State v. Baruth

• Decision Date: 21 November 1984
• Docket Number: No. 14213,14213
• Citation: 107 Idaho 651,691 P.2d 1266
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Roger Eugene BARUTH, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 1266

691 P.2d 1266

107 Idaho 651

STATE of Idaho, Plaintiff-Respondent, v. Roger Eugene BARUTH, Defendant-Appellant.

No. 14213.

Court of Appeals of Idaho.

Nov. 21, 1984.

Petition for Review Denied Jan. 30, 1985.

Michael J. Vrable, Coeur d'Alene, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Jean R. Uranga, Myrna A.I. Stahman, Deputy Attys. Gen., Boise, for plaintiff-respondent.

SWANSTROM, Judge.

Roger Eugene Baruth was convicted of robbery, I.C. § 18-6501, and sentenced to the custody of the Board of Correction for a fixed term of thirty years. The district court enhanced the sentence with a consecutive three-year term, under I.C. § 19-2520, for use of a firearm during the commission of the robbery. Baruth appealed. We affirm in part and reverse in part.

Baruth raises five issues on appeal. First, he argues that the district court erred in refusing to suppress the revolver seized from the vehicle he was driving when arrested. Second, he contends that the court abused its discretion by allowing the state to cross-examine him concerning the contents of a lunch bucket found in the vehicle. Third, Baruth contends that prosecutorial misconduct in the state's closing arguments constituted reversible error. Fourth, he argues that the court erred by enhancing his sentence under I.C. § 19-2520 when there was "neither pleading nor proof of firearm use nor a special finding by the jury that a firearm was used." Finally, he contends that the court abused its sentencing discretion by imposing a thirty-year fixed term for robbery and a consecutive three-year term for use of a firearm.

The events leading to Baruth's conviction for robbery occurred on the night of February 7, 1981. They are highly disputed and we will relate Baruth's version first. He testified as follows. He had driven to Osburn, Idaho from Boise with two others--his avowed purpose: to gamble. Sometime after arriving at his destination, he met with Vernie L. Johnson in Johnson's apartment above an establishment called the Barrel. They spent the next approximately forty-five minutes shooting craps. Baruth, who had begun the game with about $500 in cash, won in excess of $1,000. He then decided to quit. This decision irritated Johnson who wanted to continue. Nevertheless, the game broke up and, after leaving Johnson's apartment, Baruth picked up the two others who had made the trip with him. They then began their return journey.

Johnson's story is quite different. At about 10 o'clock on the night of February 7, there was a knock on his door. When he opened it, he was greeted by a man with a gun. The man wore a stocking cap, pulled down low, and a tight-fitting jacket with the collar turned up. The gun was a .38 caliber revolver. Johnson was ordered to walk to the living room, turn his pockets wrong side out and lie on the floor. Johnson complied. He estimated that $800 was taken from his left front pocket and $2,000 from his right front pocket. Also taken were his wallet and a gold-colored money clip. Shortly after the intruder left, Johnson's son and daughter-in-law, who had been visiting him, returned. Only then, and at their suggestion, did Johnson decide to call the police and report the robbery.

Johnson's son testified that earlier in the evening, while Johnson was at dinner, Baruth and another man came to the apartment. They were looking for the elder Johnson and, upon being informed he was not there, indicated they would come back later. When Johnson returned from his evening repast, an old car was parked in front of the Barrel--even though the Barrel was closed. Shortly afterwards, Johnson's son and daughter-in-law left to eat. The daughter-in-law's suspicion, however, was piqued by the sight of what appeared to be a man "slumped down" in the car. Johnson the younger went back to the apartment to tell his father about this new development. Then, as they drove away, the daughter-in-law memorized the license number of the mysterious car. At trial Baruth admitted it was the car he had been driving.

In reporting the robbery to the police, Johnson provided a description of the car as well as its license number. Armed with this information, it did not take the police long to find the suspect vehicle. They stopped it and ordered the occupants out and to the rear of the car. They also ordered the occupants to lie face down on the pavement. Approaching the car, one of the officers spied a revolver under the driver's seat. The revolver was seized and later identified by Johnson as the one used in the robbery. Officers further testified that Johnson's wallet was found on the ground near the driver's door and that his money clip fell out of Baruth's pocket. Baruth, on the other hand, suggested that both the wallet and the clip were planted by police. Finally, approximately $1,600 was found on Baruth.

I

The first issue we will discuss is whether the district court erred by refusing to suppress the revolver seized from Baruth's car. While we agree with the court that the revolver need not be suppressed, we do not agree that such a result is justified by the plain view doctrine relied upon by the district court. Instead, we hold that the warrantless search of the car was permissible under either New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), or Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

It is not clear from the facts whether Baruth was placed under arrest prior to the search. Baruth argues that he was. He contends that the exigency associated with an automobile--its mobility--is removed when the occupants are arrested and that a warrant must then be obtained prior to a search of the automobile. Belton, however, held to the contrary. Laying down a bright-line rule, the United States Supreme Court declared that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. at 460, 101 S.Ct. at 2864 (footnotes omitted).

In any event, Baruth was not "officially" placed under arrest until after the revolver was seized. However, even if he was not in custody at the critical moment, the police were still entitled to search the car. In Carroll v. United States, supra, the Supreme Court stated:

if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.

267 U.S. 132, 149, 45 S.Ct. 280, 283. Probable cause to believe that the car contained contraband was established prior to the stop. As noted above, the car was parked outside the residence of Vernie Johnson prior to the alleged robbery and it was gone soon after the robbery. Johnson's daughter-in-law, whose suspicion had been aroused, memorized the license number of that car. When the robbery was reported, a description of the car and its license number was given to the police. This information, in turn, gave the police probable cause to believe the car contained contraband they could seize: either stolen property (the money, wallet and money clip), see State v. Griffin, 84 N.J.Super. 508, 202 A.2d 856 (1964), or the revolver used in the robbery, see People v. Green, 45 Ill.App.3d 506, 4 Ill.Dec. 158, 359 N.E.2d 1110 (1977).

Baruth, however, maintains that Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), diluted Carroll by requiring not only probable cause, but also exigent circumstances. He then argues that there were no exigent circumstances in the present case because the occupants of the car were in custody. We disagree. Assuming the suspects were in custody, Belton provides the justification for the search. If they were not in custody, an exigent circumstance existed and Carroll applied. Moreover, in Coolidge, the Supreme Court discussed Carroll and its progeny, distinguishing them by pointing out that Carroll involved a stop on the highway, a factor which made it impractical to secure a warrant before the vehicle could be moved out of the locality or jurisdiction. See also Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). On the other hand, Coolidge involved a car sitting in the driveway of a house belonging to a man the police suspected of murder. The man had been under suspicion for several days. The Supreme Court held that the police had had sufficient time to obtain a warrant and should have done so. "The opportunity for search was thus hardly 'fleeting.' " Coolidge v. New Hampshire, 403 U.S. at 460, 91 S.Ct. at 2035. In the present case, Baruth's car was stopped on the highway soon after the robbery, a situation similar to Carroll. The warrantless search was therefore valid and the revolver was properly seized. The district court did not err in refusing to suppress this evidence.

II

The second issue we will discuss is whether the district court erred by allowing the state to cross-examine the defendant regarding the contents of a lunch bucket found in the car. The lunch bucket contained some rubber gloves, a rubber Halloween-type mask, a gun and a stocking cap. Baruth contends that cross-examination about these items went beyond the scope of the direct examination. Furthermore, he maintains, it was not proper rebuttal. The state insists, on the other hand, that it was a proper line of questioning for either cross-examination or rebuttal because it went to the defendant's claim, made on direct examination, that he went to Osburn only to gamble, not to rob. We hold that it was proper cross-examination and therefore do not reach the question of whether it was proper for rebuttal.

The scope of cross-examination is governed by I.R.C.P. 43(b)(3): "The...