Groff v. State
| Decision Date | 28 January 1981 |
| Docket Number | No. 3-680A184,3-680A184 |
| Citation | 415 N.E.2d 721 |
| Parties | Daniel F. GROFF, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Richard J. Thonert, Auburn, for defendant-appellant.
Linley E. Pearson, Theodore L. Sendak, Attys. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
A jury found Daniel F. Groff guilty of robbery while armed with a deadly weapon. 1 The trial court entered a judgment of conviction accordingly and sentenced Groff to the Indiana Department of Correction for a period of ten years.
On appeal, Groff contends that the trial court erroneously denied the following motions which he made at trial:
(1) motion to record closing arguments of counsel;
(2) motion to suppress physical evidence;
(3) motion to suppress testimony of the victim's pretrial identification of Groff. 2
We affirm.
Groff contends that the trial court erroneously denied his motion to record the closing arguments of counsel. During the State's closing argument, Groff objected to certain prosecutorial comments because they imperilled his right to a fair trial. After making the objection, Groff moved to have the remainder of the State's closing argument recorded to preserve any error for appellate review. The trial court denied Groff's motion. On appeal, Groff contends that the trial court's refusal to record the remainder of the State's closing argument constituted a violation of IC 1976, 33-15-23-1 (Burns Code Ed.), and of Groff's constitutional rights to a fair trial and due process. These violations, he contends, entitle him to a new trial.
We disagree. IC 33-15-23-1 does not require the trial court to have closing arguments of counsel recorded. The statute requires the trial court to appoint an official reporter to record "oral evidence ... including both questions and answers, and to note all rulings of the judge in respect to the admission and rejection of evidence and the objections and exceptions thereto ...." Closing arguments do not constitute oral evidence that must be recorded under IC 33-15-23-1.
We also disagree with Groff's contention that the failure to record the remainder of the State's closing argument resulted in constitutional violations. Rule 7.2(A)(3)(c) of the Ind. Rules of Appellate Procedure provides a means of presenting for appellate review any evidence or proceedings that were not recorded. The rule provides in pertinent part:
The Indiana Supreme Court has held that an appellant's failure to comply with Rule 7.2(A)(3)(c) results in a waiver of any alleged error related to unrecorded evidence or proceedings. Craig v. State (1980), Ind., 404 N.E.2d 580, 583. Requiring an appellant to submit an approved statement under Rule 7.2(A)(3)(c) does not constitute a denial of due process. Ruetz v. State (1978), 268 Ind. 42, 46, 373 N.E.2d 152, 155, cert. denied, 439 U.S. 897, 99 S.Ct. 261, 58 L.Ed.2d 245. The application of Rule 7.2(A)(3)(c) is inappropriate only when the appellant is unable to reconstruct the record from his recollection, the recollection of those present at trial, or other extrinsic evidence. Gallagher v. State (1980), Ind., 410 N.E.2d 1290, 1293.
Rule 7.2(A)(3)(c) provides an alternate method of presenting an unrecorded closing argument for appellate review. When a closing argument is not recorded, a party seeking to assign some error to the content of the argument must attempt to reconstruct the argument in statement form under Rule 7.2(A)(3) (c). A trial court's refusal to have closing arguments recorded cannot be deemed an abridgement of constitutional rights when reconstruction of the arguments is possible. The record in the present case does not contain an approved statement of the State's closing argument. 3 Groff has not alleged that he was unable to reconstruct the argument from the best available means. Thus, Groff cannot complain of the trial court's denial of his motion to have the remainder of the State's closing argument recorded.
Groff contends that the trial court erred in denying his motion to suppress physical evidence 4 seized when he was arrested because the police officers did not have probable cause to make an investigatory stop of the vehicle in which he was riding nor did they have probable cause to arrest him. Because the officers seized the evidence as a result of an unlawful stop and an unlawful arrest, Groff contends that the evidence was inadmissible.
The propositions on which Groff relies to support his contention that the evidence was inadmissible are erroneous. The investigatory vehicle stop and the warrantless arrest of Groff were not unlawful. The following evidence in the record supports our conclusions:
Prior to Groff's arrest, Chief Vallance and Officers Castator and Shaffer of the Waterloo Police Department received a radio dispatch from the DeKalb County Sheriff Department informing them that an employee of Bob's Arco service station had been the victim of an armed robbery. The dispatch included a detailed description of the suspect's physical appearance and a description of the vehicle in which the suspect fled the service station. The vehicle was described as a dark-colored Firebird or Camaro which was eastbound on U.S. 6. A second radio dispatch informed the officers that the vehicle bore 1979 Indiana license plate number "17 C 420." 5
After patrolling the town of Waterloo in search of the suspect, the officers stationed themselves at the junction of U.S. 6 and state route 427. This position was 2.9 miles from the scene of the robbery. Approximately thirty to forty-five minutes after the robbery occurred, the officers observed a vehicle fitting the description of the vehicle involved in the robbery. Pursuant to instructions from the dispatcher, the officers activated the red lights on their squad car and stopped the vehicle for further investigation. Officer Castator ordered the occupants to step out of the vehicle. The person exiting from the passenger side fit the dispatched description of the robber. Chief Vallance approached the vehicle to investigate. While next to the vehicle, Vallance observed a shotgun on the floorboard behind the front seat. He seized the shotgun. Later, Deputy Sheriff Metcalf arrived on the scene. After they determined that Groff's physical appearance matched the dispatcher's description of the man who had robbed the service station, they arrested him.
The following morning, Deputy Sheriff Metcalf obtained a search warrant for the vehicle. Ricky D. Morgan, the owner and driver of the vehicle, also consented to the search. Deputy Metcalf conducted a search of the vehicle and found some coins in the ashtray and a brown manila folder containing currency totaling $122.75. This evidence, along with the shotgun seized by Chief Vallance, was admitted into evidence over Groff's objections. 6
Under appropriate circumstances, police officers may stop a vehicle to investigate the possibility of criminal activity, notwithstanding the absence of probable cause. Edwards v. State (1980), Ind.App., 411 N.E.2d 666, 668; Mayfield v. State (1980), Ind.App., 402 N.E.2d 1301, 1306. To justify an investigatory vehicle stop, the officers must be able to point to specific and articulable facts which, when considered together with the rational inferences drawn from those facts, create a reasonable suspicion of criminal conduct on the part of the vehicle's occupants. The Indiana Supreme Court has held that officers may respond to a radio dispatched description of a suspect by stopping a person fitting that description. Hatcher v. State (1980), Ind., 410 N.E.2d 1187, 1189. Likewise, a vehicle fitting the description of a vehicle used by a suspect in a crime will generally provide reasonable suspicion which justifies an investigatory stop of the vehicle. Luckett v. State (1972), 259 Ind. 174, 181, 284 N.E.2d 738, 743 (); see also, United States v. Gaines (9th Cir. 1977), 563 F.2d 1352; Patterson v. State (1979), Ind., 386 N.E.2d 936, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194; Lawrence v. State (1978), 268 Ind. 330, 375 N.E.2d 208.
The record in the present case reveals that the radio dispatched description provided the officers with specific and articulable facts which created a reasonable suspicion that the occupants of the vehicle were involved in the robbery. The officers knew the general description of the vehicle and its license number. Furthermore, the vehicle was travelling away from the scene of the robbery when the officers observed it. When these factors are considered with the temporal and spatial proximity of the sighting of the vehicle to the occurrence of the robbery, it must be concluded that the officers were justified in conducting an investigatory stop. 7
Groff also contends that he was arrested without probable cause. This contention is without merit. In...
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