained evidence appellant Haw- warrantless search of home; kins’ perempto- the State used II. whether juror a black ry challenge to strike race; upon the basis erroneously the trial court III. whether testify that police officer to allowed a believed, on of her the basis she search, informant did the State’s drugs prior to the con- possess trolled

I. Paul received information Salaam, appellant Haw- Neal Lander ap- out selling crack were cocaine kins 8,May On residence. pellant informant, exe- utilizing police, buy a controlled cuted buy, offi- Prior Hawkins’ residence. drugs cers the informant for and cured searched the house and conducted a search of gave fifty dollars in cash plain her which the view the officers previously photocopied. had Offi- cocaine, observed substantial amount of cers also attached a wire to the informant gun razor blades and shot placed shells on purpose maintaining for the electronic a table. *3 during drug surveillance the transaction. After securing premises, Officer Gil- difficulties, due to technical Eiler, lum met investigator Dave produced signal.

wire an inaudible prosecutor’s office, at the courthouse they prepared where request approximately p.m. At 10:30 a search the same warrant. midnight, Around day, Officer Gillum Officer Gillum drove the informant to Judge and Eiler went to home, appellant Hawkins’ residence Barnet’s while addi- gave testimony, and tional officers maintained received a warrant to visual surveil- appellant search lance of the house. The informant residence. The entered description included a the house and returned of the co- within two or three entry caine seen after minutes with a rock-like was made. substance. Offi- car, cer met her in Gillum took appellant Gillum returned to informant safe distance from Hawkins’ home with the search warrant residence, lant Hawkins’ and field tested shortly midnight after and ordered the offi- the substance. The field test indicated the cers to conduct a search of the Thereafter, presence of cocaine. search, As a result of this the officers Gillum advised the other officers via discovered and firearms, seized several positive radio that the substance tested cash, including buy of the $885 $45 mon- cocaine and then he returned to ey by informant, used jar and a Hawkins’ residence. coins. Neal, Gillum, Officers ap- and Vollmar II.

proached the front door of Haw- kins’ house. Additional officers waited at At objection, over permit- approximately the rear door. At 10:57 cocaine, cash, ted the introduction of all p.m., Officer Neal knocked on the door. paraphernalia, firearms and shells discover- himself, Neal identified and demanded that ed in Appellant the house. opened. the door be The officers testified claimed that the search of his home with- approached that someone the door and out a valid search warrant violated his con- wanted, asked what then withdrew right stitutional to be free from an unrea- doorway. from the Officer Neal re-identi- seizure, sonable search and and as a conse- again fied himself and demanded that the quence such violation rendered the items opened. door subsequent After this de- seized inadmissible and ruling the court’s mand, Officer Neal kicked the door and error. by entered the residence followed the other When a search is conducted without officers. was knocked to the warrant, the State bears the burden of open. floor the door as it flew Neal justifying the search proving that one of hearing testified that he did not remember exceptions requirement to the warrant anyone running forcing open inside before case, applied. In argues the door. Vollmar testified that he heard legal the search was because it was neces no running before the door was forced sary prevent the loss of evidence and the open. running Gillum heard no but be- escape perpetrators. Appellant of the lieved the door was forced because Hawkins contends that the State had the one of the other officers had heard run- opportunity to a valid search obtain war ning. Once forcibly the officers entered prior forcibly entering rant his house. premises, they definitely heard the people sound of toward the of the Generally, entry back into Salaam, house. The officers took purposes Lander the home for of arrest or search custody, prohibited by Hawkins into se- are the Fourth Amendment a theft. the investigating Minne One of officers United States Constitution. 495 U.S. S.Ct. knocked on the door and announced that he v. Olson sota I, time, 1684, 109 police. L.Ed.2d 85. Article with At mirrors the federal yell Constitution officer inside Indiana heard someone “Police!” constitutional Under these protection. people running. and the sound of The offi- a search and seizure must be guarantees, through cer looked a window and observed judicially issued warrant supported by people taking away from kitchen table exist exigent circumstances unless appeared drug paraphernalia. what within certain place the search and seizure The court the subsequent held that war- narrowly exceptions. defined Welsh v. justified rantless search was because it 104 S.Ct. 466 U.S. Wisconsin reasonable for officers to conclude *4 732; 2091, L.Ed.2d Ludlow v. 80 State the that destruction of the evidence 266, (1974), Ind. N.E.2d 750. The 262 314 place. Sayre, to at about take 471 N.E.2d to prosecution is on the demon burden Sayre, police 714. Unlike the officers exigent to overcome strate circumstances present the case had no such to rea- basis that presumption of unreasonableness the sonably conclude that destruction of evi- accompanies all warrantless home entries. dence was imminent. (1980), 573, 445 Payton v. New York U.S. they officers testified that heard 1371, 63 L.Ed.2d 639. 100 S.Ct. nothing Neal knocked after on the front permits exception One such the himself, they door and identified nor did government enter a when to home State occupants any believe the had idea that the may destroyed agents believe evidence initiating a police were raid. As officers before a search warrant is ob or removed they people at did waited the door not hear (1984), Ind.App., v. Sayre tained. running. only after officer It was an 708, police N.E.2d 714. The must have 471 people kicked the front door that be- objective and reasonable fear that the an to gan run within the house. destroyed. is about evidence Harless not be in en should reticent Courts (1991), 245, Ind.App., 577 N.E.2d v. State forcing restricting the rule constitutional Moreover, exigent 247. circumstances can person’s the search a home without a to police justify created officers not be consent, therefore, warrant or demand v. King City searches. genuine showing emergency an a before (1984), N.D.Ind., Wayne, Ind. 590 Fort they police’s will the failure to ob excuse 414, 422; (1993), F.Supp. State Williams Salgado a tain warrant. United States v. 487, Ind.App., 615 N.E.2d 488. 603, 609; Harless, (1986), Cir., 7th 807 F.2d testified, that Officer Gillum crack case, In this 577 N.E.2d at 248. we believe typically high a volume of houses have showing. the made no that State has such Therefore, police the believed customers. entry, police Prior to the warrantless might “buy money” they lose the via a controlled Offi- executed subsequent sales transactions. Notwith cers, in front and stationed behind testimony, standing Officer Gillum’s house, maintained visual sur- lant Hawkins’ ap support does not his claim that record premises following the veillance of the busy Hawkins’ house was as as a pellant purchase. took a more than drug It little The record shows “drive-in restaurant.” to meet with an hour for Officer Gillum only fifteen were execut transactions pre- prosecutor’s member of the staff and during preceding ed the house affidavit, to pare probable cause travel period. During evening two-week home, Judge judicially obtain a Barnet’s 1991, 8, May Wednesday, did warrant, return to authorized search traffic at the additional observe house. Hawkins’ left after the informant home house. view, In failed to show our mak- faced with circumstances officers went to the were Sayre, impractical for a search war- question ing her it to wait residence to about defendant’s 440 entering

rant before Conse- showing, burden shifts to the facie seized quently, prosecutor the evidence officers to come forward with a neutral entry illegally the warrantless explanation after challenging jurors. these and it to allow was error its intro- obtained explanation Id. The need not to rise (1961), Mapp duction at trial. Ohio 367 level necessary challenge make a 1684, 1081; U.S. 81 S.Ct. L.Ed.2d cause. v. State Holifield v. State Callender N.E. case, Johnson, In this Brenda A Fourth Amendment error like juror, African during American testified one that in this subject occurred case is voir dire that she knew analysis. to constitutional harmless error and had family known the Hawkins beyond can state Where a rea thirty-five years. At the time of her testi improperly sonable doubt that the admitted mony, only Johnson was the African Amer verdict, evidence did not contribute ican the jury member of under immediate error is harmless. Rabadi consideration. additional Afri Here, Ind., 541 N.E.2d 271. can remained in Americans the venire. beyond are unable to say we reasonable *5 large

doubt that the amount cocaine and Although fully she testified that she was ammunition in view on a table were capable impartially appellant judging by jury arriving not utilized in at its Hawkins, the State challenged her for guilty dealing verdict of in cocaine. cause. The trial court denied the State’s challenge, whereupon per- a used III. emptory challenge to exclude Johnson. next Hawkins contends that Thereafter, appellant Hawkins unsuccess- denying trial court erred in his motion fully moved for a mistrial arguing upon a mistrial based State’s use of peremptory challenge State’s resulted in peremptory challenge to exclude an Afri- purposeful discrimination. American from the jury. can woman He purposefully that the claims State excluded The facts and circumstances juror on the of her race. basis this case prima do not establish a facie purposeful case of The discrimination. use law is well-established that challenges of peremptory to Afri exclude equal protection defendant is denied not, jury by can Americans from a does put jury when before a

law on trial from itself, raise purposeful an inference of dis which members of the defendant’s own (1990), crimination. v. Ind. Sutton purposefully race have been excluded. 1310, App., 562 N.E.2d (1879), Virginia 100 Strauder West U.S. 303, 664; 305, 25 L.Ed. Batson v. Ken The record shows that at the time 79, 106 (1986), 1712, tucky 476 U.S. S.Ct. 90 attempted to exclude Johnson 69; (1991), L.Ed.2d Powers Ohio 499 jury, other African re- Americans 1364, 111 113 U.S. S.Ct. L.Ed.2d prosecutor mained the venire. The artic- case of prima purpose To establish a facie acquain- long standing ulated Johnson’s jury, ful selection of a discrimination appellant tance with Hawkins and the Haw- the defendant that he is a mem must show seeking kins family as reason for cognizable group, of a prose ber racial jury. Appellant exclude from the Johnson challenged peremptorily cutor members of Hawkins to show other facts or fails race, and these the defendant’s facts and sup- circumstances in record that will raise an other relevant circumstances infer port peremp- that the an inference State’s prosecutor prospec ence that the excluded tory challenge purposefully discrimina- Batson, jurors their race. tive because of tory. 1722-24; 96-98, 476 at 106 S.Ct. at U.S. appellant Weekly 496 N.E.2d The trial court denied v. State a mistrial. prima 31. Once the defendant makes a motion Accordingly, we IV. reverse Haw- kins’ conviction and remand for action con Finally, opinion. inconsistent with this the trial court committed error tends admitted, it over defense counsel’s when SHEPARD, C.J., DICKSON, J., Campbell. objection, concur. contends particular, appellant Hawkins perform failed to because the J., SULLIVAN, concurs in result. prior of the informant body cavity search GIVAN, J., separate dissents with buy, Campbell to the controlled opinion. personal knowledge on the lacks sufficient Therefore, according to

matter. GIVAN, Justice, dissenting. Hawkins, improperly the trial court admit I respectfully majority dissent from the opinion testimony. We dis Campbell’s ted opinion in holding this case their that a agree. premises warrantless search of the improper. settled in Indiana law

It is well opinion lay may express that a witness unpublished opinion by Judge An written subjects upon person if on numerous based Appeals Sullivan of the Court of sets forth knowledge proper factual al basis the facts as shown the record. Immedi- opinion has been established. ately purchase after a of cocaine had been Cockrum State question, made at the house in the officer 479; Randolph v. State door, knocked, went to the identified him- 57, 122 N.E.2d 860.1 The determina Ind. self, opened. and asked that the door be qualified is tion whether witness *6 person He could see a on the other side of opinion is the trial court’s give an cigarette the door with a lit who asked Ind., discretion. Locke v. State what was wanted. When the officer re- 1093. The extent of a wit demand, repeated identified himself and his knowledge weight ness’ affects the cigarette glow disappeared and the offi- admissibility. testimony and not its Row running. It cer heard that the Ind., 431 N.E.2d 805. open. door was forced Campbell performed the search Officer At the officer testified that the informant before she entered of knew from the informant crack co- lant Hawkins’ house to execute con- in the house and that the infor- caine was testimony, In her trolled paying mant had used marked bills for procedures Campbell described detail the purchased. cocaine The officer testi- conducting utilized while the search. she going coming fied that there was State, by the response questioning house, and he was fearful Campbell stated that she was satis- money disap- drugs and the marked would possess any fied that the informant did not pear could obtained. before a warrant entered the house. drugs before she exigent circum- ample This was evidence of trial court could stances from which the Campbell’s We are satisfied that Officer search was determine that testimony detailing her search of infor- justified. provided mant a sufficient factual basis on opinion reweighs reasonably opin- majority form an which she could opposite comes to the Therefore the trial court ad- this evidence and ion. improper This is an invasion testimony. mitted this conclusion. (a) rationally based the Indiana or inferences which are 1. The case law is consistent with Evidence, (b) January help- perception effective Rules of the witness and on the Specifically, Rule 701 states: understanding the witness's a clear ful to testifying expert, testimony If the witness is not as an of a fact in or the determination opin- in the form of the witness’s issue. opinions ions or inferences is limited to those the trial court in prerogative of weighing of evidence. This Court has re improper that it is for this

peatedly stated reweigh appeal. evidence on Fu

Court to 608 N.E.2d 1370.

gate justify

I reversal of this ease. I cannot major- the manner in which the

concur with disposes of the other issues.

ity opinion Stivers, Angleton,

Brad C. R. Victor R. Indianapolis, Victor Stivers & Associates appellant. for Carter, Gen., Atty. Pamela Arthur Thad- Gen., Perry, Deputy Atty. Indianapo- deus HATTON, Appellant Fredrick lis, appellee. (Defendant Below), SHEPARD, Chief Justice. appeals Fredrick Hatton Indiana, Appellee STATE murder, convictions for Ann. Ind.Code Below). (Plaintiff (West Supp.1993), 35-42-1-1 and rob- § No. 49S02-9312-CR-1388. bery, A felony, a class Ind.Code Ann. 35- (West 1986). 42-5-1 The trial court sen- Supreme of Indiana. sixty years him murder tenced robbery, thirty years penalties Dec. consecutive. originally

This case docketed in this for Hatton Court late 1990. Counsel *7 in sought a remand to the trial court order pursue petition post-conviction re- request termi- granted lief. We appeal pending pursuant nated the Davis
N.E.2d 1149. After the trial court denied post-conviction petition, Hatton Hatton’s appeal, presenting both the initiated a new addressed issues which would have been concerning original appeal and those post-conviction proceeding. This was Coun-, altogether appropriate under Davis. in the appeal this new sel docketed Appeals, presumably because post-conviction All post-conviction claim. are now dock- appeals non-capital eases Appel- to Ind. pursuant eted case when was not the late Rule which event, pres- was written. Davis here, docketed appeal could have been ent all the to consider grant transfer and we by Hatton. raised issues