Owens v. State
| Decision Date | 05 November 1981 |
| Docket Number | No. 1180S418,1180S418 |
| Citation | 427 N.E.2d 880 |
| Parties | Stephan Augustus OWENS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
R. Davy Eaglesfield, III, Mishkin, Eaglesfield, Darst & Grossman, Indianapolis, for appellant (defendant below).
Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).
Defendant (Appellant) after trial by jury was convicted of three counts of Armed Robbery, Ind.Code § 35-42-5-1 (Burns 1979) and of being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979) and was sentenced to a total of seventy (70) years imprisonment. This direct appeal presents the following issues:
(1) Whether the trial court erred in denying Defendant's motion to compel the attendance at trial of his wife, who was incarcerated.
(2) Whether there was probable cause to arrest Defendant without a warrant.
(3) Whether the trial court erred in admitting Defendant's confession into evidence.
(4) Whether Defendant was subjected to an involuntary line-up.
(5) Whether the trial court erred in failing to grant a new trial based on newly discovered evidence.
(6) Whether the trial court erred in admitting evidence of a pre-trial identification procedure.
(7) Whether the trial court properly sentenced Defendant.
(8) Whether the trial court correctly followed the Habitual Offender Statute.
The evidence most favorable to the State reveals that on July 29, 1979, Defendant, armed with a rifle, entered the Sheraton East Hotel in Indianapolis. He announced a hold-up and took money from the hotel cash drawer and personal property from an employee, the employee's husband, and a guest. Defendant then fled in a Green Chevrolet. One of the victims remembered the license plate number, which was traced to the getaway vehicle.
Prior to trial, Defendant filed a motion which requested the trial court to order the Department of Correction to produce his wife, Denise Owens, on the day of trial. Ind.Code § 35-1-33-1 (Burns 1979). 1 Mrs. Owens was incarcerated at the Correctional Facility at Westville.
Our research discloses that we have not previously determined the standard applicable in ruling upon a motion to produce a witness, who is incarcerated in a penal institution. Other courts that have dealt with this subject require the defendant to show that the testimony of the incarcerated witness is material to the case. Clark v. State, (1967) 280 Ala. 493, 497, 195 So.2d 786, 789, cert. denied, (1967) 387 U.S. 571, 87 S.Ct. 2071, 18 L.Ed.2d 967; Darby v. State, (1980) 47 Md.App. 1, 421 A.2d 108; People v. Shillings, (1967) 6 Mich.App. 420, 428-29, 149 N.W.2d 231, 235; Bradley v. State, (1972) Mo., 476 S.W.2d 499, 500-01; State v. Gann, (1969) 254 Or. 549, 566, 463 P.2d 570, 578; Commonwealth v. Jackson, (1974) 457 Pa. 237, 244, 324 A.2d 350, 355; State v. Ahearn, (1979) 137 Vt. 253, 265, 403 A.2d 696, 704. We adopt this standard.
At the hearing on the motion, Defendant made no offer of what Mrs. Owens' testimony would be. The trial court ruled as follows:
Defendant contends that Mrs. Owens was necessary as a rebuttal witness upon the issue of the ownership of the vehicle, which a witness identified as the getaway car. This point was not brought to the trial court's attention in the motion or at the hearing upon the motion.
After the State rested its case the following occurred:
We do not know to what issues this exchange refers; however, defense counsel might have but did not assert the relevance of the anticipated testimony of Mrs. Owens, as a rebuttal witness at that time but only stated that he had only two witnesses. Thereafter, at the habitual offender phase of the proceedings, Defendant again failed to renew his motion to produce Mrs. Owens. Subsequently she did testify at the sentencing hearing.
The record shows that Defendant never apprised the trial court of the materiality of Denise Owens' testimony. Under these circumstances the trial court committed no error.
One Detective Combs arrested Defendant on July 30, 1979, without a warrant, at the Marion County Jail. He took Defendant to police headquarters where Defendant made inculpatory statements and was identified in a line-up by one of the robbery victims.
Defendant contends that there was no probable cause for his arrest, and therefore, that the trial court should have suppressed his statements and evidence of the line-up. Detective Combs relied upon a police report of the Robbery prepared by Officer Shue, who investigated the incident. That report is not contained in the record; however, Officer Shue's testimony reveals that he investigated the license plate number, talked to the witnesses, and discussed the case with other "Police Agencies" before listing a suspect, "Augustus Owens," on the report.
On the morning after the robbery at approximately 6:30 a. m. Officer Shue learned that the vehicle, which was used in the robbery, had been located across the street from "Mr. Owens" address. Officer Shue traced the vehicle identification number to learn that:
Officer Shue admitted that the license plate number obtained from one of the victims was not registered to "Owens." Thereafter, the officer was shown some sort of card, which had been marked Defendant's Exhibit A. Officer Shue read the card and stated that the car was registered to "Jerry or Denise Owens." The card was not admitted into evidence.
Defendant contends that he has shown that the vehicle in question was registered to a Jerry Owens and therefore, that Officer Combs' arrest had been based upon erroneous information and lacked probable cause.
The existence of probable cause to arrest is determined upon the basis of the collective information known to the law enforcement organization. Benton v. State, (1980) Ind., 401 N.E.2d 697, 699. If the arresting officer obtains the name of a suspect from a fellow officer, the State must show that the fellow officer relied upon information which would give rise to probable cause. Whiteley v. Warden, (1971) 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306, 313.
The record shows that when Detective Combs arrested the defendant, he arrested Jerry Owens. By way of an exhibit attached to his motion to correct errors, Defendant admits that he is Jerry Owens. The exhibit points to police records, which show that the defendant had used the alias, Gerald Owens. Officer Shue testified:
Defendant's contention is without merit. His arrest was based upon probable cause. Johns v. State, (1956) 235 Ind. 464, 466, 134 N.E.2d 552, 553.
Defendant further contends that the statements which he had made to Detective Combs were not voluntary.
It is the State's burden to prove, beyond a reasonable doubt, that the defendant voluntarily and intelligently waived his rights, and that the defendant's confession was voluntarily given. In considering whether such burden was satisfied we look at the totality of the circumstances, to determine whether there had been any inducement by way of violence, threats, promises or other improper influence. However, in reviewing the trial court's ruling upon the issue, we will consider only the evidence which supports that ruling, when the evidence is in conflict, as well as any unrefuted evidence in the defendant's favor. Jackson v. State, (1980) Ind., 411 N.E.2d 609, 610-11.
Prior to trial Defendant filed a motion to suppress his statements. The testimony adduced at the hearing conflicted. Defendant testified that he was intoxicated. Two bail bondsmen, who were present at the arrest, testified that they thought that Defendant was either drunk or high, as did one of the participants in the line-up. Combs testified that Defendant's behavior was real good and that he had signed a waiver of rights form before stating, "What can I say, Combs, you know, you got me, I done it." Defendant's speech was not slurred, and he did not appear to be intoxicated. We cannot re-determine the credibility of these witnesses.
At trial Combs related a similar account of the arrest and confession; however, defense counsel's questioning treated facts, which had not been discussed at the hearing on the motion to suppress. Combs stated that when he brought Defendant from the Marion County Jail to the detective's office at the Indianapolis Police Department Headquarters, officers of the Lawrence Police Department spoke with Defendant for forty-five minutes to an hour about an unrelated incident. Then Combs informed Defendant of his rights and Defendant signed the waiver form and made his confession. Combs also testified that the Lawrence police did make some promises to Defendant about the unrelated matter; however, the witness was never asked to relate those promises. Combs further testified that he had made no promises and that the Lawrence police had made no promises with respect to the case at bar. In response to this testimony defense counsel made the following objection:
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