Pollard v. State, 877S551

• Decision Date: 25 April 1979
• Docket Number: No. 877S551,877S551
• Parties: James POLLARD and Harold Brown, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 496

388 N.E.2d 496

270 Ind. 599

James POLLARD and Harold Brown, Appellants, v. STATE of Indiana, Appellee.

No. 877S551.

Supreme Court of Indiana.

April 25, 1979.

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellants.

Theo. L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellants, James Pollard and Harold Brown, were each convicted of one count of first degree murder, one count of second degree murder and two counts of kidnapping at the conclusion of a jury trial in the Monroe Superior Court. On February 14, 1977, both Pollard and Brown were sentenced to four concurrent terms of life imprisonment.

Appellants' joint appeal presents ten issues for our review, concerning: (1) the sufficiency of the evidence on all counts; (2) denial of their motion to suppress; (3) denial of their motion to dismiss; (4) the giving of a certain preliminary jury instruction; (5) the admission of alleged hearsay testimony; (6) the admission of State's exhibits No. 73 and No. 74; (7) the admission of State's exhibit No. 79; (8) the trial court's refusal to allow the defense to introduce former testimony of an unavailable witness; (9) one of the final instructions, and; (10) the propriety of the sentencing.

I.

The evidence presented at trial disclosed that on the evening of November 25, 1975, appellants, Pollard and Brown, were in an automobile owned by Pollard's wife, along with Charles Thomas and Ernest Bell. Pollard told Thomas that "two dudes" had "ripped him off" earlier that day and that he intended to find out why they had done so. Pollard asked Bell whether he had any "fire" and Bell responded that he did not. Pollard then stopped the car in front of an apartment on Line Street in Evansville. Bell went into the apartment and returned to the car carrying a shotgun. Pollard was also carrying a firearm.

The four men proceeded to another apartment building on Line Street. Pollard, Brown and Bell went inside, leaving Thomas with the automobile. Present inside the apartment were the murder victims, Ronald Russell and Charles Pettit, and Cynthia Briscoe.

Briscoe testified that while she was talking to Pettit in the kitchen and Russell was asleep in the bedroom, she heard a knock at the door. When she answered the door she saw Pollard, Brown and Bell. Bell was holding a shotgun. The men forced their way into the apartment and Briscoe hid in a bedroom closet where she overheard Pettit say, "Man, let's rap about this." Briscoe heard appellant-Brown reply, "Man, fuck you," followed by several gunshots.

Bell then entered the bedroom with the shotgun and forced Ronald Russell out of bed and into the kitchen. Briscoe heard Russell scream. Bell reentered the bedroom and took Briscoe into the kitchen where she saw Pollard, holding a knife, standing over the bodies of Russell and Pettit. Bell stated that he did not know what they should do with Briscoe but that she was going with them.

Pollard went outside and moved his automobile around to an alley. Thomas, who had waited outside, asked Pollard "Did I hear any shots?" and Pollard responded, "No, you didn't." Pollard and Bell ordered Cynthia Briscoe to take blankets off the bed and wrap up the two bodies. Bell then ordered Briscoe to help carry the bodies to the car or he would blow her head off. When the bodies of Russell and Pettit were placed in the trunk of the car, Pollard observed that Russell was still breathing and said, "He's not dead." Someone replied, "Don't worry about it, he can't swim."

With the bodies of Russell and Petit in the trunk the four men and Cynthia Briscoe drove to Kentucky. When they came to a rural area, they stopped the car and Pollard and Brown dumped the bodies in a ditch. When they returned to the car, Pollard stated that Russell had been alive so he shot Russell in the head. The five then returned to Indiana where Bell, Brown and Cynthia Briscoe took a room at the Greer Motel in Evansville. After Bell and Brown had fallen asleep, Briscoe was able to contact the motel manager who called police. Bell and Brown were captured after fleeing from the motel and Pollard was arrested later in Detroit, Michigan.

At trial, a pathologist testified that Ronald Russell suffered seven stab wounds but died as a result of a gunshot wound in the head. Charles Pettit received shotgun wounds in the neck, chest, and arm, and a bullet wound in the head. Pettit died either from the shotgun wounds or the head wound.

Appellants, Pollard and Brown, were convicted of the premeditated murder of Ronald Russell, the second degree murder of Charles Pettit and kidnapping Russell and Cynthia Briscoe. They challenge the sufficiency of the evidence as to all counts.

With respect to their premeditated murder conviction, appellants claim that the State failed to prove that they kidnapped Russell in Indiana and, as part of a continuous plan, transported Russell into Kentucky, where he was killed. This argument ignores the testimony of Cynthia Briscoe. Briscoe stated that when the bodies were placed in the trunk, Pollard noticed that Russell was still breathing. Someone then remarked that they should not worry, "he can't swim." Briscoe further testified that when the bodies were dumped in Kentucky, Pollard told her that Russell was still alive so he had shot Russell in the head. This evidence was sufficient to show a continuous plan to transport Russell from Evansville to Kentucky for the purpose of killing him. It was also sufficient to support the conviction for kidnapping Russell.

In regard to the second degree murder conviction, appellants argue that there was no evidence presented tending to prove the elements of intent or malice. We think the evidence previously set out amply demonstrated that appellants killed Charles Pettit with the requisite malicious intent.

Appellants' final sufficiency argument concerns their conviction of kidnapping Cynthia Briscoe. Appellants concede that the testimony of Briscoe was sufficient to show a kidnapping, however, they contend that her testimony was incredible. It is the function of the jury and not this Court, to judge the credibility of witnesses.

We therefore hold that there was sufficient evidence to support appellants' convictions on all counts.

II.

When the Evansville Police arrived at the Greer Motel on the morning of November 26, 1975 and arrested Bell and appellant Brown, Cynthia Briscoe supplied them with the identities of the four men involved in the crimes and also described the vehicle used as a 1964 white over blue Chevrolet with a dented trunk. At 12:49 p. m., the police discovered an automobile matching this description legally parked near appellant Pollard's residence. A vehicle registration check indicated that the auto was owned by a Willie B. Pollard. The investigating officers stated that they observed a dent in the trunk and what appeared to be blood on various exterior portions of the auto. Several photographs of the auto were taken while it remained parked and a towing service was called. No officers touched the car at this time although two stated that they peered through the windows and observed blood on the dashboard and beer cans on the front seat. The auto was then towed to a garage and impounded in order to secure it so that police could obtain a search warrant and because the weather was getting bad and police did not want snow on the car.

At the garage, a police officer began an inventory of the vehicle's contents, which entailed his entry into the front seat area and the removal of those items in plain view. One of the items removed was a knife which had been partially visible. Another officer joined the inventory at approximately 3:00 p. m. This officer removed certain items from the rear seat and stated that he observed the barrel of a firearm which was not then removed. At about 6:00 p. m., a third officer arrived at the garage armed with a search warrant. Pursuant to the warrant, the officers then removed the firearm, searched the trunk and glove box and lifted fingerprints from items in the trunk. Appellants moved to exclude all of the seized evidence in a pre-trial motion to suppress which was denied after a hearing.

As a threshold matter, the State questions appellants' standing to challenge the legality of the search. Appellants reply that the searched vehicle was owned by Willie Pollard, thus conferring a possessory interest in the vehicle to her husband, appellant James Pollard. No argument is made in support of appellant Brown's claim of standing nor do we believe that any could be in the light of the recent decision in Rakas v. Illinois, (1978) --- U.S. ----, 99 S.Ct. 421, 58 L.Ed.2d 387. In holding that a mere passenger in an automobile owned by another may not complain of an unlawful search of the vehicle, the Supreme Court in Rakas stated:

" 'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections."

Id. at --- U.S. ----, 99 S.Ct. 425, 58 L.Ed.2d 394-95 (citations omitted). The Rakas court further held that in cases involving Fourth Amendment search and seizure claims, the concept of standing is no longer to be treated as a matter apart from the substantive merits of the claim. Traditionally, the resolution of a Fourth Amendment issue required a two-party inquiry: (1) whether the defendant had standing to challenge the search, and; (2) if the...