Carr v. State, 3-1177A287
| Decision Date | 26 April 1979 |
| Docket Number | No. 3-1177A287,3-1177A287 |
| Citation | 180 Ind.App. 373,388 N.E.2d 603 |
| Parties | William N. CARR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
John F. Hoehner, Valparaiso, for appellant.
Theo. L. Sendak, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.
William N. Carr was convicted by jury of the crime of Theft. On appeal, he raises several errors. Because we reverse for a new trial, we will discuss only the prejudicial effect created by the admission of evidence that his residence was under police surveillance prior to the crime and his arrest.
The facts giving rise to this appeal are as follows: During the evening and early morning hours prior to the commission of the crime charged, the home of Carr's mother, Mrs. Kennedy (where Carr spent much of his time; testimony refers to this as his residence), was under police surveillance by three policemen in different unmarked cars. Carr's name was among those on a list of possible suspects involved in a recent rash of CB radio thefts in the area; none of the thefts had occurred in the immediate vicinity of Carr's residence. At approximately 2:45 a. m. on October 9, 1976, Detective Weeks, seated in an unmarked car, saw Carr jogging across the intersection. Carr was carrying what appeared to be a radio or an eight-track tape player. Weeks turned on his car's lights and lost sight of Carr, who continued running. One of the three officers was assigned to stand in front of the home's garage to prevent anyone from entering. The other two began searching for Carr. A half-hour later, Weeks heard a fence rattle, and saw Carr run alongside a house. Weeks advised Carr to stop, which he did. Weeks asked about the radio and Carr said he didn't have one. Weeks immediately advised Carr of his Miranda rights and effected his arrest. The officers then searched the area for the radio. One of them found a radio in a yard near a doghouse. A search of Mrs. Kennedy's home yielded no evidence.
Carr was transported to jail. Two hours later, the police discovered that the radio they retrieved had been stolen, in fact, from an individual who lived about four blocks from the scene of the arrest.
Carr argued the motion before the court, claiming that the surveillance testimony was inadmissible for several reasons:
(1) the testimony was based on Carr's reputation or character, which would not be in issue;
(2) the probative value, if any, was far outweighed by its prejudicial effect;
(3) the testimony, which indicated the police officers' opinion of Carr's criminality contradicted the initial presumption of innocence to which Carr was entitled; and
(4) the testimony tended to prove other criminal behavior or activity by Carr.
Carr's motion in limine was denied. At trial, Carr was granted a continuing objection to the presentation of any surveillance testimony.
The State proceeded to bring in numerous references to the fact that Carr's residence (the home of his mother, Mrs. Kennedy) was under police surveillance prior to the crime.
Three different police officers testified to their activities in connection with the surveillance. Testimony prejudicial to Carr included the following exchange between the State and Detective Weeks:
The details involved in setting up the surveillance were presented at length. Each officer described his position, his view of "721 McCool Road" (Carr's residence), his use of binoculars, etc., and his observations during the evening. Officer Ralph Levi testified that after Carr was spotted, he was assigned to secure the Carr residence and make sure nobody was able to enter it.
The surveillance testimony was inadmissible in Carr's trial for the theft of the CB radio. We hold that the trial court erred in denying Carr's motion in limine and in admitting the evidence over his objection at trial.
Such evidence may have been relevant at a probable cause hearing. Davila v. State (1977), Ind.App., 360 N.E.2d 283. However, the testimony relating to the surveillance was clearly irrelevant to a determination of the issue of Carr's guilt or innocence. Therefore, it had no probative value and should not have been before the jury. The State argues that the evidence was necessary to explain the presence of police at the scene. However, placing the officers at the scene had no relevance to the question of Carr's guilt or innocence of the crime with which he was later charged.
The surveillance testimony is inadmissible for other reasons as well. The jury was informed, through this testimony, that the police officers suspected Carr of involvement in a "rash" of other CB radio thefts. The fact of police surveillance arising from suspected but unrelated crimes belied the presumption of innocence Carr should have enjoyed with respect to the crime for which he was being tried. In addition, the testimony implied that Carr had participated in other CB thefts or, at the very least, that police suspected him of having the criminal character, or bad reputation, which would implicate him in the crime charged.
Manuel v. State (1977), Ind., 370 N.E.2d 904. See also Stacks v. State (1978), Ind.App., 372 N.E.2d 1201.
There is no question that the evidence showing that Carr was suspected of other criminal activity was not admissible under any exception to the above-stated rule. Carr's possible involvement in the other CB radio thefts bore no relationship to his possible...
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...that the testimony was elicited for the sole purpose of proving the truth of the matters therein asserted. See: Carr v. State (3d Dist. 1979) Ind.App., 388 N.E.2d 603. Accordingly, it was hearsay and was improperly admitted. However, in view of the overwhelming evidence against King, I agre......
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Collins v. State, 1080S406
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