Mftari v. State
| Decision Date | 12 July 1989 |
| Docket Number | No. 64S00-8706-CR-585,64S00-8706-CR-585 |
| Citation | 537 N.E.2d 469 |
| Parties | Hadjin MFTARI, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). . Rehearing Denied |
| Court | Indiana Supreme Court |
James V. Tsoutsouris, Public Defender, Porter County by Joanne Tapocsi, Deputy Public Defender, Valparaiso, for appellant.
Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
The defendant, Hadjin Mftari, was convicted in a jury trial of class D theft, three counts of class C burglary and three counts of class C conspiracy to commit burglary. He received concurrent sentences of fourteen years for each burglary and conspiracy count and four years for theft. The defendant raises the following issues for review: (1) evidence of other crimes; (2) illegal arrest and search; (3) prosecutorial misconduct; and (4) ineffective assistance of counsel.
On the evening of March 30, 1985, several rooms at the Portage Holiday Inn were burglarized while the guests were at the hotel's swimming pool. None of the rooms showed any signs of forced entry. Several of the guests had seen a large, dark-haired man and a smaller, sandy-haired man in the hallways and near the pool. Looking for the two men described by the guests, the manager and a police officer entered the room registered to James Loskie, but failed to locate its occupants. 1 A later investigation revealed that someone had stolen the driver's license of James Loskie, a Texas resident. The Portage police department alerted the national office of Holiday Inn to the burglaries and the bogus registration as James Loskie. On April 11, 1985, the defendant was arrested at a Holiday Inn in Rolling Meadows, Illinois for possession of burglary tools and an unlawful weapon.
At trial the State read the deposition of a guest at the Rolling Meadows Holiday Inn who reported some money missing from her room on April 11, 1985. The defendant was not charged with this burglary, but a Rolling Meadows police officer testified to the events surrounding the defendant's arrest on that day. The defendant asserts that this testimony was improperly admitted because it was irrelevant to the Portage burglaries. The State counters that the testimony shows a "common scheme or plan" that connects the defendant to the charged crimes.
Generally, evidence of uncharged crimes is inadmissible to prove the guilt of the accused. Pharms v. State (1985), Ind., 476 N.E.2d 120. However, this Court recognizes a "common scheme or plan" exception which permits proof of identity by showing the defendant committed another crime with identical modus operandi. Staton v. State (1988), Ind., 524 N.E.2d 6. This exception requires a strong showing that the methods used in the crimes are strikingly similar in a unique manner that indicates a common perpetrator. Id. at 8. See Penley v. State (1987), Ind, 506 N.E.2d 806, 810. As in Staton, the defendant placed his identity in issue by presenting witnesses who supported his alibi defense. 524 N.E.2d at 8.
The uncharged Rolling Meadows burglary shared with the Portage burglaries the following circumstances: the crime occurred at a Holiday Inn, the crime occurred in the evening while the guest was at the hotel's swimming pool, the defendant and his companion matched the description of two men who were seen at the hotel, and two men had falsely registered under the name of James Loskie. In each burglary, the perpetrators left no signs of forced entry, left the room undisturbed, and removed only money and jewelry, both of which are easily concealed.
With reasonable certainty, the similarities establish a method of burglary in which the perpetrators waited until the guests at a Holiday Inn were at the pool before they entered the guests' rooms and removed easily concealed valuables without leaving any obvious trace of entry and theft. Moreover, the act of registering as James Loskie strongly tends to show a common perpetrator. The registration provides, literally and figuratively, the defendant's "signature" to the crime.
When taken with the officer's testimony placing the defendant at the Rolling Meadows Holiday Inn, the testimony of the guest tends to prove by "common scheme or plan" the defendant's identity as the Portage burglar. The trial court did not err in admitting the evidence.
The defendant asserts that evidence involving his arrest in Rolling Meadows, Illinois, should have been excluded because the arrest was illegal. He seeks to exclude the testimony of the officers as well as the driver's license, burglary tools, Holiday Inn directory, and other items found in a search of the defendant and his automobile.
On April 10, 1985, the Rolling Meadows Holiday Inn contacted the Portage police and informed them that a James Loskie had checked in. Early the next morning, the Portage police officers went to the Illinois hotel and discovered that the two men in Loskie's room matched the description of the Portage Holiday Inn suspects. Having set up surveillance of the suspects' room, the Portage officers contacted the Rolling Meadows police and requested that a detective unit be sent to the hotel. Approximately 7:00 a.m., the defendant's companion left the room and was confronted by one of the Portage officers who asked for the suspect's name. The other officer entered through the open door of the hotel room and asked the defendant his name. The defendant claimed to be James Loskie. Within a few minutes, the Rolling Meadows police officers arrived and asked the suspects for identification; the defendant again claimed to be James Loskie. The Rolling Meadows officers arrested the defendant's companion on two outstanding warrants. When the defendant opened his briefcase to find his identification, a Rolling Meadows officer saw several lock picks and a pair of metal knuckles in the briefcase. The officer then arrested the defendant for possession of burglary tools and unlawful possession of a weapon. Having arrested the suspects, the officers searched the suspects' automobile and discovered other evidence linking the defendant to the Portage burglaries.
At trial the defense counsel objected to the introduction of physical evidence obtained from the Illinois arrest on the ground that the arrest lacked probable cause. On appeal, the defendant seeks to exclude the physical and testimonial evidence relating to the arrest and search. In doing so, he attacks each aspect of the Illinois episode.
The defendant's basis for objection, the lack of probable cause for arrest, confines our review. "Grounds for objection must be specific and any grounds not raised in the trial court are not available on appeal." Bedgood v. State (1985), Ind., 477 N.E.2d 869, 872. Accord Fozzard v. State (1988), Ind., 518 N.E.2d 789. The additional grounds asserted by the defendant do not rise to the level of fundamental error and, therefore, are not reviewable. See Fair v. State (1977), 266 Ind. 380, 364 N.E.2d 1007 (). We consider only whether the Illinois police officer had probable cause to arrest the defendant.
Probable cause for a warrantless arrest exists where the arresting officer has knowledge of facts and circumstances which warrant a man of reasonable caution to believe that the suspect has committed the crime in question. Draper v. United States (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Merritt v. State (1986), Ind., 488 N.E.2d 340. Accord People v. Fletcher (1978), 66 Ill.App.3d 502, 23 Ill.Dec. 258, 383 N.E.2d 1285. In the present case, the Illinois police officer saw several lock picks and a pair of metal knuckles in the defendant's open briefcase. Under Illinois law, possession of either type of these articles is a felony. Ill.Ann.Stat. ch. 38 sec. 19-2 (Smith-Hurd 1977) (possession of burglary tools); Ill.Ann.Stat. ch. 38 para. 24-1(a)(1) (Smith-Hurd 1988 supp.) (unlawful use of weapon). The officer had probable cause to arrest the defendant for possession of these items. The trial court did not err in admitting the physical and testimonial evidence about the defendant's arrest in Illinois.
Alleging ten improper comments in the prosecutor's final argument and three "evidentiary harpoons," the defendant asserts that he was placed in "grave peril" which denied him a fair trial. See Maldonado v. State (1976) 265 Ind. 492, 355 N.E.2d 843. However, a timely objection at trial is necessary to secure for review the issue of prosecutorial misconduct. Id. at 498, 355 N.E.2d at 848. Accord Kindred v. State (1988), Ind., 524 N.E.2d 279. Because the defendant failed to object at trial to the alleged misconduct, the issue is waived.
The defendant claims that the ineffectiveness of his trial counsel denied him a fair trial. We will address the many instances of alleged incompetence to determine whether they amount, individually or collectively, to ineffective assistance of counsel.
Reversal for ineffective assistance of counsel is appropriate in cases where a defendant shows both (a) that counsel's performance fell below an objective standard of reasonableness, and (b) that the deficient performance so prejudiced defendant as to deprive him of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. A claim of ineffective assistance must identify the claimed errors of counsel, so that the court may determine whether, in light of all circumstances, the counsel's actions were outside the range of professionally competent assistance. The proper measure of attorney performance is reasonableness under prevailing professional norms. It shall be strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of...
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