Stephens v. State
| Citation | 735 N.E.2d 278 |
| Decision Date | 18 September 2000 |
| Docket Number | No. 49A02-0003-CR-136.,49A02-0003-CR-136. |
| Parties | James STEPHENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Amy L. Dell, Dell & Dell, P.C., Indianapolis, Indiana, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
A jury convicted James Stephens of burglary,1 a Class B felony, and theft,2 a Class D felony. Stephens presents for our review the following three restated issues:
I. Whether the trial court abused its discretion when it admitted evidence obtained in a warrantless search of Stephens's vehicle.
II. Whether the trial court erred when it admitted evidence of other crimes in which Stephens was allegedly involved.
III. Whether the trial court correctly calculated credit time for days Stephens served in jail.
We affirm.
The facts most favorable to the judgment reveal that on May 5, 1998, Lois McDonald returned to her home on 7638 East Michigan Street in Indianapolis to find that it had been burglarized. She reported as missing her television, wallet, a gold bracelet, and two social security checks. Detective Sergeant Belle McAtee of the Marion County Sheriff's Department was assigned to investigate the incident.
A week later, on May 12, 1998, Jean Cox reported to the Marion County Sheriff's Department suspicious activity occurring in the 900 block of North Belmar Avenue, involving a van parked facing the wrong way in the street, and a man traversing back and forth between various houses and the van. Deputy Sheriff Henry Rendleman responded to the call, found Stephens in the residence of 942 North Belmar and arrested him for burglary.
Rendleman ordered the van impounded, and McAtee and Lieutenant Mike Koons conducted an inventory search of Stephens's van for valuables. McAtee found a wallet and two social security checks in the van, and recognized McDonald's name in the wallet and on the checks as that of the victim in the May 5 burglary that she had been assigned to investigate. McAtee ran a computer pawn check and learned that on May 5, 1998, Stephens had pawned McDonald's television.
After receiving his Miranda rights, Stephens confessed to taking the checks, a gold chain and television from a house on east Michigan Street. The State charged Stephens with class B felony burglary and Class D felony theft. Stephens, after waiving his right to counsel, moved to suppress the wallet and checks seized during the inventory search of his vehicle. The trial court denied the motion. Additionally, Stephens filed a motion in limine to exclude evidence of prior bad acts or other alleged crimes, which the trial court granted. On October 12, 1999, a jury convicted Stephens as charged. On November 17, 1999, the trial court sentenced him to fourteen years' imprisonment, ordering that he serve the sentence consecutively with a previous Marion County burglary conviction. The trial court assigned Stephens fifteen days of credit time for days he served in jail pending sentencing. Stephens now appeals.
Stephens appeals from the trial court's admission of the wallet and social security checks seized during the warrantless search of his van, arguing that the search was not a lawful inventory search and therefore violated his Fourth Amendment protection from unreasonable search and seizure. At the outset, we note that Stephens failed to object when the State offered the evidence at trial. Failure to object at trial to the admission of evidence results in waiver of the issue on appeal. Woods v. State, 677 N.E.2d 499, 504 (Ind. 1997). We nonetheless reach the issue on its merits and conclude that the search of the van and subsequent admission of the wallet and checks was proper.3
The trial court has broad discretion in ruling on the admissibility of evidence. We will not disturb its decision absent a showing of abuse of that discretion. Moore v. State, 637 N.E.2d 816, 818 (Ind. Ct.App.1994), trans. denied, cert. denied, 513 U.S. 1165, 115 S.Ct. 1132, 130 L.Ed.2d 1093 (1995). Here, Stephens argues that the admission of the evidence was erroneous because the search of the van was not a lawful inventory search, and instead constituted a pretext for a criminal investigation.
Article I, section 11 of the Indiana Constitution and the Fourth Amendment to the United States Constitution protect against unreasonable searches and seizures and, as a general rule, require a search warrant as a condition precedent to a lawful search. Moore, 637 N.E.2d at 818. However, the warrant requirement is subject to a few well-delineated exceptions. Id. The State bears the burden of proving that a warrantless search falls within one of the exceptions to the warrant requirement. Id. One such recognized exception is a valid inventory search. Id. at 818-19.
In determining the propriety of an inventory search, the initial inquiry is whether the impoundment was proper. Id. at 819. The State must demonstrate that: (1) the belief that the vehicle posed some threat or harm to the community or was itself imperiled was consistent with objective standards of sound policing, and (2) the decision to combat that threat by impoundment was in keeping with established departmental routine or regulation. Id. The question is not whether there was an absolute need to dispose of the vehicle, but whether the decision to do so was reasonable in light of the applicable standard. Fair v. State, 627 N.E.2d 427, 433 (Ind.1993).
Here, Stephens's parked van faced the wrong way on a residential street fifteen to twenty feet wide located near an intersection with "very high" motor vehicle traffic, thereby creating a public motor hazard. Record at 166. Further, because Stephens was placed under arrest, no one was present to take control of the vehicle. Since the van would have been left unattended in a public thoroughfare after Stephens's arrest, the decision to impound was reasonable and lawful.
Having decided that Rendleman was justified in ordering the van impounded, we next examine the reasonableness of the search. The search must be conducted pursuant to standard police procedures, as evidenced by the circumstances surrounding the search. Moore, 637 N.E.2d at 820; id. at 435. Mere testimony of an officer is insufficient. Rabadi v. State, 541 N.E.2d 271, 275 (Ind.1989).
In this case, pursuant to standard procedure, Rendleman telephoned the Sheriff's Department Central Records Vehicle Section ("Central Records") and provided it with the pertinent incident information, with which Central Records completed a "tow card," explaining the reason for the tow and identifying the investigator and the tow service that transported the vehicle. McAtee and Koons conducted, in Rendleman's presence, an inventory search of the vehicle for any valuable contents. McAtee found McDonald's wallet and social security checks, which she inventoried and took into custody. Rendleman took custody of the remainder of the recovered items, completed a property sheet, and placed the evidence in the Sheriff's Department Property Room. We conclude the inventory search was proper, and the trial court did not abuse its discretion in admitting the evidence seized during the search.
Stephens's motion in limine sought to exclude evidence of prior bad acts, namely other burglaries in which Stephens allegedly was involved. The trial court granted the motion. Yet, at trial both parties presented evidence related to other alleged crimes.
Specifically, Stephens cross-examined Detective Jerold Schemenaur, who was present during Stephens's confession, about statements that Schemenaur had made to Stephens during the interrogation:
Record at 249. By his question, and several to follow, Stephens intended to imply that the police coerced his confession. The State objected on the grounds that Stephens was taking the questions out of context, and sought to elicit from the witness additional portions of the confession transcript. Stephens did not object. In fact, on two more occasions, Stephens questioned Schemenaur about statements he made to Stephens during the confession, and Stephens did not object to the State eliciting additional portions of the transcript on its re-direct of Schemenaur. Each of Stephens's questions to Schemenaur related to other crimes about which the police were questioning Stephens. He now argues that the trial court should not have admitted the evidence of other crimes, pursuant to Ind. Rule Evid. 404(b).4 We disagree.
First, Stephens failed to object to the admission of the evidence at trial. Failure to raise the objection at trial waives appellate review. Abdul-Musawwir v. State, 674 N.E.2d 972, 975 (Ind.Ct. App.1996), trans. denied (1997). Second, the State did not present the evidence of other crimes to show that Stephens acted in conformity therewith, as prohibited by Rule Evid. 404(b). Rather, it offered the testimony to attempt to rebut Stephens's implication that his confession was not voluntary. Third, whether Stephens opened the door to the evidence is an admissibility of evidence determination, rulings that we reverse only upon a showing of abuse of discretion. See Roth v. State, 550 N.E.2d 104, 106 (Ind.Ct.App.1990),
trans. denied, appeal after remand, 585 N.E.2d 717 (Ind. Ct.App.1992); Fultz v. State, 439 N.E.2d 659, 662 (Ind.Ct.App.1982). We find no abuse of discretion here. Finally, any alleged error in admitting the evidence would have...
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