Hopkins v. State, No. 1--574A88

• Docket Nº: No. 1--574A88
• Citation: 163 Ind.App. 276, 323 N.E.2d 232
• Case Date: February 24, 1975
• Court: Court of Appeals of Indiana

Page 232

323 N.E.2d 232 163 Ind.App. 276 Ronnie Dale HOPKINS, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 1--574A88. Court of Appeals of Indiana, First District. Feb. 24, 1975.
Rehearing Denied March 31, 1975.

[163 Ind.App. 278]

Page 235

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[163 Ind.App. 279] 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

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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 [163 Ind.App. 280] 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 [163 Ind.App. 281] 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...