Lead Opinion
Defendant-appellant Robert W. Hare was found guilty by a jury in the Shelby Superi- or Court of the crime of robbery while armed with a deadly weapon, class B felony, and was sentenced to a term of eighteen (18) years by the trial judge. |
The eleven issues presented for our review in this direct appeal are as follows:
1) error of the trial court in denying the defendant's motion to suppress items con
2) violation by the State of a motion in limine;
8) alleged improper in-court identification of the defendant by the victims;
4) denial of the defendant's motion for a change of venue from the county;
5) denial of the defendant's motion to suppress the testimony of Stephen Lux;
6) refusal of the trial court to give the defendant's tendered instructions No. 3 and No. 8;
7) admission into evidence of State's Exhibits No. 22 and No. 381 over the defendant's objections;
8) giving by the trial court of final instruetion No. 8;
9) admission into evidence testimony concerning the defendant's past criminal conduct;
10) admission into evidence by a State's witness the street value of drugs; and
11) admission of certain testimony involving the police investigation of a separate crime.
The facts tend to show that on or about December 2, 1980, William Arland was a pharmacist in a drugstore located in Shel-byville, Indiana. He observed defendant Robert Hare enter the store with a gun in his possession and demand from Arland that he, Hare, be given schedule II drugs. Arland showed the defendant the cabinet where the drugs were stored. The defendant subsequently instructed Arland to lie on the floor and then the defendant handcuffed Arland and bound his ankles with tape. He took drugs from a cabinet and money from the cash drawer. Meanwhile, Jeff Horstman, an employee of the drugstore, returned to the store after having delivered a prescription. Horstman saw the defendant armed with a gun and Ar-land on the floor. Defendant then told Horstman to lie on the floor and the defendant handcuffed Horstman and bound his ankles with tape.
Defendant was apprehended on January 2, 1981, incident to a police investigation of a separate crime. On January 2, 1981, the Castleton Police Department in a suburb of Indianapolis, in Marion County, Indiana, responded to a dispatch at the Bargain Barrel on East 82nd Street, where they were advised an officer had been shot during a robbery at said business. The police found that two police officers had been killed at said location and one of the robbers was fatally wounded in the incident. Officer Daniel Dunbar of the Castleton Police Department received a telephone call from an individual who stated that a suspect involved in the disturbance at the Bargain Barrel was at a nearby American Inn. The American Inn was a little over a mile from the Bargain Barrel. When police officers arrived at the hotel they heard a woman screaming, "They're running!", and he and other officers saw three individuals running from the building and ordered them several times to stop. After the individuals were apprehended, one of them requested that his dog be allowed to stay in the hotel room. Robert Hare was one of the individuals and the other two were his brother and his brother's wife. It was Hare's brother who asked that the dog be allowed to stay in the hotel room. The suspect then permitted Officer Dunbar to open the door of the room to allow the dog to enter. When Officer Dunbar opened the door, he observed, in plain view, a gun and a hol ster. He then transported the suspects to jail and obtained a search warrant to search the room. Officer James Freeman executed the search warrant and confiscated various weapons and drugs. It was later determined that one of the occupants of the room was the defendant, Robert Hare, and the others were Hare's brother and sister-in-law. Robert Hare's brother went by the name of Lamphire and was registered by that name in the motel. While executing the search warrant in the room occupied by these persons, the police seized a large quantity of drugs. Many of the drugs were of the same type taken from Arland during the robbery on December 2, 1980. They were also in a handbag
I
Defendant claims the trial court erred by denying his motion to suppress items confiscated from the hotel room occupied by the defendant and others at the time of his arrest. At the time of his arrest, the police in the Castleton section of Indianapolis were investigating a robbery in which two police officers and one of the robbers were killed. They received a phone call from a resident of the American Inn nearby that a description of the robbers had been broadcast and she felt one of the suspects also resided at the American Inn. Officer Dunbar of the Castleton Police Department went to the hotel and heard a woman seream, "They're running!". He then saw three individuals running from the building and ordered them several times to stop. He apprehended them and took them into custody. One of them, who later turned out to be the defendant's brother, requested that his dog be allowed to stay in the hotel room. Officer Dunbar then opened the door to the room to allow the dog to enter and noticed a gun and holster in the room. He then secured the room and obtained a search warrant before entering and confiscating the items found therein.
The trial court ruled that the items found in the room that were pertinent to this cause were properly admitted into evidence because the police had probable cause to obtain a search warrant and to seize the articles found therein. We agree. A police officer may, in appropriate cireum-stances and manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest at that time. Taylor v. State, (1980)
"Probable cause exists when at the time of the arrest the officer has knowledge of facts and cireumstances which would warrant a man of reasonable caution and prudence to believe the defendant committed the criminal act in question."
Here, Officer Dunbar had probable cause to believe the defendant had committed the criminal act in Castleton. He was investigating the crime in which two police officers were killed when he received the call regarding the suspects from the citizen who resided at the American Inn. When he arrived at the hotel, he heard a woman screaming, "They're running!", and saw the three individuals, one of them the defendant, attempting to flee. Although it turned out that the defendant, Robert Hare, was not involved in the Castleton incident, it cannot be said the police did not have probable cause at that time to suspect that he was involved and to take him into
Defendant further complains about the court's action in admitting the State's Exhibit No. 28, which was a computer sheet listing items recovered from the search of the hotel room at the American Inn. Officer James Freeman, who executed the search warrant, testified that when he obtained the items recovered from the room he called the Records Department of Marion County Sheriff's Department to report the information according to the general practice. The set up in the records room was such that when the officer dictated the information regarding the items he seized into the records telephone, the facts were entered into a computer and later printed out from the computer. This printout formed State's Exhibit No. 28. Defendant objected to the admission of the exhibit by claiming the computer sheet was irrelevant to the issues and a proper foundation did not exist for its introduction into evidence. Although the defendant makes these claims regarding this exhibit, he fails to cite any authority in support of his contention that are relevant to the issue. The State's argument that he has thus waived the issue under Ind.R.P.App.R. 8.3(A)(7) has merit. Furthermore, a general objection that an exhibit is irrelevant without further explanation or giving of grounds for its lack of admissibility presents no issue on appeal. O'Connor v. State, (1980)
II
Defendant claims the trial court erred by failing to sanction the State for an alleged violation of a motion in limine. A motion in limine, of course, is used prior to trial as a protective order against prejudicial questions and statements which might arise during trial. The trial court has inherent discretionary power to grant such a motion. Norton v. State, (1980)
THI
Defendant claims the trial court erred by permitting the in-court identifications of the defendant by victims William Arland and Jeff Horstman. The record shows that after the robbery the victims were shown approximately ten "mug" shots of potential suspects, but Mr. Arland was unable to identify the person who robbed the drugstore from said mug shots. On February 2, 1981, Arland was shown three photographs of two men and one female. Arland did identify the defendant as the individual who committed the robbery. Later Arland was shown a "mug" book which contained approximately ten photographs of suspects and Arland again identified the defendant. Apparently these latter ten photographs contained the photograph of the defendant that was included in the three photographs shown to Arland on February 2, 1981. Neither Arland nor Horstman ever wavered from their identification of the defendant on the photographic displays or on their identification of the defendant in person, particularly at trial. In a pretrial hearing based on the defendant's motion to suppress the evidence from the photographic identifications, the court suppressed the February 2, 1981 identification process as it was found to be suggestive. However, the court permitted both witnesses to testify at trial and identify the defendant. An in-court identification is permissible despite a prejudicial pre-trial identification if it is apparent that the in-court identification was not the product of an unnecessarily suggestive confrontation and an independent basis for the in-court identification exists. It is necessary to show that the unnecessarily suggestive confrontation did not lead to an irreparable likelihood that the identification was erroneous or influenced by the improper confrontation. Kusley v. State, (1982) Ind.,
Defendant claims the trial court erred by denying him a change of venue from Shelby County based on publicity by the local newspaper. Incident to voir dire examination, the trial court held a hearing to determine the probability of existence of bias created by the newspaper publicity. Examination of the first jury panel revealed that many of the jurors indicated they had some knowledge of the case through the pretrial publicity. The trial court thereupon discharged the entire jury panel and had a new jury panel drawn. Defendant's trial jury was picked from the new panel. Defendant now asserts that community bias and prejudice existed to the extent that the trial court should have granted a change of venue from the county. The question of change of venue from the county lies within the sound discretion of the trial court. Robinson v. State, (1983) Ind.,
V
It is the defendant's contention the trial court erred by denying his motion to suppress the testimony of Stephen Lux. Lux testified that he was incarcerated in the Shelby County Jail at the same time as the defendant and that he, Lux, talked to the defendant there. The defendant told Lux that he was charged with the armed robbery of a drugstore and described to Lux the manner in which he executed the robbery. The robbery described was the one in trial here. Defendant told Lux that the police believed the defendant was the only person involved in the crime but that, in fact, two other persons were also involved. Defendant's only arguments for suppressing the statement of Lux are based on the holding in United States v. Henry, (1980)
"By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the government violated Henry's Sixth Amendment right to counsel."
The situation here, however, bears no relationship to that expressed by the United States Supreme Court in Henry, as there is no showing here that Lux was solicited by the State or any of its agents to purposely induce the defendant into making some incriminating statement. In fact, Lux testified to the opposite when he stated he had not been talked to by anyone representing the State prior to the time that the defendant voluntarily talked to him. After the defendant made the state
VI
The results of a polygraph examination taken of the defendant were put into evidence pursuant to a stipulation by the State and the defense. The defense then tendered its final instruction No. 8 which was proposed to instruct the jury on how they were to consider a polygraph or lie detector examination pursuant to Owens v. State, (1978)
"That if such evidence is admitted the trial judge should instruct the jury that the examiner's testimony does not tend to prove or disprove any element of the crime with which a defendant is charged but at most tends only to indicate that at the time of the examination defendant was not telling the truth. Further, the jury members should be instructed that it is for them to determine what corroborative weight and effect such testimony should be given."
Instruction No. 3 tendered by the defendant here was a proper instruction and should have been given by the trial court. Owens v. State, supra. We do note that the trial court here gave its final instruction No. 7 which instructed the jury generally that they were to determine the credibility of any witness and weigh each piece of evidence relative to its reasonableness and consistency with all other evidence. Although Instruction No. 7, of course, would apply to the polygraph testimony as well as all other evidence, because of the nature of polygraph examinations, the defendant's Instruction No. 8 was a proper instruction and should have been given. We have held, however, that errors in the giving and refusing of instructions are harmless where a conviction is clearly sustained by all of the other evidence presented before the jury. Battle v. State, (1981) Ind.,
Here, the defendant was positively identified by the two victims of the robbery, there was testimony of his own voluntary statement to a fellow prisoner, and other evidence that strongly pointed to this defendant as the perpetrator of the robbery. We therefore find that any error committed by the trial court in refusing the defendant's Instruction No. 3 was harmless.
Defendant also claims the trial court erred in refusing to give his tendered final Instruction No. 8. Defendant's tendered Instruction No. 8 was not a statement of the law, but rather a rambling dissertation to the jury regarding the problems and weaknesses of photo identification procedures that might be practiced by the police. The defendant asserts that the instruction is a proper one to give in that it quotes the U.S. Supreme Court in Simmons v. United States, (1968)
VII
The next issue raised by the defendant is the admission into evidence of State's Exhibit No. 22, a copy of a registration form used by the American Inn, and State's Exhibit No. 81, a key found in a briefcase in the hotel room. The registration form from the American Inn showing the defendant's brother had signed for the room supported testimony that this was the room. from which the defendant, his brother and his brother's wife had fled. Defendant again claims this exhibit was irrelevant without pointing out any grounds or qualifications that make it irrelevant, and therefore presents no issue. O'Conner v. State, supra. He further claims that a photocopy was offered into evidence which was not the best evidence. He cites no authority nor presents any cogent argument in support of this contention and, thus, again presents no issue for our consideration. He finally contends that a proper foundation did not exist for the introduction of this exhibit since it did not satisfy the business records exception to the hearsay 'rule. The exhibit was sponsored, however, by Phyllis Lingenfelter, a bookkeeper at the American Inn, who testified she was responsible for the registration records and that this registration was taken from those records. Her testimony qualified the exhibit as a business records exception to the hearsay rule and was therefore properly admitted. Crosson v. State, supra.
Exhibit No. 31 was a key found in a briefcase in the motel room. The locks on the handcuffs removed from the victims were damaged in the process of removing them and police were not able to testify conclusively that this key would fit the handcuffs to the extent that it would open and close them. The police testified, however, that the key would fit into the locks and when turning it would tend to activate the spring that locked the handcuffs. Defendant's objections to this exhibit were that proper chain of custody was not shown and that the exhibit was irrelevant. He makes no argument in his brief nor points out wherein a proper chain of custody was lacking and, therefore, has waived this issue. Furthermore, a general claim of irrelevancy does not present an issue on appeal. O'Conner v. State, supra. Evidence having some tendency to prove a material fact is relevant and a trial court is accorded wide latitude on ruling on its admission. Pitman v. State, (1982) Ind.,
VIII and IX
Defendant claims the court erred in permitting testimony concerning an unrelated robbery committed by the defendant in Terre Haute, Indiana and the giving of final instruction No. 8, which instructed the jury in the manner in which they were to use that evidence.
Prior to trial the defendant filed a motion in limine to prevent any testimony regarding any other robbery allegedly committed by him. The trial court granted the motion but later permitted Joseph Lugar, a pharmacist in Terre Haute, Indiana, to testify that on December 8, 1980, the defendant entered his drugstore in Terre Haute and demanded drugs from him. Since the defendant was unable to find the drugs himself, Lugar assisted him, placing various drugs into a sack in the defendant's possession as well as money from the cash drawer. Defendant then ordered Lugar and his employee to lie on the floor while the defendant handcuffed them and bound their ankles with tape. The handcuffs and tape were similar to those used on the victims in the instant case. Defendant was tried in Vigo County for the Terre Haute robbery
Evidence of a crime other than that charged is generally inadmissible as proof of the guilt of the defendant, however is admissible to show intent, motive, purpose, identity, or common scheme or plan. Hill v. State, (1983) Ind.,
For evidence of other offenses to be admissible there must be evidence of probative value that shows the defendant actually engaged in those acts. There were sufficient probative facts presented to the jury here which connected the defendant to the Terre Haute robbery. Howell v. State, (1980) Ind.,
The trial court gave as its final instruction No. 8, the following:
"Evidence has been presented to you to indicate that the defendant may have committed other crimes and engaged in criminal conduct other than the robbery for which he is on trial. Such testimony*19 is not admissible as proof the defendant committed this robbery. It is admissible to show intent, purpose, identification or a common scheme or plan and was admitted by the court for those purposes only."
Since it was proper for the trial court to admit the testimony, it also was proper for him to give this instruction to the jury so that they might understand the import of the evidence and apply it properly in arriving at their final verdict.
X
Police Officer Freeman was permitted to testify as to the street value of the drugs found in possession of this appellant and his cohorts. His testimony was that the street value of the drugs was approximately $50.00. Defendant's only objection to the admission of this evidence is that a proper foundation did not exist for its introduction into evidence. His argument apparently is that the mere fact that Freeman was a police officer did not qualify him to testify as to street value of drugs. Officer Freeman, however, did qualify as an expert in this field as he testified he had been employed in the narcotics division for four years and received special education offered by the drug enforcement administration. An expert may be qualified by practical experience as well as by formal training and whether he is qualified as an expert is a matter within the sound discretion of the trial court. There was sufficient evidence here to justify the trial court in finding that Freeman was, in fact, an expert on this subject. Culley v. State, (1980)
XI
Finally, the defendant claims the trial court erred by admitting the testimony of Officer Daniel Dunbar concerning the robbery at Castleton in which two Marion County sheriff's deputies were killed. This testimony was put into evidence merely to explain the purpose of the officer's presence at the American Inn. Its relationship has already been pointed out in this opinion. Officer Dunbar further testified that the defendant was not involved in this incident and that those who actually committed the Castleton robbery and murders were in custody. In view of the circumstances of the defendant's arrest it was necessary to present this evidence so that the jury might understand the cireumstanc-es under which the police encountered this defendant and his cohorts which ultimately resulted in their arrests and charges with this crime. Since it was clearly pointed out that the defendant was not involved in that incident, no prejudice resulted from such testimony. There was, therefore, no error in its admission.
Finding no reversible error, we affirm the trial court.
Concurrence Opinion
concurring.
In this situation, appellant was arrested a month after the drugstore robbery. The arrest took place at a motel in another county. He was arrested upon probable cause to believe that he and his companions had committed a crime which was then and is now totally unrelated to the drugstore
PRENTICE, J., concurs.