Pavey v. State, 2-584A129

• Decision Date: 23 May 1985
• Docket Number: No. 2-584A129,2-584A129
• Citation: 477 N.E.2d 957
• Parties: Phillip A. PAVEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 957

477 N.E.2d 957

Phillip A. PAVEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-584A129.

Court of Appeals of Indiana,

Second District.

May 23, 1985.

William D. Bright, Portland, for appellant (defendant below).

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

SHIELDS, Judge.

Phillip Pavey appeals his conviction in a jury trial of Child Molesting, a class C felony. Pavey raises seven issues for our review:

1) whether Pavey's statement was erroneously admitted into evidence because it was the fruit of an illegal search, or an illegal arrest, or because it was involuntarily given,

2) whether the 10-year-old victim was competent to testify,

3) whether the evidence was sufficient to support his conviction,

4) whether the court erred in overruling Pavey's objection to a portion of the pre-sentence investigation report, and

5) whether the court erred in imposing the maximum sentence of eight years?

Facts

On October 28, 1982, L.M., nine years old at the time, was being cared for by a babysitter at her home in Portland, Indiana. While Phillip Pavey, a friend of the babysitter, was at the babysitter's house L.M. agreed to go with him in his car to the Goodyear store in Portland. Instead, Pavey drove to the house in which he had been living with Shirley Roser. Roser was in the hospital at the time.

L.M. accompanied Pavey into the residence. They entered the downstairs bedroom Pavey had been sharing with Roser, and Pavey locked the door. Pavey took off L.M.'s shirt and jeans, unzipped his pants, and had her perform fellatio. Pavey kissed her, touched her breast, and reached inside her panties to touch what the victim described as, "what I go to the restroom with." Record at 298-99.

Roser's two daughters, Teresa and Pam Franks, were in the living room when Pavey and L.M. entered the house. From her position on the couch Teresa could see through a one to two inch gap in the door frame into the downstairs bedroom. Teresa saw Pavey and the girl in various stages of undress and at one point saw Pavey nude. She also observed Pavey with his hands around the girl's waist before Pavey noticed he was being watched and moved out of the line of sight.

When her boyfriend, Fred Shultz, arrived at the house, Teresa told him what she had seen in the bedroom and had him look through the gap in the door frame. He observed the bare feet and ankles of a person lying on a bed. He then left the house and rode his bicycle to the police station. When two county police officers arrived at the house in response to Fred's contact, Teresa told them, "[t]hat Phil had a little girl in there and that I saw him undress with the little girl," record at 327, invited them in, and showed them the gap in the door frame. One officer observed the bedroom through the gap for a minute or two. He saw Pavey lying on the bed and the girl sitting on the edge of the bed pulling on her jeans. Pavey had his hand on her stomach. The officer then lifted the hook lock with a kitchen knife and entered the bedroom.

Approximately one hour after the arrest, Officer Grider read Pavey the Miranda warnings and asked him if he would like to make a statement. Pavey signed the Miranda waiver and agreed to answer the questions about the case. Pavey said that because he was so upset he wanted Officer Grider to write out the statement. Grider wrote Pavey's statement and read it to Pavey who then signed it before a witness.

On Septmeber 14, 1983, a jury found Pavey guilty of child molesting. He was sentenced to eight years in prison.

I.

A.

Pavey asserts the trial court erred in admitting his statement into evidence over his objection. Pavey first argues the statement was inadmissible as the product of the illegal search conducted by the police officers when they looked through the gap in the door frame into the bedroom. Accordingly, Pavey claims their testimony should have been suppressed.

The fourth amendment and Article 1 Sec. 11 of the Indiana Constitution protect individuals from unreasonable searches and seizures. However, simple observations by officers standing in a place where they have a right to be ¹ are not searches in the constitutional sense. Bruce v. State, 268 Ind. 180, 375 N.E.2d 1042 (1978); Montague v. State, 266 Ind. 51, 360 N.E.2d 181 (1977). The scope of the protection against unreasonable searches is delineated in the opinion in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967):

"[T]he Fourth Amendment protects people not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

389 U.S. at 351-52, 88 S.Ct. at 511 (citations omitted). See United States v. Jackson, 588 F.2d 1046 (5th Cir.1979) (reviewing several cases of observations and listenings that were not considered searches).

In similar cases, courts have held that using a flashlight to look through the window of a parked airplane was not a search, United States v. Coplen, 541 F.2d 211 (9th Cir.1976), that looking through a garage door that was ajar was not a search, James v. United States, 418 F.2d 1150 (D.C.Cir.1969), and that unenhanced or "naked eye" viewing of activities (taking place in an apartment across the street) by persons located where they may properly be transgressed no fourth amendment protection. United States v. Taborda, 635 F.2d 131 (2nd Cir.1980). See also Morgan v. State, 427 N.E.2d 14 (Ind.App.1981) (not a search when officers looked into car from lawful position); State v. Day, 50 Ohio App.2d 315, 362 N.E.2d 1253 (1976) (placing ear near door of hotel room not a search). Similarly, the officers did not "search" the bedroom Pavey was in when they looked through the gap in the door frame from a position they were legally invited to take. The trial court properly admitted the observation testimony.

B.

Secondly, Pavey argues his incriminating oral and written statements made to police after his arrest should have been suppressed as the products of an illegal arrest. ²

In the instant case, the officers had probable cause to make the warrantless arrest. They had credible evidence that a felony had just been committed. ³ The very real possibility of further molestation or abuse of the victim during the delay necessary to obtain a warrant created the exigent circumstances that forced the officers to make a warrantless arrest. See Harrison v. State, 424 N.E.2d 1065 (Ind.App.1981). Pavey's reliance on the opinion in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) is misplaced. In Payton, the Court carefully described the narrow issue as involving arrests in which there was ample time to obtain a warrant. The Court expressly distinguished the facts of Payton from those cases in which the entry to effect an arrest was justified by exigent circumstances. 445 U.S. at 583, 100 S.Ct. at 1378.

In the instant case, the officers did not have time to obtain a warrant and their entry into the bedroom was completely justified by the exigent circumstances. ⁴ While in most cases the facts that support a warrantless arrest on the grounds of exigent circumstances involve the potential for the destruction of evidence (particularly drugs), see e.g. United States v. Knobeloch, 746 F.2d 1366 (8th Cir.1984), the instant facts involved the much more serious potential for further physical or psychological harm to the victim of a child molestation. We would not expect police officers to be required to leave the scene, prepare an affidavit, and search for a magistrate after observing a kidnapping in progress or the final stages of a robbery, and we will not hold the officers to that requirement in the instant similar circumstances.

C.

Pavey also argues that the oral and written statements he made while in custody "were not the product of a rational intellect but were the product of an extremely upset and irrational individual." Appellant's Brief at 25. He argues that the court erred in not suppressing the admissions he made while in custody because they were not voluntarily made.

The Indiana Supreme Court has described our standard of review:

"The question of voluntariness is one for the trial court. We review the question on appeal as we do other sufficiency matters. We do not weigh the evidence but rather determine whether there was substantial evidence of probative value to support the trial court's finding. Schutz v. State, (1981) , 413 N.E.2d 913."

Smith v. State, 432 N.E.2d 1363, 1369 (Ind.1982). The record in the instant case reveals substantial evidence of probative value supporting the trial court's finding of voluntariness. Although Pavey was crying and too upset to write, the officers made no threats or promises contingent upon Pavey making a statement. Pavey admitted that the officer's promise to get a doctor did not induce him to give them a statement. He was sufficiently rational to request to see a doctor, to respond to questions, and to initial and sign papers. Pavey had listened to, had stated he understood, and had signed his rights and waiver of rights statements before making the statements in question.

II.

Pavey argues that the trial court erred in finding the victim competent to testify. His argument is that, based on the following colloquy, the victim could not be found to have understood the consequences of not telling the truth:

"Q. You say you understand that you could be punished if you don't tell the truth?

A. Um hum. (indicating yes)

Q. Ok. Do you have any idea what that, being punished would mean, do you have [any] idea at all?

A. I wouldn't know what the punishment would be."

Record at 288-89.

However, Pavey's argument is irrelevant because the victim was ten years old when she testified. Indiana law...