Smith v. State

• Decision Date: 06 June 1972
• Docket Number: No. 671S175,671S175
• Citation: 258 Ind. 594,283 N.E.2d 365
• Parties: Lawrence G. SMITH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 365

283 N.E.2d 365

258 Ind. 594

Lawrence G. SMITH, Appellant, v. STATE of Indiana, Appellee.

No. 671S175.

Supreme Court of Indiana.

June 6, 1972.

Stephen Bower, Ralph Bower, Bower & Bower, Kentland, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen D. Clase, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was charged by affidavit with the possession of marijuana. Trial by jury resulted in a verdict of guilty. Appellant was sentenced to the Indiana State Reformatory for a term of not less than two nor more than ten years, which sentence was suspended. Appellant was fined $300 and costs.

The record discloses the following facts:

On September 10, 1969, just before midnight State's Witnesses Langley and Severs observed appellant's automobile with its parking lights on on a country road about one tenth of a mile from Severs' house. Severs was concerned because he had tractors parked in the area and thought that someone might be trying to steal some of his equipment. In the course of their investigation the witnesses noticed marijuana stacked along the road, which marijuana the Witness Severs had previously mowed. Severs went to his house and called the sheriff, then returned and had a conversation with the driver of the car, who told him the car was stuck in gear. Langley and Severs helped push the car, which was then driven down the road to the place where the marijuana was stacked. Severs stated that he could see shadows moving behind the car. When the car left, Langley and Severs followed. Shortly the car ran into a ditch, at which time Langley and Severs got out of their car and by the use of shotguns made a citizens' arrest of the appellant and his two companions.

Severs testified that as they were pursuing the appellant and his companions they observed that the pile of marijuana which had previously been at the side of the road was gone. At the time Langley and Severs made their arrest the appellant stated that he was a policeman from Chicago.

While Langley and Severs were holding the appellant and his companions awaiting the arrival of the police officers, the appellant and his companions told them they had marijuana in the trunk of their car. Deputy Sheriff Otis Henry arrived and was told by Langley and Severs that marijuana was in the trunk of the car. Shortly State Trooper Finch arrived and observed that marijuana was sticking out from under the trunk lid of the car. The officers arrested appellant and his companions and asked Severs to tow the automobile to his house. The car remained at Severs' house that night.

State police chemists testified that chemical analysis of the material found in the trunk of appellant's car was in fact marijuana.

The appellant testified that he was a member of the Chicago, Illinois, Police Department; that his parents had a summer home in Sumava Resorts, Indiana, and that he had spent every summer there for a period of years; that he and Donald Wilson, one of his companions on the night in question, had made plans to gather marijuana; that Wilson knew how to prepare it. Wilson had told him he could sell the marijuana to a pusher on the north side of Chicago. Appellant testified that he wanted to know who the pusher was; that he was later going to inform his commanding officer; however, he had never said anything to his superiors about such a plan.

Appellant first claims the trial court erred in not sustaining a motion to suppress evidence on the basis of an illegal citizen's arrest. It is appellant's position that since the citizens making the arrest did not actually see the appellant load the marijuana into his automobile that the arrest was illegal. It is appellant's position that a citizen cannot make an arrest on suspicion, but may arrest only if he sees a felony committed in his presence. In support of this position appellant cites Knotts v. State (1963), 243 Ind. 501, 187 N.E.2d 571, 1 Ind.Dec. 73. Appellant has misconstrued this Court's holding in the Knotts case. The common law concerning a citizen's arrest was set out in Simmons v. Vandyke (1894), 138 Ind. 380, 37 N.E. 973. At pages 383 and 384, 37 N.E. at page 974 the Court, quoting from a New York case, stated:

"The rule is that a private person, even, may arrest a party, if a felony has in fact been committed, and there was reasonable ground of suspicion; but, in the case of an officer, he is justified in making an arrest if no felony was in fact committed, if he acted upon information from another, on which he had reason to rely.'

The statement in Knotts was merely to the effect that a private citizen may make an arrest of one who commits a felony in his presence. It in no way refuted the rule above stated. We see nothing illegal about the citizens' arrest of which appellant complains. Even if the arrest had been illegal, the only result would have been that the citizens making such an arrest might incur liability for damages. See Gran Rapids & Ind. Ry. Co. v. King (1908), 41 Ind.App. 701, 83 N.E. 778. In Knotts this Court observed that although one might be privately liable for conducting an illegal search, this did not prevent him from testifying what he found in such a search.

This Court has recently reaffirmed the principle that the Fourth Amendment protection against unreasonable searches and seizures does not apply to searches conducted by private citizens when they are not acting as agents of police authorities. See Gunter v. State (1971), Ind., 275 N.E.2d 810.

We, therefore, hold that the trial court did not err in denying appellant's motion to suppress evidence.

Appellant next claims this case should be reversed because of the State's repeated attempts to tender evidence of the defendant's exercise of his Fifth Amendment rights. However, an examination of the record in its entirety discloses that the evidence to which the appellant now objects was not submitted by the State for the purpose of showing that appellant had refused to make a statement, but for the purpose of showing that the officers had fully advised the appellant of his constitutional rights. One of the officers had testified that he had only partially informed the appellant of his constitutional rights orally, but that he had shown a written form containing the constitutional rights to the appellant and had read the contents to the appellant. The appellant himself testified that he was fully conversant with his constitutional rights by reason of the fact that he was a police officer for the City of Chicago. He further verified the testimony of the State's witnesses when he stated that he did not request the presence of an attorney at the time of his arrest. It was necessary for the State to establish that appellant had been fully advised of his constitutional rights for subsequently the State through its witness, Police Officer Carl Tyner, who was an identification officer for the Indiana State Police, submitted evidence that during the time the appellant was being fingerprinted and photographed and at a time when Tyner learned appellant was a police officer for the City of Chicago, Tyner asked the appellant why 'he was doing a fool thing like that' (referring to the marijuana arrest.) Tyner testified that appellant's reply was, '. . . the defendant hesitated, and hung his head a little bit, and paused before he answered me, and he made the statement that he just wasn't making enough money being a police officer.'

It is true as stated by the appellant that this Court has stated previously that attempts on the part of the State to get before the jury the fact that an accused had chosen to remain silent does constitute a violation of his right to remain silent and to be protected from comment and innuendo on the exercise of that right. See Garrison v. State (1967), 249 Ind. 206, 231 N.E.2d 243, 12 Ind.Dec. 156. However, in the case at bar the only references to the fact that appellant refused to make a statement came into the record without objection on the part of appellant's counsel, thus raising no question as to their admissibility. See Sams v. State (1969), 251 Ind. 571, 243 N.E.2d 879, 16 Ind.Dec. 396.

Further, we note from the record this is not a case of a total denial of participation on the part of the appellant. Appellant consistently took the position before and during his trial that he did participate in obtaining the marijuana. However, he attempted to explain that he did so in an effort to learn the identity of a Chicago drug pusher. The jury apparently chose to disbelieve the appellant's explanation of his participation. We have repeatedly stated that we will not weigh the evidence. The weight of the evidence is within the province of the jury. Farmer v. State (1971), Ind., 275 N.E.2d 783, 28 Ind.Dec. 170.

We would further note that appellant's contention that his constitutional rights were violated by the state continuing to question him after he had refused to sign a waiver is of no avail within the factual framework of this case. For as above pointed out, this is not a case where an accused did in fact remain silent. Appellant admitted from the onset that he was in fact in possession of marijuana, and he never deviated from his explanation of his possession. There is, therefore, no factual framework to apply the proposition of law advanced by the appellant concerning his right to remain silent.

The appellant next contends the trial court erred in admitting into evidence State's Exhibits D and E, Exhibit D being the marijuana found in the trunk of appellant's car and Exhibit E being a tested sample taken from Exhibit D. It is appellant's position that these exhibits were improperly admitted for the reason that the State did not show a sufficient chain...