Potter v. State

Decision Date12 February 1979
Docket NumberNo. 3-778A165,3-778A165
PartiesEdward F. POTTER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court

John F. Surbeck, Jr., Deputy Public Defender, Fort Wayne, for appellant.

Theo. L. Sendak, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

Edward F. Potter appeals his conviction of rape urging as error the trial court's refusal to grant his Motion to Dismiss. Appellant argues that the affidavit of probable cause failed to comply with the statute and contained improper, prejudicial and inadmissible statements. He reasons that since such statements are not admissible at trial because they are prejudicial, they should not be permitted in the affidavit of probable cause. We affirm.

Omitting the name of the victim and a witness, the affidavit reads as follows:

AFFIDAVIT FOR PROBABLE CAUSE

Undersigned swears or affirms that he believes and has good cause to believe that:

On or about the 26th day of June, 1977 at the County of Allen and in the State of Indiana said defendant, Edward F. Potter, did then and there unlawfully and feloniously, commit Sodomy, the abominable and detestable crime against nature with mankind, to-wit: S. S., a female human being of the age of thirteen (13) years of age.

On or about the 26th day of June, 1977 at the County of Allen and in the State of Indiana, Edward F. Potter did unlawfully, feloniously, and forcibly make an assault in and upon one S. S., a woman, and did forcibly and against her will unlawfully and feloniously ravish and carnally know her, the said S. S Edward F. Potter is described as being a male white individual, approximately 6' in height, weighing 160 lbs., having brown hair, blue eyes, whose date of birth is August 19, 1957, whose social security number is 303-70-2505, and whose FWPD number is 65176.

The affiant, Judy Pyne, a detective with the Fort Wayne Police Department, believes and has good cause to believe that Edward F. Potter committed the aforesaid offense. Detective Pyne bases her belief on the fact that at approximately 1843 hours, June 27, 1977, the Fort Wayne Police Department was requested to conduct an investigation with reference to the possible rape of a 13 year old juvenile. Officers and detectives of the Fort Wayne Police Department responded and their investigation revealed that S. S., who resides with her brother and legal guardian, A. S., had spent the night of June 25 June 26, 1977 with C. P., sister of the defendant, Edward F. Potter. The Potters reside at 5241/2 West Brackenridge and between 0900 and 1200 hours the defendant entered C.'s bedroom and laid down with C. and S. C. got out of bed to take a shower and as soon as she left the bedroom the defendant pulled down his pants, grabbed S.'s hair and forced her to perform felatio. (sic) After performing oral sex for a period of time, the defendant then removed S.'s pants and did force her to have sexual intercourse with him. After the defendant had reached a climax, he informed S. that if she said anything about what had just happened that he would beat her up.

Detective Pyne goes on to state that in a follow-up investigation the panties that S. S. was wearing prior to and immediately after the aforesaid incident, were examined by the Fort Wayne Police Laboratory. The said examination revealed the presence of sperm on the panties. Detective Pyne also states that the victim, S. S., was given three polygram examinations and the results indicated that S. S. had told the truth with reference to the defendant, Edward F. Potter, forcing her to commit Sodomy on him and then the defendant raping her.

Detective Pyne believes the aforesaid S. S. is a credible and reliable person who spoke with personal knowledge of the aforesaid incidents. Said credibility and reliability is based on the fact that information given to the investigating officers has proven, through investigation, to be correct."

Appellant complains that the recitation of the fact that the victim was given three polygraph examinations and that the results indicated that she had told the truth was prejudicial because such evidence would not have been admissible at trial. It is true that the receipt of such evidence at trial without prior agreement of the parties would have been error. Swan v. State, (1978), Ind., 375 N.E.2d 198. However, the transcript reveals that no such evidence was offered at trial. Nor was there any mention made that such tests had been made. Thus, no error occurred. Also when evidence is presented during a trial to the court which is inadmissible, it is presumed that the court does not rely on such evidence in making a determination. Misenheimer v. State, (1978) Ind., 374 N.E.2d 523; Fletcher v. State, (1976) 264 Ind. 132, 340 N.E.2d 771; Kleinrichert v. State, (1973) 260 Ind. 537, 297 N.E.2d 822; Trinkle v. State, (1972) 259 Ind. 114, 284 N.E.2d 816. We think that presumption is applicable to probable cause also.

The affidavit was sufficient absent the recitation of polygraph results so that embellishment should not have in itself persuaded the magistrate that a crime was committed. 1 The polygraph statement is surplusage and the better practice would be to omit it. No showing has been made that the reference to such tests and the inconsistency of the facts with the evidence in any way affected the neutrality or the detachment required of the magistrate issuing the warrant.

Appellant next complains that the probable cause affidavit does not conform to the statutory requirements of IC 1971, 35-1-6-2 as it existed at that time. IC 35-1-6-2 was in part as follows:

No warrant for search or arrest shall be issued until there is filed with the justice of the peace, judge of any city court or magistrate's court or the judge of any court of record, an affidavit, particularly describing the house or place to be searched and the things to be searched for, or particularly describing the person to be arrested, and alleging substantially the offense in relation thereto, and that the affiant believes and has good cause to believe that such things as are to be searched for are there concealed, or that the person to be arrested committed said offense, and setting forth the facts then in knowledge of the affiant or information based on credible hearsay, constituting the probable cause. When based on credible hearsay, the affidavit shall contain reliable information supplied to the affiant by a credible person, named or unnamed, and it shall contain the following:

(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.

In particular Potter argues that the affidavit failed to state facts from which a neutral and detached magistrate could determine probable cause 2 and further, failed to state facts within the knowledge of the affiant which could lead such a neutral magistrate to believe that the declarant of those allegations was a credible person, where the declarant was one other than the affiant herself.

Here the affidavit is based upon hearsay because the affiant, Pyne, relates allegations recited to her by the victim. Therefore, the affidavit must comply with (a), (b) and (c) of the statute. Appellant argues with respect to these requirements that the affidavit is conclusive in nature and does not set forth facts as required. He urges that the charges should be dismissed on the basis of Kinnaird v. State, (1968) 251 Ind. 506, 242 N.E.2d 500 and Ferry v. State, (1970) 255 Ind. 27, 262 N.E.2d 523.

We find that the statutory requirements argued by appellant were met. First, the affidavit states affirmative allegations that the credible person spoke with personal knowledge of the matters contained therein. 3 Second, the affidavit recites the facts within the personal knowledge of the credible person, i. e. the victim. Third, the affidavit recites facts within the affiant's knowledge as to the credibility of the credible person. Appellant argues that the following statement "Said credibility and reliability is based on the fact that information given to the investigating officers has proven, through investigation, to be correct" is insufficient to meet the requirements of (c). Neither the appellant nor the State point out the factual statement earlier in the affidavit regarding the investigation, that is "Detective Pyne goes on to state that in a follow-up investigation the panties that S. S. was wearing prior to and immediately after the aforesaid incident, were examined by the Fort Wayne Police Laboratory. The said examination revealed the presence of sperm on the panties." This information is within the affiant's knowledge about credibility of the credible person and goes beyond mere conclusory statements of credibility. 4

Appellant's argument that the affidavit failed to state facts from which a neutral and detached magistrate could find probable cause is without merit. The affidavit recited the following:

(t)he defendant pulled down his pants, grabbed S's hair and forced her to perform felatio. (sic) After performing oral sex for a period of time, the defendant then removed S's pants and did force her to have sexual intercourse with him. After the defendant had reached a climax, he informed S. that if she said anything about what had just happened that he would beat her up.

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6 cases
  • Snyder v. State
    • United States
    • Indiana Appellate Court
    • February 29, 1984
    ...that the matter challenged was, in fact, untrue." (Emphasis added and citations omitted.) 406 N.E.2d at 240. In Potter v. State, (1979) 179 Ind.App. 349, 385 N.E.2d 955, the court "Potter has not persuaded us that such misstatements as he complains of were known to be false by the affiant........
  • Meeker v. State
    • United States
    • Indiana Appellate Court
    • October 2, 1979
    ...applied in Fletcher ) may be properly applied in this case. Misenheimer v. State, (1978) Ind., 374 N.E.2d 523; Potter v. State, (1979) Ind.App., 385 N.E.2d 955; Johnson v. State, (1978) Ind.App., 380 N.E.2d There is, however, an additional ground for affirmance. Meeker first asserts that, i......
  • Jones v. State
    • United States
    • Indiana Appellate Court
    • September 25, 1980
    ...that a factual basis for the information furnished existed. 3 Madden v. State, (1975) 261 Ind. 223, 328 N.E.2d 727; Potter v. State, (1979) Ind.App., 385 N.E.2d 955. The record is similarly devoid of any corroborating information of underlying circumstances 4 independent of the tip that wou......
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    • September 10, 2004
    ...testimony to determine whether there existed the probable cause necessary to issue the search warrant. See Potter v. State, 179 Ind.App. 349, 352, 385 N.E.2d 955, 957-958 (1979) (holding that probable cause existed to support the issuance of the search warrant after omitting a portion of th......
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