McCulley v. State

Citation257 Ind. 135,272 N.E.2d 613
Decision Date07 September 1971
Docket NumberNo. 370S57,370S57
PartiesCharles Darrell McCULLEY, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Rice & VanStone, Evansville, Ind., for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Robert A. Zaban, Deputy Atty. Gen., Indianapolis, Ind., for appellee.

PRENTICE, Judge.

Defendant (Appellant) was convicted of Second Degree Burglary and of Theft. On the burglary conviction he was sentenced to be confined at the Indiana State Reformatory for a period of from two (2) to five (5) years and disfranchised for a period of two (2) years. On the theft conviction, be was fined Fifteen Hundred Dollars ($1500.00). The motion for a new trial specifies errors numbered from 1 through 28, and the matter is before us on an assignment of errors charging error in the trial court's overruling of the motion. Appellant, by his brief, has specifically waived causes numbered 7, 9, 11, 12, 13, 14, 26, 27 and 28 of the motion for a new trial. With the exception of causes 19, 20 and 21, the remaining causes all relate to either one or the other of two rulings, the first being a denial of the defendant's motion to suppress evidence obtained in a search immediately following the arrest, and the second being a refusal of the trial court to permit cross-examination of a State's witnss concerning the identity of an informer. The right of such cross-examination was refused both at the hearing upon the motion to suppress and at the trial.

At the hearing upon the motion to suppress, the following evidence was adduced. Acting upon an informer's tip that a pharmaceutical house was to be burglarized, Police Officers Martin, Stinson and Bray took up surveillance of the pharmaceutical house premises at about 11:00 p.m. on August 28, 1969. Martin saw the defendant, a former employee of the pharmaceutical company, enter the premises at 12:30 a.m. on August 29th. Martin, Stinson and Bray saw Defendant leave the building at 1:15 a.m. The manager of the pharmaceutical house was called. He and Officers Stinson and Virgin went to the building, where they observed fourteen cartons of drugs stacked in the receiving department, where they had not been at the close of business on the previous day when the premises were checked and locked. Officer Stinson placed his initials upon each of the cartons. The premises were kept under surveillance. At 6:30 a.m., the defendant appeared in the area in his automobile and circled the area within two or three blocks of the premises four or five times. At approximately 6:45 a.m. a truck driven by one James Granderson drove up to the receiving dock and remained for about fifteen minutes, during which time Defendant was nearby in his parked car. The truck pulled away, and the defendant also drove away in the same general direction. Police Officers, in four separate automobiles and in radio contact with each other, followed the two. At a secluded spot, the defendant and Granderson came together and were there arrested, and their persons and the vehicles were searched. The truck contained the stolen cartons of pharmaceuticals. An operable miniature flashlight was found on the defendant's person, and a pair of rubber gloves and a key to the door of the pharmaceutical house was found in his automobile. These are the items that the defendant sought to suppress.

Citing Glover v. State (1969), Ind., 251 N.E.2d 814, Defendant contends that he had a right to learn the identity of the informer and to cross-examine for that purpose, because the prosecution had 'opened the door' of that subject in direct examination and could not then close it. The Glover case (supra) does stand as authority for the rule that if the identity of the informer is to be protected, then it is up to the prosecuting attorney not to bring into the case evidence relating to him. However, we must look to the purpose of the rule before applying it; and if the problem at hand is not within the scope of such purpose, its application is not required. It is the policy generally to prevent the disclosure of an informer's identity. The policy yields in certain cases, however, such as where disclosure is relevant and helpful to the defense of an accused or is essential to the fair determination of the cause. Roviaro v. United States of America (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In the Glover case (supra) the State's witness, on re-direct examination, testified that he had the assistance of an informer in establishing both the guilt and the identity of the accused. When this revelation was made to the jury, the accused had a right to attack both the testimony and its source which, in fact, was hearsay, since it is repetitive of statements of a party not a witness. It is because the hearsay went to matters in issue that the accused's right to disclosure was given precedence over the general policy of nondisclosure. Here, however, the testimony concerning the informer merely revealed that the surveillance of the premises was undertaken by reason of an informer's tip. It in no way related to any matter in issue. It did not in any manner bolster the prosecution's case. The assistance of the informer merely served to alter the witness to a possible crime yet to be perpetrated. The crime was then committed in the presence of the witness. Knowledge of the identity of the informer could serve no purpose useful to the defendant's defense, and the disclosure to the jury of the reason the victimized pharmaceutical house was under surveillance had no bearing upon any issue. The testimony implicating the defendant would have been the same, had it been mere chance that the police witnessed the defendant's participation in the crime. The Glover rule, therefore, simply has no application.

'We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for...

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27 cases
  • Dorton v. State, 380S62
    • United States
    • Supreme Court of Indiana
    • 6 Mayo 1981
    ...establishing both the guilt and the identity of the accused. Glover, therefore, has no application to this situation. McCulley v. State, (1971) 257 Ind. 135, 272 N.E.2d 613; Carey v. State, (1979) Ind.App., 389 N.E.2d 357; Garner v. State, (1975) Ind.App., 325 N.E.2d 511; Ludlow v. State, (......
  • Stacks v. State, 3-1175A263
    • United States
    • Court of Appeals of Indiana
    • 22 Febrero 1978
    ...a jury admonition to disregard the statement is deemed sufficient to overcome any prejudice. Duke v. State, supra; McCulley v. State (1971), 257 Ind. 135, 272 N.E.2d 613. Stacks has failed to show that the court's admonition was insufficient to cure any harm caused by Dr. Gutierrez's statem......
  • Ludlow v. State, 2-573A110
    • United States
    • Court of Appeals of Indiana
    • 30 Octubre 1973
    ...the identity of the informant was not necessary even where the jury was told of the existence of such informer. In McCulley v. State, Ind., 272 N.E.2d 613 (1971), Justice Prentice, speaking for a unanimous Supreme Court, 'Citing Glover v. State (1969) Ind., 251 N.E.2d 814, Defendant contend......
  • Lewandowski v. State, 579S130
    • United States
    • Supreme Court of Indiana
    • 17 Mayo 1979
    ...of the informant at trial. The general policy in this regard is one of nondisclosure of the informer's identity. McCulley v. State (1971), 257 Ind. 135, 272 N.E.2d 613; Collett v. State (1975), Ind.App., 338 N.E.2d 286. In Roviaro v. United States (1957), 353 U.S. 53, at 59, 77 S.Ct. 623, a......
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