Hopkins v. State

Decision Date24 February 1975
Docket NumberNo. 1--574A88,1--574A88
Citation163 Ind.App. 276,323 N.E.2d 232
PartiesRonnie Dale HOPKINS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

James H. Voyles, Jr., Symmes, Fleming, Ober & Symmes, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen. of Ind., John H. Meyers, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Chief Judge.

The defendant-appellant (Hopkins) is appealing his conviction of voluntary manslaughter. We find no reversible error and accordingly affirm his conviction.

The facts most favorable to the State show that Tille Townsend was found stabbed to death in the bedroom of her home. A police investigation revealed that a Dr. Stiglitz had seen a man, later identified as Hopkins, near the Townsend home on the night the death had occurred. Stiglitz told police that the had seen Hopkins twice in the early morning hours and once several hours later as Hopkins emerged from an apartment near the Stiglitz's home.

The police also discovered Hopkins' plam print on a window sill of Townsend's home. The window had apparently been forced open. A shoe print under that window matched a pair of Hopkins' shoes. A shoe polish stain on Townsend's bedspread matched with polish found in the apartment in which Hopkins was staying.

Hopkins was charged with first degree murder and subsequently convicted by a jury of voluntary manslaughter.

Hopkins first argues that the arrest warrant was unsupported by probable cause and was improperly filed.

A probable cause affidavit is sufficient for the issuance of an arrest warrant when the allegation of a crime is supported by enough underlying facts to allow a neutral judicial officer to make an independent determination as to probable cause. Kinnaird v. State (1968), 251 Ind. 506, 242 N.E.2d 500. The affidavit used in this case contained information detailing the evidence discovered by police including the finding of the deceased, that the death was by stabbing, the finding of Hopkins' palm print, and that Hopkins was seen in the area of the Townsend home. We are of the opinion that the affidavit did establish probable cause.

Hopkins also argues that the arrest warrant probable cause affidavit and affidavit for first degree murder were not properly filed as required by Ind.Ann.Stat. § 9--1001, 35--1--17--2 (Burns Code Ed.) which reads:

'Issuance of warrant or summons.--(a) When an indictment is found or an information filed against a person charging him with the commission of an offense, the court or a judge thereof shall, subject to the provisions of subsection (b) (of) this section, direct the clerk to issue immediately a warrant of arrest returnable forthwith.'

We do not agree that the lack of filing (if such was the case) offended the purpose of this statute. Although the warrants are rather informal in appearance and did not bear a file stamp the documents were issued the same day and signed and dated by the proper official. This, coupled with the fact that Hopkins cites no authority in support of his argument, would seem to negate any error.

Hopkins next argues that the search warrants were defective because probable cause was not stated within the body of the warrant and that they granted discretion to the serving officers.

Ind.Ann.Stat. § 9--602, IC 35--1--6--2 (Burns Code Ed.) says that no warrant shall issue without the filing of a probable cause affidavit. The example in the statute indicates that the information constituting probable cuase may be set forth in the body of the search warrant.

The search warrants in this case stated that an affidavit is 'attached hereto and made a part hereof'. Although the statute is silent about attaching of a separate probable cause affidavit we believe it satisfies the statute if the affidavit is referred to in the warrant and attached to the warrant. See: McAllister v. State (1974), Ind.App., 306 N.E.2d 395.

Hopkins also says the warrants granted discretion to the police in that officers seized two pairs of shoes, instead of one pair as called for in the warrant, and that a third item was taken from a room other than the one in which Hapkins was arrested.

In Hall v. State (1971), 255 Ind. 606, 266 N.E.2d 16, our Supreme Court quoted United States v. Robinson (N.D.Ind.1968), 287 F.Supp. 245, for the proposition that if in the course of a search the police discover items not named in the warrant which might have been seized in a search incident to an arrest, then those items may also be seized, pursuant to the search warrant. We have found the search warrants were valid and it does not seem that there was such wide ranging discretion in the police officers simply because they seized two pairs of shoes instead of one.

Also, the seizure of the shoe polish and rag found in an adjacent room does not seem improper. The officers were lawfully on the premises under either the arrest or the search warrant. Further, it appears from the record that Gerald Claphane was the lessee of the apartment while Hopkins was simply staying there. When Hopkins was arrested the police questioned Claphane about the shoe polish; Claphane said there was such polish on the premises and retrieved the shoe polish and rag for the police from the drawer of a nearby dresser. The police themselves did not search the dresser or the room in which the dresser was situated. The seizure of the shoe polish was not improper since it was not the object of a search by police. Boys v. State (1973), Ind., 304 N.E.2d 789.

The next issue is whether the procedure followed by police in conducting a line-up violated Hopkins' rights. Hopkins contends he was denied counsel, and that the procedures were unduly suggestive.

We find that Hopkins was in fact denied counsel at his lineup. Further, there is some evidence that police indicated to Dr. Stiglitz that there was a suspect in the group which was exhibited. We must agree that either procedure alone would taint the lineup and the question thus becomes whether any in-court identification is supported by sufficient independent facts. Hutts v. State (1973), Ind.App., 298 N.E.2d 487; Sawyer v. State (1973), Ind., 298 N.E.2d 440; Lawson v. State (1974), Ind.App., 306 N.E.2d 150.

The evidence is that Stiglitz observed Hopkins three (3) times on the morning of the homicide, and the third time Stiglitz confirmed that Hopkins was the person seen earlier near Townsend's home. Further, Stiglitz was able to give a reasonably accurate discription of the subject to police. Given these facts, we must conclude there was an independent basis for Stiglitz's identification of Hopkins.

The fourth issue is whether the trial court erred in granting an extension of time in which to try Hopkins, thereby violating Ind.Rules of Procedure, Criminal Rule 4(A). Specifically, Hopkins argues that he should have been tried on or before November 10, 1973, but was in fact brought to trial November 27, 1973.

The State argues that it did in fact comply with the requirements of C.R. 4(A) by stating in its motion for extension that:

'3. Due to congestion of the Owen Circuit Court the next available date for trial of this Defendant is November 27, 1973.

4. This Defendant cannot be brought to trial before November 27, 1973 due to the congestion of the Owen Circuit Court calendar.'

Hopkins contends that there is nothing in the record to substantiate the State's allegation of congestion, and that such substantiation should be required before an extension of time is granted.

The State asserts that it has alleged facts called for by the rule, and that there was no need to substantiate the allegation of congestion since the trial court could take judicial notice of its own calendar.

Although Hopkins agrees that a court had knowledge of its own calendar, he asserts that C.R. 4(A) 'on it face' requires that some record of the congestion be made.

C.R. 4(A) states that an attorney seeking a continuance for reasons of court congestion 'shall make such statement in a motion for continuance' (Our emphasis). There can be no dispute that the State made such a statement in its motion. We therefore hold that when a motion for extension is properly before a court, the court may take judicial notice of its own calendar, and grant the motion based on such notice without further noting such congestion in the record.

Thus, though Hopkins was tried beyond the 6 month limit in C.R. 4(A), the extension was properly granted and there was no error.

The next issue is whether Hopkins was denied a fair trial because jury members were not called in the order in which the names were drawn for jury service.

Hopkins contends that Ind.Ann.Stat. § 4--7118, IC. 1971, 33--15--22--1 requires that those called first for jury duty be called first to sit on a particular jury. The pertinent language of the statute is:

'Provided, That the order of names as listed in the panel and as called for service shall be the same order as that in which the names are drawn from the box, as herein provided.

The sheriff or bailiff shall then call the jurors to the jury box in the same order as that which their nemes are drawn, from the box and certified thereto. (Acts 1937, ch. 156, § 1, p. 839; 1959, ch. 38 § 1, p. 101; 1967, ch. 181, § 1, p. 379.)'

Given the above statute we must agree that jury members should be called in the same order as their names were drawn for jury duty. However, we are not prepared to state that non-compliance with the statute is sufficient error to deny Hopkins a fair trial. Hopkins is unable to demonstrate how he was harmed by this particular irregularity, and is unable to cite authority in support of his contentions. Therefore, while the procedure may have been error it was harmless error. T.R. 61; Martin v. State (1974), Ind., 306 N.E.2d 93; Taylor v. State (1973), Ind., 295 N.E.2d 600; Johnson v. State (1972), 257 Ind. 682, ...

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