Everroad v. State
| Decision Date | 16 April 1992 |
| Docket Number | No. 03S01-9204-CR-278,03S01-9204-CR-278 |
| Citation | 590 N.E.2d 567 |
| Parties | Garnet D. EVERROAD and Gregory K. Everroad, Appellants (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Kris Meltzer, Bate, Harrold & Meltzer, Shelbyville, for appellants.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
The defendants, brothers Greg and Garnet Everroad, were both convicted of Dealing in Cocaine or a Narcotic Drug, a class A felony; Dealing in Marijuana, a class D felony; Dealing in Hashish, a class D felony; and two counts of Dealing in a Schedule I Controlled Substance, a class B felony. The Court of Appeals affirmed in part, reversed in part, and remanded for resentencing. Everroad v. State (1991), Ind.App., 570 N.E.2d 38.
While the Court of Appeals discussed eighteen separate issues, we address only the following: (1) denial of discharge for delay; (2) validity of warrant and resulting searches; (3) sufficiency of the evidence.
The defendants claim that they are entitled to discharge due to the State's failure to bring them to trial within the limits designated in Ind.Crim. Rule 4(C). The Everroads accurately assert that the trial court set the July 20, 1981, trial date on March 17, 1981; not on March 27 as stated by the Court of Appeals. 570 N.E.2d at 44. The defendants' motion for immediate discharge (as distinguished from an objection to trial date) was filed on
March 19 and denied April 15. However, because the State had until April 18, 1981, to bring the defendants to trial, the motion to discharge was premature. Thereafter, the defendants did not object to the July 20, 1981, setting until April 29, 1981--over a month after the trial had been set beyond the one-year limit. Thus the defendants failed to make a timely objection. We observe that even though this April 29 pleading is termed a "Memo in Support of Defendant's Petition for Discharge", it was the first time the defendants complained of the July 20 setting. Thus, it was substantively different than the earlier, premature motion for discharge, which prayed for immediate discharge, rather than objecting to July 20 trial date. The April 29 pleading was never ruled upon. Afterward, the defendants moved for at least two more continuances. The Court of Appeals properly concluded that the defendants had acquiesced to the July 20 trial setting.
At trial the State presented evidence resulting from entry into and search of the defendants' mother's home following the issuance of a search warrant. The warrant authorized entry into the home to search for a specifically described 23-inch color television set. The trial court denied the defendants' motion to suppress and overruled their objections at trial. The Court of Appeals majority declined to address the defendants' challenge to the search warrant and resulting searches, finding that both defendants lacked standing to challenge the search. The State does not dispute the defendants' claim that standing was not an issue at the trial court, but has asserted on appeal the lack of standing on the part of Garnet.
The defendants contend that the Court of Appeals ignored the State's stipulation of standing and that both defendants had standing to challenge the search warrant. The record discloses no express stipulation. Rather, the defendants urge that the State impliedly stipulated to standing both by failing to affirmatively contest standing, and by claiming during the trial proceedings that the defendants lived at the residence searched. We decline to find an implied stipulation.
The defendants also argue that the State should not be permitted to first raise the standing issue on appeal. While conceding their burden of proof on this issue, the defendants assert that fundamental unfairness results because they were never prompted to make a record on that point. Where the prosecution has failed to make any trial court challenge to standing, the government may not raise the issue for the first time on appeal. Steagald v. United States (1981), 451 U.S. 204, 209, 101 S.Ct. 1642, 1646, 68 L.Ed.2d 38, 43; United States v. Ford (10th Cir.1975), 525 F.2d 1308; Wilderberger v. State (1988), 74 Md.App. 107, 119 n. 7, 536 A.2d 718, 723 n. 7; Williams v. United States (D.C.App.1990), 576 A.2d 700. Likewise, in resolving a claim of unlawful search and seizure, an appellate court should not invoke lack of standing, sua sponte.
The search warrant was based on the following affidavit:
AFFIDAVIT FOR SEARCH
Det. Sgt. Jerry Coon of the Columbus, IN. Police Dept., being duly sworn upon oath, states that he believes and has good cause to believe that Greg Everroad has in his possession a television set described as an Admiral Brand Model 23C673, Serial HO441064, color television set. The same set taken from a residence in Columbus, Indiana on the night of 10-7-79 allegedly by a subject named Greg Hill. Affiant has received information from a credible source that the same television set was sold to Greg Everroad and is still in his possession at RR #1, Hope, Indiana, more specifically the residence located on lot #98, Shafer Lake Addition. Information was received from subject allegedly present during the theft of above television set and also present during the sale of said set to Greg Everroad. Information received 10-25-79 indicates that the television is still at the above address and residence.
This affidavit is made for the purpose of searching the house and any other spots on the property that would be used to secret the television situated in Bartholomew County, Indiana.
/s/Jerry E. Coon
Subscribed and sworn to before me this 26 day of October, 1979.
Police executed the search warrant by using eight officers to enter the residence, four each from the front and rear, "an awesome display of manpower to merely seek out a television set...." Everroad, 570 N.E.2d at 58 (Sullivan, J., dissenting). While failing to find the TV, the searching officers found Garnet in the kitchen where they also found marijuana and hashish in open view just moments after seeing Garnet hurriedly attempting to close the curtains screening the kitchen from outside view. These observations were the basis of a second search warrant under which police seized a variety of controlled substances, including cocaine, LSD, methaqualone, and various drug paraphernalia. The defendants contend that the search warrant was invalid because it resulted from an insufficient affidavit based upon hearsay information.
An affidavit for probable cause for issuance of a warrant may be based on hearsay if there is compliance with the requirements of the search warrant affidavit statute:
(a) [N]o warrant for search or arrest shall be issued until there is filed with the judge an affidavit:
(1) Particularly describing:
(A) The house or place to be searched and the things to be searched for; or
(B) Particularly describing the person to be arrested;
(2) Alleging substantially the offense in relation thereto and that the affiant believes and has good cause to believe that:
(A) The things as are to be searched for are there concealed; or
(B) The person to be arrested committed the offense; and
(3) Setting forth the facts then in knowledge of the affiant or information based on hearsay, constituting the probable cause.
(b) When based on hearsay, the affidavit must either:
(1) Contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or
(2) Contain information that establishes that the totality of the circumstances corroborates the hearsay.
Ind.Code Sec. 35-33-5-2(a-b) (emphasis added).
Discussing a prior version of today's warrant statute, this Court in Madden v. State (1975), 263 Ind. 223, 328 N.E.2d 727, explained the reasoning supporting the statutory requirements regarding the use of hearsay in probable cause affidavits.
Recognizing the dangers inherent in hearsay ... the...
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