Gasaway v. State

• Decision Date: 13 December 1967
• Docket Number: No. 30986,30986
• Citation: 231 N.E.2d 513,249 Ind. 241
• Parties: Carl GASAWAY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 513

231 N.E.2d 513

249 Ind. 241

Carl GASAWAY, Appellant, v. STATE of Indiana, Appellee.

No. 30986.

Supreme Court of Indiana.

Dec. 13, 1967.

Max Cohen, Gary, for appellant.

John J. Dillon, Atty. Gen., Dennis J. Dewey, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

Appellant was found guilty of the crime of robbery on a jury verdict in the LaPorte Circuit Court and sentenced accordingly. The main contention before us raised by the motion for a new trial on this appeal relates to the motions to suppress evidence which was obtained by the police who searched appellant's car.

It appears from the record that the appellant was charged with the crime of robbery in Superior Court No. 2 of St. Joseph County. After arrraignment and a plea of not guilty he filed a motion to suppress the evidence connected with the search of the automobile. That court sustained the motion to suppress the evidence and thereafter the State dismissed its action in Superior Court No. 2, and later filed a charge covering the same alleged crime in St. Joseph Superior Court No. 1. This appellant, in the second court (Superior Court No. 1) filed a motion to suppress the evidence on the basis that the prior ruling in Superior Court No. 2 was res judicata and the law of the case. It is contended on this appeal that such ruling in the prior case, which was dismissed, adjudicated the issue as to whether or not the evidence obtained in searching his car was admissible in a trial against the defendant in the present case.

Normally, res judicata becomes a question only where there has been a final judgment rendered between the same parties upon the same issues. 17 I.L.E., Judgment, § 441, p. 451.

The doctrine is applicable, of course, to criminal proceedings as well as civil proceedings. Etheridge v. State (1960), 240 Ind. 384, 164 N.E.2d 642.

In the case before us we do not have a formal judgment entered on the motion to suppress. It was, in fact, nothing more than a ruling on a motion in a pending case, which was subject to reconsideration by such a court. It is in no sense a final judgment. The appellant admits that there are no cases in Indiana which support him in the position he takes and states it is a new question in this State. He relies upon United States v. Oppenheimer (1916), 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161. That case, however, does not support the appellant since it was a case where a court had dismissed a prosecution and thereafter, after the statutes of limitation had operated as a bar, a second prosecution under a new indictment was instituted. The court held that even though jeopardy had not attached in the first prosecution, the second was barred by time limitation. A case more in point is United States v. Wallace & Tiernan Co. (1949), 336 U.S. 793, 69 S.Ct. 824, 93 L.Ed. 1042. There the court said at 69 S.Ct. pp. 829, 830, 9o L.Ed., pp. 1050, 1051:

'* * * but a decision on a motion to return or suppress evidence in a pending trial may be no more than a procedural step in a particular case and in such event the effect of the decision would not extend beyond that case. * * *

'We hold that the proceedings leading up to the preclusion order must be deemed part of the criminal proceedings, see Cogen v. United States, 278 U.S. 221, 227, 49 S.Ct. 118, 120, 73 L.Ed. 275 (282); that the order did not preclude use of documents except in these proceedings; and that this order does not stand as a bar to consideration of the availability of the documents for use as evidence in this civil case.'

In United States v. Williams (4th Cir. 1955), 227 F.2d 149, 152, the court stated:

'The dismissal of the appeal, however, will not preclude the prosecution of the defendant on another indictment, if one should be found against him, since the defendant has not been placed in jeopardy but there has been a mere dismissal of the case based on the suppression of the evidence on which the indictment was found. Nor will it preclude the use of the testimony which was suppressed, since the order suppressing it was a mere interlocutory order in the case which was dismissed.' (Our italics)

We hold, therefore, that the LaPorte Circuit Court did not err in refusing to suppress the evidence based on the contention that there had already been an adjudication suppressing such evidence by another court (St. Joseph County Superior Court No. 2). Such prior ruling was merely interlocutory and was binding only in that proceeding.

The appellant also filed a motion to suppress the evidence prior to trial on the ground that probable cause did not exist for the search of the car and that the arrest was not based upon probable cause. The record shows that this was submitted to the court and prior to trial, after hearing, the court overruled the appellant's motion to suppress and reject the evidence. The cause was then venued to the LaPorte Circuit Court and a motion was presented to the court to reconsider its ruling on the motion to suppress. The court, prior to trial, overruled the motion to reconsider. The cause was then submitted to the jury and in the opening statement the prosecuting attorney referred to the errest of the appellant by the police officers and the search of the car and the items that were found upon searching the car. The appellant immediately objected to these remarks and asked the court to admonish the jury to disregard the remarks and asked for a mistrial. The appellant also asked the court to hold a hearing and reconsider its motion to suppress the evidence. The court overruled these objections and denied the request to reconsider the motion to suppress and permitted the prosecuting attorney to continue his opening statement.

Later, during the hearing of the evidence, the prosecuting attorney but a witness on the stand who was at the scene of the robbery and who identified the top-coat as the one which the...