Montague v. State

• Decision Date: 24 February 1977
• Docket Number: No. 476S105,476S105
• Citation: 266 Ind. 51,360 N.E.2d 181
• Parties: Ossie MONTAGUE, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 181

360 N.E.2d 181

266 Ind. 51

Ossie MONTAGUE, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 476S105.

Supreme Court of Indiana.

Feb. 24, 1977.

Rehearing Denied April 15, 1977.

Richard W. Reed, Muncie, for appellant.

Thoeodore, L. Sendak, Atty. Gen., David T. O'Malia, Deputy Atty. Gen., Carmel, for appellee.

ARTERBURN, Justice.

The Appellant, Ossie Montague, Jr., was charged by information on June 18, 1975, with the first degree murder of one Norwood Churchill. He subsequently entered pleas of not guilty and not guilty by reason of insanity. After trial by jury, the Appellant was found guilty of second degree murder on November 27, 1975. Pursuant to statute, the Appellant was sentenced on December 18, 1975, to imprisonment for not less than fifteen and not more than twenty-five years. Ind.Code § 35--1--54--1 (Burns 1975). The Appellant's motion to correct errors was filed on January 15, 1976, and was overruled on January 27, 1976.

The evidence at trial revealed that in the early morning hours of June 3, 1975, the Appellant had his wife call Muncie, Indiana police and ask that a patrol car be sent to their home. Two officers arrived there at 3:54 a.m. for what they thought was a domestic quarrel. The Appellant's wife answered the door. She was crying and, as the officers stepped into the home, the Appellant was found crying also. When the officers asked if there was anything they could do to help, the Appellant stated that he had killed a man. Because of this admission and earlier police radio broadcasts reporting a shooting at a local restaurant, the officers informed the Appellant of his constitutional rights.

The Appellant indicated that he understood his rights and was asked where he had put the body and if he was sure the man was dead. He responded that he was sure the man was dead, but could remember only that he had dumped the body 'on a corner or somewhere.' The Appellant made no reply to a question about a gun. He collapsed and was taken to Ball Memorial Hospital by ambulance.

Police were later led to the gun in question by the Appellant's wife. It was located on a kitchen counter and was confiscated by police. Police also inspected the Appellant's automobile, parked at the side of the house, to see if it matched the description in the earlier radio broadcast. It did.

Additional officers called to the scene photographed the Appellant's car. A peculiarly colored mud was seen on and in the vehicle, from which police were able to locate the body of the decedent. A spent slug was removed from the car, additional photographs were taken, and the car was towed to the police garage. A search warrant obtained some nine days later enabled police to thoroughly search the car and secure additional evidence, including dirt and blood samples, a holster, and another bullet.

I.

The first issue raised by this appeal is whether the trial court erred in overruling a defense motion to supporess evidence obtained from the Appellant's home and car and in admitting that evidence at trial. It is contended that the gun found in the Appellant's kitchen was seized illegally, as were the bullet and mud found in and on the Appellant's car. It is further contended that evidence secured at the scene of the decedent's body and during the later search of the Appellant's car was the fruit of the initial illegal searches of the home and car. The last contention regarding this motion to suppress is that articles of clothing taken from the Appellant were improperly admitted. We find this entire morass of argument to be without merit.

The evidence in this case clearly shows that police were called to the Appellant's home by the Appellant's wife, at the request of the Appellant himself. When police, thinking that a domestic quarrel was involved, asked if they could help, the Appellant stated he had killed someone. After police informed him of his rights, the Appellant replied 'I know' and continued talking. The brief of the Appellant does not contend that any of the statements made at this time were made involuntarily or unintelligently.

The Fourth Amendment of the United States Constitution and Article 1, § 11 of the Indiana Constitution protect individuals from unreasonable searches and seizures. Under these guarantees a search and seizure must be supported by a warrant, unless they fall within certain narrowly defined categories. Ludlow v. State, (1974), Ind., 314 N.E.2d 750.

The seizure of the gun in this case was not the product of a search in the constitutional sense. The Appellant's wife did not act as an instrument or agent of the State here. Coolidge v. New Hamphshire, (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. Nor did a search take place when police entered the kitchen of the Appellant's home to retrieve the weapon. The word 'search' connotes uncovering that which is hidden, prying into hidden places, examining one's premises or person. Alcorn v. State, (1970) 255 Ind. 491, 265 N.E.2d 413; Lindsey v. State, (1965) 246 Ind. 431, 204 N.E.2d 357. Police here were told of the location of the gun, walked to the location so described, and found the weapon in open view on a kitchen counter. Even if this action by police is viewed as a search, we think that the facts that the Appellant's wife summoned police to her home and voluntarily disclosed the whereabouts of the gun supplied consent to the limited 'search' that occurred. Coolidge v. New Hampshire, supra; Greer v. State, (1970) 253 Ind. 609, 255, N.E.2d 919.

Having come across the Appellant's gun in a permissible fashion, there is no question that police properly seized the weapon. It was the instrumentality of the crime involved and police were not required to obtain a warrant before seizing it. See: Warden v. Hayden, (1967) 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Berner, Search and Seizure: Status and Methodology, 8 Val.U.L.Rev. 471 at 578--579 (1974).

Similarly, the mud on the exterior of the Appellant's automobile was not found as the result of a 'search.' It was in open view for anyone to see. The deduction by police of the location of the decedent's body, and the evidence found there, can thus in no way be considered the fruit of an illegal search or seizure.

The warrantless search of the interior of the Appellant's car was proper, as was the later search conducted after a warrant was obtained. An automobile may be searched without a warrant if probable cause exists for the search. Chambers v. Maroney, (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Brown v. State, (1976) Ind., 346 N.E.2d 559; Cooper v. State, (1976) Ind.App., 357 N.E.2d 260. Since police had heard the Appellant admit to the killing of a man and had found that his car matched the description of one reported to be involved in a shooting, probable cause to believe that the vehicle contained items they were entitled to seize clearly existed. The search conducted at the scene was proper, as was the impoundment of the car. Since the Appellant's attack on the second, more exhaustive search of his car is based upon the purported impropriety of the initial search, it too must fail.

We also find no error in the seizing of several articles of the Appellant's clothing. The Appellant's T-shirt and shoes were taken at the hospital. Taken from the Appellant at his formal arrest were his shirt and trousers. Tests on these articles revealed blood stains. The facts known to police at the time of the Appellant's arrest would give rise to a reasonable belief that these clothes should be seized and tested. It was proper to do so. Garr v. State, (1974) Ind., 312 N.E.2d 70.

II.

The Appellant next contends that the trial court erred when it failed to hold a hearing on his competency to stand trial. Neither the Appellant nor his trial counsel contended at trial that he was incompetent to stand trial. It is asserted, however, that the Appellant's plea of insanity, a statement by him that he did not at times consider himself of sound mind, and his physical collapse at one point during the trial, combined to require that the trial court hold such a hearing sua sponte.

Ind.Code § 35--5--3.1--1 (Burns 1975) reads in part:

'Hearing to determine defendant's sanity during trial.--When at any time before the final submission of any criminal cause to the court or jury trying the same, the court, either from its own knowledge or upon the suggestion of any person, has reasonable ground for believing the defendant be insane, the court shall immediately fix a time for a hearing to determine the question of the defendant's sanity and shall appoint two (2) competent disinterested physicians who shall examine the defendant upon the question of his sanity and testify concerning the same at the hearing. At the hearing, other evidence may be introduced to prove the defendant's sanity or insanity. * * *'

Pursuant to this statute, the trial court appointed two psychiatrists to examine the Appellant and report on his sanity. Both physicians reported that the Appellant was fully competent to stand trial. A hearing is not required under such circumstances. Brown v. State, (1976) Ind., 346 N.E.2d 559. Nor do we think that the Appellant's later loss of consciousness required such a hearing. The trial was recessed while the Appellant was treated. The record does not reveal that the Appellant was any less competent to stand trial after this recess than he was before it.

III.

Prior to trial, the Appellant submitted to the trial court a motion for bifurcated trial in order to separate his plea of not guilty by reason of insanity from his plea of not guilty. The denial of this motion by the trial court is attacked on the grounds that the circumstances of this case required a bifurcated trial and that the ruling on the motion was made without a hearing.

In Hester v. State, (1974) Ind., 315 N.E.2d 351, this Court held that while a bifurcated trial is permissible under our trial rules, a plea of insanity does...