Stout v. State
| Decision Date | 01 July 1985 |
| Docket Number | No. 783,783 |
| Citation | 479 N.E.2d 563 |
| Parties | Jerry Lee STOUT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 259. |
| Court | Indiana Supreme Court |
Terrance W. Richmond, Milan, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
Following a trial by jury, Defendant (Appellant) was convicted of Burglary, a class B felony, Ind.Code Sec. 35-43-2-1 (Burns 1985), and two counts of theft, a class D felony, Ind.Code Sec. 35-43-4-2(a) (Burns 1985). He was sentenced to twenty (20) years imprisonment upon the burglary conviction and to four (4) years imprisonment on each of the theft convictions, said sentences to run consecutively. His direct appeal presents eight (8) issues which we have consolidated and renumbered as follows:
(1) Whether the trial court erred in giving State's tendered final instruction number 1;
(2) Whether the trial court erred in admitting State's exhibits 1, 2, 3, and 4, photographs depicting objects recovered from the home of Defendant's girlfriend;
(3) Whether the trial court erred in allowing Defendant's accomplice to testify as to other crimes in which the two had participated;
(4) Whether the trial court erred in admitting portions of State Witness McKee's testimony over Defendant's hearsay objection;
(5) Whether the trial court erred in failing to consider the two theft counts as one theft for the purpose of trial and sentencing;
(6) Whether the trial court erred in sentencing the Defendant to consecutive terms of imprisonment.
The record discloses that Defendant met Tucker, his accomplice, through Defendant's girlfriend, Serfine Stainbrook. In the two days prior to the charged crime, Defendant and Tucker committed several burglaries.
Defendant served as the driver while Tucker did the actual breaking and entering. On one occasion in this series Defendant did assist Tucker in removing a wood stove from one home and storing the stove in another location. On the night prior to the charged crime, Defendant and Tucker were in the Stainbrook home discussing ways to make money. Tucker suggested a place where they could steal guns and other items for possible sale. Defendant and Tucker agreed to take that action. They left for the victim's home the next day.
When they arrived, Tucker knocked a wooden window cover off a garage window and entered the garage. He then kicked in a service door from the garage to the home and together they searched the home and garage area. They took personal property including guns, a television, assorted frozen garden vegetables, frozen turkeys and a chain saw. Some of the items were taken from the home and some from the garage. They were all loaded into the victim's automobile which was parked in the garage. Tucker then drove the victim's automobile to the Stainbrook residence while Defendant followed in his own car. The pair unloaded the stolen property and placed most of it in the residence. Tucker then drove the victim's car to an isolated location and abandoned it. Defendant picked Tucker up at that location and brought him back to the Stainbrook residence.
The next day Defendant left in his car to sell the guns in Ohio. That same day the police came to the Stainbrook residence in an attempt to find Tucker. Stainbrook's sixteen year old daughter and Tucker were the only persons present at the residence when the police arrived. The police, without a warrant, but with the consent of the daughter, entered the residence and conducted a search. The police found Tucker hiding in a back bedroom. They then took him to the police station where he was advised of his rights and interrogated. He gave the police a statement which outlined his role in the burglaries and also implicated the Defendant. Based upon the information from Tucker the police obtained a search warrant for the Stainbrook home. Using that warrant, the police recovered the television, the frozen food and the turkeys.
About one week later, the police instituted a stake out at the home of one of Defendant's friends in hopes of effecting an arrest. Defendant saw the police from the home and surrendered.
Appellant claims that the trial court erred in giving State's Tendered Final Instruction Number 1 as follows:
"You are instructed that the flight of a person immediately after the commission of the crime with which he is charged is a circumstance which you may consider in connection with all the other evidence, to aid you in a determination of guilt or innocence."
This instruction was approved by this Court in James v. State (1976), 265 Ind. 384, 389, 354 N.E.2d 236, 240. Defendant maintains that there was no evidence to support the instruction. The record shows that, rather than attempting to flee, Defendant surrendered to the police. Thus, he argues, there was no evidence of flight to support the instruction. Defendant is correct, however, this Court must determine whether the giving of the instruction resulted in prejudicial error.
"It is well settled that errors in giving or refusing instructions are harmless where a conviction is clearly sustained by the evidence and the jury could not have properly found otherwise." Battle v. State (1981), 275 Ind. 70, 77, 415 N.E.2d 39, 43. In the case at bar, an accomplice provided direct testimony linking Defendant with the crime. In addition ample physical evidence (which linked Defendant to the crime) was recovered and admitted into evidence. We hold that the instruction was not supported by the evidence, but that the giving of the instruction was harmless error in this case.
Defendant claims that the court erred in admitting photographs over his objection.
The photographs were of the items recovered from the Stainbrook residence. The police took photographs of the items so that the items could be returned to their owner. Defendant contends that the photographs were inadmissible as they were the product of an illegal search and thus were the "fruits of the poisonous tree."
Defendant argues that the first visit by the police to the Stainbrook residence, which resulted in the locating of Tucker, was a warrantless search which did not meet any of the known exceptions to the general rule requiring a warrant to conduct a search. The State argues that Defendant lacks standing to challenge the search as the property is owned by another, Ms. Stainbrook.
The United States Supreme Court in Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 established the test to be followed in reaching a determination of whether a non-owner may challenge the constitutional validity of a search. The test is the "legitimate expectation of privacy in the place searched" test. Whether an expectation of privacy exists is a fact question to be determined on a case by case basis.
In Murrell v. State (1981), Ind., 421 N.E.2d 638, 640-641, this Court focused on the control over the residence maintained by the owner and by the complaining non-owner appellant. The Court found the appellant's rights in the property were controlled by the owner. The appellant in Murrell had no key to the property nor did he have a room in the residence which he could use at his discretion. In a similar case the Court of Appeals found an appellant who did not have a key to the residence and who did not keep personal property at the residence had not demonstrated a legitimate expectation of privacy in the residence. Lee v. State (1981), Ind.App., 419 N.E.2d 825, 828-829.
In examining the record we find the following pertinent testimony.
This testimony is in contrast to that offered by the mother/owner/girlfriend.
From this testimony the trial court was justified in finding the evidence to be less than that required to establish a legitimate expectation of privacy. Defendant has the burden to show he has such an expectation. He has made no showing he had any degree of control over the residence or any part therein. The record reveals some conflict in testimony between the mother and daughter as to Defendant's residency in the Stainbrook home. However, the person in the best position to evaluate the reality of the arrangement, that is the mother/girlfriend, indicated the Defendant only stayed once in a while. A frequent guest has no legitimate expectation of privacy unless he produces other evidence to show that he maintains a degree of control over the residence. There is no such evidence in this case.
In addition, Defendant argues that a proper foundation was...
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