Seltzer v. State

• Decision Date: 12 March 1986
• Docket Number: No. 584S175,584S175
• Citation: 489 N.E.2d 939
• Parties: Daniel Kevin SELTZER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 939

489 N.E.2d 939

Daniel Kevin SELTZER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 584S175.

Supreme Court of Indiana.

March 12, 1986.

Michael A. Dvorak, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Justice.

Appellant Daniel Seltzer was convicted after trial by jury of murder, Ind.Code Sec. 35-42-1-1 (Burns 1985 Repl.), and was sentenced to a term of imprisonment of 50 years. He raises the following issues in this direct appeal:

1. Whether the trial court erred in admitting as evidence the fruits of a search of Seltzer's apartment over his objection that the warrant was issued on less than probable cause 2. Whether the trial court erred during the hearing on the motion to suppress by admitting testimony extrinsic to the evidence considered by the magistrate who issued the warrant;

3. Whether the court erred in admitting photographs of the victim's body; and,

4. Whether the court erred in allowing evidence during rebuttal which appellant claims properly belonged in the State's case in chief.

We affirm.

I. Probable Cause

It is true, as the State argues, that appellant has invited waiver of this issue and Issue II by his failure to make timely objections at trial to the admission of the evidence of the search and seizure. Nonetheless, we will examine the merits.

On June 11, 1983, the Mishawaka Fire Department was called to extinguish a fire at the residence of the victim, George Lamphere, where Mr. Lamphere's badly burned body was discovered. An autopsy revealed that Mr. Lamphere died not from the blaze but by strangulation.

Three days later, the South Bend Crime Stoppers program received an anonymous telephone call regarding the murder. The caller informed Crime Stoppers that he was acquainted with appellant and that Seltzer had admitted to him that he had killed Mr. Lamphere. The informant stated that Seltzer had described to him tying the victim's hands with a necktie, striking him repeatedly in the face, and pouring SnoBowl down his throat. Seltzer told the informant he set several fires in the apartment before leaving. The informant told Crime Stoppers he saw in Seltzer's residence some property stolen in the crime, namely record albums, a gold watch, a W-2 form, a digital pen, a television set, and a high school class ring from a school with a name sounding something like "Demont". The informant also reported that Seltzer had stolen Lamphere's car and had accidentally backed it into a mail box. He said Seltzer had two roommates named Bob and Paul and he gave their address.

A search warrant was issued based upon this information and upon the following corroborating information which was included in the affidavit of probable cause. The investigating officer learned from the victim's family that he had a class ring from Dedham High School in Massachusetts. The officer saw the victim's car, which had been abandoned, and the right rear bumper was scratched. A half-burned necktie was found after the fire was extinguished, and the fire had indeed started at several spots. The officer confirmed with a postal employee that the informant had correctly named Seltzer's roommates, although the address given was slightly incorrect.

Appellant claims the warrant was issued without probable cause. He argues that the affidavit was lacking in sufficient corroboration of the informant's tip so that the hearsay information was not shown to be reliable.

Appellant correctly states the law as it existed at the time of his arrest: when probable cause was to be based on an informant's tip, the affiant was required to set forth facts establishing, first, the basis of the informant's knowledge and, second, the reliability of his information. Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, modified by Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527; Ind.Code Sec. 35-33-5-2 (Burns 1982), amended Sept. 1, 1984, Ind.Code Sec. 35-33-5-2 (Burns 1985 Repl.). He concedes the basis of the informant's tip was shown by the statement that Seltzer recounted to him the story of the murder and that the informant saw the stolen goods in Seltzer's apartment. However, he claims that the informant's reliability was not shown.

An informant's reliability may be shown by corroborating facts which provide a substantial basis for crediting the tip. Pawloski v. State (1978), 269 Ind. 350, 380 N.E.2d 1230. Appellant argues the corroborating information was insufficient because the fact that the fire had started in several sources had been revealed in the newspapers prior to the tip and because the informant's knowledge of the names of Seltzer's roommates only showed they were acquainted. He argues further that the existence of a necktie in a man's residence is not at all uncommon nor is a scratch on an automobile bumper. Therefore, he claims, these facts have no corroborative effect.

The trial court agreed that these facts, each standing alone, would not give a substantial basis for crediting the tip. However, in ruling that the affidavit established probable cause, the court stated that these facts, although minor, were not to be ignored. The court went on to state that the corroboration of the informant's statement about the class ring, which had not been discussed in the newspapers, was substantial, and, all things considered, probable cause had been established.

Our review and the trial court's review of a magistrate's ruling on probable cause should be deferential. Gates, supra, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527; Aguilar, supra, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Probable cause means a probability of criminal activity, not a prima facie showing. Brinegar v. U.S. (1949), 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Blalock v. State (1985), Ind., 483 N.E.2d 439. Here, the informant's tip was corroborated by several facts, the most telling of which was the existence of the class ring. The trial court ruled correctly that the magistrate was presented with sufficient facts to establish a substantial basis for believing the tip was credible and was not fabricated from "whole cloth". See Spinelli v. U.S. (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, discussing Draper v. U.S. (1959), 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.

II. Suppression Hearing

At the suppression hearing the appellant presented testimony and exhibits to show that much of what was contained in the informant's tip had been printed in the newspaper. Seltzer claims the trial court erred when it then allowed the State to elicit testimony from a Crime Stoppers employee, from the informant, and from the officer who obtained the warrant and conducted the search. The Crime Stoppers employee was allowed to testify only that she received the tip and when. The informant testified that he was an employee and friend of appellant's and he stated when and where appellant had told him about the crime, but he was...