Luckett v. State

• Decision Date: 25 July 1972
• Docket Number: No. 1171S327,1171S327
• Citation: 284 N.E.2d 738,259 Ind. 174
• Parties: Charles T. LUCKETT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 738

284 N.E.2d 738

259 Ind. 174

Charles T. LUCKETT, Appellant, v. STATE of Indiana, Appellee.

No. 1171S327.

Supreme Court of Indiana.

July 25, 1972.

McDonald, McConald & Nixon, Princeton, for appellant.

Theodore L. Sendak, Atty. Gen., of Indiana, Mark Peden, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Charles T. Luckett from a judgment in the Gibson Circuit Court convicting him of the crime of Entering to Commit a Felony. Trial was to a jury, and upon conviction appellant was sentenced to a term of not less than one (1) nor more than five (5) years in the Indiana State Prison.

The issues presented for review on appeal may be grouped as follows:

1. Whether the arresting officer had probable cause (a) to stop the automobile in which appellant was a passenger, and (b) to subsequently place the appellant under arrest.

2. Whether the automobile in which appellant was riding was illegally seized, and, subsequently, illegally searched at the State Police Post. (During said search, certain items were seized which were later introduced at trial.)

3. Whether the State's failure to disclose to appellant a complete list of all items seized and a list of all witnesses who were to testify at trial, as ordered by the trial court, should render certain exhibits and testimony inadmissible at trial. (The original list of witnesses was amended to add two witnesses on the morning of the trial.)

4. Whether the court erred in permitting the State to reopen its case.

5. Whether the evidence is sufficient to sustain the verdict of the jury.

For purposes of convenience and clarity, we will resolve the sufficiency of the evidence issue prior to turning our attention to the other questions presented on this appeal. The evidence most favorable to the State, as revealed by the record, is as follows: Early on the evening of January 7, 1971, Herschel Trice, the custodian of the Methodist Church in Princeton, Indiana, observed that the back door of Harden Bros. Tire & Supply Co. was standing open, and that the window glass on the door had been broken out. The tire store was located directly across the alley from the Methodist Church. He also observed an automobile with one person in it which was parked a short distance from the back of the store. Shortly thereafter, Trice saw two men enter the alley from the back door of the tire store and proceed to load the automobile with various items carried from the store. Trice immediately telephoned the police to report this unusual activity. Before the police arrived, the three persons drove away and were last observed by Trice driving west on Broadway toward the highway. The only identification Trice could offer was that two of the three suspects were Negro males and that the car appeared to be a green Chevrolet bearing a license plate prefix of 82J.

The manager of the tire store was summoned by the police, and, upon request, he frnished them a brief list of the items missing from the store. A description of the automobile and the fact that some of the stolen property consisted of a case of wristwatches was broadcast over the State Police radio band. Jeremy Jackson, an Indiana State Patrolman, received the radio broadcast, and while proceeding south on U.S. Highway 41, he approached a green automobile containing three persons and bearing a license plate prefix 82J. Jackson thereupon stopped the automobile, which was, in fact, an Oldsmobile rather than a Chevrolet. At this time, approximately thirty minutes had elapsed since the time of the break-in at the tire store.

After the car had been stopped, the driver of the green automobile, Leroger McKinzie, ran back to the police car before Jackson had the opportunity to get out of his car. Jackson requested that the driver produce his operator's license. McKinzie replied that he had left his license in his jacket which was in his car. Jackson followed McKinzie back to the green automobile, and, using a flashlight, he quickly looked inside the car where he observed a case of wristwatches which was in plain view on the top of the back seat. Jackson then proceeded to place all three persons nder arrest. Two of the persons, McKinzie and Luckett (appellant), were Negro males; the third person was a female.

Jackson radioed for assistance, and soon thereafter, the three suspects were transported to the State Police Post in Evansville, Indiana. The green Oldsmobile was impounded, and it, too, was taken to the State Police Post. While the suspects were in custody, the automobile was searched without a warrant. The search revealed various items, all of which were introduced at trial and identified as being property taken from the tire store in Princeton, Indiana, during the aforementioned break-in. It should further be noted that at the time of his arrest appellant was in possession of $15.37 in change. At trial, the manager of the tire store testified that $15.70 in change had been taken during the break-in.

It is well established law that when reviewing for the sufficiency of the evidence, this Court will neither weigh the evidence nor determine the credibility of witnesses. 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 on appeal. See, Valentine v. State (1971), Ind., 273 N.E.2d 543; Thomas v. State (1971), Ind., 268 N.E.2d 609. In the case at bar, the crime for which appellant was convicted consists of two material elements which must be established: (1) the entry into the tire store by the appellant, and (2) his intent to commit a felony therein. See, Crawford v. State (1968), 251 Ind. 437, 241 N.E.2d 795. The church custodian testified that he saw two Negro males leaving the tire store, both of whom were carrying various items. The custodian also gave a brief description of the automobile in which the two men fled the scene of the crime, accompanied by a third, unidentified, person. Within a short time after the break-in, the appellant was arrested while riding in an automobile which matched the description of the car observed at the scene of the crime. There were only two Negro males in the automobile which was loaded with merchandise taken from the store. In appellant's actual possession, $15.37 in change was found which is an amount almost equal to the amount reported taken during the break-in. The elements of the crime of entering to commit a felony may be proved by both direct and circumstantial evidence. Wojcik v. State (1965), 246 Ind. 257, 204 N.E.2d 866; Crawford v. State, supra. This court is of the opinion that there is an abundance of evidence, both direct and circumstantial, from which the jury could have inferred that the appellant was one of the two Negro males seen leaving the back door of the tire store, and we therefore conclude that appellant's contention that the evidence is insufficient to sustain the verdict is without merit.

A more serious question is presented in regard to whether the police had probable cause to stop the automobile initially. This action amounted to a detention of the person, and thus, in its technical sense, constituted an arrest. See, Henry v. United States (1959), 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134. Probable cause for an arrest could be defined to be facts and circumstances known to the arresting officer which would warrant a man of reasonable caution and prudence in believing that the accused had committed or was committing a criminal offense. See, Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. In the case at bar, Officer Jackson had been informed only that the suspected felons had fled the scene of the crime driving a green Chevrolet bearing a license prefix of 82J. There is no evidence that Jackson was ever informed of the number of persons involved or that two of the suspects had been identified as being Negro males. The automobile in which the appellant was riding turned out to be an Oldsmobile, rather than a Chevrolet. It is readily apparent that Officer Jackson did not have probable cause to stop every green automobile with an 82J license prefix and formally arrest its occupants. However, this case involves the flight of suspected felons, and Officer Jackson was placed in a position where he had to choose between immediate action on one hand and restraint on the other. Efficient and effective law enforcement, in which there is a strong governmental interest, can best be accomplished by immediate action such as that taken by Officer Jackson in the instant case. it appears to be well settled that there is nothing automatically unconstitutional in subjecting citizens to a brief detention under circumstances where probable cause for a formal arrest is lacking. Adams, Warden v. Williams, 405 U.S. ---, 92 S.Ct. 1921, 32 L.Ed.2d 612 (Dec. June 12, 1972); Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Rios v. United States (1960), 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Wilson v. Porter (9th Cir. 1966), 361 F.2d 412. The constitutionality of such detention depends solely upon the reasonableness of the action taken by the police officer. In State v. Smithers (1971), Ind., 269 N.E.2d 874, a case which involved the question of the legality of the action taken by two police officers in stopping an automobile for a suspected curfew violation, the Court stated:

'In order to determine the reasonableness of the intrusion into defendant's privacy by the police conduct in stopping the car we must examine the facts known to the officers at the time they stopped the car. In Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court said:

'And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The...