Bryant v. State, 2--273A51

• Decision Date: 31 July 1973
• Docket Number: No. 2--273A51,2--273A51
• Citation: 299 N.E.2d 200,157 Ind.App. 198,37 Ind.Dec. 662
• Parties: Willie BRYANT a/k/a William Bryant, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 200

299 N.E.2d 200

157 Ind.App. 198

Willie BRYANT a/k/a William Bryant, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 2--273A51.

Court of Appeals of Indiana, Third District.

July 31, 1973.

Richard L. Milan, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for plaintiff-appellee.

HOFFMAN, Chief Judge.

This appeal is from a judgment following a trial by the court convicting Willie Lee Bryant of the crime of robbery and sentencing him to be imprisoned for not less than ten nor more than 25 years.

On appeal, Bryant alleges error in the following respects: 1) the evidence was insufficient to establish all of the elements of the crime of robbery or to establish the appellant's identification and is therefore insufficient to sustain the conviction of the appellant and is contrary to law; and 2) the court erred in admitting State's Exhibits 'A' and 'B' which were not properly identified or connected to the alleged offense and which were obtained through an unlawful search and seizure.

The factual background necessary to resolve such allegations of error may be summarized from the record before us as follows:

Irvena Goger, the owner of Goger's Corner a variety-grocery store, at 3101 West 10th Street, in Indianapolis, Marion County, Indiana, testified, on direct examination, that at approximately 9:30 A.M., on January 14, 1972, she observed Bryant as follows:

'Well, he kept standing in the door for about half-three quarters of an hour . . . I thought he was waiting on a bus. Kept going in and out . . . in and out. And finally . . . I don't know . . . I was busy working . . . there was nobody . . . no customers in there and I was busy doing something or other and I heard a movement and I looked up and he was standing there right next to me with a gun.'

She further testified as follows:

'Q. And you say that he did say something to you?

'A. He told me to open up the cash register.

'Q. Did he say anything else?

'A. Well at the time not, then after he got what he wanted he made me . . . he told me to go in the back room and shut myself up.

'Q. And did you do that?

'A. I did.

'Q. You stated that you did open the cash register?

'A. I opened it for him, I wasn't going to argue against a gun.

'Q. Was there anything in it? In the cash register?

'A. Around $83.00 . . .. $84.00.'

Mrs. Goger notified the police and Police Officer Holder was summoned to investigate the robbery. She described the robber to Officer Holder as being very short, with very good diction, a mustache and a black 22 calibre revolver.

Later, Officer Holder saw a Northside taxicab eastbound on West Walnut Street. Officer Holder testified that the passenger in the rear seat of the cab resembled the description he had been given by Mrs. Goger. Officer Holdrer testified, on direct examination, that he followed the taxicab and observed that Bryant 'turned and looked out the rear window several times. The cab continued east on Walnut er . . . St. Clair Street while he was doing this and when he got to Pershing, correction . . . Sheffield, the cab turned south on Sheffield . . . ah . . . Mr. Bryant continued to look out the rear window. When he got to the alley just north of Michigan Street, the cab turned right to go back west in the alley and made a turn through a vacant lot there and went back north on Sheffield ah . . . towards 10th Street. I followed the cab onto 10th Street and as well as radioed for some other cars. During the entire course of this trip Mr. Bryant kept turning and looking out the rear window. When the cab got to 10th Street I stopped the cab just west of Sheffield on 10th and asked Mr. Bryant to get out of the cab.'

Officer Holder then frisked Bryant and found $84 in currency and $4.05 in change 'stuffed' in Bryant's pockets. Officer Holder placed Bryant in the police car, went back and searched the taxicab and found a pistol under the front seat on the right side. Bryant was then taken back to Goger's Corner where he was identified as the robber by Mrs. Goger, Mrs. Goger also identified the gun as the one used in the robbery.

The material elements of the crime of robbery are stated in Jackson v. State (1971) Ind., 275 N.E.2d 538, at 540, as '(1) an unlawful taking, (2) from the person of another, (3) any article of value, (4) by violence or putting in fear.' Bryant argues the element of 'violence or putting in fear' is not established.

It has been held that the mere appearance that the defendant was in possession of a gun will be sufficient to establish the 'violence of putting in fear' element of robbery. Lewis v. State (1969), 252 Ind. 454, 459, 250 N.E.2d 358; Cross, Jr. v. State of Inidiana (1956), 235 Ind. 611, 137 N.E.2d 32.

Here, not only was Mrs. Goger aware of the gun, but she testified, 'I wasn't going to argue against a gun.' There was sufficient evidence of the 'violence of putting in fear' element.

Bryant next argues that the identification was insufficient to support the conviction.

A conviction may be supported by the identification by a single witness. Bryant v. State (1972), Ind., 278 N.E.2d 576.

Here, Bryant was positively identified as the robber by the victim of the crime. The weight of her testimony was for the trier of fact. The identification of Bryant by Mrs. Goger is sufficient to support the conviction.

Bryant next argues that State's Exhibits 'A' and 'B', the gun and the money taken from Bryant after the taxicab was stopped, were erroneously admitted into evidence.

Initially we must determine the validity of the search of Bryant and the seizure of the gun and money by the police officer.

As a general rule the police must, wherever and whenever practicable, obtain advance judicial approval of searches and seizures through the 'warrant procedure.' However, we are here dealing with a rubric of police conduct recognized as an exception to the requirement of obtaining a search warrant when exigent circumsances demand swift action. Even then, the actions of a police officer must be measured against the objective standard:

'(W)ould the facts available to the officer at the moment of the seizure or the search 'warrant a men of reasonable caution in the belief' that the action taken was appropriate?'

Terry v. Ohio (1968) 392 U.S. 1, at 21--22, 88 S.Ct. 1868, at 1880, 20 L.Ed.2d 889.

Where exigent circumstances prevent the obtaining of a warrant, the law permits the arrest of a person without a warrant where a reasonable man under the same circumstances would have had probable cause to believe that a person had committed, or is committing, a crime. Stuck v. State (1970), 255 Ind. 350, 264 N.E.2d 611, 614. In such cases a search may be conducted incidental to the lawful arrest if conducted of the arrestee's person and the area from within which he might gain possession of a weapon or destructible evidence. Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; Ramirez v. State (1972), Ind.Ct.App., 286 N.E.2d 219,32 Ind.Dec. 310.

Also, a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio, supra (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

In Adams v. Williams (1972), 407 U.S. 143, 145, 146, 92 S.Ct. 1921, at 1923, 32 L.Ed.2d 612, it is stated:

'The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary Terry (392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889) recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23, 88 S.Ct., at 1881. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id., at 21--22; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzagt, 424 F.2d 396 (CA8 1970).

'The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. 'When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to othres,' he may conduct a limited protective search for concealed weapons. Id., at 24, 88 S.Ct., at 1881. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. Id., at 30, 88 S.Ct., at 1884.' (Footnote omitted.)

Under Terry and Adams the determination of whether a 'stop', if made with less than probable cause, is reasonable, is a two-step process. The first step is to determine whether, under the circumstances presented, a man of reasonable caution would have believed the 'stop' was warranted in the interest of effective law enforcement. The second step is to determine whether the officer was justified, under the 'reasonable man concept', in believing the individual whose behavior he is investigating is armed and dangerous.

If the answer to both of the above questions is 'yes', there is 'a narrowly drawn authority to permit a peasonable search for weapons for the protection of the police officer.' Terry, at 27 of 392 U.S., at 1883 of...