Fletcher v. State

• Decision Date: 17 August 1976
• Docket Number: No. 3--575A102,3--575A102
• Parties: Jesse FLETCHER and Paul J. Cummins, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 517

352 N.E.2d 517

170 Ind.App. 263

Jesse FLETCHER and Paul J. Cummins, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3--575A102.

Court of Appeals of Indiana, Third District.

Aug. 17, 1976.

Thomas L. Ryan, Deputy Public Defender, Harold W. Myers, Fort Wayne, for appellants.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Fletcher and Cummins were found guilty by a jury of second degree burglary and both were sentenced to the Department of Corrections for a period of not less than two (2) nor more than five (5) years. On appeal, Fletcher and Cummins raise the following issues:

Issue One: Whether State's photographic Exhibits Five and Six were erroneously admitted into evidence?

Issue Two: Whether the trial court erred in admitting Fletcher and Cummins' extrajudicial statements into evidence?

Issue Three: Whether there was sufficient evidence presented by the State to sustain Fletcher and Cummins' convictions?

We affirm.

The facts most favorable to the State establish the following. On December 31, 1973 between 2:00 and 3:00 o'clock A.M., Mrs. Dorothy Holycross looked out her window and saw two people get out of a car and run towards Dick's IGA Store in Allen County, Indiana. Dick's IGA is located approximately 200 feet from Mrs. Holycross' home. Mrs. Holycross observed the two individuals standing at the front door of the store and then heard glass breaking. She woke her husband, and they both observed the two individuals run out of the store and get into a car. The automobile proceeded down Washington Center Road toward State Road Three. Mr. Holycross called the police and described the vehicle that had driven away as a light-colored car with taillights extending completely across the back of the vehicle.

Also between 2:00 and 3:00 o'clock A.M. on December 31st, Officer Donald Murphy of the Allen County Police Department heard the Fort Wayne city dispatcher put out a call regarding a suspicious vehicle in the area of Dick's IGA. A short time later, the dispatcher reported that the suspicious vehicle was white, that the vehicle contained one or more passengers and that it was last seen on Washington Center Road heading toward State Road Three. Since Officer Murphy was patrolling in the area, he turned onto Washington Center Road. The only vehicle he observed on Washington Center Road was a white vehicle which was heading toward State Road Three. This vehicle was occupied by Fletcher, Cummins and another individual. Officer Murphy pulled the vehicle over to investigate, and after he stopped the automobile, he observed Fletcher attempting to cover the contents on the backseat of the automobile with his jacket. In plain view on the backseat, he observed a canister for donations to the mentally retarded, several bills of currency, some loose change, a display case of Timex watches and a crow bar. He recovered approximately $316.00 from the backseat and from Fletcher. Pictures of the contents of the backseat of the automobile were taken at the scene and admitted into evidence at trial as State's Exhibits Five and Six.

Richard Krantz, owner of the IGA business, testified that on the morning of December 31, 1973, he observed that the store had been broken into and the following items had been stolen: a display of Timex watches, a canister for donations to the mentally retarded and $319.29. Also, at trial, the State presented the testimony of Fort Wayne Police Officer Leroy Cook who questioned both Fletcher and Cummins on the morning of December 31st. Cook testified that during questioning Cummins stated '(I)t looks like you've got a good case against us,' and Fletcher said, '(I)t looks like you guys have got us.'

I. STATE'S EXHIBITS FIVE AND SIX

At trial, Fletcher and Cummins' trial counsel objected to the admission of the State's Exhibits Five and Six, pictures of the backseat of the automobile, on the ground that there was no proper foundation laid showing chain of custody. On appeal, Fletcher and Cummins contend the pictures were not competent evidence for the reason that the State could have produced the tangible items shown in the pictures themselves. We may not consider this issue on appeal. It is well established that the defendant cannot give one reason for objection at trial and then argue a different objection on appeal. Jones v. State (1973), 260 Ind. 463, 296 N.E.2d 407; Grzesiowski v. State (1976), Ind.App., 343 N.E.2d 305. Fletcher and Cummins' first issue on appeal is waived.

II. EXTRAJUDICIAL STATEMENTS

Fletcher and Cummins' second contention of error is that the trial court should have excluded their extrajudicial statements because they were elicited after Fletcher and Cummins expressed a desire to consult with their attorney. In Miranda v. Arizona (1966), 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694, in protection of an accused's Fifth Amendment right against self-incrimination, the Supreme Court of the United States held that if an accused states during questioning that he wants an attorney present, the questioning must cease until the attorney is present. See Pirtle v. State (1975), Ind., 323 N.E.2d 634. Any statements made after a violation of Miranda v. Arizona, supra, cannot be admitted over objection at trial. Miranda v. Arizona, supra. Also, failure to allow an accused the right to consult with counsel when such consultation is requested during interrogation is a violation of the accused's Sixth Amendment right to counsel and any statements made after the request must be excluded at trial. Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; see Pirtle v. State, supra.

We have carefully reviewed the record and find no violation of Fletcher's Sixth Amendment right to counsel or his rights under Miranda v. Arizona, supra. Although there is a possibility of violation of Cummins' right to counsel during questioning, we find any error in the admission of his extrajudicial statement to be harmless beyond a reasonable doubt.

The record discloses that Fletcher and Cummins were questioned separately on the morning of December 31st by Officer Cook of the Fort Wayne Police Department. Before both Cummins and Fletcher were questioned, Officer Cook had each of them read their constitutional rights aloud from an 'Advice of Rights' form. Officer Cook then questioned each of them as to whether they understood what they had just read and he further advised them orally as follows:

'(Y)ou have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during all questioning. . . . (I)f you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time.'

Both Fletcher and Cummins stated that they understood their rights and both then signed a 'Waiver of Rights' form.

Regarding the admissions of Fletcher, Officer Cook testified unequivocally that the admissions were made before Fletcher expressed any desire to speak with his attorney:

'Q. Did he (Fletcher) have a conversation with you before he requested to speak with his attorney?

'A. Yes, sir.

'Q. And what did he say to you and what did you say to him to the best of your recollection?

'A. At this time he was asked if he wanted to get it straightened out in reference to the details of the burglary.

'Q. And what did he say to you?

'A. He answered, 'it looks like you guys have got us.' I then stated asking him about how they got the money out of the safe. And he indicated that the safe was unlocked. At this time, I said, 'well, why don't you talk to us in detail and get it straightened out.' He said, 'after I talk to attorney Harold Myers, I may talk to you.'

'Q. Sir, now it sort of--so that everybody is thoroughly acquainted with the sequence of events here, there was no mention of hiring an attorney or calling an attorney prior to him making this statement?

'A. No, sir.'

Officer Cook's testimony regarding the questioning of Cummins is less than clear regarding the sequence of events:

'Q. Ok, Sergeant, did you ask him (Cummins) if he could afford an attorney?

'A. Yes, sir, I even offered him the telephone to call one.

'Q. Didn't he in fact say he wanted to talk to me?

'A. No, sir.

'Q. He never at any time told you that?

'A. No, sir, he said he was going to talk to you, and after he talked to you then he'd talk to me.

'Q. I see. I see. So he wanted to talk to me. Is that correct?

'A. Yes, sir. Not right then though, he said he would contact you.

'Q. So in spite of his wanting to talk to me, you went ahead and asked him some questions?

'A. You mean further?

'Q. Yes.

'A. Yes, sir. I asked him where he was employed.

'Q. Did you then have a conversation with Mr. Cummins?

'A. The only conversation we had was, I told him I says, 'Paul, I would like for you to get this straightened out.' He made the statement, 'it looks like you've got a good case against us.' . . .'

There was no testimony given clarifying Officer Cook's above remarks. His testimony regarding Cummins' statement may be interpreted in several ways. The trial court's interpretation of the above testimony was that Cummins was willing to answer questions without his attorney but that he was going to talk to his attorney in the future.

Even if Cummins had expressed a desire to have his attorney present during any future questioning, we conclude that any error in the admission of Cummins' statement--'it looks like you've got a good case against us'--to be harmless.

The questioning of Cummins after a request for his attorney may be in violation of both Miranda v. Arizona and Cummins' Sixth Amendment right to counsel; therefore, we must consider whether this possible constitutional error was harmless beyond a reasonable doubt. See Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Harrington v. California (1969), 395 U.S. 250, 89...