Hadley v. State, 31115

• Decision Date: 23 July 1968
• Docket Number: No. 31115,31115
• Citation: 238 N.E.2d 888,251 Ind. 24
• Parties: Calvin Farrell HADLEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 888

238 N.E.2d 888

251 Ind. 24

Calvin Farrell HADLEY, Appellant, v. STATE of Indiana, Appellee.

No. 31115.

Supreme Court of Indiana.

July 23, 1968.

Charles A. Wilson, Columbus, for appellant.

John J. Dillon, Atty. Gen. of Indiana Douglas B. McFadden, Deputy Atty. Gen., for appellee.

MOTE, Judge.

Appellant, Calvin Farrell Hadley, his brother, Carl Steven Hadley, and another, James Woody Garland, were charged by affidavit with the crime of Second Degree Burglary. Omitting the formal parts, the affidavit is as follows:

'Alvin L. Wolfe being duly sworn, upon oath, says that he is informed and believes that on or about the 19th day of June, 1966, at and in the County of Bartholomew and State of Indiana, one James Woody Garland, one Calvin Farrell Hadley and one Carl Steven Hadley did then and there unlawfully, feloniously and burglariously break and enter into a building, not a dwelling house or place of human habitation, and in which they the said James Woody Garland, Calvin Farrell Hadley and Carl Steven Hadley had no right to enter, said building being occupied for business purposes by Richard L. Johnson, doing business as Johnson Oil Company, said building being located at 1314 Sixth Street, Columbus, Bartholomew County, Indiana, with intent to commit a felony therein, to-wit: To unlawfully and feloniously obtain unauthorized control over property of the said Richard L. Johnson, and permanently deprive him of the use and benefit of any property then and there obtained, then and there being contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State of Indiana.'

The cause was filed in the Bartholomew Circuit Court but was transferred to the Bartholomew Superior Court where, after preliminary proceedings, it was tried to a jury which returned its verdict of guilty, as follows:

'We, the Jury, find the defendant, Calvin Farrell Hadley, guilty of the offense of burglary in the second degree, as charged in the affidavit herein, and fix his age at _ _ years (filling in the blank the age you find the defendant to be).

s/ William H. Harris

Foreman'

Appellant filed a Motion in Arrest of Judgment, which Motion was overruled, after which judgment was pronounced and entered as follows:

'IT IS THE JUDGMENT OF THE COURT that the defendant, Calvin Farrell Hadley, is guilty of second degree burglary as charged in the affidavit herein and that he is 25 years of age, that for the crime by him committed he be sentenced to the custody of the Board of Trustees of the Indiana Reformatory to be confined at the Indiana State Reformatory, as guilty of second degree burglary, for not less than two years nor more than five years and that he be disenfranchised for a period of five years and rendered incapable of holding any office of trust or profit during such period; and that he pay one third of the costs of this action taxed at $_ _.'

Prior to trial, Appellant and his codefendants filed their Motion to Suppress Evidence, the body of which is as follows:

'Comes now the defendants, Calvin Farrell Hadley and Carl Steven Hadley, by their attorney, and respectfully move the Court to order the suppression from evidence in the forthcoming trial of said cause the following items, to-wit:

A. One (1) Royal Standard Typewriter, Serial No. 4875715, Model HHe, which said typewriter was search (sic) for and seized from the residence of Calvin Hadley, 632 Maple Street, Columbus, Indiana, without legal process, and

B. Other items of personal property, the particulars of which are unknown, which were likewise search (sic) for and seized from said residence without legal process.

As well as all photographs, written and oral testimony thereof, and all other reference thereto of any kind.

The above named defendants would further show the Court that said items, and particularly said typewriter, were on the 19th day of June, 1966, discovered and confiscated by the officers of the Police Department of Columbus, Indiana, in a manner violative of Article 1, Section 11 of the Constitution of Indiana, the Fourth Amendment to the Constitution of the United States, and cases and statutes made and designed thereunder as follows:

1. That on or about June 19th, 1966, at approximately 6:30 A.M., police officers of the City of Columbus, Indiana, entered the said residence of Calvin Hadley at the above named address without consent, expressed or implied, and without a search warrant issued by any Court, nor without any justification whatever under the circumstances.

2. That said residence was then and there occupied by the above named defendants, being the sons of the owner thereof, and having a possessory right and interest therein.

3. That said officers entered said dwelling by illegally opening the closed rear door thereto, which said rear door opened into an enclosed back porch of said dwelling. That once therein, said officers searched for and seized, and photographed said typewriter without consent nor without legal process of any kind.

4. That after searching for, finding, and seizing said typewriter, said officers subsequently entered the rest of said residence and arrested the above named defendants for the charge of Second Degree Burglarly (sic).

5. That upon being arrested, the defendants were immediately taken to the Columbus Police Station and there detained while officers remained at said residence and continued their search and seizure, still without consent and still without legal process of any kind.

6. That said typewriter was not searched for nor seized incident to the legal arrest of these defendants, since said search and seizure occurred prior to the time of their arrest and occurred in an area not contiguous to their presence nor within their immediate control.

7. That the search and seizure of said typewriter was further not incident to any legal arrest of these defendants since said arrest was without probable cause and not within the scope of any fresh pursuit of said officers.

8. That all searches and seizures of said residence subsequent to the arrest and devoid of all legal process whatsoever, and all evidence and items obtained therefore are likewise inadmissible.

WHEREFORE, the defendants and each of them pray that said evidence above described as well as all photographs and references thereto be suppressed from the trial of this cause and that the Prosecutor be further ordered, at peril of mistrial, to refrain from the introductions of said evidence directly or indirectly as well as making any direct or indirect reference to it.'

The record is not clear whether evidence was heard on said Motion to Suppress or that only the evidence at the hearing on Appellant's Petition to Reduce Bond exclusively was considered by the trial court in overruling the Motion to Suppress Evidence as set forth above. In any event, Appellant filed a Motion for New Trial, which was overruled on December 21, 1966. This appeal results and Appellant assigns as error the overruling of said Motion for New Trial and relies for reversal upon two specifications as follows:

1. '3. Irregularities in the proceedings of the Court, wherein the Court abused its discretion and prevented the defendant (Appellant) from having a fair trial, to-wit:

(b) By overruling this defendant's (Appellant's) motion to suppress evidence illegally obtained by an unlawful search and seizure of his person and premises, and by allowing such evidence to be introduced at trial.

(c) By overruling this defendant's (Appellant's) motion in arrest of judgment filed subsequent to the jury's verdict of guilty.

7. Error of law occurring at the trial, in this, that the Court admitted, over the objection of the defendant (Appellant), State's Exhibit Number 9, namely, a typewriter discovered at the defendant's residence by officers of the police department acting without the authority of a search warrant nor permission from any person, and the discovery of which typewriter at said residence was not incident to any lawful arrest of this defendant, which offer, objection by the defendant and the ruling of the Court thereon are as follows:

State: At this time, your Honor, the State will offer into evidence this Exhibit 9.

Defendant: To which counsel for the Hadley defendants will object on the basis that this typewriter was obtained by the police via an illegal search and seizure.

The Court: The objection is overruled. At this time the State's Exhibit Number 9 will be received into evidence.'

2. Abuse of discretion in overruling Appellant's Motion in Arrest of Judgment, which is as follows:

'Come now the defendants, Calvin Farrell Hadley and Carl Steven Hadley, by their attorney, and move the Court to arrest judgment on the verdict heretofore rendered in this cause for the following reasons:

1. That the facts stated in the affidavit do not constitute a public offense.

WHEREFORE, the defendants and each of them pray that this motion be sustained, that judgment be arrested, and for all other relief in the premises.'

Appellant says that 'because grounds 3 (b) and 7 above both concern the suppression of evidence question, they will be grouped together and supported by one argument'.

Inasmuch as the two specifications of alleged error (Nos. 1 and 2 above) are related and the answer to Appellant's assertions will be forthcoming and depend upon the validity of the 'search' without warrant and the correctness of the admission into the evidence of Exhibit 9, we shall consider them together.

The fundamental issue to be determined in this appeal is whether the officers needed a warrant of search of the premises in which Appellant and his co-defendants were found. If not, the asserted errors cannot be well taken.

In our consideration of this appeal, we first are confronted with a number of assertions which do not have the support of the record submitted to us. In his Summary Statement of Evidence, Appellant says:

'Because Appellant is...