Jones v. State

• Decision Date: 21 January 1985
• Docket Number: No. 784S276,784S276
• Citation: 472 N.E.2d 1255
• Parties: Frank Lee JONES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1255

472 N.E.2d 1255

Frank Lee JONES, Appellant, v. STATE of Indiana, Appellee.

No. 784S276.

Supreme Court of Indiana.

Jan. 21, 1985.

Paul James Newman, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Frank Lee Jones was found guilty of Robbery, a class A felony, by a jury in the St. Joseph Superior Court on January 11, 1984. The Honorable Jeanne J. Swartz subsequently sentenced the appellant to a term of thirty (30) years to the Indiana Department of Corrections. Appellant now directly appeals and raises the following three issues for our review:

1. error of the trial court by permitting testimony about money taken in the robbery;

2. error of the trial court by permitting two witnesses to testify about bodily injury caused during the robbery; and

3. sufficiency of the evidence.

On December 23, 1981 around 12:12 p.m., three black males entered Sobieski Federal Savings and Loan in South Bend, Indiana. They told the people there not to move and eventually made them all lie on the floor. Two of the robbers brandished guns. One wore a green army jacket, black "tammy" hat, white scarf, gloves, and a nylon stocking over his face. The second armed robber wore a green army jacket, dark pants, dark skull cap, gloves, and a nylon stocking mask. He sat on a chair in the lobby to watch the doors. The third robber was unarmed and wore a hooded green parka, blue jeans, white tennis shoes, gloves, and a nylon stocking over his face. He removed the money from the drawers at the tellers' stations.

During the robbery, the robber sitting in the lobby announced that someone was coming into the bank. The other armed robber ran to the door, grabbed the entering man by the arm and threw him to the floor. Moments later the robbers fled and the bank manager called the police. The manager noticed the man who had been thrown to the floor, Joseph Odynski, holding his arm, appearing to be in pain, and saying he had no feeling in his arm. Odynski's wife, who saw the robbers flee, went into the bank to check on her husband. She found him on the floor, holding his right shoulder. He told his wife he was in pain and said he had been grabbed by the jacket, swung around, and slammed to the floor. An ambulance took Mr. Odynski to the hospital where he underwent surgery. A pin was placed in his arm and he wore it in a sling for about one month.

When the police arrived at the bank, the manager informed Officer Glon that two of the three black males had run across the street and down the alley while the third had run down the street. The police found two sets of footprints in the alley leading to the rear of a house at 1805 West Sample Street. No other footprints were observed during the tracking and the police never lost sight of the tracks. The house at 1805 West Sample Street was immediately put under surveillance. Several police units arrived and the police entered the house. Appellant was one of the persons observed in the house. The police subsequently left the interior of the house but surveillance was continued from the outside.

Around 2:30 p.m., a car pulled up to the house. Two people, a black female carrying a large brown paper bag, and a black male, similar in description to one of the robbers, came out of the house and got into the car. The female was sitting in front and the male in the rear as the car drove away. Undercover police followed the car and were instructed to get uniform units and stop the car. The car transporting the appellant did not have a rear license plate. Upon stopping the car, each passenger was asked for identification. Appellant could not produce any but gave a social security number which was not his true social security number. While checking the social security number, police observed Appellant moving around in the rear seat and asked him to step out of the car. Appellant agreed to go to the police station to be identified. The police told him they were going to first pat him down for weapons. Appellant fully cooperated.

During the pat down, the officer felt a bulge in the right hand pocket of Appellant's coat. The officer put his hand in the right pocket and removed cash. When the officer realized he had not discovered a weapon, he returned the cash to Appellant's pocket. After the pat down, one of the officers observed the handle of a gun in the back seat of the car. Upon investigation, the officer discovered a gun in the area where Appellant had been sitting and had been observed fidgeting. Appellant was taken to the police station and advised that he was a suspect in the robbery of Sobieski Federal Savings and Loan. Appellant was advised of his constitutional rights and a warning and waiver form was read to him. Appellant signed the warning and waiver form and indicated he understood his rights. Then he emptied his pockets per police request and the contents included a large amount of money. At first Appellant claimed the money was obtained through gambling. Later, Appellant claimed he did not know where he got the money. Part of the money was "bait money" which could be and was clearly identified as money stolen from Sobieski's Federal Savings and Loan. Police then searched the house at 1805 West Sample Street pursuant to a search warrant. Clothing similar to that worn by the robbers was found in various places, including the dishwasher.

I

Appellant contends the trial court erred by denying his Motion to Suppress, and admitting testimony regarding money seized from the appellant and State's exhibits of this money over Appellant's objections. Appellant sought the suppression of all evidence obtained by the South Bend Police Department by his Motion to Suppress. Appellant argues that the stop of the car in which he was a passenger and the patting down of his person leading to the discovery of the money constituted an illegal search and violated his Fourth Amendment rights. Accordingly, Appellant urges that all incidents occurring thereafter were tainted and all subsequently obtained evidence was inadmissible due to the illegal search.

To justify a warrantless intrusion, a police officer need not have probable cause to make an arrest but must point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant an intrusion upon an individual's right of privacy. Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Rutledge v. State, (1981) Ind., 426 N.E.2d 638. The police knew a robbery had occurred and the police trailed the robbers to a house at 1805 West Sample. The police knew the robbers were three black males and had a general description of them and what they had been wearing. When a black male fitting the description of one of the robbers exited the house and got into a car, the car was followed. Police stopped the car because it had no rear license plate and because Appellant was a possible suspect in the robbery. These are sufficient facts and reasonable inferences could be drawn from them to warrant the police to stop the car. Rutledge, supra, Morgan v. State, (1981) Ind.App., 427 N.E.2d 14.

Furthermore, a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time. Adams v. Williams, (1972) 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617; Spikes v. State, (1984) Ind., 460 N.E.2d 954, 956, reh. denied. When Appellant was stopped he could not produce any identification as requested. Furthermore, a social security number he gave for the purpose of identification belonged to another person. Police at this point were still trying to determine if Appellant was one of the suspected robbers and needed Appellant's true identification. So the police asked Appellant, and Appellant agreed, to go down to the police station for identification purposes. Appellant was told that he would be subject to a pat down and Appellant fully cooperated. Appellant was wearing a big thick coat, so when the police felt something large and bulky in the coat pocket, the officer put his hand inside and pulled out a roll of money. The money was immediately returned to Appellant's pocket when the police realized it was not a weapon. We do not find this frisk to have been unreasonable. The police may search a person prior to questioning to remove any weapons the person can use to harm the officer or effect an escape. Townsend v. State, (1984) Ind., 460 N.E.2d 139. When the police felt something bulky and somewhat hard inside the thick coat, they could...