Minneman v. State, No. 481S103

Docket NºNo. 481S103
Citation441 N.E.2d 673
Case DateNovember 12, 1982
CourtSupreme Court of Indiana

Page 673

441 N.E.2d 673
Dalton Russell MINNEMAN, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 481S103.
Supreme Court of Indiana.
Nov. 12, 1982.

Page 674

Susan K. Carpenter, Public Defender, Jay Rodia, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant, Dalton Russell Minneman, was convicted of Burglary, Ind.Code Sec. 35-43-2-1 (Burns Repl.1979), and of being a habitual offender, Ind.Code Sec. 35-50-2-8 (Burns Repl.1979) at the conclusion of a jury trial in Rush Circuit Court on August 12, 1980. Appellant was sentenced to thirty-five (35) years imprisonment. He now appeals.

Appellant raises nine errors on appeal, concerning:

1. Whether the appellant voluntarily confessed and voluntarily consented to searches of his residence.

2. Whether it was reversible error to deny the appellant's motion for discharge.

3. Whether it was reversible error for the habitual criminal allegation to allege that the appellant committed more than two prior felonies.

4. Whether it was reversible error to deny the appellant's motion to dismiss the habitual criminal count.

5. Whether this Court should reverse case precedent regarding the inadmissibility of polygraph tests.

6. Whether the Indiana Habitual Offender statute is constitutional.

7. Whether it was reversible error for the trial court to receive into evidence State's Exhibits H-2 and H-4.

8. Whether it was reversible error for the jury to hear final instruction No. 6.

9. Whether it was reversible error for the jury to hear final instruction No. 3.

Page 675

The evidence most favorable to the State reveals that sometime during the night of February 20-21, 1979, the Hair Affair Beauty Salon in Rushville, Indiana, was burglarized. Barbara Reynolds, the owner of the salon, discovered the burglary the following morning when she opened up for business. The salon had been ransacked, about $65.00 in cash was missing, and the boxes in which the beauticians placed tips were missing. This burglary was reported to the Rushville police.

The salon was burglarized again on March 8, 1979. Officer Weber of the Rushville Police Department investigated the burglary. Weber discovered an unusual footprint, measured it, and posted the shoe print on the bulletin board of the police station. On April 1, 1979, Barbara Reynolds, while speaking with a friend over the telephone, noticed a prowler outside the salon. She went outside, confronted the man and demanded his name. He responded "Dalton Minneman." Reynolds identified the appellant, at trial, as the man she caught outside her salon. Minneman fled and Reynolds notified the police. The police went to Minneman's residence and he agreed to go to the police station and answer some questions. Minneman allowed the police to search his home for the shoes he had been wearing earlier. Later, Minneman gave a statement admitting his involvement in the Hair Affair Salon burglary.

I

Prior to trial, Appellant filed a Motion to Suppress on October 29, 1979. In the motion Appellant alleged that his confession and all physical evidence obtained because of the confession should be suppressed because "the confession was not, knowingly, intelligently, and voluntarily given." The trial court, after a hearing on the motion, denied Appellant's request on January 23, 1980. On appeal, Appellant argues that the motion should have been granted and State's exhibits 2, 5, 6, and 7 should not have been introduced into evidence.

Exhibit 2 was a small money or coin bank, and Exhibits 6 and 7 were the same Permission to Search forms that Appellant executed for the police. When those three exhibits were offered into evidence, counsel for Appellant asked some preliminary questions but made no objection to their admission into evidence. It has long been the rule in Indiana that although a motion to suppress has been overruled prior to trial, when the evidence is later offered at trial no error will be preserved unless there is an objection at that time. Haynes v. State, (1982) Ind., 431 N.E.2d 83, 85; Lock v. State, (1980) Ind., 403 N.E.2d 1360, 1367. Appellant's failure to object to the admission of State's Exhibits 2, 6, and 7 has resulted in a waiver of error on appeal.

Exhibit 5 was Appellant's statement in which he admitted burglarizing the Hair Affair Beauty Salon. Appellant argues on appeal that the evidence shows that he did not knowingly, intelligently, and voluntarily waive his Fourth Amendment right to be free of governmental intrusions when he accompanied the police to the station in order to answer questions about the burglary. Appellant points to Morris v. State, (1980) Ind., 399 N.E.2d 740, stating that a warrantless arrest not supported by probable cause is unlawful, and therefore his statement should have been suppressed at trial.

After reviewing the record we find that Morris is not applicable to Appellant's situation. There is no indication that Appellant was arrested prior to the questioning by the police. The following testimony was elicited from Officer Servies at the hearing on Appellant's motion to suppress:

"Q. Did you state to Mr. Minneman to come with you or what did you say to him?

A. I ask (sic) him if he would come to the police station for a few questions.

Q. And his response was?

A. 'Yes.'

Q. If he had replied 'no,' what, if anything would you have done?

Page 676

A. Nothing.

Q. Would you have just turned around and went back to wherever you were going?

A. I would probably have gone out to the police car and done some checking.

Q. And after you did your checking, what would you have done?

A. It would depend on what I found out checking."

Officer Servies stated that Appellant was not placed under any restraints and would have been free to leave the police station at any time. The officers wanted to interrogate Appellant because the owner of the beauty salon told the police that the man she caught trying to enter the salon identified himself as Dalton Minneman. The police were justified, for investigative purposes, in wanting to question Appellant about the burglary. Appellant himself admitted at the hearing that he was not under arrest nor was he forced or coerced into signing or saying anything. There is nothing to indicate that the Appellant was the victim of an illegal detention.

The only other question to answer is whether the appellant was properly advised of his constitutional rights before giving a statement to the police. It is well settled that the procedural safeguards of Miranda apply only to what the United States Supreme Court has termed "custodial interrogation." Oregon v. Mathiason, (1977) 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714; Orozco v. Texas, (1969) 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311; Bugg v. State, (1978) 267 Ind. 614, 372 N.E.2d 1156; Maxey v. State, (1969) 251 Ind. 645, 244 N.E.2d 650, cert. denied, (1970) 397 U.S. 949, 90 S.Ct. 969, 25 L.Ed.2d 130. We held in Dickerson v. State, (1972) 257 Ind. 562, 567, 276 N.E.2d 845, 848:

"[A]n interrogation, initiated by the police and conducted in the compelling atmosphere of the interrogation room at the police station, at a time the investigation had focused on the accused, constitutes circumstances which would indicate a significant deprivation of freedom so as to require the interrogating officers to advise the suspect of his constitutional rights."

Upon arrival at the police station, Appellant was advised of his rights under Miranda by Officer Servies, and Appellant signed the waiver of rights form. Appellant admitted that his constitutional rights were read to him prior to any questioning. We see no error in admitting his statement into evidence.

II

Appellant's next argument concerns his Motion to Dismiss under Ind.R.Crim.P. 4(B)(1). Appellant contends that under Rule 4(B)(1) a court has the duty to bring a defendant to trial within the required time in the statute and because the court failed to set Appellant's case for trial within that period, the trial court committed error.

Rule 4(B)(1) provides in pertinent part:

"If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar."

The relevant sequence of events pertaining to this issue are as follows:

July 25, 1979 Information filed.
                August 9, 1979 Motion for Early Trial filed.
                October 29, 1979 Motion to Compel Discovery
                 and Motion to Suppress
                 filed.
                October 30, 1979 Motion for Fast and Speedy
                 Trial filed.
                November 26, 1979 Hearing on Motion to
                 Suppress begun and
                 continued.
                January 3, 1980 Hearing on Motion to
                 Suppress begun and
                 continued at Appellant's
                 request.
                January 22, 1980 Hearing on Motion to
                 Suppress completed.
                January 23, 1980 Motion to Suppress denied.
                March 4, 1980 Trial date set for June 16,
                 1980.
                March 8, 1980 Objection to trial setting
                 filed by Appellant.
                May 1, 1980 Motion to Dismiss for denial
                 of speedy trial filed.
                June 4, 1980 Motion to Dismiss denied.
                

Page 677

When a defendant files a motion for early trial under Ind.R.Crim.P. 4(B), such filing constitutes an abandonment of previous motions for early trial filed by that defendant. Rutledge v. State, (1981) Ind., 426 N.E.2d 638. The law requires the movant to maintain a position which is reasonably consistent with the request he has made. Utterback v. State, (1974) 261 Ind. 685, 310 N.E.2d 552. Therefore, when Appellant filed his motion for speedy trial on October 30, 1979, he abandoned the earlier motion filed on August 9, 1979, and we...

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34 practice notes
  • Joy v. State, No. 1-783A228
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1984
    ...any error in its admission has been waived. Wilhelm v. State, (1983) Ind., 455 N.E.2d 595, 598; Minneman v. State, (1982) Ind., 441 N.E.2d 673, 675, cert. denied --- U.S. ----, 103 S.Ct. 2099, 77 L.Ed.2d 307 (1983); Haynes v. State, (1982) Ind., 431 N.E.2d 83, Furthermore, we fail to see ho......
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...A failure to object will waive appellate consideration of an error concerning the giving of instructions. Minneman v. State, (1982) Ind., 441 N.E.2d 673. The defendant has not shown any prejudice or harm from this The defendant argues next that the instructions allowed the jury to consider ......
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...a defendant. This Court has recently declined an invitation to reconsider the law on polygraphs. Minneman Page 909 v. State, (1982) Ind., 441 N.E.2d 673, 678 cert. denied (1983) 461 U.S. 933, 103 S.Ct. 2099, 77 L.Ed.2d 307. We again here decline to consider it and find such evidence The tri......
  • Orr v. State, No. 2-283A56
    • United States
    • Indiana Court of Appeals of Indiana
    • December 27, 1984
    ...never in custody. The procedural safeguards of Miranda apply only to "custodial interrogation." Minneman v. State, (1982) Ind., 441 N.E.2d 673, cert. denied 461 U.S. 933, 103 S.Ct. 2099, 77 L.Ed.2d 307; Lucas v. State, (1980) 274 Ind. 635, 413 N.E.2d 578. While a suspect need not ......
  • Request a trial to view additional results
34 cases
  • Joy v. State, No. 1-783A228
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1984
    ...any error in its admission has been waived. Wilhelm v. State, (1983) Ind., 455 N.E.2d 595, 598; Minneman v. State, (1982) Ind., 441 N.E.2d 673, 675, cert. denied --- U.S. ----, 103 S.Ct. 2099, 77 L.Ed.2d 307 (1983); Haynes v. State, (1982) Ind., 431 N.E.2d 83, Furthermore, we fail to see ho......
  • Burris v. State, No. 981
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...A failure to object will waive appellate consideration of an error concerning the giving of instructions. Minneman v. State, (1982) Ind., 441 N.E.2d 673. The defendant has not shown any prejudice or harm from this The defendant argues next that the instructions allowed the jury to consider ......
  • Johnson v. State, No. 1282S500
    • United States
    • Indiana Supreme Court of Indiana
    • January 11, 1985
    ...a defendant. This Court has recently declined an invitation to reconsider the law on polygraphs. Minneman Page 909 v. State, (1982) Ind., 441 N.E.2d 673, 678 cert. denied (1983) 461 U.S. 933, 103 S.Ct. 2099, 77 L.Ed.2d 307. We again here decline to consider it and find such evidence The tri......
  • Orr v. State, No. 2-283A56
    • United States
    • Indiana Court of Appeals of Indiana
    • December 27, 1984
    ...never in custody. The procedural safeguards of Miranda apply only to "custodial interrogation." Minneman v. State, (1982) Ind., 441 N.E.2d 673, cert. denied 461 U.S. 933, 103 S.Ct. 2099, 77 L.Ed.2d 307; Lucas v. State, (1980) 274 Ind. 635, 413 N.E.2d 578. While a suspect need not ......
  • Request a trial to view additional results

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