Snuffer v. State

• Decision Date: 29 March 1984
• Docket Number: No. 3-783A236,3-783A236
• Citation: 461 N.E.2d 150
• Parties: Marshall L. SNUFFER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 150

461 N.E.2d 150

Marshall L. SNUFFER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-783A236.

Court of Appeals of Indiana Third District.

March 29, 1984.

Thomas J. Mullins, Merrillville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

Marshall L. Snuffer was tried by a jury on two counts of Theft, ¹ a class D felony. The jury found Snuffer guilty on Count I and not guilty on Count II. He was sentenced by the trial court to a term of two years. Snuffer appeals, raising the following issues which the court consolidates and restates in the interest of clarity:

I. Whether the trial court erred when it denied Snuffer's motion to suppress evidence obtained as a result of a warrantless search of a vehicle in tow;

II. Whether the trial court erred when it denied Snuffer's motion for severance of Counts I and II;

III. Whether the trial court erred when it denied Snuffer's motion for a twelve-person jury;

IV. Whether the evidence was sufficient to support the verdict and withstand Snuffer's motion for directed verdict; and

V. Whether the trial court erred when it refused to instruct the jury on the lesser included offense of criminal conversion.

Facts

In February of 1982, Snuffer operated a garage in Portage where he did work on the bodies and frames of motor vehicles. He had no telephone at the garage; he and his employees worked irregular hours, mostly at night; the garage was not identified by signs or advertising; the door to the garage was usually locked while employees were working; and employees were paid in cash.

On February 1, 1982 a truck that had been stolen from Roy Brown on January 19, 1982 was brought to Snuffer's garage. Snuffer and his employee, Gregg Manogg, disassembled Brown's truck and attached its cab to the frame of a used truck Snuffer had purchased from U.S. Steel.

Snuffer's garage had been under surveillance by police, under the direction of Detective Untch of the Portage Police Department. The police had observed that Snuffer seemed to be stripping and rebuilding motor vehicles without a vehicle salvage license.

On February 19, 1982 a police officer noticed a tow truck ² towing the reassembled truck from Snuffer's garage. The officer notified Detective Untch who then radioed Officer Goetz, also of the Portage Police Department, and told him to stop the tow truck so that Untch and Goetz could investigate the truck being towed.

Goetz saw the tow truck and noted its license plate did not permit the size load the tow truck was towing. Goetz stopped the tow truck just before Untch arrived at the scene.

Untch issued a traffic citation to the driver of the tow truck for operating a vehicle with improper plates. He then searched the vehicle that was being towed and found several irregularities. The federal vehicle identification sticker was missing; a tag on the ignition corresponded with that of a U.S. Steel truck; the ignition locking mechanism was broken, the passenger door lock was missing; and the "tell sheet" ³ found under the driver's seat described the vehicle stolen from Roy Brown. Untch conducted this search without a warrant.

Both vehicles were thereafter impounded. On the basis of the information gathered from the surveillance and the truck search, the police obtained a warrant for the search of Snuffer's building. The subsequent search of the building uncovered additional evidence used against Snuffer at trial.

I. Motion to Suppress

Snuffer argues that the search of the reassembled truck was illegal and that evidence gained as a result of that search should not have been introduced at trial. Apart from the reasons given by the trial court for denying Snuffer's motion to suppress, we find that Snuffer had no standing to object to the search of the cab of the reassembled truck which was still owned by Roy Brown.

The requirement of establishing standing before the assertion of Fourth Amendment rights was explained by the United States Supreme Court in Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387. The Supreme Court said:

" 'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections."

439 U.S. at 133-34, 99 S.Ct. at 425.

The Indiana Supreme Court considered the Rakas holding in Pollard v. State (1979), 270 Ind. 599, 388 N.E.2d 496. The Court interpreted Rakas to mean that in considering whether evidence should be suppressed as a result of an allegedly illegal search, a court must ask two questions "(1) was there a constitutional violation, i.e., was the search and seizure unreasonable within the meaning of the Fourth Amendment, and; (2) if so, were the rights thereby violated the rights of the defendant or some other person. Rakas suggests that the answer to this second question may be obtained by determining whether or not the defendant had a legitimate expectation of privacy in the searched premises or property."

388 N.E.2d at 502.

In Pollard the Indiana Supreme Court held that a person who is merely a passenger in an automobile that is searched "would not have had a legitimate expectation of privacy such that he could benefit by the suppression of evidence seized therein." Pollard at 502-03.

Similarly, here we can answer the first question framed from Rakas by assuming arguendo that the warrantless search of the truck was unreasonable under the Fourth Amendment. ⁴ But, in answer to the second question, Snuffer had no legitimate expectation of privacy in the search of property which he did not own and in which he had no cognizable possessory interest. A person has no legitimate expectation of privacy or any other personal, proprietary or possessory interest in a stolen vehicle. Mendelvitz v. State (1981), Ind.App., 416 N.E.2d 1270. Although not all the components of the vehicle searched by Detective Untch in the present case were stolen, the actual part of the vehicle searched was stolen. Snuffer cannot establish a legitimate privacy interest in the stolen truck cab merely by affixing it to a truck frame which he legally owned.

The motion to suppress was properly denied.

II. Severance

Snuffer was charged with two counts of theft, the first involving the truck owned by Roy Brown and the second involving a truck owned by Jimmy Martin. The two counts were joined pursuant to IC 35-3.1-1-9(a) ⁵ which reads:

"(a) Two or more offenses can be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:

(1) Are of the same or similar character, even if not part of a single scheme or plan; or

(2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan."

Snuffer argues that it was error for the trial court to deny his motion for severance. Snuffer cites IC 35-3.1-1-11(a) ⁶ which reads:

"(1) Whenever two or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense with a view to the number of offenses charged, the complexity of the evidence to be offered, and whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense."

The basis for Snuffer's argument is that a trial court must grant severance in cases where joinder is solely on the ground that the counts are of the same or similar character. He impliedly concedes that in all other cases joinder is subject to the sound discretion of the trial judge.

We are in agreement with Snuffer but believe he has only chosen to see half of the picture. Joinder here was not available solely on the grounds of the similarity of the counts. It was also permitted due to the fact the individual thefts were part of a series of connected acts, "constituting parts of a single scheme or plan." One truck had just been towed from Snuffer's garage when it was taken into police control; the other was found later that day at Snuffer's garage pursuant to a validly executed search of the garage. The joinder of alleged crimes related as were these two is within the sound discretion of the trial judge and will be reversed only for an abuse of discretion. Willard v. State (1980), 272 Ind. 589, 400 N.E.2d 151.

Because Snuffer bases his argument here solely on the mistaken belief that the trial judge had a duty to grant severance, making no argument as to any abuse of discretion, we find that the trial judge did not err when he denied Snuffer's motion for severance of offenses.

III. Twelve Person Jury

Snuffer was tried by a six-person jury after the court denied his motion for a jury of twelve persons. The statute applicable at the time of his trial was IC 35-1-30-1 ⁷ which reads:

"Sec. 1. The trial jury used in civil cases shall act also in criminal cases, but must in criminal cases consist of:

(1) twelve (12) qualified jurors in a felony case other than a Class D felony case; or

(2) six (6) qualified jurors in a Class D felony, misdemeanor, infraction, or ordinance violation case."

Snuffer boldly asserts...