Sankey v. State

• Decision Date: 20 September 1973
• Docket Number: No. 1--173A3,1--173A3
• Citation: 157 Ind.App. 627,301 N.E.2d 235
• Parties: Robert L. SANKEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 235

301 N.E.2d 235

157 Ind.App. 627

Robert L. SANKEY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1--173A3.

Court of Appeals of Indiana, First District.

Sept. 20, 1973.

Woodrow S. Nasser, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

Defendant-appellant (Sankey) was convicted of illegal use of a credit card after a jury trial and sentenced to 365 days imprisonment and fined in the sum of $500.

Sankey timely filed a motion to correct errors which was overruled and this appeal follows. The following issues are presented for review:

(1) Whether the trial court erred in overruling defendant's motion to quash the arrest warrant, to dismiss the affidavit and for discharge because of the insufficiency of the supporting probable cause statement.

(2) Whether the court erred in permitting a police officer to testify on rebuttal as to statements Sankey made to him before being advised of his rights.

(3) Whether the court erred in denying a motion for mistrial after the prosecuting attorney asked an improper question inferring that another similar but unrelated offense had been committed by defendant.

(4) Whether the trial court erred in giving court's Instructions 1, 17 and 21 over defendant's objections.

(5) Whether the trial court erred in overruling defendant's motion to correct errors.

The evidence revealed that on December 19, 1971 at about tw minutes before 8:00 P.M. Sankey drove a 1968 Buick automobile into Clark's Shell Station at Brazil, Indiana. Although the night attendant, Thomas Miller, informed him that the station was about to close, Sankey insisted on purchasing four new tires. Miller mounted the tires on Sankey's car. Sankey produced a Shell credit card issued to a Robert Sparks and charged the sale to Sparks by signing Sparks' name on the credit slip. The amount of the purchase was $230.52. At the time of the purchase Sankey's car displayed a license plate bearing number 71J5204, which had been reported lost or stolen.

Miller neglected to obtain the registration number of Sankey's car which is a requisite for payment from Shell to the station for the purchase. Miller called his employer, Wayne Clark, and informed him of what had taken place. Clark went to the Shell station, picked up Miller and together they drove through town looking for Sankey's car. As they passed the Brazilian Lanes, a bowling establishment, Miller recognized the automobile with the new tires mounted on it, but the car bore a different license plate with a 84 B or D pre-fix. Miller and Clark entered the bowling establishment where Miller identified Sankey as the purchaser of the tires. Sankey refused to give them the registration number of his car and denied by buying the tires, saying, it must have been his brother. Clark testified that when he indicated that he was going to call the authorities, Sankey said 'Let's don't get the law involved and you go with me and I'll give you the money.' Clark called the Clay County Sheriff, and a deputy was dispatched to the bowling alley. Sankey was taken to jail where he was questioned by the Sheriff. He again denied buying the tires in Brazil, asserting instead that they had been purchased in Illinois. Sankey produced a temporary driving permit to the Sheriff which had been issued by the State of Indiana to a Robert F. Harris. Sankey was placed in jail and charges were filed the following day.

Sankey first asserts that the trial court erred in overruling his motion to quash the arrest warrant, dismiss the affidavit and order him discharged. He argues that the probable cause statement fails to establish the credibility of the party providing the factual information, citing IC 1971, 35--1--6--2, Ind.Ann.Stat. § 9--602 (Burns 1972 Supp.) and Kinnaird v. State (1968), 251 Ind. 506, 242 N.E.2d 500.

In Bryant v. State (1972), Ind., 278 N.E.2d 576, the appellant contended that the trial court erred in overruling his motion to suppress certain evidence arguing that the warrant for his arrest was not supported by a showing of probable cause as required by Art. 1, § 2 of the Indiana Constitution. Our Supreme Court conceded that the appellant's arrest was illegal in that the affidavit clearly violated the standards set down in Kinnaird, supra. However, the court went on to hold that an illegal arrest, without more, does not affect the right of the State to try a case, citing Wells v. State (1971), 256 Ind. 161, 267 N.E.2d 371.

In DeWeese v. State (1972), Ind., 282 N.E.2d 828, our Supreme Court held that the only consequence of an illegal arrest is the suppression of evidence thereby obtained. More recently, it has been held that the legality of an arrest has no relevancy on appeal when there is no issue as to the admissibility of any evidence obtained pursuant to the arrest or a search following the arrest. Shelton v. State (1972), Ind., 290 N.E.2d 47.

In the case at bar, Sankey raises no issue as to the admissibility of any evidence obtained pursuant to the arrest or a subsequent search. He argues error only in the trial court's failure to sustain his motion to quash, dismiss and discharge.

We therefore hold that Sankey's first contention of error must fail.

Sankey next contends that the trial court erred in allowing a police officer to testify as to Sankey's statements and acts when Sankey had not been advised of his rights as required by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

During the presentation of the State's case in chief the officer was prevented from giving this testimony by timely defense objections which were sustained. However, the court later permitted the testimony in rebuttal after Sankey himself testified concerning the statements and acts in question.

The United States Supreme Court has held that evidence rendered inadmissible against an accused in the State's case in chief under Miranda, supra, is not barred for all purposes. Harris v. New York (1971), 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. The court held:

'Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.

The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements.'

The above principle was cited and followed by the Indiana Supreme Court in Johnson v. State (1972), Ind., 284 N.E.2d 517.

We therefore hold that the police officer's testimony in the case at bar was correctly admitted to impeach Sankey's testimony concerning the events surrounding his arrest.

Sankey next contends that the trial court erred in overruling his motion for mistrial.

On cross-examination, the prosecutor asked Sankey whether he had ever been in possession of a credit card belonging to a Dr. Veach. Counsel for defendant immediately objected. The court sustained the objection and admonished the jury to disregard the question. The defendant then moved for a mistrial and his motion was overruled. Sankey argues on appeal that no amount of admonishment by the court could erase the prejudicial effect of the question upon the jury.

Sankey cites DeHority v. State (1939), 215 Ind. 390, 19 N.E.2d 945, in support of his argument that it is reversible error for the prosecuting attorney to refer to offenses committed by the defendant which have no connection with the case being tried. However, in that case, it was the trial court's failure to sustain an objection to the prosecutor's comment that the defendant had 'attacked other women' that prompted reversal of the conviction. Two previous improper comments concerning other incidents in which the defendant...