Hare v. State

Decision Date22 August 1984
Docket NumberNo. 1082S397,1082S397
PartiesRobert W. HARE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

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467 N.E.2d 7
Robert W. HARE, Appellant,
STATE of Indiana, Appellee.
No. 1082S397.
Supreme Court of Indiana.
Aug. 22, 1984.

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Robert L. Sheaffer, Shelbyville, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Robert W. Hare was found guilty by a jury in the Shelby Superior Court of the crime of robbery while armed with a deadly weapon, class B felony, and was sentenced to a term of eighteen (18) years by the trial judge.

The eleven issues presented for our review in this direct appeal are as follows:

1) error of the trial court in denying the defendant's motion to suppress items confiscated

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from a hotel room and admitting a list of said items into evidence;

2) violation by the State of a motion in limine;

3) alleged improper in-court identification of the defendant by the victims;

4) denial of the defendant's motion for a change of venue from the county;

5) denial of the defendant's motion to suppress the testimony of Stephen Lux;

6) refusal of the trial court to give the defendant's tendered instructions No. 3 and No. 8;

7) admission into evidence of State's Exhibits No. 22 and No. 31 over the defendant's objections;

8) giving by the trial court of final instruction No. 8;

9) admission into evidence testimony concerning the defendant's past criminal conduct;

10) admission into evidence by a State's witness the street value of drugs; and

11) admission of certain testimony involving the police investigation of a separate crime.

The facts tend to show that on or about December 2, 1980, William Arland was a pharmacist in a drugstore located in Shelbyville, Indiana. He observed defendant Robert Hare enter the store with a gun in his possession and demand from Arland that he, Hare, be given schedule II drugs. Arland showed the defendant the cabinet where the drugs were stored. The defendant subsequently instructed Arland to lie on the floor and then the defendant handcuffed Arland and bound his ankles with tape. He took drugs from a cabinet and money from the cash drawer. Meanwhile, Jeff Horstman, an employee of the drugstore, returned to the store after having delivered a prescription. Horstman saw the defendant armed with a gun and Arland on the floor. Defendant then told Horstman to lie on the floor and the defendant handcuffed Horstman and bound his ankles with tape.

Defendant was apprehended on January 2, 1981, incident to a police investigation of a separate crime. On January 2, 1981, the Castleton Police Department in a suburb of Indianapolis, in Marion County, Indiana, responded to a dispatch at the Bargain Barrel on East 82nd Street, where they were advised an officer had been shot during a robbery at said business. The police found that two police officers had been killed at said location and one of the robbers was fatally wounded in the incident. Officer Daniel Dunbar of the Castleton Police Department received a telephone call from an individual who stated that a suspect involved in the disturbance at the Bargain Barrel was at a nearby American Inn. The American Inn was a little over a mile from the Bargain Barrel. When police officers arrived at the hotel they heard a woman screaming, "They're running!", and he and other officers saw three individuals running from the building and ordered them several times to stop. After the individuals were apprehended, one of them requested that his dog be allowed to stay in the hotel room. Robert Hare was one of the individuals and the other two were his brother and his brother's wife. It was Hare's brother who asked that the dog be allowed to stay in the hotel room. The suspect then permitted Officer Dunbar to open the door of the room to allow the dog to enter. When Officer Dunbar opened the door, he observed, in plain view, a gun and a holster. He then transported the suspects to jail and obtained a search warrant to search the room. Officer James Freeman executed the search warrant and confiscated various weapons and drugs. It was later determined that one of the occupants of the room was the defendant, Robert Hare, and the others were Hare's brother and sister-in-law. Robert Hare's brother went by the name of Lamphire and was registered by that name in the motel. While executing the search warrant in the room occupied by these persons, the police seized a large quantity of drugs. Many of the drugs were of the same type taken from Arland during the robbery on December 2, 1980. They were also in a handbag

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or satchel which one of the witnesses of the December 2, 1980 robbery had described the robbers as possessing. Arland was not able to identify any of the drugs as actually having come from his drugstore, but was able to state only that they were the same type of drugs taken from him on that date. A gun confiscated from the room matched the description given of the one used by the robber on December 2, 1980, and a key found in a briefcase in the room was confiscated. Because the handcuffs on Arland and Horstman had to be destroyed, it was impossible to say that this key definitely was the one that locked or unlocked those handcuffs. One of the police officers, however, testified that the key did fit the handcuff lock and appeared to trip the spring that would operate the lock in opening and closing it. Because of the condition of the locks caused by removing them from the victims, it was impossible to draw any further conclusions. Robert Hare told Stephen Lux, a cellmate, that he committed the robbery against Arland and Horstman, but that unknown to the police he was not alone when it was done, rather he had two accomplices. Stephen Lux testified to this at trial.

Defendant claims the trial court erred by denying his motion to suppress items confiscated from the hotel room occupied by the defendant and others at the time of his arrest. At the time of his arrest, the police in the Castleton section of Indianapolis were investigating a robbery in which two police officers and one of the robbers were killed. They received a phone call from a resident of the American Inn nearby that a description of the robbers had been broadcast and she felt one of the suspects also resided at the American Inn. Officer Dunbar of the Castleton Police Department went to the hotel and heard a woman scream, "They're running!". He then saw three individuals running from the building and ordered them several times to stop. He apprehended them and took them into custody. One of them, who later turned out to be the defendant's brother, requested that his dog be allowed to stay in the hotel room. Officer Dunbar then opened the door to the room to allow the dog to enter and noticed a gun and holster in the room. He then secured the room and obtained a search warrant before entering and confiscating the items found therein.

The trial court ruled that the items found in the room that were pertinent to this cause were properly admitted into evidence because the police had probable cause to obtain a search warrant and to seize the articles found therein. We agree. A police officer may, in appropriate circumstances and manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest at that time. Taylor v. State, (1980) 273 Ind. 558, 406 N.E.2d 247. However, even though probable cause to make an arrest may not exist at the time the investigation commences, this does not mean that probable cause to make a proper arrest may not develop during a legitimate investigation of a suspicious activity. Fyock v. State, (1982) Ind., 436 N.E.2d 1089; Battle v. State, (1981) Ind., 415 N.E.2d 39:

"Probable cause exists when at the time of the arrest the officer has knowledge of facts and circumstances which would warrant a man of reasonable caution and prudence to believe the defendant committed the criminal act in question."

Here, Officer Dunbar had probable cause to believe the defendant had committed the criminal act in Castleton. He was investigating the crime in which two police officers were killed when he received the call regarding the suspects from the citizen who resided at the American Inn. When he arrived at the hotel, he heard a woman screaming, "They're running!", and saw the three individuals, one of them the defendant, attempting to flee. Although it turned out that the defendant, Robert Hare, was not involved in the Castleton incident, it cannot be said the police did not have probable cause at that time to suspect that he was involved and to take him into

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custody. Moreover, when Officer Dunbar saw a gun and holster in the room, he had probable cause to suspect that evidence of criminal activity was present, and sufficient probable cause to authorize a court to issue a search warrant. All of these facts within the knowledge of Officer Dunbar were in an affidavit presented to the court issuing the search warrant. Therefore, the trial judge had substantial basis for finding probable cause existed to believe the proposed search would result in the discovery of evidence of an offense. Short v. State, (1982) Ind., 443 N.E.2d 298; McClain v. State, (1980) Ind., 410 N.E.2d 1297.

Defendant further complains about the court's action in admitting the State's Exhibit No. 28, which was a computer sheet listing items recovered from the search of the hotel room at the American Inn. Officer James Freeman, who executed the search warrant, testified that when he obtained the items recovered from the room he called the Records Department of Marion County Sheriff's Department to report the information according to the general practice. The set up in the records room was such that when the officer dictated the information regarding the items he seized into the records telephone, the facts were entered into a computer and later printed out from the...

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