Burhannon v. State
| Decision Date | 25 April 1977 |
| Docket Number | No. 2--675A149,2--675A149 |
| Citation | 361 N.E.2d 928,172 Ind.App. 680 |
| Parties | Curtis BURHANNON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Jerome J. Sobel, Indianapolis, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
On July 19, 1973, defendant-appellant Curtis Burhannon was charged by affidavit with the crime of possession of a narcotic drug, to-wit: heroin, in violation of IC 1971, 35--24--1--20(c), Ind.Annot.Stat. § 10--3538(c), (Burns Supp.1973). Following trial by jury Burhannon was found guilty as charged, ordered committed to the Indiana Department of Correction for a period of not less than two nor more than ten years and fined in the penal sum of $750. Thereafter, his motion to correct errors was overruled and this appeal was perfected.
The issues presented for review concern whether the trial court erred in its admission of evidence derived from a purported illegal arrest and in its admission of testimony which allegedly constituted prejudicial hearsay.
The record reveals that several Indianapolis police officers positioned themselves in surveillance over an area known by them to be heavy in narcotic trafficking. Officer Morgan while observing the area from the second floor of a vacant building reported by radio to Officer Hardin, who was in a police car in a nearby alley, that an apparent drug transaction had just occurred involving Curtis Burhannon. Acting on this information, Officer Hardin, with the aid of a third policeman, Officer Rothenbusch, stopped the automobile in which Burhannon was a passenger and ordered him to exit and to place his hands on top of the car. Burhannon complied but began to fight when Officer Hardin attempted to search him for weapons. Three other police officers stepped in and, after a scuffle, Burhannon was subdued. He was then placed under arrest for resisting and interfering with a police officer and driven to a nearby parking lot to avoid a large crowd which had begun to gather. During questioning at the parking lot, Burhannon was asked to open his left hand, whereupon a small tinfoil item containing a white powdery substance fell to the ground. Having observed this, some of the police officers performed a field test which indicated that the substance was heroin. Such finding was later confirmed by laboratory analysis.
Appellant first contends that the trial court should have suppressed the heroin seized from him upon both his pretrial and oral motion, on the grounds that it was the result of an illegal detention. He argues that the police officers were acting without information sufficient to give them reason for the initial stop and frisk which led to his arrest. For support appellant focuses on Bowles v. State (1971), 256 Ind. 27, 267 N.E.2d 56, and Jackson v. State (1973), 157 Ind.App. 662, 301 N.E.2d 370, for the proposition that mere suspicion will not justify an investigatory stop, and absent probable cause, heroin obtained pursuant thereto is the fruit of illegal activity and should therefore be excluded as evidence.
However Burhannon's reliance on Jackson and Bowles mistakenly assumes that the information on which the detention was made stemmed from suspicions derived from statements made by unknown informants. Such was not the circumstance in the case at bar. Police stopped appellant only after an officer on surveillance observed what appeared to be an actual transaction for drugs. Burhannon's companion had removed a roll of money from her brassiere and had given it to appellant to give to Lamont Richardson, a narcotics dealer known to Officer Hardin. Although no contraband was observed, the situation had the appearance of a drug transaction. Moreover this information was coupled with Officer Hardin's prior experience of arresting appellant on a related charge and the tips he had received that appellant was dealing in narcotics.
Accordingly the arresting officer was able to point to specific and articulable facts which taken together justified his detention of Burhannon and a frisk or patdown for weapons. The fact that appellant resisted and interfered with this limited intrusion gave rise to cause for formal custodial arrest. Once that arrest was accomplished, the subsequent seizure of the heroin was authorized. Elliott v. State (1974), 262 Ind. 413, 317 N.E.2d 173; Thurman v. State (1974), Ind.App., 319 N.E.2d 151 (transfer denied). See also: Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. While it is arguable that knowledge of these circumstances also provided sufficient probable cause for an arrest, Burhannon's forceful resistance to the officer's frisk renders that inquiry academic. Appellant was not arrested for illegally purchasing drugs, rather, at his instigation, he was arrested for resisting and interfering with a police officer. Therefore the subsequent search which disclosed contraband was lawful in any event and the heroin seized was properly admitted into evidence to prove possession. Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133.
Burhannon next contends that the trial court erred in allowing Officer Hardin to testify concerning the observations of the second police officer on surveillance. He argues that since he was arrested for resisting and interfering with a police officer and prosecuted for possession of heroin, allegations concerning what an unavailable witness saw implicating him in a drug transaction were prejudicial hearsay. Appellant observes that the only reason for Officer Hardin's telling the jury what Officer Morgan said while on surveillance was to prove that a drug transaction had occurred.
Citing Broecker v. State (1974), Ind.App., 314 N.E.2d 428, the State responds that the evidence was properly admitted for the 'limited purpose' of showing how and why Officer Hardin acted; not for proving the truth of what was said by Officer Morgan. However without any reason for showing how and why the arresting officer acted the testimony can only be justified as a proof of the facts asserted therein. As such the testimony was hearsay and the court erred in admitting it. Glover v. State (1969), 253 Ind. 121, 251 N.E.2d 814.
This is not to say however that the trial court's error in admitting such evidence must result in a reversal of Burhannon's conviction. Every error at trial is not reversible error on appeal. Whether improper corroborative evidence is harmless depends upon the status of the evidence which is being corroborated. Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759. Where the admission of such evidence tends only to corroborate a fact which is clearly proved by other legitimate evidence there is no prejudice to the defendant and the conviction will be upheld. Sumpter v. State (1974), 261 Ind. 471, 306 N.E.2d 95; Adams v. State (1946), 224 Ind. 472, 69 N.E.2d 21.
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Jones v. State
...legitimate investigation of the reasonable suspicion created by the informant's tip that a crime was being committed. Burhannon v. State, (1977) Ind.App., 361 N.E.2d 928. To justify an investigative detention, the police must be able to point to specific and articulable facts which, taken t......