Dorton v. State, No. 380S62

Docket NºNo. 380S62
Citation419 N.E.2d 1289
Case DateMay 06, 1981
CourtSupreme Court of Indiana

Page 1289

419 N.E.2d 1289
William A. DORTON and John Munde, a/k/a John Daniel Muha, Appellants,
v.
STATE of Indiana, Appellee.
No. 380S62.
Supreme Court of Indiana.
May 6, 1981.

Page 1291

Harriette Bailey Conn, Public Defender, Kurt A. Young, and David P. Freund, Deputy Public Defenders, Indianapolis, for appellants.

Linley E. Pearson, Atty. Gen., Frederick N. Kopec, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellants were charged by information with the crime of Burglary, a Class B felony, on November 14, 1977. Dorton was also charged with being an Habitual Offender. After trial by jury, the appellants were found guilty of Burglary on November 17, 1978. On November 21, 1978, in the sentencing phase, the jury found Dorton to be an habitual offender.

Dorton was sentenced to twenty years, to which were added thirty (30) years. Munde was also sentenced on November 30, 1978, to a period of ten (10) years. Appellants appealed from these convictions. On March 6, 1980, the Indiana Supreme Court ordered Munde's appeal consolidated with Dorton's appeal.

Appellants present eighteen allegations of error for our review concerning the denial of motions for mistrial and a change of venue, the admission of exhibits, the possible prejudice of jurors, the denial of motions to correct errors, the sufficiency of the evidence and sentencing.

On November 9 and 10, 1977, Detective Gary Howe of the Michigan State Police received telephone calls tipping him to the planned commission of a burglary by Raymond Monasterski, Albert Iafrate, William Dorton, and John Munde. Michigan State Police set up a complex surveillance network which originated near Detroit, Michigan at the home of Raymond Monasterski on November 11. Monasterski was followed as he left his home around noon. Monasterski picked up Albert Iafrate and the two men were followed by police helicopter and several unmarked Michigan State police vehicles to Elkhart, Indiana.

Upon arriving in Elkhart, Monasterski and Iafrate stopped at a motel and entered room 115. There they met William Dorton and John Munde. The four men then left the motel in Munde's maroon Cadillac and drove south toward Goshen, Indiana. Michigan authorities contacted Indiana authorities, who joined in the surveillance of the Munde automobile. Munde's maroon Cadillac was observed as it drove into a residential section of Goshen and cruised an area within six or eight blocks of the burglary scene for nearly one hour. During most of the time that Munde's car was under surveillance, Munde was the sole occupant of the vehicle. Police then observed Munde's car stop and the lights went off. Less than a minute later, the lights came back on and the Cadillac was driven away. Four persons were then observed inside the car.

Surveillance officers then looked for the break-in site. Heavy snow falling in the early evening hours of November 11, 1977, obscured any footprints, so officers made a house-to-house search. Several homes with partially open garage doors were investigated. At all but one, the residents were at home and reported no criminal activity. A home located at 1912 Cheryl Street was dark and appeared unoccupied when police noticed its garage door partially open. Police looked into a window of the dark home and noticed that the household was in a state of disarray. The door to the house from the garage was unlocked and showed signs of forcible entry. The entire house had been ransacked.

Other surveillance officers who had observed Munde's car leave the scene followed the Cadillac back toward Elkhart. As the car entered Jackson Street in Elkhart, it began to accelerate. With police in close pursuit, a canvas bag was then seen thrown from the right front window of Munde's car. The canvas bag was retrieved by police after it had struck a guardrail along Jackson Street and split open. Numerous items of men's and women's jewelry, currency and coins were found with the bag. These items were retrieved from the mud and snow in darkness by police and were turned over to Elkhart Police immediately.

Munde's Cadillac was forced to the side of the road and Munde, Dorton, Iafrate and Monasterski were arrested. Police found a programmable police-band scanner in the front seat. Dorton was searched upon his arrest and was found to have two short nylon stockings in his pocket.

Two of the suspects pleaded guilty to burglary and were sentenced. One of

Page 1293

them, Albert Iafrate, testified at the trial of Dorton and Munde that the purpose of his trip from Detroit to Goshen was to "burglarize a house." Iafrate testified that Munde had chosen the potential burglary site before Iafrate's arrival and that Munde "knew where we were going."

I.

Appellants' first claim was that the trial court erred in refusing to grant a motion for mistrial after refusing to require the State to disclose the identity of the man who had tipped Michigan police that a burglary was to take place.

Apparently the tipster was an anonymous telephone caller. The tip merely led to the surveillance of the activities of several men. Officer Howe was called on November 9 by an informant he knew who told him another person had told him that a burglary was going to occur. The first caller said the other person would be calling Howe and would identify himself with a number and give Howe the information. Officer Howe did not know the identity of this individual. The caller told Howe that Monasterski, Iafrate, Dorton and Munde would be travelling in two vehicles to somewhere to commit a burglary. Howe testified that he was still using the first informant and that disclosure of his identity would impair an ongoing investigation. He also stated that he believed the defendants posed a danger to the first informant. The trial court had a hearing out of the presence of the jury, heard argument and ruled that Howe did not have to disclose the name of the informant, known to him, who was not the caller who gave the information. There was no showing that disclosure of his mane would have been essential to a fair determination of this case and the court's failure to grant a mistrial was not error.

Appellant argues, citing Roviaro v. United States, (1957) 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 and Glover v. State, (1969) Ind., 251 N.E.2d 814, that the State should have been compelled to disclose the name of the "informant." These cases have no application to this situation. Here the name of the anonymous tipster was unknown even to the Michigan authorities, and this individual was not paid for his information. He was not a participant in the crime and was not a material witness. Therefore, his credibility was not in issue. Here, the testimony merely revealed that the surveillance of the men was undertaken by reason of his tip. His assistance merely served to alert the police to a possible crime yet to be perpetrated. The disclosure to the jury of the fact that police had these subjects under surveillance because of a tip had no bearing upon any issue. The testimony implicating the defendants would have been the same, had it been mere chance that the police witnessed the crime. In Glover, supra, a State's witness on redirect examination testified that he had the assistance of an informer in establishing both the guilt and the identity of the accused. Glover, therefore, has no application to this situation. McCulley v. State, (1971) 257 Ind. 135, 272 N.E.2d 613; Carey v. State, (1979) Ind.App., 389 N.E.2d 357; Garner v. State, (1975) Ind.App., 325 N.E.2d 511; Ludlow v. State, (1973) Ind.App., 302 N.E.2d 838. See also Lewandowski v. State, (1979) Ind., 389 N.E.2d 706. The trial court did not err in overruling defendants' motion for mistrial.

II.

Appellants next claim that the trial court erred in refusing to grant a change of venue because of pre-trial publicity. A hearing was held on the motion on December 15. The defendants introduced numerous newspaper articles which appeared in local papers in November of 1977, immediately following their arrest. Several articles referred to other burglaries in Indiana and in Michigan in which these individuals were suspects, and referred to them as the "Wrecking Crew" and stated that they were from out of State and that they had been specializing in home invasions of Oriental businessmen. Another story also stated that Munde and Monasterski were charged with murder in Michigan and that a Detroit homicide detective had said that the four may have been responsible for as

Page 1294

many as 100 robberies each year in the Detroit area. Appellants claim that this sort of publicity poisoned the minds of those who were to make up the jury in this case.

At the hearing on the defendants' motion for change of venue from the county on December 15, 1977, the defendants stood on their submission of the newspaper articles and presented no other evidence to show the existence of a pervasive atmosphere of prejudice arising from this pre-trial publicity. The trial court denied the motion.

The grant of a change of venue from the county in all criminal cases, except those punishable by death, is discretionary with the trial court, and the reviewing court will not reverse the trial court's ruling unless there is a clear showing of an abuse of discretion. Pallett v. State, (1978) 269 Ind. 396, 381 N.E.2d 452; Mendez v. State, (1977) 267 Ind. 309, 370 N.E.2d 323. In order for a defendant to establish good cause for a discretionary change of venue, he must produce evidence of community bias or prejudice sufficient to convince the trial court that he cannot obtain a fair trial in that county. Dickens v. State, (1973) 260 Ind. 284, 295 N.E.2d 613.

Here the publicity was typical newspaper coverage at the time of the arrest of the subjects. Nearly eleven months later, on November 13, 1978, voir dire of the prospective jurors commenced. During all of the voir dire counsel for Defendant Munde asked if any of...

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64 practice notes
  • Atwell v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 20, 1991
    ...(officer identified " 'cellophane bag wrapped in tin foil' " as object dropped by defendant during chase); Dorton v. State, 419 N.E.2d 1289, 1294 (Ind.1981) (officer specifically identified certain items as items he had picked up after observing a bag being thrown from a fleeing In Story v.......
  • State v. Zaccagnini, No. 15726
    • United States
    • Supreme Court of West Virginia
    • September 29, 1983
    ...E.g., United States v. Halbert, 668 F.2d 489 (10th Cir.1982); State v. Conger, [183 Conn. 386] 439 A.2d 381 (1981); Dorton v. State, 419 N.E.2d 1289 [172 W.Va. 496] (Ind.1981). Where the informant directly participates in the crime, or is a material witness to it, disclosure may be required......
  • Dillbeck v. Duckworth, No. S83-493.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • April 25, 1984
    ...with the trial court and will not be reversed unless there is a clear showing of abuse of discretion. Dorton v. State, Ind., 419 N.E.2d 1289, 1294 The facts of the present case evidence that the trial court did not err in denying petitioner's motion for change of venue. II. Petitioner argue......
  • Meisberger v. State, No. 53A01-9307-CR-243
    • United States
    • Indiana Court of Appeals of Indiana
    • September 26, 1994
    ...constitutes prosecutorial misconduct. We have found only two Indiana cases touching upon this point: Dorton v. State (1981), Ind., 419 N.E.2d 1289, and Springer v. State (1984), Ind., 463 N.E.2d 243. In Dorton, the Indiana Supreme Court held that a legitimate and permissible attempt to have......
  • Request a trial to view additional results
64 cases
  • Atwell v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 20, 1991
    ...(officer identified " 'cellophane bag wrapped in tin foil' " as object dropped by defendant during chase); Dorton v. State, 419 N.E.2d 1289, 1294 (Ind.1981) (officer specifically identified certain items as items he had picked up after observing a bag being thrown from a fleeing In Story v.......
  • State v. Zaccagnini, No. 15726
    • United States
    • Supreme Court of West Virginia
    • September 29, 1983
    ...E.g., United States v. Halbert, 668 F.2d 489 (10th Cir.1982); State v. Conger, [183 Conn. 386] 439 A.2d 381 (1981); Dorton v. State, 419 N.E.2d 1289 [172 W.Va. 496] (Ind.1981). Where the informant directly participates in the crime, or is a material witness to it, disclosure may be required......
  • Dillbeck v. Duckworth, No. S83-493.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • April 25, 1984
    ...with the trial court and will not be reversed unless there is a clear showing of abuse of discretion. Dorton v. State, Ind., 419 N.E.2d 1289, 1294 The facts of the present case evidence that the trial court did not err in denying petitioner's motion for change of venue. II. Petitioner argue......
  • Meisberger v. State, No. 53A01-9307-CR-243
    • United States
    • Indiana Court of Appeals of Indiana
    • September 26, 1994
    ...constitutes prosecutorial misconduct. We have found only two Indiana cases touching upon this point: Dorton v. State (1981), Ind., 419 N.E.2d 1289, and Springer v. State (1984), Ind., 463 N.E.2d 243. In Dorton, the Indiana Supreme Court held that a legitimate and permissible attempt to have......
  • Request a trial to view additional results

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