Murphy v. State, 1085S414

Decision Date12 November 1986
Docket NumberNo. 1085S414,1085S414
Citation499 N.E.2d 1077
PartiesMichael Patrick MURPHY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Kim E. Hall, Smith & Hall, Knox, for appellant.

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

SHEPARD, Justice.

Appellant Michael Patrick Murphy was convicted after a jury trial of receiving stolen property, a class D felony, Ind.Code Sec. 35-43-4-2(b) (Burns 1985 Repl.). The court enhanced the standard two year sentence by thirty years, the jury having found that Murphy was an habitual offender. Ind.Code Sec. 35-50-2-8 (Burns 1985 Repl.).

In this direct appeal, Murphy asserts as errors:

1) That the evidence was insufficient to sustain a conviction;

2) That evidence obtained from a warrantless search of a vehicle containing a sawed-off shotgun open to view should have been suppressed;

3) That the court should have dismissed the charges against Murphy as a sanction for alleged prosecutorial abuse of discovery;

4) That the filing of the habitual offender information on the day before trial was improper; and

5) That impaneling a new jury to hear the habitual offender evidence after the original jury could not reach a verdict was improper.

Murphy and his two cohorts, William Simpson and Jerry Stahl, were accused of robbing the Five Star grocery store in Knox of approximately $10,000. They were originally charged with robbery, conspiracy to commit robbery, theft and receiving stolen property.

Simpson and Stahl entered into plea agreements which required that they testify at Murphy's trial. Simpson testified that Murphy and Stahl donned disguises and robbed the store while he drove the getaway vehicle. Simpson also testified that Murphy had helped to plan the crime. However, Stahl testified that Murphy refused to participate in the robbery and had no prior knowledge of the timing of the crime. Further testimony came from two store employees, who said that two men carrying large guns and wearing thick coats robbed the store. Although they could not positively identify Murphy, the employees testified that he resembled one of the robbers.

An informant had told police that Simpson was planning a robbery of the Five Star grocery. Shortly after the robbery occurred, several officers drove to Simpson's home. They found Simpson and Murphy sitting in a parked vehicle. Simpson fled, while Murphy remained at the car. The officers asked Simpson and Murphy to accompany them to the police station for questioning. Both men agreed, but Simpson asked for time to inform his mother. An officer accompanied him inside the home and saw Jerry Stahl. Stahl also agreed to submit to police questioning. The three men left with the police. An officer subsequently searched the vehicle in which Simpson and Murphy were found. He seized approximately $10,000 and several weapons which matched the description of those used in the robbery. This evidence was introduced at trial over the defendant's objection.

The jury began its deliberations about 6:30 p.m. after four days of trial. The trial judge returned the jury to the courtroom shortly after midnight and asked the foreman whether the jury had reached a decision. The foreman said the jury was split about "50-50" and indicated that she was unsure whether additional deliberations would result in a verdict. The judge, noting that the jurors looked in "good shape," ordered the jury to continue deliberating. At about 1:30 a.m., the jury returned a verdict of guilty on the charge of receiving stolen property and verdicts of not guilty on the other three charges confronting Murphy.

I. Sufficiency of the Evidence

Murphy claims that the evidence was insufficient to support the jury's verdict on the charge of receiving stolen property. Such a conviction would require proof beyond a reasonable doubt that Murphy knowingly or intentionally received, retained, or disposed of the property of another person that had been the subject of a theft. Ind.Code Sec. 35-43-4-2(b).

Murphy claims that the jury reached a compromised verdict. He contends that the jury must have "ignored" Simpson's testimony that Murphy both instigated and acted in the robbery because it returned a verdict of not guilty on the charges of robbery, conspiracy to commit robbery and theft. Arguing that Simpson's testimony was the only evidence linking Murphy to the robbery, Murphy alleges that a verdict of guilty on the charge of receiving stolen property is inconsistent with the jury's total disregard of Simpson's testimony. In essence, he argues that the jury was obligated to find him guilty of all of the crimes if it believed Simpson or innocent of all of the crimes if it believed Stahl. The verdict of guilty on one charge at 1:30 a.m. after four days of trial and seven hours of deliberations can only be considered a compromise, according to Murphy.

When reviewing a sufficiency claim, this Court will consider only the evidence most favorable to the State and the reasonable inferences drawn therefrom which support the jury's verdict. A conviction will be affirmed if there was evidence of probative value from which the jury could determine that appellant was guilty beyond a reasonable doubt. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. Murphy is attempting to impeach the jury's verdict by determining the credibility of Simpson and Stahl. To give credence to his argument, this Court would have to follow a route for which precedent provides a formidable roadblock. We have repeatedly held that this Court on appeal will neither reweigh the evidence nor judge the credibility of witnesses. Id.

The evidence most favorable to the State, particularly Simpson's testimony, establishes that Murphy was a willing participant in all of the crimes with which he was charged. However, Stahl testified that Murphy refused to join in the crime. Stahl said he and Simpson dropped Murphy off at a bar immediately before the robbery and retrieved Murphy there shortly afterward. In light of the evidence that Murphy was found in the car which held the ill-gotten gains, the jury could have accepted portions of the inconsistent testimony of Simpson and Stahl and concluded that Murphy was not a participant in the robbery but that he did share in the proceeds. Consequently, while there was evidence to support convictions on all of the charges, the jury concluded that the State met its burden of proof on only one. This was a permissible conclusion.

II. Warrantless Search

Before Simpson left his home with police, he directed his mother to tell police that he had been home all day. Murphy, meanwhile, insisted on retrieving his jacket from the backseat of the vehicle before leaving. One of the officers shined his flashlight into the backseat and saw a shotgun partially concealed by a jacket. Another officer remained at the Simpson home to guard the vehicle after Simpson, Stahl, and Murphy left for questioning. That officer also saw the shotgun in the car. While he was waiting, the officer determined from his statute book that a felony is committed by possession of a shotgun with a barrel less than eighteen inches in length and with an overall length of less than twenty-six inches. Ind.Code Sec. 35-47-1-10, Sec. 35-47-5-4 (Burns 1985 Repl.).

The grocery store employees had described a sawed-off shotgun when detailing the robbers' weapons to police. The officer radioed his superiors that he believed the shotgun in the vehicle was shorter than the legal length. A few minutes later, without further comment, the officer was ordered to search the car. He confirmed that the shotgun's barrel length was below the legal limit and proceeded to search the rest of the vehicle. In the backseat, he found shotgun ammunition, as well as .44 calibre ammunition. He found .45 calibre ammunition in the glove compartment. From the trunk the officer seized .44 and .45 calibre guns, the money taken in the robbery and a green jacket similar to that worn by one of the perpetrators of the robbery. Murphy and his cohorts later were arrested. The grocery store employees testified at trial that two of the weapons, including the sawed-off shotgun originally spotted in the backseat, were similar to those used in the robbery.

Claiming the warrantless search was in violation of the Fourth Amendment, Murphy filed a motion to suppress the evidence obtained from it. The trial court conducted an extensive pretrial hearing on the motion and ruled that the warrantless search was justified by probable cause and exigent circumstances. The evidence obtained by the search was introduced at trial, and Murphy now challenges its admission. He emphasizes the fact that the prosecutor attempted to justify the search on several inconsistent grounds. However, a party may offer alternative legal theories in support of his position so long as he does not argue inconsistent facts.

The Fourth Amendment protects from unreasonable searches those areas in which a defendant has an actual or subjective expectation of privacy so long as the claimed expectation is one which society recognizes as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226 (1979) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 588 (1967) (Harlan J., concurring)). 1 Vehicles fall within the protected area, although traditionally the courts have viewed the privacy interest in a car as being less that that associated with homes or offices. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

Warrantless searches are presumed unreasonable, and the State bears the burden of showing that the search is within one of the exceptions to the warrant requirement. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Fisher v. State (...

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