Frasier v. State, No. 873S149

• Docket Nº: No. 873S149
• Citation: 262 Ind. 59, 312 N.E.2d 77
• Case Date: June 04, 1974
• Court: Supreme Court of Indiana

Page 77

312 N.E.2d 77 262 Ind. 59 Eddie Lee FRASIER, Appellant,
v.
STATE of Indiana, Appellee. No. 873S149. Supreme Court of Indiana. June 4, 1974.
Rehearing Denied Aug. 5, 1974.

[262 Ind. 63]

Page 79

Richard L. Milan, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Glenn A. Grampp, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

On January 30, 1973, a jury convicted Appellant of violating the 1935 Firearms Act (unlicensed possession of a gun) and of armed robbery. Appellant was sentenced to ten (10) years on the gun-possession charge and thirty (30) years on the armed robbery charge.

Appellant has raised numerous issues. Some of his specifications of error relate to the armed robbery charge alone, and some to the gun-possession charge, and some refer to the overall conduct of the trial itself. We reverse the trial court's judgment on the gun-possession charge. The evidence, from the viewpoint most favorable to the State, Blackburn v. State, (1973) Ind., 291 N.E.2d 686, and cases cited therein, is simply that Appellant was a passenger in an automobile stopped by a Deputy Sheriff. Both the driver and Appellant, who was riding in the front passenger seat, got out of the car and stood at the rear of the car. A gun-fight developed between the driver and the Deputy Sheriff. Subsequent to this gun fight, in which the driver of the car was killed, the Appellant was arrested. A search of the car revealed a pistol lying on the passenger's seat. These meager facts do not support, as a matter of law, an inference that beyond a reasonable doubt Appellant once possessed this gun.

We affirm the conviction for armed robbery. We next consider those specifications of error which relate to that charge as well as those which involve the general conduct of the [262 Ind. 64] trial. The following additional facts are relevant to the issues raised by Appellant.

On the night of August 28, 1972, two men with guns robbed Mr. and Mrs. Larry Bosley in the Bosley's apartment. Moments after the robbery and in the vicinity of the Bosley's apartment, which was an area of frequent burglaries, Deputy Sheriff Fields, without knowledge of the robbery, routinely stopped a Volkswagen with a noisy muffler. Using a flashlight to glance inside the car, the Deputy saw in plain view a 'tire tool or pry bar protruding from a brown paper sack' lying on the floorboard between the two seats. The Deputy's experience suggested to him that such an object was a frequent burglar tool. At the command of the Deputy, the two occupants of the car got out and stood at either rear side of the car. The Deputy then reached down and opened the paper sack. He discovered that the object was a tire tool and that the sack contained three pink, rubber gloves and a hunting knife. His suspicious further aroused, the Deputy approached the two men and asked for identification. The driver drew an automatic pistol and the Deputy heard the pistol 'click.' The Deputy shot and killed this man. Appellant ran to the right front of the car but surrendered when the Deputy fired at him through the rear window. Subsequently, the car was searched at the scene and many items seized which were introduced as evidence at trial. The robbery victims were brought to the sceme and there identified both the dead man and Appellant as the two men who had minutes earlier robbed them.

Appellant believes that the many items of evidence found in the car should have been excluded from the trial because they were the fruits of an illegal, unconstitutional search. Mapp v. Ohio, (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Appellant's reasoning is that the Deputy had no probable cause to look into the paper sack and that the ensuing shootout and

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search of the car were caused by this original search. This, runs Appellant's [262 Ind. 65] argument, the tainted fruits of that search must be excluded. We do not decide this point for the reason that we decide this issue pursuant to Gustafson v. Florida, (1973) 42 L.W. 4068, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456. Gustafson, supra, held that police officers effecting a valid custodial arrest for a traffic offense may thoroughly search the arrestee even absent the need to disarm or the need to seize evidentiary items which had been the justifications previously used for searches incident to valid arrests. As the United States Supreme Court said in the companion case to Gustafson, supra: 'It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment' United States v. Robinson, (1973) 42 L.W. 4055 at 4060, 414 U.S. 218 at 235, 94 S.Ct. 467 at 477, 38 L.Ed.2d 427 at 441.

In Indiana an inadequate muffler is a misdemeanor. IC 1971, 9--8--6--36 (Burns' Ind.Stat.Ann. § 47--2230 (Code Edition)). A Deputy Sheriff may arrest any person violating any law of this state in his presence. IC 1971, 35--1--21--1 (Burns' Ind.Stat.Ann. § 9--1024 (1956 Repl.)). Acting within this authority, the Deputy asked for identification. Since he had the right to make an arrest and a search incident thereto, he had the right to make the considerably lesser intrusion of a request for identification. The ensuing assault on the Deputy validates the subsequent search of the car and seizure of the items therein. Chambers v. Maroney, (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Brannon, Burton v. State, (1957) 236 Ind. 680, 142 N.E.2d 215; Sisk v. State, (1953) 232 Ind. 214, 110 N.E.2d 627.

Appellant claims that his identification by the robbery victims at the scene of the shooting violated due process of law in that the circumstances were overly suggestive. Stovall v. Denno, (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The inquiry, as formulated [262 Ind. 66] by the United States Supreme Court, is 'whether . . . the confrontation . . . was so unnecessarily suggestive and conducive to irreparable mistaken identification that (the defendant) was denied due process of law.' Stovall, supra, 388 U.S. at 301, 87 S.Ct. at 1972. Our confrontation cases (Sawyer v. State, (1973) Ind., 298 N.E.2d 440 (photographs); Wright v. State, (1972) Ind.,285 N.E.2d 650; Dillard v. State, (1971) 257 Ind. 282, 274 N.E.2d 387) have crystallized the duty of the reviewing court to the basic inquiry of whether or not the witness was, in fact, influenced by the totality of the circumstances in a manner which indicates a 'very substantial likelihood of misidentification.' Sawyer, supra, 298 N.E.2d at 443. Under the particular circumstances of this case, Appellant is able to isolate numerous circumstances which suggest what Justice Hunter recognized as the inherent suggestiveness of 'any one-on-one confrontation.' Wright, supra, 285 N.E.2d at 653. But in the case before us these circumstances are outweighed by the fact that the victims knew Appellant prior to the robbery. Additionally, witness Larry Bosley, one of the robbery victims, testified that his on-the-scene identification was not based on anything the police said to him that night. We think the totality of the relevant circumstances does not indicate a 'substantial likelihood of misidentification.'

Appellant makes an objection to the admission into evidence of each of sixteen (16) different items of evidence. The grounds for objection in each instance are that either a proper foundation or a sufficient chain of custody had not been established for any of the sixteen (16) items. Appellant does not, relative to each item, specify in what way the foundation laid or the chain of custody shown was inadequate. Consequently, we can only say that in our opinion each item was sufficiently

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connected to Appellant to constitute a proper foundation. Rose v. State, (1972) Ind., 281 N.E.2d 486; Dixon v. State, (1963) 243 Ind. 654, 189 N.E.2d 715; Smith v. State, (1961) 241 Ind. 598, 172 N.E.2d 673, and that within the guidelines of Bonds v. State, (1973) Ind.App.,[262 Ind. 67] 303 N.E.2d 686, proper chain of custody was established for the non-fungible kinds of evidence involved in this case. Moreover, the items of evidence here at issue were all cumulative evidence. There was an in-court identification of Appellant as the armed robber. Therefore, any error, with respect to the admissibility of these items of evidence would be harmless since Appellant in showing how the alleged error was prejudicial to his cause, Turner v. State, (1972) Ind., 287 N.E.2d 339, and cases cited therein, merely asserted that some of the items...