Clark v. State

• Decision Date: 31 August 1987
• Docket Number: No. 53A01-8701-CR-10,53A01-8701-CR-10
• Citation: 512 N.E.2d 223
• Parties: Brian CLARK, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 223

512 N.E.2d 223

Brian CLARK, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 53A01-8701-CR-10.

Court of Appeals of Indiana,

First District.

Aug. 31, 1987.

William H. Kelley, Bunger, Robertson, Kelley & Steger, Bloomington, for defendant-appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellant, Brian G. Clark (Clark), was convicted by the Monroe Superior Court, Division IV, sitting without a jury, of the offense of operating a motor vehicle while intoxicated, under IND. CODE 9-11-2-2. From a sentence of imprisonment, probation, and a fine, he appeals.

We affirm.

STATEMENT OF THE FACTS

All of the evidence in this case was presented in the testimony of Indiana State Police Officer Ron Pritchard. While on Pritchard then drove to the stuck 1986 burgundy-colored two-door Oldsmobile, which was identified by the way of radio intelligence as belonging to Clark. Pritchard, by radio, called for a wrecker, and when it arrived Clark produced, from his pocket, keys for the automobile. While waiting on the wrecker, Pritchard administered to Clark, without his objection, dexterity tests, consisting of walking, turning, a heel-to-toe test, and a finger-to-nose test, all of which Clark failed. Thereupon, the officer informed Clark that he had probable cause to believe Clark had been operating a motor vehicle while under the influence of alcohol. He offered Clark an intoxilyzer test, which Clark took without objection. The test registered .16, more than the .10 presumptive limit under IND. CODE 9-11-1-7. Based on observations made of the stuck car and the mud, and the fact it had been raining, Pritchard was of the opinion that the car had not been stuck for very long.

                routine patrol Pritchard received a radio dispatch to the effect that an automobile was off the road on four-laned State Highway 37 at the intersection of College Avenue near Bloomington, Monroe County, Indiana, and that a person was walking south on the highway toward Bloomington.  Upon proceeding to investigate, Pritchard found the person, later identified as Clark, stopped, and asked Clark through the car window where he was going.  Clark, in Pritchard's words, responded that "he had just [our emphasis] run his car off the roadway and it was stuck and that he was walking into Bloomington."   Record at 87.  The officer invited Clark into the patrol car to go back to Clark's stuck car.  Upon Clark entering the patrol car Pritchard smelled a strong odor of alcohol on Clark's breath and noted that his eyes were watery and bloodshot.  Upon Pritchard's request, Clark produced for inspection and identification his operator's license
                

ISSUES

Clark presents three issues for review, in which he contends:

I. Officer Pritchard did not have probable cause to stop and interrogate him and any evidence obtained as a result of the stop was inadmissible. Without such evidence there was insufficient evidence to support the conviction.

II. The State failed to prove the corpus delicti by independent, corroborating evidence.

III. The evidence was insufficient to sustain the conviction.

DISCUSSION AND DECISION

ISSUE I: Probable Cause

Clark argues that Officer Pritchard did not have probable cause to approach him and ask questions as he walked along the road. Therefore, all of the officer's evidence should have been excluded pursuant to his objection.

A police officer may make an initial or investigative stop of a person or automobile, under circumstances where probable cause for arrest is lacking, when the facts known to the officer at the time of the stop are such as to warrant a man of reasonable caution that an investigation is appropriate. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Taylor v. State (1980), 273 Ind. 558, 406 N.E.2d 247; Broadus v. State (1986), Ind. 487 N.E.2d 1298. 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. Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. The rule was explicitly stated in Stallings v. State (1970), 255 Ind. 365, 264 N.E.2d 618. In that case, the policeman dispatched to the scene of a homicide, upon meeting the defendant and without probable cause, immediately asked the defendant if he had shot the decedent, and the defendant answered in the affirmative. The supreme court, in finding no error in the admission of the evidence, stated:

The Supreme Court of the United States in the Miranda [v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694] case at pages 477, 478 stated:

"... General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.

"In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated...."

The case at bar closely parallels a recent case decided by the Circuit Court of Appeals for the Fourth Circuit. In that case an officer had received communication concerning the identity of a person alleged to have stolen an automobile and a description of the stolen car. He observed a car fitting the description in front of a bar. He went inside where he found a man fitting the description of the alleged thief. He asked the suspect how long he had been in town, whether he owned a car, his means of transportation, whether he was employed, and finally whether he owned the automobile which was parked in front of the bar. In ruling that this testimony was proper in the absence of a prior Miranda warning, the Court stated:

"This court does not read Miranda as requiring officers to preface with a warning of non-coercive questioning conducted in the course of a routine investigation....

"... In the complete absence of the element of coercion, actual or potential, or police dominance of the individual's will, the mild police activity shown here should not prevent the introduction of statements freely made. The evils with which the Court was concerned in Miranda are not present here...."

U.S. v. Gibson (4th Cir., 1968), 392 F.2d 373, 376.

255 Ind. at 370-71, 264 N.E.2d at 621.

In Broadus and Taylor the investigative stops developed probable cause upon which arrests were then made. The cases of State v. Johnson (1987), Ind.App., 503 N.E.2d 431, and State v. Hummel (1977), 173 Ind.App. 170, 363 N.E.2d 227 are instructive. In Johnson the defendant, without any visible indications of either erratic driving behavior or driving while intoxicated, was stopped for exceeding the speed limit. In Hummel the defendant was involved in an accident. In both cases the defendants agreed to take the blood-alcohol test. This court held in both cases that because of the prior consent it was proper to admit the results of the test into evidence. Johnson, supra at 433; Hummel, supra 173 Ind.App. at 181-82, 363 N.E.2d at 235. In Taylor officers made an investigative stop of a car because of its suspicious actions, without having any knowledge of a robbery which had occurred or probable cause, and searched the car and its occupants at gunpoint. The court held that the evidence found, which was involved in a robbery for which the defendants were later prosecuted, was admissible. 273 Ind. at 562, 406 N.E.2d at 250.

This specific issue was addressed in Orr v. State (1984) Ind.App., 472 N.E.2d 627, trans. denied, a case involving a charge of driving under the influence causing death. The investigating officer at the scene of the accident and later at the hospital, elicited certain identification and other information from the defendant. The court held the rules relative to Miranda, and other rights, were not applicable to a general on-the-scene investigation in a non-coercive atmosphere. Id. at 636; see also Hatcher v. State (1980), 274 Ind. 230, 410 N.E.2d 1187 (court held that Miranda warnings are not required prior to general on-the-scene questioning related to obtaining the facts of the crime).

Here, Officer Pritchard was dispatched to the scene of a possible accident where there was no prior indication of the commission of an offense. The questions he asked Clark were routinely investigative in nature, and were non-custodial. For all Officer Pritchard knew, a motorist may have been in distress. Quite reasonably, he was entitled to assume that the only person who was walking along that lonely stretch of highway not far from the automobile was a person connected with it, and so inquired. Consistent with the above authorities we hold that his actions were proper, and the trial court did not err in admitting the evidence, recited in the Statement of Facts, flowing from the initial contact.

ISSUE II: Corpus Delicti

In this issue Clark argues that the State failed to establish that the corpus delicti of driving while intoxicated had been established independently...