Nash v. State

• Court: Indiana Appellate Court
• Writing for the Court: SHIELDS; SULLIVAN; BUCHANAN; BUCHANAN
• Citation: Nash v. State, 433 N.E.2d 807 (Ind. App. 1982)
• Decision Date: 07 April 1982
• Docket Number: No. 2-581A181,2-581A181
• Parties: Jessie Lee NASH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

Page 807

433 N.E.2d 807

Jessie Lee NASH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-581A181.

Court of Appeals of Indiana, Second District.

April 7, 1982.

Theodore D. Wilson, Wilson, Coleman & Roberts, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Appellant Jessie Lee Nash appeals his conviction of one count of theft, I.C. 35-43-4-2 (Burns Code Ed., Supp.1981) and two counts of criminal conversion, I.C. 35-43-4-3 (Burns Code Ed., Repl.1979). The following issues are raised on appeal:

I. Whether the trial court erred in admitting evidence arising out of a search of Nash's residence;

II. Whether the trial court erred in refusing to give certain of defendant's proposed instructions; and

III. Whether there was sufficient evidence to support the verdict.

Reversed and remanded.

The record reveals a 17 RCA color television was stolen from the home of Carlyle Gulliford on September 24, 1979. Days later a juvenile confessed to the police he and a companion stole the RCA television from the Gulliford residence and sold it to Nash for $20. On the basis of this information a search warrant of Nash's residence issued. The subsequent search of the premises revealed the RCA television in Nash's bedroom. In addition, a Motorola Quasar television and a Pioneer tape deck previously reported stolen were confiscated. Nash was charged with three counts of theft. At trial the jury returned a verdict of guilty on the theft of the RCA television (Count I) and returned a verdict of guilty to the lesser included offense of conversion on the additional two counts (Counts II and III). Nash was sentenced to consecutive terms of two years on Count I and one year each on Counts II and III.

I

Nash contends the trial court erred in admitting evidence seized from his residence. Within this issue he makes several arguments.

First, Nash challenges the sufficiency of the affidavit upon which the search warrant issued. He claims it fails to include facts within the affiant's personal knowledge and contains only information supplied by an informant whose credibility was not adequately established. The affidavit states in pertinent part:

"In support of my assertion as to the existence of probable cause, the following facts and circumstances are offered, based upon my personal knowledge: A juvenile has admitted to your affiant that he broke into the house located at 1103 South Adams Street in Marion, Indiana, on September 24, 1979, and took a 17-inch RCA color TV belonging to Carl Gulliford. The juvenile states that he took said TV to the Jesse Nash residence at 1810 South Adams Street in Marion, Indiana, where he sold said TV to Nash for the sum of $20.00. Your affiant believes the statement of the juvenile to be reliable and credible because of its self-incriminatory nature and because it is corroborated by Mr. Gulliford." (emphasis supplied)

Our supreme court has enunciated the three requirements an affidavit containing hearsay must meet in order to satisfy I.C. 35-1-6-2 (Burns Code Ed., Repl.1979):

"To assure that those warrants issued upon 'information,' rather than upon hard facts, are issued only upon reliable information, supplied by a credible person, the statute requires the affiant to supply the issuing authority with the following information:

(a) Affirmative allegations that the credible person spoke with personal knowledge of the matters contained therein.

(b) The facts within the personal knowledge of the credible person.

(c) The facts within the affiant's knowledge as to the credibility of the credible person." (emphasis supplied)

Madden v. State, (1975) 263 Ind. 223, 328 N.E.2d 727, 729. Where an affidavit is supported primarily by hearsay, there must be strict compliance with the statute. Mills v. State, (1978) Ind.App., 379 N.E.2d 1023.

In the present case we are satisfied the affidavit met the requirements imposed by I.C. 35-1-6-2. The juvenile informant spoke with personal knowledge of the facts which gave rise to probable cause. He stated he broke into the Gulliford residence and stole an RCA television. The juvenile, according to the affidavit, then admitted taking the television to the Nash residence where it was sold to Jessie Nash for $20.

The affidavit also contains sufficient facts within the affiant's knowledge as to the credibility of the informant. It notes the juvenile's statement constituted a declaration against penal interest and that it had been partially corroborated by Gulliford, the burglary victim. Nash nevertheless argues, in Indiana, a declaration against penal interest may not be used for the purpose of establishing declarant's credibility.

We acknowledge the case law in this state is somewhat unclear concerning whether statements against penal interest may be used to support informant's credibility for the purpose of establishing probable cause. However, the cases cited by Nash to support the proposition that such declarations may not be utilized as evidence of informant's reliability are distinguishable from the case at bar. In Taggart v. State, (1978) 269 Ind. 667, 382 N.E.2d 916, a declaration against penal interest was held inadmissible at trial as an exception to the hearsay rule. Aside from the fact a trial represents a distinctly different stage of a criminal proceeding than the one at issue here, it should be noted in Taggert the entire circumstances surrounding the origin of the statement were "permeated with an indicia of untrustworthiness." No such problem exists in the present case. The other case cited by Nash is Knaub v. State, (1979) Ind.App., 394 N.E.2d 201. In that case the Third District concluded the hearsay statements regarding an alleged sale of narcotics upon which the search warrant was based did not represent a declaration against penal interest because the declarant did not participate in the sale.

There is substantial authority to support a determination that statements against penal interest are a reliable indicia of credibility to sufficiently support a finding of probable cause. The United States Supreme Court has stated:

"Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility-sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a 'break' does not eliminate the residual risk and opprobrium of having admitted criminal conduct."

United States v. Harris, (1971) 403 U.S. 573, 584, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723. Other Indiana cases which have addressed the issue in circumstances similar to the instant case have held such declarations are sufficient to establish probable cause. Suggs v. State, (1981) Ind., 428 N.E.2d 226; Ross v. State, (1978) 268 Ind. 471, 376 N.E.2d 1117, cert. den. 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50.

We therefore conclude declarations against penal interest constitute an indicia of credibility which may be utilized in ascertaining the credibility of an informant whose information provides the basis of an affidavit for search warrant. The statements of the juvenile informant in the instant case wherein he admitted the commission of a burglary and where the fact of the burglary was corroborated by the victim served as a sufficient foundation to establish the juvenile's credibility.

Nash next argues the search warrant was invalid because it was issued upon a false affidavit. He premises the allegation upon statements supposedly made by affiant at the suppression hearing. As a general rule, a false affidavit renders a search warrant invalid and the fruits of any search conducted pursuant to it must be suppressed. Gunter v. State, (1971) 257 Ind. 524, 275 N.E.2d 810. Nash, however, fails to furnish this court with a transcript of the suppression hearing. It is well established that it is the duty of an appellant to present an adequate record to the reviewing court. Ross, 376 N.E.2d at 1119. Because we generally do not consider matters not in the record, this court is unable to determine the search warrant was issued upon a false affidavit.

Nash finally argues the police exceeded the scope of the search warrant when they recorded the serial numbers of the Motorola television and Pioneer tape deck to run a computer check to determine if the items had been stolen. The state, in its brief, concedes the trial court erred in denying Nash's motion to suppress the two items. It is nevertheless the duty of this court to examine the record and decide the law as applied to the facts. Myers v. State, (1954) 233 Ind. 66, 116 N.E.2d 839; Green v. State, (1953) 232 Ind. 596, 115 N.E.2d 211.

Because Nash has not favored us with a transcript of the suppression hearing, we are unable to conclude the trial court erred in admitting the Motorola television and Pioneer tape deck into evidence. Whenever the admissibility of evidence secured pursuant to a search and seizure is challenged, the issue is presented to the trial court. Clark v. State, (1978) Ind.App., 379 N.E.2d 987. The challenge may be made by a pretrial or trial motion to suppress or at trial by a timely objection. Clark. Once the trial judge determines the evidence was lawfully seized, the state is not required to present evidence of that fact to the jury in order to lay a foundation for its admission. ¹

In the instant case Nash challenged the admissibility of the two items by a pretrial motion to suppress. The trial court determined the evidence was lawfully seized and denied the motion. Therefore, the state was relieved from the burden of introducing evidence out of the jury's...