Gee v. State

Citation389 N.E.2d 303,271 Ind. 28
Decision Date22 May 1979
Docket NumberNo. 278S38,278S38
PartiesClifford GEE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Geoffrey A. Rivers, Muncie, for appellant.

Theo. L. Sendak, Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

The appellant was tried before a jury in Delaware Circuit Court. On October 6, 1977, he was found guilty of inflicting physical injury in the commission of robbery and was sentenced to life imprisonment. The crime involved the robbery of a Hallmark Card Shop in which Joan Sipes, an employee of that store, was beaten. The robber entered the store and said he was looking for an anniversary gift. He picked up a glass enclosed flower and brought it to the counter. Mrs. Sipes rang up the sale and as she was reaching for wrapping paper, the man drew a mental bar about 14-18 inches long from his canvas back pack and hit her over the head. He took money from the cash drawer and put it in his pack and took money from Mrs. Sipes' purse. He then beat her on her arms, hands and head. The robber left and she went next door for help. Muncie police officers arrived at the scene within minutes and took Mrs. Sipes to the hospital where she was admitted. After a call from an informant a search warrant was issued, police searched Gee's apartment and arrested him on August 12.

Appellant presents twenty errors in his statement of issues, which are specified in his Motion to Correct Errors as follows:

1. That the Court erred in denying the Defendant's Motion to Suppress Evidence and Controvert Search Warrant.

2. That the Court erred in allowing Police Officers Stonebreaker and Cox to testify at the suppression hearing to prove probable cause for issuance of said Warrant.

3. That the Court erred in allowing one of the State's main witnesses, Muncie Police Officer, Paul Cox to be in the Court Room throughout the trial after granting the defendant's Motion for a Separation of Witnesses.

4. That the Court erred in allowing State's Exhibit # FF into evidence without establishing a chain of custody.

5. That the Court erred in allowing State's Exhibits # Y, Z, AA, BB, CC, and DD into evidence because they were not properly identified and no chain of custody was established.

6. That the Court erred in overruling Defendant's Motion to Strike the testimony of Officer Scroggins when he referred to and read from his Reports to the jury instead of using them only to refresh his memory.

7. That the Court erred in overruling the defendant's objection and allowing State's Exhibits A, B, C, D, E, F, G and H, photographs of the victim, to be shown to the jury because the injuries had been previously described and the pictures would prejudice and inflame the jury.

8. That the Court erred in overruling the defendant's Motion to Strike State's Exhibits D, and F when Officer Stonebreaker later testified that he did not see the two photographs.

9. That the Court erred in allowing State's Exhibit # X-a glass enclosed flower, into evidence over the objection of the defendant without establishing a chain of custody.

10. The Court erred in overruling the defendant's objection to allowing the Prosecutor to read portions of a prior statement to witness Debra Swallow as it contained leading questions and the statement was not in evidence.

11. That the Court erred in overruling the defendant's objection to Police Officer Paul Cox's testimony as to admissions against interest allegedly made by the defendant after the Prosecutor failed to produce said statements pursuant to the Discovery Order.

12. That the Court erred in overruling the defendant's objection to any statements made by the defendant to the Police after he had been held in jail for 5 days on this charge.

13. That the decision was contrary to law.

14. That the Court erred in overruling the Defendant's Motion for Mistrial because of the misconduct of a juror.

15. That the Court erred when it failed to make sufficient inquiry to determine whether or not defendant was being unlawfully detained when photographs of Defendant were taken, to show to Joan Sipes, at her home, and to Bonnie Erby.

16. That the Court erred when it failed to rule that the in-court identification made of Defendant by Joan Sipes and Bonnie Erby was tainted by the out of court identification.

17. That the Court erred in not granting a mistrial, because the defendant was denied right of counsel at a critical stage of the pre-trial investigation.

18. That the Court erred by failure to instruct jury that the burden of proving an alibi does not rest on the defendant, but on the State and the State must prove it beyond a reasonable doubt and the elements of the offense charged including the defendant's presence at the place of the crime, the time of its commission where that is essential as to defendant's guilt.

19. That the Court erred in not determining why there was a long delay by the State before arraignment of defendant.

20. That the Court erred when he stated, "I want the prosecutor and defense attorney to have completed their presentations by noon, because I want the case over by the close of the Court day" (referring to 5:00 p. m.) because the jury is prone to consider the challenged statement as a mandatory and unequivocal directive to reach a verdict.

This motion to correct errors was overruled on December 19, 1977.

Alleged errors are grouped in the argument section of appellant's brief. They will be treated as argued when possible. Alleged errors numbered 11, 12, 15, 17 and 19, are combined as they all relate to the detention of the defendant. All of these errors and the arguments thereon are intertwined. In an effort to unravel the specific allegations of error and the related arguments, these errors will be dealt with separately. We will use appellant's numbers to identify these alleged errors. Appellant declines argument on errors numbered 8, 10, 18 and 20, therefore they are waived. Guardiola v. State, (1978) Ind., 375 N.E.2d 1105, Ind.R.A.P. 8.3(A)(7).

I.

Appellant's alleged errors number 1 and 2 are argued together. Appellant argues that the court erred in denying his Motion to Suppress Evidence and Controvert Search Warrant and in allowing police officers Stonebreaker and Cox to testify.

On September 30, 1977, there was a hearing on defendant's Motion to Suppress. After the defense had made its argument on this motion the State presented evidence with their argument against the motion. This testimony at the suppression hearing is the basis of appellant's allegation of error. The court denied defendant's Motion to Suppress. However, the items specified in the search warrant and seized from the defendant's apartment were never introduced into evidence. In order to raise error in the denial of a motion to suppress, it must be shown that the defendant was prejudiced by the trial court's action and that illegally-seized evidence was admitted against him. Appellant admits that the boxes containing the items seized from his apartment were never introduced into evidence. Appellant's remedy if items were illegally seized would be to have had his motion to suppress granted to prevent the items from being introduced into evidence. He cannot claim error on appeal based on the denial of his motion to suppress or in the allowing of testimony of police officers at the suppression hearing regarding the search warrant, when the items were not introduced into evidence at trial. There is no merit to these allegations of error.

II.

Appellant next claims in his specification number 3, that the trial court erred in allowing State's witness, Paul Cox, a Muncie police officer, to remain in the courtroom after granting the defendant's Motion for a Separation of Witnesses. He argues that Officer Cox's testimony prejudiced him because Cox testified about the chain of custody of Exhibit X, a glass-enclosed flower, and that his testimony tended to rehabilitate testimony of State's witness Debra Swallow.

After the defense motion for a separation of witnesses, the State asked to have Sgt. Paul Cox exempted from the ruling granting the separation of witnesses. The defense objected and this objection was overruled. Officer Cox testified about his actual participation in the investigation of the robbery and the statement he took from the defendant. Sgt. Cox had collected items from the card shop and it was proper for the State to use his testimony to establish the chain of custody for Exhibit X. In Hilligoss v. State, (1970) 253 Ind. 443, 446, 255 N.E.2d 101, 104, in regard to a similar situation the Court stated:

The matter of separation of witnesses is left to the sound discretion of the trial court. The court was acting well within this discretion in permitting the prosecutor to retain the investigating police officer to aid him in the prosecution of this case. The fact that this officer was also a witness who later testified in the case does not render the trial judge's discretion abusive.

Each party has a right to have one person in the courtroom to aid counsel and it is accepted procedure in Indiana to have a police officer remain even though he is also a witness. The trial court did not abuse his discretion in permitting it here.

III.

Appellant combines his specifications numbered 4 and 5 for argument. He argues that State's Exhibit FF, a plastic bag, and State's Exhibits Y, Z, AA, BB, CC and DD, photographs of persons, were not properly identified and that no chain of custody was established as to these exhibits. In his specification number 9, appellant also claims error in the admission of State's Exhibit X, a flower enclosed in glass, based on a similar claim of lack of establishment of a chain of custody. All of these claims will be discussed in one issue.

Appellant claims that the rule of Graham v. State, (1970) 253 Ind. 525, 255 N.E.2d 652 requires that a complete chain of custody be established tracing possession of an original exhibit...

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