Perkins v. State

• Citation: 483 N.E.2d 1379
• Decision Date: 25 October 1985
• Docket Number: No. 784S267,784S267
• Parties: Larry PERKINS and George Redman, Appellants, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 1379

483 N.E.2d 1379

Larry PERKINS and George Redman, Appellants, v. STATE of Indiana, Appellee.

No. 784S267.

Supreme Court of Indiana.

Oct. 25, 1985.

Susan K. Carpenter, Public Defender, June D. Oldham, Deputy Public Defender, Indianapolis, for appellants.

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

GIVAN, Chief Justice.

Appellants were tried jointly before a jury. Perkins was found guilty of Conspiracy to Deal in More Than Thirty Grams of Marijuana and Conspiracy to Traffic with an Inmate, both Class D felonies. Redman was found guilty of Conspiracy to Deal in Less Than Thirty Grams of Marijuana, a Class A misdemeanor, and Conspiracy to Traffic with an Inmate, a Class D felony. Both were found to be habitual offenders. Perkins was sentenced to consecutive four (4) year terms for the Class D felonies, with a thirty (30) year enhancement for the habitual offender finding. Redman was sentenced to consecutive terms of one (1) year for the Class A misdemeanor and four (4) years for the Class D felony, with an enhancement of thirty (30) years for being found to be an habitual offender.

The facts are: Appellants, inmates at the Pendleton Reformatory, devised a scheme to smuggle marijuana into the prison. Perkins' wife, Kay, her sister, Patty Sechrist, and Lamar Mast participated in the scheme on different occasions, wearing shoes with marijuana concealed in the heels into the prison and trading those shoes with appellants.

Subsequently, Sechrist and Mast informed Detective Charles Criswell of the Marshall County Sheriff's Department of their participation. Mast gave Detective Criswell several pairs of shoes which were used to transport marijuana into the prison. Detective Criswell asked Loren Corner, a correctional officer at the prison, to search Perkins' cell. Corner recovered a pair of shoes which he gave to Detective Criswell. Testing revealed traces of marijuana on the shoes. Appellants were then charged with the two conspiracy counts on which they were convicted.

Redman contends the trial court erred in overruling his motion to set aside the selection of the county for change of venue. On April 8, 1982, Perkins filed a verified motion for change of venue. Eleven days later Redman filed an unverified motion for change of venue, which was properly denied. On April 20, Perkins' motion was granted and all parties were notified. The following day Perkins' counsel and the prosecuting attorney struck from the counties listed. Redman's counsel did not participate in the process. On August 6 Redman filed his motion to set aside the selection on the ground that he was not present to participate in the selection of the county of venue. That motion was denied.

"A change of venue for one of two or more jointly charged defendants is a change of venue for all, absent a showing of prejudice by a defendant." State ex rel. Banks v. Hamilton Superior Court (1973), 261 Ind. 426, 427, 304 N.E.2d 776. It is apparent from the record that Redman was notified of the granting of Perkins' motion but not of a specific time to appear in court to participate in the venue selection. Redman has failed to show that he was prejudiced or harmed by the change of venue to Elkhart County. Therefore the denial of his motion to set aside selection of the county of venue does not constitute reversible error.

Perkins argues the trial court erred in denying his motion to suppress certain evidence, namely a number of letters he had written from prison to his wife.

In the letters Perkins instructed his wife, Kay, as to the procedure to be used in smuggling drugs into the prison. Kay showed several of the letters to Sechrist, who informed Detective Criswell that she had been shown the letters by Kay, then living in her grandmother's trailer. Detective Criswell obtained a warrant to search the trailer and there seized a number of letters which were later admitted at trial as State's Exhibits 1-17.

The motion to suppress alleged: that he had a reasonable expectation of privacy in the items seized; that there was no probable cause to support the warrant; that the warrant was defective due to a lack of specificity; and that the letters were protected as confidential communications between husband and wife.

In cases involving Fourth Amendment search and seizure claims, the initial question which must be answered is whether the person who was aggrieved had any personal and legitimate expectation of privacy in the place searched. Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387; Burris v. State (1984), Ind., 465 N.E.2d 171. The letters written by Perkins were seized from the residence of his wife's grandmother. There is no indication Perkins had any proprietary interest in the trailer which would give him a legitimate expectation of privacy in the premises. Tabor v. State (1984), Ind., 461 N.E.2d 118.

Perkins nevertheless argues that because the law has recognized the privileged nature of confidential communications between husband and wife, he had a legitimate expectation of privacy in the letters sufficient to afford him standing to assert his Fourth Amendment claim.

Perkins' argument is unavailing. As discussed below, the letters did not in fact represent confidential communications. The trial court did not err in denying the motion to suppress.

Communications between husband and wife which are intended to be confidential are privileged. Solomon v. State (1982), Ind., 439 N.E.2d 570; Fielden v. State (1982), Ind., 437 N.E.2d 986. If, however, the communication is intended to be transmitted to a third person or is made in the presence of a third person, there is no privilege because the communication is not confidential. Fielden, supra; Resnover v. State (1978), 267 Ind. 597, 372 N.E.2d 457.

At the hearing on the motion to suppress Kay Perkins testified she permitted Sechrist to read a section of one of the letters. Sechrist testified at trial that Kay had shown her letters written to Kay by her husband. Sechrist also testified that the letters she read communicated the plan to smuggle marijuana into the prison, lending a reasonable inference that the information was to be conveyed to the other parties to the conspiracy. See Resnover, supra. There was no error in the admission of the letters.

Appellants allege the trial court erred in admitting into evidence State's Exhibits 25 and 26, copies of visitors logs from the Pendleton Reformatory. Several witnesses testified that they visited appellants at the Reformatory to carry in drugs. The court admitted the evidence over appellants' objection that the proper foundation was not established to allow admission of the exhibits under the business record exception to the hearsay rule.

Official records such as the visitors logs may be evidenced by copies attested by the officer, or his deputy, having legal custody of the records. Ind.R.Tr.P. 44(A)(1); McBrady v. State (1984), Ind., 459 N.E.2d 719. The sponsor of an exhibit offered under the business record exception to the hearsay rule is not required to have personally made it, filed it or have firsthand knowledge of the transaction represented by it. The witness is only required to show that the exhibit is part of records kept in the routine course of business and placed in the record by an authorized person having personal knowledge of the transaction represented at the time of entry. McBrady, supra; Pitts v. State (1982), Ind., 439 N.E.2d 1140.

Corner's testimony was sufficient to establish the foundation necessary for the admission of the exhibits.

Perkins contends the trial court erred in admitting State's Exhibits 28 and 29, statements given to the police by Lamar Mast. During direct examination of Mast the police statements were admitted into evidence without objection. Perkins argues, however, that the court committed fundamental error by admitting the allegedly hearsay evidence.

The failure to object at trial precludes appellate review of this alleged error. Mitchell v. State (1983), Ind., 455 N.E.2d 1131. Had the issue been properly preserved, it would not constitute prejudicial error. Perkins contends that because Mast's memory was incomplete on several points, introduction of the police statements amounted to use of the Patterson rule to admit substantive evidence in lieu of available and direct testimony of the witness. See, e.g., Stone v. State (1978), 268 Ind. 672, 377 N.E.2d 1372. We cannot agree. Mast had been questioned concerning the subject matter of the police statements and was later subjected to extensive cross-examination; consequently, there was no abuse of the Patterson rule. Lewis v. State (1982), Ind., 440 N.E.2d 1125, cert. denied (1983), 461 U.S. 915, 103 S.Ct. 1895, 77 L.Ed.2d 284.

Perkins alleges the trial court erred in admitting State's Exhibit 20, a box containing a pair of brown shoes seized from his prison cell. He contends the seizure was illegal because made without a search warrant and without probable cause.

Upon being informed by Mast and Sechrist of the smuggling activities, Detective Criswell apprised Corner of Perkins' involvement and requested that Corner search Perkins' cell. Corner recovered a pair of brown shoes from the cell and delivered them to Criswell. Traces of marijuana were found on the shoes.

The United States Supreme Court recently held in Hudson v. Palmer (1984), --- U.S. ----, 104 S.Ct. 3194, 82 L.Ed.2d 393, that a prison inmate does not have a reasonable expectation of privacy in his prison cell entitling him to Fourth Amendment protection against unreasonable searches and seizures. The Court stated that a right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security. Id. at ----, 104 S.Ct. at 3201, 82 L.Ed.2d at 404. We likewise hold that Perkins did not have a...