Bennett v. State

• Citation: 345 N.E.2d 254,168 Ind.App. 680
• Decision Date: 14 April 1976
• Docket Number: No. 3--475A74,3--475A74
• Parties: Larry T. BENNETT, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 254

345 N.E.2d 254

168 Ind.App. 680

Larry T. BENNETT, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--475A74.

Court of Appeals of Indiana, Third District.

April 14, 1976.

Rehearing Denied May 20, 1976.

Frank J. Galvin, Jr., Hammond, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Larry T. Bennett was convicted by a jury of the crime of robbery. His appeal questions the sufficiency of the evidence and the failue of his trial attorney to secure suppression of certain evidence as having been obtained through an illegal arrest. We affirm.

The challenge launched at the sufficiency of the evidence attacks the identification of Bennett as a participant in the robbery. He points out that the robbery occurred at night some six months before the trial and that the victim observed his assailants for only about three minutes. However, the evidence supporting the verdict established that the robbery occurred only a hundred feet from a street light and that the victim positively identified Bennett as the individual who held a gun on him during the robbery. This identification was made both at trial and minutes after the robbery occurred when Bennett and his companions were apprehended. Thus, Bennett's assertion of error resolves into a request that we reweigh the evidence, an invitation we must decline. Linnemeier v. State (1975), Ind.App., 330 N.E.2d 373.

Bennett also claims that evidence introduced at his trial should have been suppressed as having been acquired through an illegal arrest. He recognizes that no challenge to the introduction of the evidence on this ground was made at the suppression hearing or at trial. However, he asserts that under the language employed by the court in Beck v. State (1974), Ind., 308 N.E.2d 697, he may still assert the error.

The starting point for examining Bennett's claim is the rule of appellate review holding that errors asserting the improper introduction of evidence at trial must have been raised at the trial, or they will not be considered on appeal. The rule applies even though the error assigned has constitutional proportions. See, e.g., Johnson v. State (1972), 257 Ind. 682, 278 N.E.2d 577. The rationale for the necessity of the rule was explained at length by Judge Sullivan in Winston v. State (1975), Ind.App., 332 N.E.2d 229.

Although they are not cited by counsel, we are of course aware of those cases in Indiana which have recognized fundamental constitutional error as a ground for reversal even though the error was not raised before the trial court. See, e.g., Webb v. State (1972), 259 Ind. 101, 284 N.E.2d 812, and cases cited in Winston, supra.

In Hayden v. State (1964), 245 Ind. 591, 199 N.E.2d 102, cert. den.384 U.S. 1013, 86 S.Ct. 1926, 16 L.Ed.2d 1034, the appellant assigned as error the incompetency of trial counsel and in support of his claim, asserted the failure of counsel to object at trial to the introduction into evidence of what was claimed to be an illegally obtained confession. This assertion was first made in the errors assigned on appeal. The Supreme Court affirmed the conviction, but recognized that it would be unlikely for trial counsel to assert his own incompetence in a motion for new trial and conjectured that:

'. . . (A) possible exception to the rule might be made where the error appears as a matter of record and is of such a nature that this court can take judicial knowledge that such error being present, the appellant could not, under any circumstances, have had a fair trial.' 245 Ind. 591, 599, 199 N.E.2d 102, 107. ¹

While the Hayden dictum might be read as merely a recognition of the existence of the fundamental error doctrine, the court in Beck v. State (1974), 261 Ind. 616, 308 N.E.2d 697, was clearly speaking to an allegation of incompetent counsel and the evidence that might sustain such a charge.

In Beck, the court again affirmed a conviction over a charge that defendant had been represented by incompetent counsel. However, relying on Hayden, the court stated that while ordinarily it would not consider asserted errors occurring at trial where no objection had been made, an exception would exist if it were demonstrated that the accused had been represented by incompetent counsel and could not have had a fair trial.

Bennett's argument may be taken to assert that 'fundamental error' existed in his post arrest identification or in the evidence seized by the police, so that no objection was necessary at trial to preserve error. Our courts have heretofore rejected this argument as to both identification and seizure of evidence, and we reject it now. For identification cases, see, Johnson, supra; Zupp v. State (1972), 258 Ind. 625, 283 N.E.2d 540; Jenkins v. State (1971), 256 Ind. 86, 267 N.E.2d 72. For evidence obtained as the result of an allegedly illegal search, see, Foster v. State (1974), Ind., 320 N.E.2d 745; Hewitt v. State (1973), 261 Ind. 71, 300 N.E.2d 94.

Bennett additionally asserts that the failure of counsel to move to suppress the evidence or object to its introduction at trial on the ground that Bennett's arrest was illegal demonstrates that he had incompetent counsel. We again disagree.

Assuming arguendo that under Beck the charge of incompetent counsel could be raised for the first time on appeal, it avails Bennett nothing. To establish grounds for relief it must appear that counsel's conduct was such as to shock the conscience of the court and make a mockery of the proceedings. Blackburn v. State (1973), 260 Ind. 5, 291 N.E.2d 686; Robbins v. State (1971), 257 Ind. 273, 274 N.E.2d 255; Davis v. State (1975), Ind.App.,328 N.E.2d 768.

Here counsel did move to suppress the evidence, although not on the basis now urged by Bennett. Even so, the transcript of the suppression hearing discloses that the trial judge considered the question of Bennett's arrest, and the evidence introduced was sufficient to support a determination that the arresting officer had probable cause when he took Bennett into custody. Furthermore, the record at trial discloses that Bennett's trial counsel actively cross examined the state's witnesses on the issue of identification and the...