Guthrie v. State

• Decision Date: 22 July 1970
• Docket Number: No. 869,869
• Citation: 22 Ind.Dec. 174,260 N.E.2d 579,254 Ind. 356
• Parties: Cyrus GUTHRIE, Appellant, v. STATE of Indiana, Appellee. S 176.
• Court: Indiana Supreme Court

Page 579

260 N.E.2d 579

254 Ind. 356

Cyrus GUTHRIE, Appellant, v. STATE of Indiana, Appellee.

No. 869 S 176.

Supreme Court of Indiana.

July 22, 1970.

Whiteleather & Whiteleather, Columbia City, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Chief Justice.

Appellant in this case was charged by affidavit with statutory rape of a four year old girl. Upon a second trial by jury, the jury in the first trial being unable to determine his guilt or innocence, appellant was convicted and sentenced to life imprisonment at the Indiana State Prison. The sole assignment of error on this appeal is the overruling of appellant's motion for new trial. In his motion for new trial, appellant alleges that errors of law occurred during the trial in the following particulars: (1) the court erred in overruling appellant's objection to the admission of certain evidence claimed to have resulted from an unlawful search of his residence; (2) the court erred in overruling appellant's objection to the admission of state's exhibit number six which was a capsule containing two slides preserving alleged vaginal smears of the rape victim in that the state failed to establish a complete chain of custody in regard to said capsule.

We turn first to the question of whether the search of appellant's residence was unlawful under Fourth Amendment protections. The search complained of was conducted by one Betty Guthrie, grandmother of the victim and sister-in-law of the appellant. Although appellant concedes that searches by private persons have been held not to fall within the ambit of Fourth Amendment protections, Burdeau v. McDowell (1921), 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048; Barnes v. United States (5th Cir. 1967), 373 F.2d 517; United States v. Small (D.C.Mass.1969), 297 F.Supp. 582; United States v. Masterson (D.C.N.Y.1966), 251 F.Supp. 937, cert. denied, 385 U.S. 833, 87 S.Ct. 72, 17 L.Ed.2d 67, it is his contention that Mrs. Guthrie acted upon the advice and direction of the prosecuting attorney. Appellant relies principally on the case of Machlan v. State (1967), 248 Ind. 218, 225 N.E.2d 762 for the proposition that the proscriptions of the Fourth Amendment are applicable where the person conducting the search does so upon the advice and direction of a police officer. We would agree that appellant has correctly stated the holding of the Machlan case. However, it is readily apparent from the tenor of the objections made at trial that the appellant is here urging on appeal an objection of a different nature than that entered before the trial court.

The background facts are as follows: Mrs. Leas, mother of the victim, upon learning that her daughter had been molested, called the police. After the police left, Mrs. Guthrie, the victim's grandmother called the prosecutor apparently to determine what would be done about the incident. The prosecutor informed Mrs. Guthrie that an arrest warrant could not be issued without more proof since the only information available at the time was mere hearsay. Soon thereafter, Mrs. Guthrie called the prosecutor a second time. Although the full content of that conversation was not disclosed at trial, it appears that at one point the prosecutor asked if there were any witnesses, whereupon Mrs. Guthrie replied that she would get one.

After this conversation, Mrs. Guthrie proceeded to walk over to visit a neighbor of appellant and inquire as to the activities of appellant during that afternoon. After this interview, Mrs. Guthrie again called the prosecutor. There is no indication as to the contents of this third discussion between the prosecutor and Mrs. Guthrie. Immediately thereafter, Mrs. Guthrie went to appellant's residence, a trailer, and conducted the 'search' here complained of consisting solely of observations made upon her entry. She only remained a few minutes when it 'dawned' on her that it would probably be inspected by the police later. To gain entrance to the trailer, Mrs. Guthrie had used a key in her possession; it appears from the record that her husband owned the trailer in which appellant resided.

The prosecutor, on direct examination of Mrs. Guthrie was attempting to elicit her observations of the interior condition of the trailer. Defense counsel objected on two occasions to the introduction of this testimony as follows:

'Q. When you went to the trailer what, if anything, did you see--anything unusual? About the trailer or * * *

A. Yes, it was all closed up * * *

MR. WHITELEATHER: Your Honor, at this time I will object to anything this witness has to say regarding the inside of that trailer as being a reasonable search of the trailer which is not owned by her and which she had no right to be in the trailer at that time.

A. My husband owned it--didn't I have any right?

MR. THRAPP: Your Honor, I think that wouldn't be unreasonable seizure to a person other than a police officer.

THE COURT: That's true. I thought the question was, 'Did you notice anything about the trailer as to whether it was closed up.' I thought that was the question.

MR. THRAPP: I asked her if she noticed anything unusual about the trailer at the time.

THE COURT: You didn't say anything about it being closed up?

A. I said that.

THE COURT: Oh, you said that. I will overrule the question. Go ahead, answer the question.

A. It was all closed up, and that's unusual because even in the wintertime he is warm blooded.

Q. You mean the windows were closed?

A. Yes, Sir.

Q. Was that shut up tight? Now what kind of a day was that, was that a cold day?

A. No.

Q. Was it hot?

A. Yes.

Q. That was the first thing you noticed that was unusual. Was there anything else that you noticed? At the trailer or inside the trailer?

A. Well, it was a mess. The rugs were all torn up and * * *

MR. WHITELEATHER: Excuse me, but may I make the objection at this time that any evidence or testimony by this witness as to the condition of the inside of the trailer amounts to testimony by a person who was not authorized in the trailer and constitutes an unlawful search of the trailer regarding the condition of whatever was found inside the trailer.

THE COURT: Overrule the objection. You may answer.'

Upon the overruling of defense counsel's second objection in this regard, Mrs. Guthrie proceeded to describe the appearance of the trailer's interior.

It is clear from the above quoted objections entered by defense counsel that he was challenging the validity of the search on the ground that Mrs. Guthrie had no right to be in the trailer at the time she made her observations. On appeal, however, as above pointed out appellant seeks to raise an entirely new question as to the validity of the search, to wit: was Mrs. Guthrie acting at the instance and direction of the prosecuting attorney?

The general rule was stated by Wigmore in his treatise on evidence to be as follows:

'Specific Objection. A specific objection overruled will be effective to the extent of grounds specified, and no further. An objection overruled, therefore, naming a ground which is untenable, cannot be availed of because there was another and tenable ground which might have been named but was not: * * *' 1 Wigmore on Evidence § 18 at 339--40 (1940).

The courts in this state have applied the rule on numerous occasions. See e.g. Automobile Underwriters v. Camp (1940), 217 Ind. 328, 27 N.E.2d 370; Michigan City v. Werner (1916), 186 Ind. 149, 114 N.E. 636; Stout v. Rayl (1896), 146 Ind. 379, 45 N.E. 515. Although we do not pass lightly on the question of appellant's constitutional right, neither are we ready to expand the scope of review in this court to include anything which appellant chooses to argue on appeal. The grounds of appellant's objection at trial being of a different nature than here urged on appeal, we need not pass on the validity of the argument now presented.

We turn next to appellant's second assignment of error namely that the court erred in overruling appellant's objection to the admission of state's exhibit number six which was a capsule containing two slides preserving vaginal smears of the rape victim on the ground that a link in the chain of custody was missing.

It is further argued that lacking such a proper foundation and identification of the slides, they were not shown to be relevant to the issues of the case. The crux of the issue before us, therefore, is the propriety of the trial court's admitting the exhibit since if a proper foundation be laid there can be no doubt but what the slides directly bear on the question of whether the alleged victim was in fact raped. Consequently, we shall deal only with the admissability of the slides into evidence their relevancy being assumed if properly admitted.

The facts pertaining to the capsule are substantially as follows. The victim, Penny Sue Leas, was taken immediately after the incident to one Dr. Greenlee for treatment. During the course of his treatment, Dr. Greenlee took two vaginal smears which he gave to trooper Les Allegood of the Indiana State Police at about 6:30 P.M. Trooper Allegood delivered the capsule containing the slides to the Command Post at approximately midnight. The police officer in charge at the Command Post, one Sergeant McKowan, was asleep at the time the evidence was delivered. When he got up the next morning at about 8:00 A.M. he found the capsule on the Post Commander's desk and took it to the lab. From the time Sergeant McKowan delivered the capsule to the lab, the state was able and did account for its whereabouts up through and including analysis. Appellant, however, contends that the state's failure to positively account for the capsule's whereabouts from midnight until 8:00 A.M. the next morning raises a serious doubt as to its identity.

Recently this court, in the case of Graham v. State (1970), Ind., 255 N.E.2d 652, was required to pass on the introduction of certain evidence where the state had...