Murphy v. State

• Decision Date: 16 September 1983
• Docket Number: No. 781S182,781S182
• Citation: 453 N.E.2d 219
• Parties: Ricky Edmond MURPHY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 219

453 N.E.2d 219

Ricky Edmond MURPHY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 781S182.

Supreme Court of Indiana.

Sept. 16, 1983.

Glenn A. Grampp, Evansville, for appellant; Lopp, Lopp & Grampp, Evansville, of counsel.

Linley E. Pearson, Atty. Gen. of Ind., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of Burglary, Ind.Code Sec. 35-43-2-1, Theft, Ind.Code Sec. 35-43-4-2, and being an Habitual Offender, Ind.Code Sec. 35-50-2-8 (Burns 1979). He was sentenced to thirty-five (35) years imprisonment. This direct appeal seeks review upon the following issues:

(1) Whether there was a fatal variance between the allegations in the charge of theft, and the evidence introduced on that issue at trial?

(2) Whether the Trial Court erred in denying Defendant's pre-trial motion to suppress in-trial identification testimony and in permitting the witness to identify him at trial.

(3) Whether the trial court erred in admitting evidence obtained pursuant to a search warrant over a motion to suppress that challenged the veracity of the affidavit upon which the warrant had been issued.

(4) Whether the Habitual Offender charge violated Defendant's rights of due process.

(5) Whether the Habitual Offender statute constitutes unconstitutional cruel and unusual treatment.

(6) Whether the guilty verdict was sustained by the evidence.

During the early morning hours of April 4, 1979, Kelly King, an employee of The Trading Post, was awakened by noises coming from the direction of The Post. King lived in a recreational vehicle on the premises of the commercial establishment, and when he looked out his window, he observed two males breaking into a storeroom of the store. During the next thirty minutes, King observed the two men remove a quantity of boxes from the storeroom and load them into a waiting automobile. He recorded the automobile license plate number and notified police of the incident.

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ISSUE I

Defendant first contends that the evidence introduced at trial to prove the charge of theft fatally varied from the allegations of theft contained in Count II of the information.

Count II in pertinent part reads:

" * * * did knowingly exert unauthorized control over the property in the custody of The Post, Inc., d/b/a The Trading Post, * * * with intent to deprive The Post of the value and use thereof, by taking, possessing, and carrying away said property without the consent of the said The Post, Inc." (emphasis added).

This charge is directed at Defendant's exerting unauthorized control over the property in the custody of The Post, Inc. The variance which Defendant asserts is that the evidence disclosed that the property was taken, not from The Post, Inc., as alleged, but rather from "Southwest Communications," a different entity, which was shown to be the owner of the property. However, Defendant erroneously equates custody to "ownership" or "right to custody." He argues " * * * the ownership of article or right to custody over the article must also be correctly alleged and proved at trial." (Appellant's brief p. 21). It is immaterial that Southwest Communications owned the property and, therefore, had the right to possess it. The Post, Inc. did, in fact, have possession (custody) and Defendant did, without authorization, take property from it. The rights to be examined in determining whether or not a theft has been committed are the rights of the person in possession of the property and the rights of the person who took such possession from him. The relative rights of the possessor and third parties with respect to such property are irrelevant. Thomas v. State, (1970) 255 Ind. 131, 134, 263 N.E.2d 158.

Defendant was not misled in the preparation of his defense, nor was he otherwise prejudiced by the alleged "variance." Montes v. State, (1975) 263 Ind. 390, 404, 332 N.E.2d 786, 795. He is protected against a subsequent prosecution for the same offense upon conviction, since the information itself is specific as to that entity whose custody of property was a material element of the crime of theft; that it, that the Defendant had no superior possessory Defendant also contends that the trial court erred in denying his motion for a directed verdict inasmuch as the evidence did not disclose a taking of property in the custody of "The Post, Inc." Error, if any, in the denial of such a motion is waived upon the introduction of evidence by the moving party. Pinkston v. State, (1975) 163 Ind.App. 633, 325 N.E.2d 497, 499.

rights over the property listed in the information. There was no fatal variance in this case.

ISSUE II

Defendant contends that the trial court erred in permitting witness Kelly King to make an in-court identification of the defendant at trial, in that it was tainted by an earlier unnecessarily suggestive photographic viewing of the defendant by the witness.

Some hours after witnessing the burglary, King appeared at police headquarters to give a statement of the events that had occurred at The Post. He was either shown photographs of two suspects, who were subsequently charged with the burglary and theft, or such photographs were inadvertently exposed to his view. An earlier trial of the defendant upon the same charges had resulted in a mistrial based upon surprise, following King's testimony concerning such photographic viewing.

Prior to the second trial, Defendant filed a motion to suppress any identification of the defendant by King on the grounds that such identification would be tainted by the suggestive nature of the photographic viewing. The trial court sustained the suppression motion as to testimony concerning such photographic identification but overruled it as to an in-court identification, upon the basis that the witness' view at the time that the crime had been committed was a sufficient basis for it, independent of the tainted photographic viewing.

An out-of-court identification conducted in an unnecessarily suggestive manner creates a substantial likelihood of misidentification and must be suppressed to avoid a violation of Defendant's right to due process. Neil v. Biggers, (1972) 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. For this same reason, any in-court identification must be made without reference to, and be made free from the taint of any impermissible prior identification. Cooper v. State, (1977) 265 Ind. 700, 359 N.E.2d 532. The factors that a court will weigh in determining the existence of an independent source include the opportunity to observe the defendant at the time of the crime and the ease with which the witness can identify the defendant. Cooper, supra.

We do not agree with Defendant that the witness' viewing of a photograph of Defendant on the morning after the burglary, so interfered with his recall of the burglary itself as to render the admission of his in-court identification testimony a denial of due process. King testified that he had a close, well-lighted and lengthy view of the two unmasked males, whom he did not know, as they removed the goods from the storeroom during a thirty-minute period of time. This was ample evidence to sustain the trial court's finding that the witness' initial viewing of the defendant during the criminal episode took place under such conditions as to permit a positive, independent identification of Defendant.

ISSUE III

Defendant next contends that the trial court erred in overruling his Motion to Suppress evidence obtained from a search of Defendant's residence pursuant to a warrant that was in turn based upon an allegedly defective affidavit.

The affidavit for the search warrant stated that witness Kelly King observed the Defendant enter into a commercial building at 6:30 a.m. and "remove various items including a battery charger, tool box, and various boxes marked Kodak." At the suppression hearing, King testified that he had never told the police that the break-in had occurred at 6:30 a.m., nor had he made mention of any "Kodak" boxes.

The affidavit also stated that Peggy Willem, the owner of the car driven by Defendant or co-Defendant at the scene of the burglary, had told police that the defendant had shown items taken from The Post to her following the burglary. At the suppression hearing, Willem denied ever having given such a statement.

The Fourth Amendment demands that a search warrant be issued only upon probable cause supported by oath or affirmation. Franks v. Delaware, (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667. This Court has stated "that a false affidavit would render a search warrant invalid and the fruits of any search made pursuant to it would be suppressable." Gunter v. State, (1971) 257 Ind. 524, 529, 275 N.E.2d 810, 813. We must therefore inquire whether there was a factual basis for the affidavit sufficient to authorize the issuance of the warrant.

The testimony of affiant, Evansville Police Officer David Cook, and witness Willem conflicted as to whether she had ever stated to police that Defendant had shown her items from the burglary of The Trading Post. Cook testified that he was told this information by Willem, and the trial court was entitled to believe such testimony over the conflicting testimony of Willem, Defendant's acknowledged friend.

Cook also acknowledged at the suppression hearing that the listing on the affidavit of 6:30 a.m. as the time of the burglary was in error, but that such error was not made knowingly, intentionally, or with reckless disregard for the truth. Neither does it appear that the error was material.

There was no testimony, at the suppression hearing, about the affidavit's mention of "Kodak" boxes. The affidavit referred to other items taken from The Trading Post as containing various electronics equipment, cameras, and tools as indicated by King, Willem, and the owners of The Post. The search warrant permitted the police to "search...