Maxey v. State, 867S61

• Decision Date: 20 February 1969
• Docket Number: No. 867S61,867S61
• Parties: James MAXEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 650

244 N.E.2d 650

251 Ind. 645

James MAXEY, Appellant, v. STATE of Indiana, Appellee.

No. 867S61.

Supreme Court of Indiana.

Feb. 20, 1969.

James E. Sandifer, Compton, Clark & Sandifer, Indianapolis, for appellant.

John J. Dillon, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

The appellant was charged by indictment with the crime of murder in the first degree. He entered a plea of not guilty, and was tried by a jury. He was found guilty of murder in the second degree and sentenced to the Indiana State Prison for life.

The appellant timely filed an extensive motion for a new trial which was overruled by the trial court. His sole assignment of error to this court is the overruling of that motion. In his brief the appellant urges five objections to the procedure in the trial court as grounds for our reversing his conviction:

1. The trial court erred in overruling defendant's motion to suppress evidence filed prior to trial and in permitting witnesses on behalf of the state to answer questions at the trial pertaining to what they saw, heard and found upon entering defendant's home.

2. It was prejudicial error for the trial court to have overruled appellant's motion to strike the testimony of police officers concerning admissions made by appellant to officers following their custodial interrogation of appellant where there was no showing by the state that appellant voluntarily, knowingly and intelligently waived his right against self-incrimination.

3. It was abuse of the trial court's discretion resulting in prejudicial error for the trial court to have permitted the state at the close of its evidence and after resting to reopen its case after the trial court had found that defendant's motion for a directed verdict for the reason that the state had failed to prove venue was well taken and that the state in fact had not proved venue.

4. The trial court erred in refusing to give defendant's tendered instruction number 4 concerning the subject of rebutting a presumption of malice from the act of killing by proof that killing resulted from sudden passion, where there was no other instruction given which properly covered the law of such instruction.

5. The verdict of the jury was contrary to law and not sustained by sufficient evidence for the reason that the state failed to prove that the killing was with malice and purpose.

The first two objections require a recital of the evidence relating to the appellant's arrest.

On November 24, 1966, at about 7:29 a.m., Indianapolis police officers Bowman and Phillips received a radio call to proceed to 1812 Koehne 'on a disturbance.' The officers defined a 'disturbance' as a breach of peace in a neighborhood or a house, usually amounting to a family argument or fight. Upon arriving at that address, the officers were met at the door by the appellant's mother. There is a conflict in testimony as to what she told the officers prior to their entering the appellant's house. Both officers testified that the mother seemed excited and said, 'Hurry in, my son's just killed his wife.' The mother testified that, when the officers arrived she did not know whether her daughter-in-law was dead or alive, and that she told the officers only that 'there's been a fight' and 'follow me'. The officers then followed the mother into the house without having received the appellant's consent or without having obtained a search or arrest warrant. Officer Bowman testified that at this point he believed that there had been violence in the house and didn't know if anyone was dead yet or not. He further testified that he did not then know and had made no effort to ascertain any knowledge with regard to who owned the house.

The mother led the officers into the kitchen where they first saw the appellant who turned around, thrust out his arms and said, 'Take me away. I just killed my wife.' The officers asked where the victim was and were told by the appellant, 'she's down in the basement, go down and look.' Officer Phillips went to the basement and found the deceased about five feet from the stairs, lying on her back with arms extended. At this time, Officer Bowman placed the appellant under arrest and advised him of his constitutional rights. After calling police headquarters to get a deputy coroner and superior officer to the appellant's house, Bowman went to the basement to draw a diagram of the scene. The appellant's stepfather joined Bowman in the basement, identified the victim, and led the police officer to a blood-covered bayonet then located on a washing machine about twenty feet from the body. After having been advised of his constitutional rights by Officer Bowman, and over another officer's admonitions that he was not required to say anything, the appellant several times repeated 'I've killed the thing I loved the most.'

The appellant, prior to the trial, filed a motion to suppress all the evidence relating to what the police officers had seen, found or heard while in the appellant's house. This motion was overruled by the trial court. At the trial the appellant again moved to suppress the testimony of the police officers who were present at the search of the appellant's home concerning what they had seen, heard or observed during said search. The court also overruled these objections. In this first argument, the appellant contends that this entry into his home constituted an unreasonable search and seizure and that the evidence obtained thereby should have been suppressed by the trial court.

It was the mother and not the appellant who met the police officers at the door and led them into the house. There is authority to the effect that a third party can not waive another person's constitutional immunity against unreasonable search and seizures. Cf., Dalton v. State (1952), 230 Ind. 626, 105 N.E.2d 509, 31 A.L.R.2d 1071. Thus, if the entry or subsequent search of the premises by the police officers was unreasonable, the evidence should have been suppressed.

We believe, however, that the entry by the police officers was lawful and justified by the circumstances. While it is true that, as a general rule, a search warrant or a consent is required to allow police officers to enter upon a private dwelling, a well-recognized exception to this general rule is an entry under emergency circumstances. United States v. Jeffers (1951),342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. In Wilson v. State (1966), 247 Ind. 454, 217 N.E.2d 147, this court held that, where a police officer was informed that a homicide had occurred in a private dwelling, he could lawfully enter without having to obtain a search warrant. There is good reason for such a rule. Where a violent breach of the peace has occurred, the entry by the police can be justified as a means to prevent further injury or to aid those who have been injured.

In the instant case, prior to their entry into appellant's dwelling, the police officers were told that there had been a killing or a fight depending on whose testimony is to be believed. In either event, the police had reasonable cause to believe that an injury had occurred. The officers were led into the house by the appellant's mother, and there is no evidence that any damage resulted to the premises from this entry. We hold that the entry by the police officers into the appellant's home was justified and reasonable under the circumstances.

Furthermore, as soon as a preliminary investigation had revealed the victim's body, the police officers had probable cause to place the appellant under arrest. When they did so, the appellant was immediately advised of his constitutional rights and was advised several times that he did not have to make any statements regarding what had taken place. After arresting the appellant, the officers were entitled to conduct a further search of the premises as said search was then incident to a lawful arrest. It was during this search subsequent to the appellant's arrest that the blood-covered bayonet was discovered. For the foregoing reasons, we hold that the evidence used in the appellant's trial was obtained by a lawful search of the premises, and that the appellant's motions to suppress said evidence were properly overruled by the trial court.

Regarding the appellant's second objection, the only statement made by him prior to his being advised of his constitutional rights which was admitted into evidence was his exclamation on first seeing the police officers. At this point, it could hardly be contended that the officers were conducting custodial interrogation of the appellant or that the appellant's rights againt self-incrimination were being violated.

In appellant's third objection, he contends that the trial court committed reversible error in permitting the state to present additional evidence in order to prove venue after it had rested its case and after the appellant had moved the trial court for a directed verdict. The record indicates that the judge had not yet ruled upon appellant's motion for a directed verdict at the time the state was allowed to introduce this additional evidence. It has long been held that the action of a trial court in allowing a party to reopen its case after it has rested is a matter of discretion for the court, and, unless clear abuse is shown, this court will not interfere with such a decision by the trial court. Roush v. Roush (1900), 154 Ind. 562, 55 N.E. 1017. The appellant has not demonstrated that he was unfairly prejudiced by this procedure and the only detriment to the defense resulted from a more complete presentation of all the facts relating to the crime with which the appellant was charged. We do not believe that the trial court abused its discretion in admitting the additional evidence after the state had rested its case.

As his fourth objection, appellant contends that the court erred in refusing to give his tendered instruction number 4, which...