Isaac v. State, 970S218

Docket NºNo. 970S218
Citation274 N.E.2d 231, 257 Ind. 319
Case DateOctober 27, 1971
CourtSupreme Court of Indiana

Harriette Bailey Conn, Public Defender, Carr L. Darden, Sr., Deputy Public Defender, for appellants.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

This is an appeal from a conviction for armed robbery. On July 9, 1968, appellants waived formal arraignment and entered a plea of not guilty. Trial by jury commenced December 2, 1968, and the jury returned a verdict finding each appellant guilty of armed robbery. On December 16, 1968, the Court found the appellants guilty of the offense as charged. Raymond Isaac, appellant, was sentenced to thirteen (13) years in the Indiana State Prison. James Blackmon, appellant, was sentenced to ten (10) years at the Indiana Reformatory. On January 8, 1969, both appellants filed motions for a new trial which were overruled. On February 3, 1971, James Blackmon filed a motion for a new trial or in the alternative a motion for appeal which was overruled. On April 12, 1971, appellants filed a petition for permission to file amended belated motion to correct errors, which was granted. Appellants then filed amended belated motion to correct errors which was overruled. Appeal is taken from this last overruling.

Appellants make four (4) main contentions of error:

(1) The verdict of the jury is not sustained by sufficient evidence.

(2) The court erred in overruling the defendants' motion to suppress and strike out the evidence obtained during the search of Isaac's car without a warrant.

(3) The court erred in allowing certain hearsay testimony which was prejudicial to the defendants.

(4) Defendants were denied their constitutional right to effective assistance of counsel.

As to the allegation that the evidence was insufficient to sustain the verdict, the evidence most favorable to the state is as forty (140) pounds. The other was described a street corner talking to each other between 11:30 and 11:45 A.M., June 25, 1968, on Main Street in Muncie, Indiana. One man was described as a Negro, twenty-one (21) or twenty-two (22) years old, wearing a bright green shirt and bright blue pants, six (6) feet tall and about one hundred forth (140) pounds. The other was described as a Negro in his middle thirties, about five (5) feet seven (7) inches tall, wearing a light shirt and green or blue trousers. They talked for a few minutes and the taller man walked away. The shorter man then walked into the Muncie Finance Company and asked Mr. McFadden, the only employee present, how much it would cost to insure a 1967 Buick Electra 225. McFadden asked the man to be seated in order to fill out an application. The man then drew a gun and demanded money, wanting only bills. McFadden emptied the cash drawers and gave him the money which totalled one thousand twenty-five dollars ($1,025), all in ones, fives, tens, and twenties. The man left the office and ran down the alley next to the finance company. McFadden described the man as a Negro, with a mustache, about thirty (30) years old, five (5) feet seven (7) inches tall, wearing a light or white hat with both sides pulled down, a light green shirt and light blue trousers. A description was radioed to the police in the area. State Trooper Smith in Allen County received a message from another trooper that the latter was following two men fitting the description on I--69. Smith waited at a cross-over and saw the men go by. He then joined the officer in pusuit and they stopped the car, a 1967 Buick Electra 225, at about 12:45 P.M. The two men were taken from the car and searched for weapons. In the course of searching one of the men, Officer Smith noticed a gun in the car which turned out to be a thirty-eight (38) caliber revolver. The men stopped were appellants, Isaac and Blackmon. Blackmon was wearing a green shirt and blue trousers. Isaac had a mustache and was wearing a tan short sleeved knit shirt and Bermuda shorts. Both men were Negro. They both closely fit the description of the two men as to height, weight, and age. The car was subsequently searched at the State Police post, nearby. In the trunk were found a forty-five (45) automatic, clothes matching those worn by the robber, and nine hundred sixty dollars ($960). The money had been stuffed inside a stereo tape cartridge. The cartridge was in a carton of tapes in the trunk. A twenty dollar bill was discovered in the trousers found in the trunk. Isaac had forty dollars ($40) on his person consisting of thirty (30) one dollar bills and two (2) five dollar bills. Blackmon had thirty-five (35) or forty (40) dollars at the time. The amount taken was one thousand twenty-five dollars ($1,025) and the amount found in the car and on Isaac was one thousand twenty dollars ($1,020). There was no bill found larger than a twenty dollar bill and there was no bill taken in the robbery larger than a twenty dollar bill. Isaac fit quite closely the descriptions given of the robber and clothes were found in Isaac's car fitting the description of the clothes worn by the robber. A 1967 Buick Electra 225 was the make of the car the robber inquired about insuring and the men were found riding in a 1967 Buick Electra 225.

This Court has stated many times that, upon review, we will not weigh the evidence nor determine the credibility of witnesses. Only the evidence most favorable to the State and all reasonable inferences to be drawn therefrom will be considered on appeal. If there is substantial evidence of probative value sufficient to establish every material element of the crime beyond a reasonable doubt, the verdict will not be disturbed. See, Thomas v. State (1971), Ind., 268 N.E.2d 609; Tibbs v. State (1970), Ind., 263 N.E.2d 728. The evidence in the case at bar is circumstantial, but we cannot say that, based on that evidence and the reasonable inferences to be drawn therefrom, the evidence is insufficient as a matter of law to convict Isaac. However, too many links are missing to allow the conviction of Blackmon to stand. A man was seen fitting his description talking to a man fitting Isaac's description a few minutes before the robbery but the man fitting Blackmon's description walked away and around the corner. He was not seen participating in the crime in any way. Blackmon was found riding in the car with Isaac but there was no showing that he had knowledge of the money in the trunk. It cannot be established that Blackmon was aware of the robbery or that he took an active part in the robbery in any way. A mere suspicion that he may have participated is not sufficient. In Lipscomb v. State (1970), Ind., 261 N.E.2d 860, two men drove into a service station and bought gasoline and cigarettes. One of the men, Lipscomb, returned to the car. The other man, Williams, followed the attendant into the station and robbed him of twenty dollars ($20.00). The attendant noted the license number of the car and the men were apprehended a short distance from the station. Lipscomb had no money on his person when apprehended while Williams had twenty-seven dollars ($27.00). Both men were convicted of armed robbery but this Court reversed the conviction of Lipscomb based on insufficiency of the evidence. Speaking for a unanimous Court, Judge Givan stated:

'There is no evidence in the record that the appellant was in any position to hear the conversation between the service station attendant and Williams at the time the robbery took place. There is no evidence that any weapon was ever displayed by Williams or any action which would have made it obvious to appellant that Williams was robbing the attendant. There is no evidence that the appellant left the station in any haste or made any attempt to hide his identity. The mere presence of the appellant seated in his car at the station while Williams robbed the attendant inside the station office is insufficient in itself to prove participation.' Ind., 261 N.E.2d at 861.

Judge Givan went on to say:

'Mere suspicion that appellant may have known of Williams' actions is not enough. There must be some evidence from which a reasonable inference could be drawn that appellant had knowledge of and participated in the commission of the crime. We find no such evidence in the record before us.' Ind., 261 N.E.2d at 862.

See also, Bond v. State (1971), Ind., 272 N.E.2d 460. In the case at bar, mere suspicion is not enough and there is insufficient evidence from which it could be reasonably inferred that Blackmon knew of and participated in the crime beyond a reasonable doubt. Thus, the conviction of Blackmon must be reversed.

Appellants contend the search of Isaac's automobile was not lawful. It is contended that there was no warrant issued for the search, and the consent to search the car was not unequivocal but conditional. We hold that, under the circumstances of this case, neither a search warrant nor consent of the appellant Isaac was necessary under Chambers v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. In that case a service station was robbed by two men with guns. Two teenagers had earlier noticed a blue compact station wagon circling the block in the vicinity of the service station. They then saw the car speed away from a parking lot close to the station. They quickly learned of the robbery and told the police about the car and that one of the men was wearing a green sweater. The attendant told the police that one of the men was wearing a green sweater and the other was wearing a trench coat. A description of the car and the two men was broadcast over police radio. Within an hour a car fitting the description and carrying four men was stopped by the police. One of the men was wearing a green sweater. A trench coat was found in the car. The occupants were arrested and the car was driven to the police...

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