Tabor v. State

• Decision Date: 02 April 1984
• Docket Number: No. 781,781
• Citation: 461 N.E.2d 118
• Parties: William H. TABOR, Jr., Appellant, v. STATE of Indiana, Appellee. S 190.
• Court: Indiana Supreme Court

Page 118

461 N.E.2d 118

William H. TABOR, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 781 S 190.

Supreme Court of Indiana.

April 2, 1984.

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant William H. Tabor, Jr., was convicted of Kidnapping, Ind.Code Sec. 35-42-3-2 (Burns Repl.1979), and Robbery, Ind.Code Sec. 35-42-5-1 (Burns Repl.1979), at the conclusion of a jury trial in Henry Superior Court. The trial court sentenced the defendant to thirty (30) years for the kidnapping and twenty (20) years for the robbery, the sentences to be served consecutively. Tabor now appeals.

The appellant presents ten issues for our consideration as follows:

1. error in the admission of the defendant's tape recorded statement;

2. error in the identification testimony of the defendant;

3. admission of exhibits taken from the home of a third person;

4. improper reference to the defendant's prior criminal activities;

5. improper testimony by the trial court's expert witnesses;

6. sufficiency of the evidence;

7. denial of the motion for change of venue from the county;

8. juror misconduct;

9. judicial misconduct; and

10. error in sentencing the defendant.

The evidence most favorable to the State reveals that on the morning of May 19, 1980, Defendant entered the Spiceland Branch of the Citizen's State Bank in Henry County, Indiana, and requested information about loans from the bank teller Sandy Simerly. Simerly referred Defendant to the branch manager, Ronald Zimmerman. Zimmerman and Defendant then discussed loans for fifteen to twenty minutes after which Defendant left the bank. Defendant returned a short time later and asked the teller and manager if he had left his glasses at the bank. Defendant then pulled a gun on the branch manager, Zimmerman, and forced him to give him money from the bank. Zimmerman was forced to drive the defendant from the bank, the defendant himself providing directions on what route to take. He eventually let Mr. Zimmerman out of the automobile.

Defendant was arrested on that same afternoon at the home of a friend, Teresa Groce. Teresa Groce provided the police with money Defendant had given her that day. Defendant was advised of his rights when arrested and was again advised of his rights at the police station. Defendant gave the police money from the bank robbery which he had in his billfold and then made a statement concerning the bank robbery. This statement was tape recorded. Defendant then led the police to the residence of another friend, Edith Nichols, gave the police permission to go into the home and then showed the police where the money was located inside the Nichols home. Defendant also took the police out into the country, ostensibly to look for the gun he had used in the robbery. The gun, however, was later recovered from the automobile belonging to Mr. and Mrs. Groce. Also on that same day, the police conducted a lineup with Defendant, and both Zimmerman and Simerly identified Defendant as the perpetrator.

I

Prior to trial, the defendant filed a motion to suppress the tape-recorded statement he gave to the police. This motion was overruled. When the statement was offered into evidence by the State as State's exhibit 31, Defendant made no objection to its admission on grounds that it was not knowingly and willingly given as was alleged in the motion to suppress. His only objection made to the trial court at the time it was admitted was that he asked that the jury also be furnished a transcript of the statement to follow while it was listening to the tape. He felt the jury could better follow the statement in that manner. The trial court denied his request and the jury heard only the playing of the tape.

Defendant now claims the tape recording was not sufficiently clear so as to comply with the foundational requirements of Lamar v. State, (1972) 258 Ind. 504, 282 N.E.2d 795. Defendant, however, did not raise this claim nor object on this ground in the trial court. It is well-settled, of course, that error in overruling a motion to suppress is not preserved for appellate review unless there is a proper objection when evidence is later offered at trial. Andrews v. State, (1982) Ind., 441 N.E.2d 194; Minneman v. State, (1982) Ind., 441 N.E.2d 673. Furthermore, when a party raises argument on appeal predicated upon grounds substantially different from those raised at trial, any allegation of error has been waived. Davidson v. State, (1982) Ind., 442 N.E.2d 1076; Carman v. State, (1979) 272 Ind. 76, 396 N.E.2d 344. In Hestand v. State, (1982) Ind., 440 N.E.2d 1121, this Court stated: "Every recorded word need not be intelligible for we only require that, taken as a whole, the tape be of such clarity that it does not lead to jury speculation as to its content." Id. at 1122. Even though Defendant did not preserve the issue of audibility of the tape, there is no showing here that it was not audible and clear enough for the jury to understand it without resorting to speculation. The only issue remaining then is the request of the defendant to furnish a transcript of the tape recording to the jury, along with the recording itself. This, of course, is within the discretion of the trial court and the position of the State is well-taken that this evidence would have been merely cumulative of the recording itself and the exclusion of evidence that is merely cumulative of other evidence already introduced is not error. Lyons v. State, (1982) Ind., 431 N.E.2d 78, 80. Defendant has presented no reversible error on this issue.

II

Defendant now claims the trial court erred in denying his pretrial motion to suppress identification testimony of him, claiming that the lineup at the police station was impermissibly suggestive and also claiming the State's witnesses were coached. The record shows, however, that when Zimmerman and Simerly testified as to their identification of the defendant, no objection was raised by the defendant. Defendant has accordingly waived this issue. Andrews, supra; Minneman, supra; Hill v. State, (1982) Ind., 442 N.E.2d 1049. The only objection Defendant voiced about the lineup was during the questioning of witness Simerly. That objection was by defense counsel: "Then Your Honor, we'll simply interpose our previous objection to the lineup." The record shows there were no previous objections to the lineup or to identification testimony. Furthermore, the statement does not present any grounds for an objection. The State properly points out that evidence concerning identification of Defendant as the robber had already been admitted into evidence without objection prior to this objection by Defendant. Defendant's objection was therefore not timely, even if, assuming, arguendo, it had any other merit. Tinnin v. State, (1981) Ind., 416 N.E.2d 116; Carman v. State, (1979) 272 Ind. 76, 396 N.E.2d 344. Defendant presents no argument regarding the alleged coaching of the identification witnesses so he has also waived this issue. Guardiola v. State, (1978) 268 Ind. 404, 375 N.E.2d 1105.

Defendant additionally claims the lineup was conducted in violation of his constitutional right to counsel at that stage. The record shows the lineup was conducted on the same day of the robbery and shortly after Defendant was arrested. Formal charges were not filed against Defendant until May 22, 1980, some three days later. In Hollonquest v. State, (1982) Ind., 432 N.E.2d 37, 40, this Court held: "It is well established that an accused is entitled to have counsel present at any lineup which is conducted subsequent to the filing of an information or indictment." Defendant is not entitled to counsel at a lineup that is held before he is formally charged by the filing of an indictment or an information. Hollonquest, supra; Bray v. State, (1982) Ind., 443 N.E.2d 310.

III

Defendant claims the trial court erred in admitting into evidence exhibits recovered by the police from the home of Edith Nichols. Following the giving of his tape recorded statement to the police, the Defendant executed a consent to search form for the Nichols residence and took the police there voluntarily, showing them where the bank money was hidden. Defendant now makes a novel argument concerning his relationship to this property as it concerns his constitutional rights. He first states that since this was not his home but was owned by Edith Nichols, he did not have authority to give them consent to search it and the police had no right to do so without a search warrant. Defendant argues on the other hand, however, that he did have sufficient proprietary interest in the Nichols residence so that he had legitimate expectation of privacy in the residence and again the police were not authorized to search it without a search warrant.

Although we find Defendant's argument ingenious, we are not persuaded by it. Mrs. Nichols testified at trial that prior to the date of the crime, she had known Defendant casually for approximately six weeks. Defendant had spent the night before the crime at her house only because they had been using her car and when it became dark she noticed her car lights were not working. Defendant was not living at her house and never had. He stayed there only because of the emergency with the automobile so that he could take Mrs. Nichols to work the next morning and repair her car while she was at work. She gave him the keys to the car to arrange to have the lights repaired and also on the key ring were her house keys. Defendant does not deny these facts nor does he add any facts that would indicate a proprietary interest in the Nichols' residence such that he would have a legitimate expectation of privacy in it. Humes v. State, (1981) Ind., 426 N.E.2d 379. The defendant has no constitutional right to...