Guajardo v. State

• Decision Date: 04 September 1986
• Docket Number: No. 1184S454,1184S454
• Citation: 496 N.E.2d 1300
• Parties: Arnold GUAJARDO, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 1300

496 N.E.2d 1300

Arnold GUAJARDO, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1184S454.

Supreme Court of Indiana.

Sept. 4, 1986.

James V. Tsoutsouris, Porter County Public Defender, James A. Johnson, Deputy Public Defender, Portage, for appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Appellant Arnold Guajardo was convicted after a jury trial of rape, a class B felony, Ind. Code Sec. 35-42-4-1 (Burns 1985 Repl.), and criminal confinement, a class D felony, Ind. Code Sec. 35-42-3-3 (Burns 1985 Repl.). He was sentenced to prison for 14 years for the rape and four years for the confinement. Guajardo's sentence was enhanced by 30 years after the jury's finding that he was an habitual criminal, Ind. Code Sec. 35-50-2-8 (Burns 1985 Repl.).

In this direct appeal, Guajardo raises five issues:

1) Whether the trial court erred in admitting into evidence a search warrant and probable cause affidavit within the jury's presence;

2) Whether the trial court improperly admitted evidence seized pursuant to an allegedly defective search warrant;

3) Whether the trial court erred in admitting evidence of one of appellant's prior convictions during the habitual proceedings;

4) Sufficiency of evidence of rape and criminal confinement; and

5) Sufficiency of habitual offender evidence.

The facts most favorable to the jury's verdict show that Guajardo abducted T.K. as she was riding her bicycle near her home in Portage on the morning of June 19, 1983. Defendant drove the 10-year-old girl to a secluded area. He attempted to have intercourse with T.K. several times as she struggled. He put his finger in her vagina, struck her in the face several times and forced her to perform fellatio. He finally succeeded in penetrating T.K. He allowed T.K. to dress and then drove her back to her neighborhood.

T.K. saw a friend as she walked home. T.K. said she had been raped. T.K.'s parents called police and took her to the hospital to be examined. The examination showed that her pubic area was red, swollen and bruised and that her vagina had been forceably penetrated. The police tested the clothes which T.K. was wearing at the time of the attack and found traces of semen, hair and rug fibers.

T.K. helped police prepare a composite photo of the rape suspect. She also accompanied police to a car lot where she identified a 1976 International Scout as the model of her assailant's vehicle. She and the officers toured the area, looking for similar vehicles. After locating several, they discovered a 1976 International Scout owned by Guajardo parked outside his girlfriend's apartment. After looking through the window of Guajardo's vehicle and recognizing several of the items within, T.K. identified the vehicle as that of her assailant. Later that day, police obtained and executed a warrant to search Guajardo's vehicle. Human and animal hair found on T.K.'s clothing matched hair found within the vehicle and on items seized from it. Furthermore, head hair matching T.K.'s was found on the items seized from the vehicle. After the search, T.K. identified Guajardo from a photographic array.

I. Admission of Search Warrant and Supporting Affidavit

Guajardo alleged the vehicle search was illegal and filed a motion to suppress all evidence obtained from it. The trial court took the motion under advisement until the prosecution attempted to introduce the fruits of the search during trial. The trial court then excused the jury and conducted a hearing on the motion. In response to Guajardo's arguments, the prosecution offered the search warrant, including the probable cause affidavit, to prove the search was legal and the evidence was admissible. The trial court denied the motion to suppress and thereafter admitted the search warrant into evidence within the presence of the jury. The jurors individually reviewed the warrant later in the trial.

Guajardo claims on appeal that the warrant should not have been shown to the jury because the affidavit contained hearsay and prejudicial statements. Hearsay is an out-of-court statement offered in court to prove the truth of the facts asserted therein and thus resting for its value on the credibility of an out-of-court declarant. Patterson v. State (1975), Ind., 263 Ind. 55, 324 N.E.2d 482.

The affidavit contained information collected from T.K. and several other people during the rape investigation. Two of the people quoted within the affidavit were available for cross-examination at trial, so their statements were not inadmissible hearsay. Id.; Bundy v. State (1981), Ind., 427 N.E.2d 1077.

The only person quoted in the affidavit who did not testify at trial was Audrey Fronek. According to the affidavit, Fronek told police that she saw a vehicle similar to Guajardo's traveling through T.K.'s neighborhood on the morning of the rape. Fronek's statements to police were clearly hearsay.

Notwithstanding the hearsay, the State was obligated to introduce the search warrant and probable cause affidavit into evidence after Guajardo challenged the adequacy of the warrant. Brandon v. State (1979), 272 Ind. 92, 396 N.E.2d 365. However, the probable cause affidavit and search warrant should have been presented only to the trial judge because they have no bearing on any issue before the jury. These documents pertain only to the admissibility of evidence obtained under the warrant and that determination is a matter for the court, not the jury. Clark v. State (1978), 177 Ind.App. 376, 379 N.E.2d 987. "Whenever the admissibility of evidence secured under a search warrant is challenged, the issue is presented before the trial court outside the jury's presence. There is no reason for the trier of fact to view the probable cause affidavit or search warrant, particularly since these documents often contain statements highly prejudicial to the defendant." Id., 177 Ind.App. at 378-379, 379 N.E.2d at 988-989.

Failure to keep the warrant and affidavit from jury view is not reversible error per se; a showing of prejudice is required. Id. Despite the hearsay problem, Fronek's comments were not so prejudicial as to require reversal. While Fronek merely sighted a car similar to Guajardo's in the area of the abduction, T.K. unequivocally identified Guajardo as her assailant and testified that his car was the vehicle in which she was raped. In light of the strong identification testimony, the presence of Fronek's comments in the probable cause affidavit was merely cumulative and constituted only harmless error.

II. Adequacy of the Search Warrant

Guajardo also claims that the court improperly admitted evidence seized under the search warrant. He claims the warrant was defective and, therefore, any evidence seized under its authority should have been excluded. Nash v. State (1982), Ind.App., 433 N.E.2d 807.

Guajardo alleges that the probable cause affidavit could not support a warrant because it was defective in two respects. First, Guajardo alleges the affidavit did not identify his vehicle as the one used by the rapist. He notes that the affidavit did not describe the exterior of the vehicle. The affidavit quotes T.K. as describing the seats as black when they were a combination of brown and black. Guajardo also notes that the affidavit failed to state that he does not fit T.K.'s original description of her attacker. Therefore, Guajardo claims that the officer's statement in the affidavit that "we located the herein described vehicle" was merely his conclusion because the other information within the affidavit does not support the proposition that Guajardo's vehicle was used for the rape. Attestations contained in a probable cause affidavit for a search warrant must be based upon fact and not merely be conclusions of the affiant or a witness. Short v. State (1982), Ind., 443 N.E.2d 298.

While the affidavit did not recount T.K.'s description of the outside of the assailant's vehicle, it did include T.K.'s detailed portrayal of the vehicle's interior:

a black bench-type front seat; the front seat was split so that the driver's side portion was smaller than the passenger side; that a multi-colored blanket, with red the prominent color, covered the portion of the front seat where one would seat ...