Lee v. State

• Decision Date: 29 April 1981
• Docket Number: No. 2-878A282,2-878A282
• Citation: 419 N.E.2d 825
• Parties: Johnny Wayne LEE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 825

419 N.E.2d 825

Johnny Wayne LEE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-878A282.

Court of Appeals of Indiana, Second District.

April 29, 1981.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Kurt A. Young, Research Asst., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., William E. Daily, Asst. Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Johnny Wayne Lee appeals his convictions for theft, ¹ second degree burglary, ² and safe burglary. ³ Four issues are presented for review:

I. Whether the trial court erred in ruling that Lee had no "standing" to contest the legality of a search and seizure.

II. Whether the trial court erred in not granting Lee's motion for a mistrial following the court's admonishment of a witness in the jury's presence.

III. Whether the trial court erred in denying Lee's motion for a mistrial based upon the State's questioning of certain witnesses.

IV. Whether the evidence was sufficient to support each of Lee's convictions.

We affirm.

I.

On the early morning of November 19, 1973, the Moose Lodge in Dunkirk was burglarized and several items stolen therefrom. Among the items taken were one hundred thirty-five to one hundred fifty quarts and fifths of liquor, twelve T-bone steaks, one case of shrimp, one case of chicken, two boxes of mushrooms, fifteen cartons of cigarettes, a black & white television, a shotgun, and a safe containing $309.00, two hundred of which was in $100 bills. The coins from the jukebox and cigarette machines were also taken. A tire tool was found on top of a cigarette machine.

A witness, Robertson, testified that at about 3:30 a. m. on the morning of the burglary while getting ready for work he heard a disturbance outside his house in Eaton, Indiana. Robertson looked through a window, saw three men, and went outside to investigate. The record shows that Robertson observed the men trying to lift an object which appeared to be a safe into a near-by trailerhouse from an automobile. After asking the men if they needed any help and noticing a heavy-set woman present, he returned home and called the police.

A guest at the trailer testified that on the day before the Moose Lodge burglary Lee and another stated their intention to go to Dunkirk to make some money. The witness further testified that the next time she saw Lee was about 3:00 a. m. on the morning of November 19th, when he and three others were attempting to unload a safe from the trunk of a car. After the unloading was interrupted as noted above, Lee and his companions left with the safe in a beige 1966 Chevrolet, stating that they should leave because Robertson might call the authorities.

In response to Robertson's call, Eaton Town Marshal William Dodds went to the trailer to investigate. Dodds spoke briefly with the woman occupant, but apparently missed Lee and his companions by five or ten minutes. Dodds left the scene and contacted the Delaware County Police. ⁴ He returned to the trailer about twenty-two hours later but received no answer when he knocked on the door even though he thought he could hear someone inside. Dodds did, however, observe and take custody of several broken but sealed Gin, Scotch, and Vodka bottles lying on the ground outside the trailer. Dodds also noticed a partial shrimp stuck to the bottom of a Gin bottle.

Dodds returned to the trailer with a search warrant at about 11:00 a. m. on November 20th. After knocking on the door and being allowed to enter, Dodds immediately observed an empty shrimp box, a half empty whiskey bottle, and change in a large amount. He then advised the person answering the door that he had a search warrant for the premises. One of the two persons present at the time was Lee, who was asleep. Dodds woke Lee up, read him his rights and placed him under arrest. Several items were seized in the search of the trailer: $144.40 seized from Lee, including one $100.00 bill; one quart of Black Velvet Canadian Whiskey, which was about half gone, serial number 45523774; 3 boxes of cooked floured beef patties with gravy, with lot numbers, one box lot numbered 290, 2 boxes with lot numbers of 304; 11 boxes of New Orleans brand Shrimp, lot number 2613; 10 T-bone steaks wrapped in aluminum foil; two 12 gauge shotgun shells; 18 quarter wrappers, 20 nickel wrappers; 1 roll of trash bags, green in color; and 1 bag of pepperoni slices for pizza, about 5 pounds. Many of these articles were later admitted into evidence.

Upon questioning, Lee stated he was a visitor at the trailer, and indicated he was visiting a person who was himself a visitor at the trailer. When asked about the whiskey, the shrimp, and the meat Lee claimed that he had purchased the items for $50.00 the day before in New Castle. Further questioning disclosed that Lee was unemployed and claimed he obtained his money by playing poker.

At trial Lee objected to the search of the trailer on grounds that the warrant was defective. Dodds's testimony and the items seized were also objected to as fruits of an illegal search. After a lengthy suppression proceeding held out of the jury's presence the trial court agreed with Lee's contention that the warrant was defective, ⁵ but refused to suppress the evidence because Lee failed to demonstrate a sufficient possessory interest in the premises.

At the time of Lee's trial the leading case on "standing" to contest a search was Jones v. United States (1960) 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. In Jones the Court focused upon whether the person seeking to challenge a search was a "victim" of the search or seizure. 362 U.S. at 261, 80 S.Ct. at 731. Two alternative holdings were announced: the first was the "automatic standing" rule which allowed a challenge to an allegedly illegal search by one charged with a crime in which the possession necessary to establish standing was also an essential element of the crime; ⁶ secondly the Court ruled that "anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress." 362 U.S. at 264, 267, 80 S.Ct. at 732-33, 734.

The "legitimately on the premises" holding of Jones was overturned in Rakas v. Illinois (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387. In Rakas the Court merged standing analysis with substantive fourth amendment analysis in order to focus upon whether "the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect." 439 U.S. at 140, 99 S.Ct. at 429. In substantive terminology our primary concern is whether Lee had a "legitimate expectation of privacy" in the place searched so as to claim the protection of the fourth amendment. Id. at 143, 99 S.Ct. at 430 (citing Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576). The Rakas Court stressed, though in a footnote, that a legitimate expectation of privacy "means more than a subjective expectation of not being discovered," 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12, and is not controlled by "arcane distinctions developed in property and tort law between guests, licensees, (and) invitees." Id. at 143, 99 S.Ct. at 430.

Lee contends he had a legitimate expectation of privacy in the trailer because he was a guest there for three days (November 18, 19 and 20 of 1973), and because he was asleep at the time of Dodds's search. His situation, Lee argues, is very close to the factual situation of Jones which the Court in Rakas found to demonstrate a legitimate expectation of privacy. We disagree. In Jones the defendant had exclusive control of a friend's apartment, was given a key to let himself in, kept personal possessions in the residence, and the lessee was away at the time of the search. See Rakas v. Illinois, 439 U.S. at 141, 149, 99 S.Ct. at 429, 433. In contrast Lee was one of four persons sharing the trailer, the lessee of the trailer was present during the three day period, the record shows that Lee actually spent very little time at the trailer during his stay there, and Lee characterized himself as a guest of another who was merely a guest at the trailer. Lee points to no evidence which shows that he had a key to the trailer, nor is there evidence that Lee kept any personal items, other than the stolen goods, on the premises. At best Lee has demonstrated a subjective expectation of not being discovered; clearly not an interest which the fourth amendment was designed to protect. See Rakas v. Illinois, 439 U.S. at 142, 99 S.Ct. at 429-30; United States v. Hodge (7th Cir. 1979) 594 F.2d 1163, 1164-65; Johnson v. State (1979) Ind., 390 N.E.2d 1005; Pollard v. State (1979) Ind., 388 N.E.2d 496; Kindred v. State (1st Dist. 1974) 160 Ind.App. 418, 312 N.E.2d 100. Compare Brames v. State (1980) Ind., 406 N.E.2d 252.

Lee also contends that he demonstrated a legitimate expectation of privacy by claiming ownership of the goods seized. Rakas v. Illinois, 439 U.S. at 142 n. 11, 99 S.Ct. at 430 n. 11. This argument is without merit for two reasons. First, just as one wrongfully on the scene cannot contest a search of the premises, id. at 141 n. 9, 99 S.Ct. at 429 n. 9, one in wrongful possession of goods which are the fruits of a crime, without more, should have no standing to object to their seizure. Secondly, just as mere possession no longer confers automatic standing, United States v. Salvucci, supra, the United States Supreme Court recently held that a mere claim of ownership was alone not enough to confer the right to challenge a search. In Rawlings v. Kentucky (1980) --- U.S. ----, 100 S.Ct. 2556, 65 L.Ed.2d 633, the Court rejected an argument very similar to that advanced by Lee. In so doing the Court stated:

"Petit...