McReynolds v. State

• Decision Date: 20 March 1984
• Docket Number: No. 882S316,882S316
• Citation: 460 N.E.2d 960
• Parties: Daryl D. McREYNOLDS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 960

460 N.E.2d 960

Daryl D. McREYNOLDS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 882S316.

Supreme Court of Indiana.

March 20, 1984.

Barry L. Standley, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Daryl D. McReynolds, was convicted of two counts of murder, a Class A felony, Ind.Code Sec. 35-42-1-1(1) (Burns 1979 Repl.) and of three counts of attempted murder, a Class A felony, Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.). The defendant received a sentence of 270 years. On this direct appeal, the defendant raised the following three issues:

1. Whether the trial court erred in denying the defendant's Motion for a Change of Venue;

2. Whether the trial court erred in allowing evidence seized in a search of the defendant's house to be admitted; and

3. Whether the trial court erred in sentencing the defendant to consecutive terms totaling 270 years.

The facts favorable to the State show that the defendant was a former employee of Crescent Plastics in Evansville. Crescent had fired the defendant and the defendant lost his union appeal of the dismissal. Apparently despondent over his unemployment and his financial situation, the defendant walked into Crescent Plastics on July 29, 1981, and opened fire with a sawed-off shotgun. The defendant killed two people and injured three others. The police arrived at the scene and shot the defendant several times as he attempted to flee.

I.

This incident generated a substantial amount of publicity in the Evansville area. The record discloses there were at least twenty-four articles about the incident in Evansville's two daily and one Sunday newspaper. In addition, there were several accounts on radio and television. Because of this publicity, the defendant filed a Motion for Change of Venue. The trial court denied the motion, with its ruling made subject to voir dire examination of jurors and to any further media releases. The defendant now contends the denial of the motion deprived him of the opportunity for a fair trial.

A decision on a motion for change of venue is a matter properly within the trial court's discretion. Ind.R.Crim.P. 12. The burden rests with the movant to establish adverse publicity and that the jurors were unable to set aside their preconceived notions of guilt and render a verdict based upon evidence introduced at trial. Irvin v. Dowd, (1961) 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751; Sage v. State, (1981) Ind., 419 N.E.2d 1286; Pine v. State, (1980) Ind., 408 N.E.2d 1271.

Although there was a substantial amount of pretrial publicity in this case, we do not feel the trial judge exceeded his discretion in denying the motion. The record of the voir dire examination reveals that considerable effort was made to obtain a fair and impartial jury. During voir dire, all those eventually serving as jurors stated they remembered hearing something about the incident. As stated in Irvin v. Dowd (1961) 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751:

"It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."

366 U.S. at 722-23, 81 S.Ct. at 1642-43, 6 L.Ed.2d at 756. Here, each juror selected stated either that he or she had no opinion on the guilt of the defendant or could set an opinion aside and reach a verdict based solely on the evidence introduced at trial. Therefore, it cannot be said that the trial court exceeded its discretion in denying the motion for a change of venue.

II.

After the defendant's arrest the Evansville police obtained a search warrant for the defendant's house. The only item listed in the warrant was the sawed-off barrel of a double-barrel shotgun. During the search for the barrel the police found and confiscated a bag of marijuana seeds. No other warrant was issued for the marijuana seeds. The defendant contends the confiscation of these seeds without a warrant violated the Fourth Amendment of the federal Constitution and, thus, they should not have been admitted into evidence.

The Fourth Amendment protects citizens against unreasonable searches and seizures of persons, houses, papers, and effects by requiring a warrant based on probable cause. The warrant must describe with particularity the things that are to be seized. There are, however, certain narrowly drawn exceptions to the warrant requirement. Of importance here is the plain view doctrine, which stems from a plurality opinion in Coolidge v. New Hampshire, (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, and which permits the warrantless seizure by police of private possessions when the police satisfy three requirements. These Coolidge requirements were stated in Texas v. Brown, (1983) --- U.S. ----, 103 S.Ct. 1535, 75 L.Ed.2d 502, the latest Supreme Court case on the doctrine:

"First, the police officer must lawfully make an 'initial intrusion' or otherwise properly be in a position from which he can view a particular area. Second, the officer must discover incriminating evidence 'inadvertently,' which is to say, he may not 'know in advance the location of [certain] evidence and intend to seize it,' relying on the plain view doctrine only as a pretext. Finally, it must be 'immediately apparent' to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure."

--- U.S. ----, 103 S.Ct. at 1540, 75 L.Ed.2d at 510 (citations omitted).

All of these requirements were met in this case. Here, the initial intrusion was pursuant to a valid search warrant. The Court in Coolidge in fact expressly recognized that this was a type of situation where the plain view doctrine would apply. Once lawfully within the defendant's house, the officer began to search for the shotgun barrel. In the course of his search the officer looked inside a cabinet located in a bedroom. Testimony showed that the cabinet was large enough to conceal the gun barrel. The officer then found the marijuana seeds, which were in a clear plastic bag. The discovery of the seeds was therefore inadvertent. The cabinet was not an unreasonable place to search, see Wilson v. State, (1975) 263 Ind. 469, 333 N.E.2d 755, and the discovery was made before the officer located the item listed in the warrant. Thus the officer was not extending a valid search for a particular item into a general exploratory search, and there was no evidence indicating the police knew of the seeds prior to the search. The second Coolidge requirement was satisfied.

The third Coolidge requirement is that it be immediately apparent to the police that they have evidence before them. The Supreme Court in Texas v. Brown attempted to provide some guidance as to when the evidentiary value is immediately apparent, holding that the third requirement is met if the officer has probable cause to associate the property with criminal activity. This standard merely required:

"that the facts available to the officer would 'warrant a man of reasonable caution in the belief,' Carroll v. United States, 267 U.S. 132, 162, 69 L.Ed. 543, 45 S.Ct. 280 (1925), that certain items...