Gajdos v. State

• Decision Date: 30 April 1984
• Docket Number: No. 383S81,383S81
• Citation: 462 N.E.2d 1017
• Parties: Robert Michael GAJDOS, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1017

462 N.E.2d 1017

Robert Michael GAJDOS, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 383S81.

Supreme Court of Indiana.

April 30, 1984.

Ellen S. Podgor, Nicholls & Podgor, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Robert Michael Gajdos, was convicted of voluntary manslaughter, a Class B felony, Ind.Code Sec. 35-42-1-3 (Burns 1979 Repl.), and was sentenced to twenty years' imprisonment. In this direct appeal the defendant raised eleven issues, which we consolidated into six:

1. Whether the evidence was sufficient to sustain the verdict;

2. Whether the trial court erred in admitting letters written by the defendant;

3. Whether the trial court erred in allowing a witness to answer questions concerning the arrest of the defendant;

4. Whether the defendant was deprived of a constitutional right to a speedy appeal;

5. Whether the defendant's trial counsel was ineffective; and

6. Whether the defendant was properly sentenced to a twenty-year term.

The facts most favorable to the state show that the defendant and an accomplice, Donald Phelps, were charged with the murder of Jeffrey LaValle. On May 15, 1979, the defendant and Phelps had been driving in the Hammond area when they encountered LaValle. The three decided to go to LaValle's apartment to drink beer. While there, LaValle allegedly made sexual advances toward the defendant and Phelps. The defendant left to go to the rest room, and while gone he heard loud noises coming from the room where LaValle and Phelps were located. The defendant returned from the rest room to find the two fighting. The defendant kicked LaValle repeatedly in the chest and head. The defendant later told a friend that he and Phelps hit LaValle with a frying pan. Subsequent investigation established that LaValle died of a massive skull fracture. The police recovered the frying pan, a large piece of driftwood with hair and blood on it, and a sledge hammer which also had blood on it.

The evidence also showed that the defendant returned to the victim's apartment and took an album collection. The defendant and Phelps then went to a friend's house. The victim's body was eventually found by the victim's brother. The apartment appeared to have been ransacked. The defendant was arrested at his home and was charged with murder on June 5, 1979.

I.

The defendant asserts that the evidence was insufficient to support the verdict. In addition, he contends the trial court erred in denying the defendant's motion for a directed verdict. However, since the defendant proceeded to present evidence on his own behalf after the close of the state's case, he has waived his right to challenge the denial of his motion for a directed verdict. Russell v. State, (1982) Ind., 438 N.E.2d 741; Miller v. State, (1981) Ind., 417 N.E.2d 339. Nevertheless, we will treat the issues as one and discuss the matter in the context of a sufficiency of evidence question.

Under our standard of review we may neither weigh the evidence nor judge the credibility of witnesses. We look at the evidence most favorable to the state and all reasonable inferences drawn therefrom to determine whether there is substantial evidence of probative value to support the conclusion of the trier of fact. Walker v. State, (1982) Ind., 442 N.E.2d 696; Fielden v. State, (1982) Ind., 437 N.E.2d 986.

The defendant argues that the state failed to establish that he acted intentionally or knowingly, since there was some evidence that the defendant had been drinking on the day LaValle was killed. At the time of this trial our statute on intoxication permitted voluntary intoxication as a defense to the extent it negated specific intent. Ind.Code Sec. 35-41-3-5(b) (Burns 1979 Repl.). Whether the defendant possessed the requisite intent, despite a claim of intoxication, is a question for the trier of fact, Fielden v. State; Greider v. State, (1979) 270 Ind. 281, 385 N.E.2d 424, and the burden of proof on intoxication rests with the defendant. Fielden v. State; Dobrzykowski v. State, (1978) 269 Ind. 604, 382 N.E.2d 170.

Evidence in this case showed that, on the day the victim was killed, the defendant had been drinking. Lori Beverlin, the defendant's girlfriend, testified that the defendant told her he had drunk four cans of beer as well as almost a quart of Southern Comfort. Another witness also testified that the defendant told him he had been drinking prior to the incident. Other evidence, however, refuted the defendant's claim that he lacked specific intent because he was intoxicated. One witness that talked with the defendant on the day of the killing testified that the defendant did not appear drunk and that his speech was not slurred. Another witness testified that the defendant bragged that "we put the frying pan over the back of his head and that the frying pan cracked right down the middle and it was really neat." Other testimony showed that the defendant had enough presence of mind to return to the crime scene shortly after the killing in order to take the victim's record collection. The evidence in this case merely established that the defendant had been drinking; it did not establish that the defendant lacked the necessary intent. Therefore, there was sufficient probative evidence to support the jury's verdict, and we cannot now reverse.

II.

The defendant contends that the trial court erred in admitting state's exhibits 29 through 59. All of these exhibits were letters written by the defendant to Lori Beverlin while the defendant was in jail. The defendant claims the admission of these letters violated the Fourth and Fifth Amendments to the United States Constitution. In addition, the defendant asserts the letters contained privileged and confidential communications and that his right of privacy was violated.

The defendant alleges that the police illegally seized the letters introduced as state's exhibits 29 through 59. The state has countered by asserting in its brief that the defendant lacked standing to object since the letters had been received by Beverlin. We note, however, that the question of standing presumes there was an illegal search. Nothing in the evidence introduced at trial established a violation of the Fourth Amendment. These letters were apparently turned over to the police by Beverlin's mother. As such, there would have been no official action necessitating a warrant since

"Private persons acting solely on their own and for whatever purpose may conduct a search and seizure and turn the fruits over to the authorities, and the authorities may initiate a prosecution on that evidence. The justifications for this rule are twofold. First, the Fourth Amendment was historically directed at governmental law enforcement conduct. Second, the exclusionary rule is directed at governmental law enforcement misconduct and the exclusionary rule would serve no useful purpose as to private persons."

Hall, Search and Seizure Sec. 3:4 (1982). See Torres v. State, (1982) Ind., 442 N.E.2d 1021. It is still possible that a search by a private citizen would violate the Fourth Amendment if law enforcement agents encouraged or forced the citizen to conduct the search. Raymond v. Superior Court of Sacramento County, (1971) 19 Cal.App.3d 321, 96 Cal.Rptr. 678. In such a case the private citizen becomes an agent of the police. The defendant alleges that the mother was, in essence, an agent for the police, since she allegedly was forced to turn over the letters because of threats by the police that Beverlin would be charged as an accomplice if the letters were not surrendered. The only "evidence" offered to establish this were statements by the defendant's counsel made during the motion to suppress. Unsworn statements by counsel are not evidence. Therefore, we find that there was no evidence that Beverlin's mother acted as an agent of the police and that there was no evidence that the police themselves conducted an illegal search. Accordingly, the defendant has failed to show a violation of the Fourth Amendment.

The defendant also alleges the introduction of these letters violated the Fifth Amendment, since many of the letters contained incriminating statements. However, it is established that the Fifth Amendment privilege may be invoked "only when the actual preparation of the documents or the making of the written declarations which they contain, has been compelled." Fagan v. United States, (5th Cir.1977) 545 F.2d 1005, 1007. Nothing in the record here indicates that the defendant was compelled to testify against himself; the fact that the letters may have contained incriminating statements is not enough. There was no Fifth Amendment violation.

The defendant's next argument regarding the letters is that they contained privileged information. The defendant contends the marital privilege should have precluded the introduction of the letters, since some of the letters sent to Beverlin were addressed to "Mrs. Robert Gajdos." Yet the defendant and Beverlin were not married, and the marital privilege is accorded only to those who maintain the legal relationship of husband and wife. Lane v. State, (1977) 266 Ind. 485, 364 N.E.2d 756; Bergner v. State, (1979) Ind.App., 397 N.E.2d 1012. There was no marital privilege to prevent the introduction of these letters.

The defendant's last argument concerning these letters is that their introduction violated his right to privacy allegedly guaranteed by the Fourth Amendment. The defendant has not presented any argument on this point, and the issue is thus waived. To the extent, however, that the defendant is simply arguing he has standing to contest an illegal search because of an expectation of privacy, see Rakas v. Illinois, (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, we have already held that there was no evidence of an...