Smith v. State

• Decision Date: 30 December 1975
• Docket Number: No. 3--275A19,3--275A19
• Citation: 339 N.E.2d 118,167 Ind.App. 428
• Parties: Donald SMITH and Delilah Guire, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 118

339 N.E.2d 118

167 Ind.App. 428

Donald SMITH and Delilah Guire, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3--275A19.

Court of Appeals of Indiana, Third District.

Dec. 30, 1975.

Rehearing Denied Jan. 27, 1976.

John D. Breclaw, Griffith, for appellants.

Theodore L. Sendak, Atty. Gen., Robert M. Lingenfelter, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Donald Smith and Delilah Guire were charged with theft ¹ of two air conditioning units from Goldblatt Brothers, Inc., a department store in Hammond, Indiana. Smith had made two extrajudicial confessions of guilt--one to the store security officials when Smith returned the goods, and one to the police. At the court trial, these extrajudicial confessions were admitted into evidence over defense counsel's objections. Smith and Guire were convicted, and their timely filed motions to correct errors raise the following issues for ourview: review:

(1) Was there sufficient independent evidence to establish the corpus delicti for the purpose of admitting into evidence Smith's extrajudicial confessions?

(2) Was the introduction into evidence of Smith's confession to the police, made under promise of no prosecution, reversible error?

(3) Was there sufficient evidence that Goldblatt Brothers, Inc., was the owner of the goods, as alleged in the indictment?

(4) Was there sufficient evidence of probative value from which the trier of facts could have reasonably inferred that Delilah Guire was guilty beyond a reasonable doubt?

We conclude that there was sufficient evidence of the corpus delicti to corroborate Smith's extrajudicial confessions. We conclude that any error in the admission of Smith's confession statement to the police was harmless. We conclude that the State adequately proved that Goldblatt Brothers, Inc., was the owner of the goods, as alleged in the indictment. We affirm Smith's conviction.

We conclude that there is not sufficient evidence of probative value to support a reasonable inference of Guire's guilt beyond a reasonable doubt. We reverse Guire's conviction.

I. The Evidence

Patrolman Kenneth Pence of the Hammond Police Department testified that in the early morning hours of June 4, 1973, he was walking a beat in downtown Hammond, Indiana. Pence approached the Goldblatt Brothers Store, where he knew that Smith (also a City policeman) was working as a night guard. The store was not open for business, but Pence knocked on the door and was admitted by Smith. Pence left soon after he arrived, but he returned a few hours later. When he returned, there were several people in the store, one of whom was Guire, seated around a table in the cafeteria area. Shortly after he returned, Pence saw Smith, Guire, and one other person carry merchandise, including two large, heavy boxes, out of the store and place it in Smith's car. Smith then drove away. The person helping remove the merchandise stated to Pence that he 'didn't know that air conditioners could be that heavy.' A nonparticipant sitting at the table with Pence asked Pence 'if it bothered (him) to see what was going on in front of (him).'

Barbara Divich was in charge of security at the Goldblatt Brothers Store. She testified that as the result of a routine inventory check she found that two Admiral air conditioners had disappeared from the store sometime between May 27, 1973, and June 7, 1973.

Roland Glick, the District Loss Prevention Supervisor for Goldblatt Brothers Corporation, testified that he heard through an intermediary that Smith had taken two air conditioners from the Goldblatt store in Hammond. On June 22 1973, on the arrangement of Divich, Glick met Smith and Guire at Divich's house. Smith turned over to Glick's custody two Admiral air conditioners in boxes marked 'Goldblatt's Store 31.' Glick told Smith that if Smith resigned there would be no prosecution for theft. Smith, without hesitation and in his own handwriting, filled out an 'Employee's Voluntary Statement:'

'On the 6 day of June 1973 at the hour of during the night while working at Goldblatt Bros. Inc., 5206 Hohman, Hammond, Inc., I, Donald J. Smith, while working night watchman on approx. 6--6--73 I took from the Store 2 Admiral Air Conditioners (10,000) 2 8 Trk. Tape Players and one Calculator. I have returned above items except 1 of the tape players which I will pay for; a total of $29.95 plus tax which is $31.15.

Donald J. Smith (signed)'

Charles Mac of the Hammond Police Department talked to Smith on June 28, 1973, in the course of the police investigation of the theft at Goldblatts. Smith gave a statement to the police confessing that he had taken an air conditioner from the Goldblatt store in early June 1973 while working as night watchman. ² Although Mac testified that he made or heard no promise of no prosecution, the court accepted that an absent witness would testify that there was such a promise to induce this confession.

II. Corpus Delicti

Smith contends that inadmissible evidence was heard in the attempt to prove the corpus delicti and that, without this inadmissible evidence, there was no independent proof of the corpus delicti to corroborate his extrajudicial confessions.

Either before or after an extrajudicial confession is admitted in evidence, there must be evidence independent of the confession to establish that the specific crime charged in the indictment or information was committed by someone at the time and place alleged. Thomas v. State (1975), Ind., 321 N.E.2d 194; Ballard v. State (1974), Ind., 318 N.E.2d 798; Parker v. State (1949), 228 Ind. 1, 88 N.E.2d 556, rehearing denied, 89 N.E.2d 442 (1950). Circumstantial evidence is sufficient to prove the corpus delicti to corroborate an extrajudicial confession. Dunbar v. State (1961), 242 Ind. 161, 177 N.E.2d 452; Parker v. State, supra. The rule requiring proof of the corpus delicti is a rule of caution to prevent a defendant from being convicted solely on his own statement. To corroborate an extrajudicial confession, the corpus delicti need not be established beyond a reasonable doubt. Ballard v. State, supra; Dunbar v. State, supra; Holding v. State (1963), 244 Ind. 75, 190 N.E.2d 660; Parker v. State, supra.

In the present case, the State established the corpus delicti through the testimony of Kenneth Pence, Barbara Divich, and Roland Glick. Pence testified that in the middle of the night of June 4, 1973, well beyond business hours, he observed Smith, Guire, and a third party carry two large, heavy boxes from Goldblatt Brothers Store to Smith's station wagon. Immediately thereafter, one of the accomplices commented that he didn't know that air conditioners could be that heavy. A non-participant asked Pence if it bothered him to see what was going on. Divich testified that she made a routine inventory check on June 7, 1973, which disclosed that the two air conditioners were missing from the store. Glick testified that he met Smith at Divich's house on June 22, 1973, and Smith turned over to Glick's custody two Admiral air conditioners. We conclude that, for the purpose of admitting into evidence Smith's extrajudicial confessions, there was sufficient proof of the corpus delicti--the theft of two air conditioners from the Goldblatt Brothers Store in early June 1973. Smith contends that Divich's testimony relating to the inventory search which revealed two missing air conditioners was inadmissible hearsay. He argues that Divich's conclusion that items were missing was based in part upon information contained in documents, such as invoices and receipts, whose authors were not in court, were not identified, and were not subject to cross examination. He argues that Divich was only acting as a conduit for the information contained in the invoices and receipts, and, on the basis of Pennebaker v. State (1971), 256 Ind. 524, 270 N.E.2d 756, her testimony was inadmissible hearsay. We do not agree.

Hearsay is defined as follows:

'Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.' McCormick's Handbook of the Law of Evidence § 246, at 584 (2d ed. E. Cleary 1970), quoted in Pennebaker v. State, supra; Wells v. State (1970), 254 Ind. 608, 261 N.E.2d 865.

In Pennebaker v. State, supra, a police officer testified that a certain transmission had come from a specific automobile. He stated that his conclusion was based on the identity of certain numbers embossed on the transmission and on the car. He explained that his knowledge of the significance of those numbers came from representations of a police specialist who inspected the transmission, conversations with car dealers, and reading about it. None of the officer's reading materials were introduced into evidence, and none of the people the officer talked to testified. The officer was not qualified as an expert in the numbering system used by car manufacturers. The Court held:

'The only reasonable inference that can be made is that the sheriff's testimony was offered as evidence of the truth of the facts asserted to him by the police specialist and the car dealers. He was merely acting as a conduit for information possessed by them. Therefore, the sheriff's testimony was inadmissible as hearsay evidence. The value of the sheriff's testimony would depend upon the veracity and competence of the police specialist and car dealers who were not under oath and did not testify at the trial subject to cross-examination.' 256 Ind. at 531, 270 N.E.2d at 760.

In the present case, Divich, as head of security for the Goldblatt Brothers Store, had the responsibility of performing regular inventory checks. In the course of these checks, she reviewed invoices, sales receipts, and lay-away receipts, and she also counted items of...