Mann v. State

• Decision Date: 15 February 1973
• Docket Number: No. 1--872A49,1--872A49
• Citation: 292 N.E.2d 635,155 Ind.App. 261
• Parties: Philip A. MANN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 635

292 N.E.2d 635

155 Ind.App. 261

Philip A. MANN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--872A49.

Court of Appeals of Indiana, First District.

Feb. 15, 1973.

James R. White, R. Clark Allen, New Castle, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Anthony J. Metz, III, Deputy Atty. Gen., for plaintiff-appellee.

LOWDERMILK, Judge.

Appellant was charged by affidavit with Possession of Cannabis Sativa L. (Marijuana). A separate hearing was held on defendant-appellant's motion to suppress and said motion was overruled. Trial was had by jury and appellant was found guilty as charged. Appellant timely filed his motion to correct errors which was overruled and this appeal follows.

The evidence most favorable to the State shows that in the early morning hours of December 18, 1971, a New Castle city policeman, in full uniform, observed the appellant driving a car approaching him. The policeman, who was driving a police car marked only by a spotlight, observed that the appellant's car was being driven erratically. The appellant yelled obscenities at the policeman as the two cars passed on the street after a near collision. The policeman turned around and, with spotlight and siren on, gave chase to the appellant, who drove at an excessive speed, ran a red light, made a reckless turn, and finally slid some distance before coming to a stop. The appellant got out of his car as the policeman approached it. When ordered to do so, the appellant placed his hands on top of his car in compliance with the order, but tried to jerk away several times while being frisked by the officer.

The officer smelled alcohol on the appellant's breath as he searched him. The officer found an ear plug container in the appellant's upper left hand coat pocket, which contained some seeds, an envelope in another coat pocket, and a cellophane bag of marijuana in the appellant's left rear pants pocket. Appellant was thereupon arrested on charges of illegal possession of alcohol, resisting arrest, and public intoxication. State police tests confirmed that the seeds and contents of the bag were marijuana.

Appellant devotes much discussion to events that occurred following the search and seizure in question. We find no relation between these subsequent events and the issues of this case and shall not burden this opinion unnecessarily with any discussion of said events.

Prior to final arguments the court had a discussion with defendant's counsel and the prosecuting attorney concerning whether defendant's counsel would be permitted to argue the legality of the arrest. The court took the position that the legality of arrest issue did not affect the guilt or innocence of the defendant but applied only to the admissibility of evidence obtained; and since the court had already found that such evidence was admissible it was not proper to argue the arrest issue. The court informed counsel that if he argued the issue in question and the prosecuting attorney objected, the court would sustain such objection and admonish the jury to disregard that issue.

Appellant first contends that he was denied a fair trial by the trial court's admonishment of defense counsel, prior to final argument, not to raise the question of the legality of the arrest of the defendant. Appellant contends that the court's position was blatantly unfair and prejudicial to him in that counsel was limited in his final argument with respect to the law of the case.

Appellant relies on the Indiana Constitution, Article 1, § 19:

'In all criminal cases whatever, the jury shall have the right to determine the law and the facts.'

In addition, case law has upheld § 19, supra. See, Posey, Michael v. State (1956), 234 Ind. 696, 131 N.E.2d 145; Beavers v. State (1957), 236 Ind. 549, 141 N.E.2d 118.

The appellant also relies on the case of Trainer v. State (1926), 198 Ind. 502, 154 N.E. 273, in regard to reading to the jury from law books:

'The law in criminal cases consists of the Constitution and the statutes, as interpreted by the Supreme Court. And, inasmuch as the trial court is bound by the law as interpreted by the Supreme Court, counsel could have no better basis for the law of the case than as interpreted by the decisions of such court.

'In the use of such a great privilege, a litigant ought not to be estopped from presenting and discussing the highest holding in relation to written law, which is that made by the Supreme Court, . . .

'The litigant had the legal right to have the law, as determined by the Supreme Court, presented to the jury by his counsel.'

To further his contention, appellant also cites Bryant v. State (1933), 205 Ind. 372, 186 N.E. 322, as follows:

'. . . It is not within the bounds of propriety for the court to seek to answer or minimize the effect of the argument.'

The State of Indiana, appellee, in response, contends that the issue of the legality of the defendant's arrest is not proper since said issue speaks only to the admissibility of evidence, which is within the sole province of the court rather than the jury.

Appellee points out that trial courts have, to a certain extent, some control over the arguments given by counsel and such is within the discretion of the court. Adams v. State (1912), 179 Ind. 44, 99 N.E. 483.

It is the position of appellee that the legality of arrest had no bearing on whether appellant could be convicted of the crime charged and cites Layton v. State (1968), 251 Ind. 205, 240 N.E.2d 489, which held that the illegality of arrest affected only the admissibility of evidence and not the right of the State to try a defendant.

Appellee contends that the question of admissibility of evidence is for the court, not the jury, and cites Sprague v. State (1932), 203 Ind. 581, 181 N.E. 507, as follows:

'. . . The court and not the jury determines the admissibility of evidence, and the foundation for the admission of secondary evidence is a matter alone for the court and not for the jury.'

The State points out that appellant's counsel did, in fact, mention the legality of arrest issue during his final argument and no objection was made and no admonishment was given by the court.

With appellee's contention we must agree. The legality or illegality of the arrest in question has no bearing on the guilt or innocence of the defendant in this case. The issue of arrest is pertinent only to the question of the admissibility of the evidence seized in the search incident to that arrest. A separate hearing, outside the presence of the jury, is held to determine the admissibility of evidence when tested by a Motion to Suppress, as was done in this case. If the court should determine that the search or arrest were illegal or unreasonable, then the evidence would not be admitted. To allow counsel to raise the issue of the legality of the arrest at trial would emasculate the earlier hearing on the Motion to Suppress and would, in effect, allow the jury to decide whether the arrest was valid and the necessary corollary issue of the admissibility of evidence. This would not be proper and we cannot agree with appellant's contention.

It is our opinion that the trial court properly warned counsel of its feelings on this matter and did not commit error in doing so.

Appellant next contends that the evidence seized from him should not have been admitted into evidence and relies on Article I, § 11 of the Constitution of the State of Indiana and the Fourth Amendment of the United States Constitution.

Appellant acknowledges that a search incident to a lawful arrest can be made without a search warrant, but contends that, in the case at bar, the search was made before any arrest or notice of arrest; that the search was unreasonable; and that the search was not incident to a lawful arrest. Appellant cites the case of Sibron v. New York (1968), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, which states:

'It is axiomatic that an incident search may not precede an arrest and serve as part of its justification.

'In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.'

It is appellant's position that the policeman was not in fear of injury, had no reason to believe that the defendant was armed, and the necessary conclusion is that the officer had no reasonable basis to conduct a search.

Alternatively, appellant contends that even if a lawful arrest was made, any search made incident thereto must be within reasonable limitations. Appellant cites the case of Paxton v. State (1970), Ind., 263 N.E.2d 636, in support of his argument as follows:

'. . . the necessities of the situation at the time of the arrest justify...