Denson v. State

• Decision Date: 09 July 1975
• Docket Number: No. 874S160,874S160
• Citation: 47 Ind.Dec. 625,263 Ind. 315,330 N.E.2d 734
• Parties: David Wayne DENSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 734

330 N.E.2d 734

263 Ind. 315

David Wayne DENSON, Appellant, v. STATE of Indiana, Appellee.

No. 874S160.

Supreme Court of Indiana.

July 9, 1975.

John D. Clouse, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., G. Philip Duckwall, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with the crime of armed robbery. Trial by jury resulted in a verdict of guilty. Appellant was sentenced to the Department of Corrections for a term of fifteen (15) years.

The record shows the following facts: On November 15, 1973, Bruce Robinson was working at a Zephyr station in Evansville, Indiana, when Appellant drove up in a brown 1962 Dodge, produced a pistol and ordered Robinson to give him money. Robinson gave Appellant approximately $120.00. Robinson attempted to get the license number from the car, but the plate had been covered with paper. However, Appellant had driven to the station earlier that evening and Robinson remembered that the car had an out-of-state tag, white on a dark background, possibly Louisiana. Robinson telephoned police and gave them a description of the robber and this vehicle. The police dispatcher broadcast a bulletin to patrol cars to be on the lookout for an older model, light brown over beige, compact Dodge, Chrysler or Plymouth, with a white over dark out-of-state license plate, possibly Louisiana. The driver was described as Caucasian, thin with long hair.

Shortly after receiving the broadcast, Special Deputy Sheriff Andy Present saw a car similar to the one described on the highway leading out of town. After calling for, and receiving aid from another sheriff's car, the Appellant's car was stopped and Appellant was required to get out of his automobile. The deputies found a .25 caliber pistol on the front seat beside the Appellant. This pistol was later identified as the one used by the appellant in the robbery.

Appellant first claims the trial court erred in overruling his motion to dismiss, which was based upon the lack of a probable cause hearing after Appellant's arrest. IC 35--3.1--1--1(d) Burns' Ind.Stat.Ann. (1974 Supp.), § 9--903(d), provides as follows:

'(d) Whenever an indictment or information is filed and the defendant has not been arrested or otherwise brought within the custody of the court, the court shall issue a bench warrant for the arrest of the defendant. Whenever an information is filed and the defendant has not been arrested or otherwise brought within the custody of the court, the court shall issue a bench warrant for the arrest of the defendant after first determining that probable cause exists for such arrest. Whenever an information is filed and the defendant has already been arrested or otherwise brought within the custody of the court, the court shall proceed to determine whether probable cause existed for the arrest of the defendant unless the issue of probable cause has previously been determined by a court issuing a warrant for the defendant's arrest or by a court holding a preliminary hearing after the defendant's arrest.'

Appellant argues that the failure to conduct a probable cause hearing deprived the court of jurisdiction. The record contains the following entry, made after Appellant's arrest:

'Comes now the State of Indiana by its Prosecuting Attorney and files in open court information against the defendant and the court now orders that a warrant be issued for the arrest of the defendant and that the defendant be given bond in the sum of $10,000.00, for his appearance in court in said cause until the final disposition thereof.'

The State urges that the above language indicates that a probable cause hearing was, in fact, had. However, assuming, for the sake of argument, that no hearing was had, as required by the statute, we hold that the conviction should not be vacated. The failure to conduct a probable cause hearing does not deprive the court of jurisdiction. Even had the trial court conducted such a hearing and determined that no probable cause existed for the arrest, the only effect would be to quash that particular arrest. It would in no way preclude the State from subsequently arresting the same defendant for the same offense after obtaining probable cause. The only remaining effect of the arrest without probable cause would be that all evidence obtained by reason of such an illegal arrest would be suppressed.

This Court has often stated that a valid conviction may rest upon an invalid arrest. See Williams v. State (1973), Ind., 304 N.E.2d 311, 40 Ind.Dec. 58; Walker v. State (1974), Ind., 307 N.E.2d 62, 40 Ind.Dec. 655; Adams v. State (1974), Ind., 314 N.E.2d 53, 43 Ind.Dec. 69. The Appellant had the remedy to challenge an invalid arrest. In the absence of such a challenge, a subsequent conviction will stand, notwithstanding the illegality of his arrest.

Appellant next claims the trial court erred in overruling his objection and motion to strike the following:

'Q. 21 After you received this dispatch, what, if anything, happened?

'A. We were sitting at an intersection on Highway 41. We saw the, a, car going North on 41 that fit the description of the car that was over the radio. We went into check a little closer and ;ame (sic) in behind him.

'Q. 22 Pulled behind this other car?

'A. Yes.

'Q. 23 What happened after that?

'A. The car saw as come in behind it and it

'By Mr. Clouse:

'To which we object, that is a conclusion on the part of the witness, and we move to strike it and ask that the Jury be admonished to disregard it.

'BY THE COURT:

'Overruled.'

Appellant urges that the answer is conclusory on the part of the witness and is, therefore, objectionable. We can not tell from the language in this record whether the answer was, in fact, conclusory. It is just as easy to assume from the statement made by the witness that the witness observed the driver of the car in question observing him, in which case the statement would be factual. However, if we would assume the answer by the witness is conclusory, it is conclusory of the fact that the driver of the automobile observed the approaching police vehicle. This, in no way, adds to or modifies any of the pertinent evidence in this case leading to Appellant's conviction. Such a conclusion as to an immaterial fact can not be grounds for reversal. See Albright v. Hughes (1940), 107 Ind.App. 651, 26 N.E.2d 576.

Appellant next claims the trial court erred in overruling his objection to the admission of State's Exhibit 1, a Titon .25 caliber pistol, on the ground that it was obtained by an illegal search. The record shows that when the pistol was first offered in evidence,...