Layton v. State, 268S33

• Court: Supreme Court of Indiana
• Citation: 240 N.E.2d 489,251 Ind. 205
• Docket Number: No. 268S33,268S33
• Parties: Michael Walton LAYTON, Appellant, v. STATE of Indiana, Appellee.
• Decision Date: 27 September 1968

Page 489

240 N.E.2d 489 251 Ind. 205 Michael Walton LAYTON, Appellant,
v.
STATE of Indiana, Appellee. No. 268S33. Supreme Court of Indiana. Sept. 27, 1968.

[251 Ind. 206]

Page 490

Bob Good, Donald L. Brunner, Shelbyville, Burnner, Brown & Brunner, Shelbyville, for counsel, for appellant.

John J. Dillon, Atty. Gen. of Indiana, Douglas B. McFadden, Asst. Atty. Gen., Rex P. Killian, Deputy Atty. Gen. of Indiana, for appellee.

ARTERBURN, Judge.

This is the second appeal for the appellant, Michael Walton Layton. (See Layton v. State (1966), Ind., 221 N.E.2d 881.) He was originally charged in Count One with first degree (premeditated) murder and in Count Two with murder while engaged in the perpetration of a robbery occurring on September 22, 1960. At the conclusion of the first trial in 1961, the jury returned a verdict of guilty on both counts, and fixed the punishment on both counts as imprisonment in the State Prison during life.

The appellant thereafter asked for a new trial which was overruled by the trial court and from which ruling an appeal was taken. Thereafter this Court, because of the admission of certain evidence of other offenses (including the 'robbery of a church') which were not connected with the offense charged, reversed the lower court and granted the appellant his new trial, as requested. The appellant was then tried a second time on the same two counts and again found guilty on the same two counts and sentenced again to life imprisonment on each of the counts. Again he filed a motion for a new trial. The trial court overruled the motion, and he now appeals to this Court a second time, claiming error on the part of the trial court in refusing to grant him a second new trial because of alleged errors occurring in the second trial.

In the first alleged error the appellant attacks the legality of the arrest of the appellant by an FBI agent in California. It appears that on September 28, 1960 a United States Commissioner[251 Ind. 207] in Marion County, Indiana issued a warrant for appellant's arrest as a fugitive to avoid prosecution under U.S.C., Title 18, sec. 1073.

The testimony shows that the FBI agent in California was accordingly notified by the FBI office in Indianapolis of the issuance of this warrant for the appellant and ordered promptly to make the arrest of the appellant as soon as he could be found, upon such information, without the warrant. The appellant, in support of the contention that the court should grant a new trial herein, argues that the arrest being illegal, testimony concerning the arrest was not admissible at the trial. The appellant fails to point out in his brief what evidence was admitted as a result of this arrest which was prejudicial in any manner to the appellant. It is true that where an arrest is illegal, the evidence which is prejudicial to the defendant thus obtained is not admissible upon a retrial, just as in the case of an illegal search. Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Enlow v. State (1955), 234 Ind. 156, 125 N.E.2d 250.

An illegal arrest affects only the admissibility of the evidence with reference to the arrest, and if it is not prejudicial or harmful, there can be no error. The appellant fails in this respect to show in what way the evidence with reference to the arrest of the appellant on the fugitive charge, namely, that he was fleeing from

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the charge for which he is now being tried, would not be admissible, regardless of any arrest. As stated hereinafter, evidence of flight by a defendant from the scene of the crime or an escape from jail is admissible evidence tending to show guilt. (See citations hereinafter.)

The court held a hearing outside the presence of the jury with reference to the legality of the arrest. The only evidence we find that the jury heard was the very meager statement by the FBI agent who made the arrest that he was informed by communication from the Indianapolis office that Federal warrant had been issued by the commissioner in Indianapolis, [251 Ind. 208] charging the defendant with a felony, namely, unlawful flight to avoid prosecution in this case now pending, and he was ordered to make the arrest. He accordingly, upon such information (to which the appellant objected on the grounds it was hearsay) arrested the defendant as he drove up in a parking lot at a motel in San Diego. He asked the appellant at the time if he was Michael Walton Layton. Appellant said 'yes' and was arrested. The agent stated he did not have a warrant for the defendant's arrest, but he made it upon the information at his office at Indianapolis. We do not think the admission of such evidence is error; in fact, it is material evidence with reference to the flight of the appellant from prosecution in the present case.

The agent who made the arrest in California relied upon direct transmitted information from the FBI office in Indianapolis that a warrant had been issued. This is reliable information upon which such officer had a right to act. We have held in Indiana that a policeman has a right to rely upon a radio report or order from headquarters (which is hearsay) to make an arrest for a felony. To deprive law enforcement officers of the right to act upon orders from headquarters, which normally is a reliable source of information, would be to unnecessarily hamstring law enforcement officers' attempts to apprehend a fugitive fleeing from the reach of the law.

'The right to arrest without warrant grew out of the need to protect the public safety by making prompt arrests. It had its origin in the ancient 'Hue and Cry', upon which all hearing the alarm were bound to join in pursuit of a felon. The 'Hue and Cry', if repeated by another, would be hearsay.

'Obviously in the case before us the police officer, if he were to do his duty promptly, could not be delayed by checking the reliability of the information behind the call over the police radio. He must by necessity rely upon headquarters. A police system, to be effective, must be one in which the members work together, keeping each other informed and [251 Ind. 209] relying upon the actions...