GREGORY MOSS v. STATE OF INDIANA
No. 2-1273A266
Court of Appeals of Indiana
August 26, 1975
Rehearing denied October 15, 1975
Transfer denied December 9, 1976
We also wish to note that although the Amicus brief draws an extensive analogy to group life insurance, in light of the above conclusions, we deem it unnecessary to consider such arguments.
To avoid confusion, we now summarize our conclusions. The Indiana statute excludes life insurance proceeds payable directly or in trust, so long as such proceeds are not a part of the decedent‘s estate and subject to the claims thereof. Further, the statute does not differentiate betweеn types of insurance proceeds nor types of trusts. Under the facts of this case, we conclude that the NATCO plan intended to, and did in fact, embody the crucial characteristics of life insurance. Further, although the proceeds paid upon Powell‘s death went initially to the Plan trustees, we conclude that they were paid in trust for the executrix. Therefore, the executrix received insurance proceeds which under the terms of the statute, are not taxed.
Judgment affirmed.
Robertson, C.J. and Lybrook, J. concur.
NOTE.—Reported at 333 N.E.2d 92.
Theodore L. Sendak, Attorney General, Russell D. Millbranth, Deputy Attorney General, for appellee.
SULLIVAN, P.J.---Gregory Moss was charged on Decembеr 13, 1971 with possession of a narcotic drug (heroin), in violation of
We affirm.
The facts ascertainable from the record rеveal that at about 1:00 P.M. on October 13, 1971, Indianapolis Police Officer Ernest L. Miller, acting on the basis of information of undis-
When the State offered the cigarette packаge and the bindles of heroin Officer Miller had found inside it, Moss objected, asserting that this evidence was the product of an unlawful search and seizure.
Two issues are properly presented to this court:
- Did the trial court err in overruling Moss‘s objection to the admission of the cigarette package and its contents?
- Is the evidence sufficient to sustain the conviction?
I
Moss argues that Officer Miller‘s actions in removing the cigarette package from the car and examining its contents constituted a search of the vehicle and its contents. Moss‘s theory is that the search was unlawful and its product therefore inadmissible because the officer acted without a warrant and without probable cause to arrest or search without a warrant.
While our reading of the cases, both from this state and other jurisdictions, suggests that persuasive arguments could be framеd for opposing views on the legality of the seizure, we need not resolve this issue. The record reveals that the trial court properly admitted other evidence which, standing alone, is sufficient to sustain the conviction. Any error which may have occurred in the admission of the heroin therefore is not grounds for reversal.
Officer Miller testified without objectiоn that he had obtained the cigarette package from “the front seat of the car that Mr. Moss was sitting in.” No objection was made when the officer stated that he had placed the cigarette package inside a yellow envelope which he then sealed, initialed, and “put it in the narcotic dropbox.” Officer Miller‘s statement that he had personally removed the initialed envelope from the narcotic vault on the day of the trial and brought it to court was not objected to by Moss. Nor did Moss object to
The courts of this State have repeatedly held that error may not be predicated on the admission of evidence unless there was timely and specific objection thereto in the trial court. Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98; Gaynor v. State (1966), 247 Ind. 470, 217 N.E.2d 156; Winston v. State (1975), 165 Ind. App. 369, 332 N.E.2d 229; Mosby v. State (1975), 164 Ind. App. 479, 329 N.E.2d 600; Hardin v. State (1972), 153 Ind. 317, 287 N.E.2d 359. The fact that the alleged evidentiary error may be of constitutional dimensions does not alter application of this general rule. See Harrison v. State, supra; Tyler v. State (1968), 250 Ind. 419, 236 N.E.2d 815; Winston v. State, supra; Johnson v. State (1972), 152 Ind. App. 104, 281 N.E.2d 922.1
Professor McCormick states that:
“If the evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. The incompetent evidence, unоbjected to, may be relied on in argument, and alone or in part may support a verdict or finding. This principle is almost universally accepted, and it applies to any ground of incompetency under the exclusionary rules.” McCormick, Evidence, 125-126 (2d Ed. 1972) (emphasis supplied).
That our courts adhere to this principle is not open to serious
“It is a well settled rule of law in Indiana, that where inсompetent evidence, hearsay or otherwise, is admitted without objection its probative value is for the trier of fact to determine notwithstanding such evidence might have been excluded if proper and timely objection had been made. Kern v. State (1957), 237 Ind. 144, 144 N.E. 705, Chicago District, etc., Corp. v. Evans (1946), 117 Ind. App. 280, 69 N.E.2d 627, Klingler v. Ottinger (1939), 216 Ind. 9, 22 N.E.2d 805.” See also Indianapolis Blue Print & Mfg. Co. v. Kennedy (1939), 215 Ind. 409, 19 N.E.2d 554.
Relevant evidence, subject to exclusion on the basis of fourth amendment principles, which is admitted without оbjection is properly considered “to the extent of the rational persuasive power it may have“, McCormick, supra, since the rationale behind the constitutional exclusionary rules, i.e., to deter unlawful police conduct,2 does not address itself to the probative value of such evidence. Considering the above principles, even if the heroin was improperly seized so that it should have been excluded, and all testimony pertaining thereto would have been excludable on proper objection, Moss‘s failure to object to that testimony allowed the trial court to properly consider a substantial amount of highly relevant and probative evidence pointing to Moss‘s guilt.
To say thаt error in the admission of the heroin is not grounds for reversal is to say that such error, if any, is “harmless” in the context of this case. Since any error which might have occurred would violate one of Moss‘s federal constitutional rights, we are obliged to follow the harmless-constitutional-error rule formulated by the United States Supreme Court.
The original harmless-constitutional-error rule was announced in Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. It was therein stated: “that before
As we have stated, the testimony concerning the heroin was properly admitted and entitled to its natural probative value. The testimony was uncontradicted and, if believed, established that the cigarette package found in Moss‘s possession contained heroin. The heroin itself would, in effect, be merely cumulative of the admitted testimony. In 1973, a unanimous
II
Moss‘s argument that there was insufficient evidence to sustain the conviction is without merit. As we have noted, there was testimony properly before the court which established that (1) Moss made a gеsture as if to hide something between his legs when Officer Miller approached the car; (2) a cigarette package was found on the car seat where Moss had been sitting; (3) the cigarette package was held in an unbroken and unchallenged chain of custody from the time it was recovered to the time of trial; and (4) the cigarette packаge contained heroin. It is not for this court to disbelieve that testimony when the trial court did not. The testimony noted makes the facts of this case nearly identical to the facts extant in Von Hauger v. State (1970), 254 Ind. 297, 258 N.E.2d 847, and Johnson v. State (1975), 163 Ind. App. 684, 325 N.E.2d 859, wherein the convictions for possession of illegal drugs were sustained. Even if the heroin itself had been excluded, since its admission is not essential for conviction (see Mayes v. State (1974), 162 Ind. App. 186, 318 N.E.2d 811; Winston v. State, supra), the testimony establishes sufficient facts to sustain the conviction. VonHauger v. State, supra; Johnson v. State, supra.
Affirmed.
White, J., concurs; Buchanan, J., concurs in result with separate opinion.
BUCHANAN, J.----I concur in the result only in this case because, in my opinion, the heroin was properly seized pursuant to an investigative stop and search of the vehicle which was reasonable on the basis of facts known to the officer аt that time . . . relying on Luckett v. State (1972), 259 Ind. 174, 284 N.E.2d 738, Williams v. State (1973), 261 Ind. 547, 307 N.E.2d 457 and Elliott v. State (1974), 262 Ind. 413, 317 N.E.2d 173. Therefore, I would predicate the affirmance as to the admissibility of the heroin seized by the officer without necessarily relying on any other reason.
Correspondingly, I do not agree with the majority that “persuasive arguments could be framed for opposing views on the legality of the seizure . . .” or any other inference that the heroin wаs improperly admitted into evidence.
NOTE.—Reported at 333 N.E.2d 141.
ON PETITION FOR REHEARING
[Filed October 15, 1975.]
EVIDENCE---Motion to Suppress Evidence not Sufficient to Suppress Testimony Concerning Evidence Obtained.----Defendant‘s in-trial motion to suppress heroin obtained as a result of an allegedly illegal search did not suffice as an objection to subsequent testimony of witnesses concerning the heroin; rather defendant had to сontemporaneously object to the testimony of each witness to preserve possible error in the admission of such testimony.
SULLIVAN, P.J.---Gregory Moss petitions this Court for rehearing of his appeal from a conviction of possession of heroin. In our original opinion (1975), 165 Ind. App. 502, 333 N.E.2d 141, we held that any possible error in the admission of the heroin itself was not grounds for reversаl in light of Moss’ failure to object to testimony about the heroin which, standing alone, was sufficient to sustain the conviction.
Moss asserts that we erred in finding that the testimony was admitted without objection. He argues that specific objections to the testimony concerning the heroin were not necessary to preserve error because his counsel‘s in-trial motiоn “to suppress the evidence obtained as a result of the search” sufficed to meet the objection requirement for both the heroin and the testimony. Moss relies on Eisenshank v. State (1926), 197 Ind. 463, 467, 150 N.E. 365, 366, wherein it is stated that “[w]hen there has been sufficient and specific objection to the testimony, it is not necessary to repeat the objection whenever testimony of the same сlass is offered.” See also State v. Monninger (1962), 243 Ind. 174, 182 N.E.2d 426 (quoted rule acknowledged but not applied); Faust v. State (1974), 162 Ind. App. 259, 319 N.E.2d 146 (quoted rule acknowledged but not applied); G. W. Opell Co. v. Phillips (1929), 90 Ind. App. 552, 169 N.E. 354.
The numerous recent cases cited in our original opinion as support for the general rule that a specific objection must be made contemporaneously with the questioned evidence, 333 N.E.2d at 143, tend to diminish the strength of the Eisenshank precedent. To the extent that the rule stated therein retains validity in this state, it must be read in the context of the facts in Eisenshank, supra, and G. W. Opell Co., supra, thе only cases which our research has disclosed in which the rule has been applied.
The facts of those cases do not equate with the facts here. In Eisenshank, a properly specific objection to the second in a series of four consecutive, nearly identical questions to the same witness was allowed to suffice for the last two questions. In G. W. Opell Co., thе proper objection to a particular question to one witness obviated the necessity of objecting to a nearly identical question to the same witness later in that witness’ examination. Moss asserts that his oral motion “to suppress the evidence obtained as a result of the search” made early in the trial is sufficient to eliminate the need fоr ob-
To so apply the Eisenshank rule would place a burden on the trial court inconsistent with the theme of the recent cases cited in our original opinion. Cf. Harrison v. State (1972), 258 Ind. 359, 281 N.E.2d 98; Winston v. State (1975), 165 Ind. App. 369, 332 N.E.2d 229. Rather than require the trial court to constantly consider whether a challenged piece of evidence is governed by an earlier, perhaps remote objection made to evidence arguably of a different nature, we think it better practice and more consistent with recent cases “for objecting counsel to ask the judge to have the record to show that it is understood that the objection goes to all other like evidence, and when later evidence is offered, to have it noted that the earlier objection applies.” McCormick, Evidence 118 (2d Ed. 1972). In this connection, it should be noted that Moss’ earlier objection in the form of his Motion to Suppress was to physical rather than testimonial evidence.
II
Moss argues that we erred in considering the testimony concerning the heroin in our application of thе harmless-constitutional-error rule of Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. While there is language in the Harrington opinion which supports Moss’ position that allegedly tainted evidence cannot be considered as part of the evidence which must be “overwhelming” (395 U.S. at 254, 89 S.Ct. at 1728-1729), such a qualification to the test is absent from the subsequent case of Brown v. United States (1973), 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.
While the Brown court does say that “[i]n this case, as in Harrington v. California * * *, the independent evidence” is overwhelming (411 U.S. at 231, 93 S.Ct. at 1570), we do not see in this statement a requirement that the “overwhelming” evidence must be whоlly unrelated to the possibly erroneously allowed evidence. We think the Brown court‘s use of the phrases “other evidence” and “independent evidence” simply
Buchanan, J., concurs in result; White, J., concurs in the denial of the petitiоn for rehearing for the reasons stated in Presiding Judge Sullivan‘s opinion of August 26, 1975, without either agreeing or disagreeing with the views expressed in today‘s opinion.
NOTE.—Reported at 335 N.E.2d 633.