Mack v. State

• Decision Date: 21 September 1978
• Docket Number: No. 3-1177A294,3-1177A294
• Citation: 380 N.E.2d 592,177 Ind.App. 537
• Parties: Kenneth A. MACK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 592

380 N.E.2d 592

177 Ind.App. 537

Kenneth A. MACK, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3-1177A294.

Court of Appeals of Indiana, Third District.

Sept. 21, 1978.

Joseph M. Skozen, Munster, for appellant.

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

After trial by jury, Kenneth A. Mack and a co-defendant, James Collier, were found guilty on two counts of Theft Over One Hundred Dollars. ¹ On appeal, Mack questions the admission of certain evidence, as well as its overall sufficiency. Finding no error, we affirm.

The crimes in question occurred on March 13, 1977. At 5:00 p.m., Aletha Morey left her job at a restaurant and walked toward her car. She noticed an occupant in an old, battered maroon car parked near her car. She discovered a black man sitting inside her car and ordered him to get out. When he refused, she returned to the restaurant to get her manager, who called the police. Upon returning to the parking lot, Mrs. Morey noticed that the maroon car was gone; so was the man who had been inside her car, along with her citizen's band (CB) radio. She found a stretched-out coat hanger in the front seat of her car.

Nearby, at approximately 5:00 p.m., Dennis Kaegi, his wife and his daughter stopped at a restaurant following a shopping trip. At 6:00 p.m., they returned to the car and discovered that their CB and recently purchased items were missing. Kaegi found a pair of pliers in the front of the car.

Shortly after 5:00 p.m., Roger Lewis, a police officer on patrol, received several radio dispatches. The first dispatch reported that a dark-colored, battered vehicle may have been involved in a breaking and entering. The second and third dispatches referred to an older-model, maroon Chevrolet with two Negro male occupants. One of the dispatches placed the car in the vicinity of Lewis' patrol car. Lewis saw a car matching the description and followed it. The operator of the maroon vehicle did not violate any traffic laws. However, at 5:33 p.m., Lewis stopped the car and radioed for back-up vehicles. When the driver exited the car, Lewis asked him to produce a driver's license or other identification. The man showed him a military identification in the name of Kenneth Mack. Upon request, Mack's passenger exited the car. He likewise was unable to produce a driver's license. Lewis prepared to arrest Mack for driving without a license. ²

Meanwhile, police officer Michael Krager stopped his car near the scene and approached the maroon vehicle. Upon looking in the driver's side, he saw two shopping bags in the rear of the car and a two-way radio microphone protruding from under the driver's seat. Opening the car door, he discovered a CB radio under the driver's seat and another CB radio on the passenger's seat. He also found a coat hanger and pliers under the front seat. The shopping bags contained various items, including clothing and a cassette player.

Mack and his passenger were transported to the police station, where Mack was cited for driving without a license. At the station, police officer John Bellon talked separately with Mack and Collier within several hours of the arrest. Bellon read each man his Miranda rights. Neither Mack nor Collier signed a waiver of rights or a confession. However, each man admitted that he was involved in the thefts, but each claimed that the other man had actually entered the two cars and removed the articles.

Kenneth Zwadlo testified for the State concerning his car, which had disappeared two days before the crimes. The car matched the description of the car Mack was driving at the time of his arrest.

Aletha Morey identified Mack as the man she had ordered to leave her car. Officers Lewis and Krager identified Mack as the driver of the maroon vehicle. Krager testified to finding the stolen items in the vehicle. John Morey and Dennis Kaegi testified to the value of the items found in the maroon vehicle. Photographs of the items found in the car were admitted at trial. Finally, Officer Bellon summarized the oral statements made to him by Mack and Collier.

On appeal, Mack raises the following issues:

I. Whether the trial court erred in denying Mack's oral motion in limine and in admitting Zwadlo's testimony tending to show that the car driven by Mack had been stolen.

II. Whether the arresting officers were justified in stopping, detaining and searching Mack and the automobile he was driving.

III. Whether the trial court properly admitted inculpatory statements made by Mack to a police officer.

IV. Whether the evidence was sufficient to support Mack's conviction.

Before considering any of these issues, we wish to indicate our dissatisfaction with the record as presented by Mack. As pointed out by the State, Mack has failed to number the pages of the record consecutively. In fact, the record contains three sections, each separately numbered. References to the record are confusing at best.

The State cites Ind. Rules of Procedure, AP. 8.3(A)(7) in its argument that Mack has waived his allegations of error by his failure to state where the alleged errors appear in the record. While we agree that the record is not a model, we nonetheless will reach the merits of the issues Mack raises. We have examined the record to discern at what point the errors allegedly occurred.

I. Zwadlo's Testimony Regarding the Car

Prior to the presentation of evidence, Mack made an oral motion in limine regarding any reference to the fact that the vehicle Mack was driving had been stolen. The motion was denied. Kenneth Zwadlo testified for the State regarding the fact that his maroon 1963 Chevy Impala had disappeared on March 11, 1977. Mack objected to the testimony as irrelevant. His objections were overruled.

Generally, evidence showing the commission of other crimes by the accused independent of the crime charged is inadmissible to prove the guilt of the accused. Maldonado v. State (1976), Ind., 355 N.E.2d 843; Land v. State (1977), Ind.App., 367 N.E.2d 39. However, evidence otherwise relevant to the facts at issue is not inadmissible despite its tendency to show guilt of another crime, particularly if the two crimes are related. Woodard v. State (1977), Ind., 366 N.E.2d 1160; Maldonado v. State, supra, 355 N.E.2d 843.

In Byrd v. State (1965), 246 Ind. 255, 204 N.E.2d 651, the Supreme Court held that the trial court properly admitted evidence which showed that the automobile and the revolver used in the crime charged (inflicting injury during an attempted robbery) had been stolen by the defendant the day before the crime occurred. The court referred to the propriety of showing defendant's possession of instruments used in a crime. In Maldonado, supra, 355 N.E.2d 843, defendant objected to the admission of testimony concerning the theft of an automobile prior to the robbery for which he was being tried. The Supreme Court concluded that the automobile theft was sufficiently closely related to the robbery charged to be admissible as Res gestae of the offense charged and as a happening near in time and place which completes the story of the crime on trial by proving its immediate context.

In the case before us, Mack was apprehended in a car which had disappeared from a Chicago parking lot two days earlier. The offense with which he was charged involved breaking into other parked automobiles. In the sequence of events detailed by the State's case, Mack must have used the stolen car to drive from one victim's car to the other, and then used the stolen car to escape. The disappearance of the car from its rightful owner's control occurred close in time to the events of March 13, 1977, the day of the thefts and the arrest. Zwadlo's testimony concerning the disappearance of his car helped complete the story of the separate thefts of items from parked cars. The trial court did not err in admitting Zwadlo's testimony.

II. The Stop and Search of the Automobile

During trial, Mack orally moved to suppress the testimony of Officers Lewis and Krager regarding the stopping of the automobile Mack was driving, as well as evidence obtained during the warrantless search of the automobile. The motion was overruled. On appeal, Mack argues that the officers had no probable cause to stop and detain his automobile or to conduct a search.

The automobile which Mack was driving was stopped by police officers acting in response to several dispatches describing a car whose occupants May have been involved in a theft. At the time of the stop, the police officers did not have probable cause to arrest Mack without a warrant. The information supplied by Mrs. Morey was based only on a suspicion that the occupants of the maroon car had been involved in the theft from her car. Nonetheless, the police officers were warranted in believing that an investigatory stop of the maroon automobile was appropriate. Lawrence v. State (1978), Ind., 375 N.E.2d 208; Luckett v. State (1972), 259 Ind. 174, 284 N.E.2d 738; Roby v. State (1977), Ind.App., 363 N.E.2d 1039. The dispatch alerted them to watch for an early-model, battered maroon Chevrolet. The car Mack was driving, which matched the description, was spotted in the vicinity of the reported theft. An investigatory stop of the car by the police was constitutionally permissible. Cheeks v. State (1977), Ind., 361 N.E.2d 906; Williams v. State (1974), 261 Ind. 547, 307 N.E.2d 457; Fingers v. State (1975), Ind.App., 329 N.E.2d 51.

After the stop was made, Officer Lewis began his investigation with a reasonable request to see Mack's operator's license. Luckett v. State, supra, 284 N.E.2d 738. When Mack was unable to produce a license, Lewis was authorized by statute to arrest him for driving without a license.

In the usual sequence of events, Officer Lewis would have arrested Mack and then would have impounded the car, since neither occupant could have driven it...