Taylor v. State, 2-479A106
| Decision Date | 25 September 1980 |
| Docket Number | No. 2-479A106,2-479A106 |
| Citation | 409 N.E.2d 1246 |
| Parties | William C. TAYLOR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Merle B. Rose, Cronin & Rose, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant William C. Taylor is appealing from his conviction of the offense of theft.
The facts most favorable to the State are as follows: At 8:45 p. m. on March 8, 1978, Paul V. Haag, an employee of J. C. Penney Co., Inc. at Washington Square, heard a security alarm sound in the hardware department stock room. Haag immediately ran to the stock room and heard a fire door click shut. Haag went through the door and saw a man getting into the front passenger seat of a station wagon. The man was carrying three (3) boxes which he put in the back seat. Haag followed the man to the car and leaned in the back window. He identified the three (3) boxes as containing Homelite chain saws sold at J. C. Penney's. Haag reached into the car and tried to grab the saws but the car pulled away. As Haag was attempting to remove the saws, the passenger turned and faced him. At trial Haag unequivocally identified appellant Taylor as this passenger.
Later Haag, who was the merchandising manager of the hardware department, ran a check on the saw inventory and discovered some Homelite chain saws were missing. To his knowledge, no one had given Taylor permission to exert control over the saws.
Taylor's first argument on appeal is that the evidence merely shows his presence at the scene of the crime. 1 This argument is specious. Haag testified he heard the alarms on the fire doors which exit from the stock room and ran to the fire exit. As he was running to the inside fire doors, he heard them click shut. As he went through these doors, he heard the outside fire doors click shut. Exiting these outside fire doors, he first observed Taylor carrying the saws and then get into the front passenger seat of the station wagon. This evidence clearly shows Taylor was not only present at the scene; he was actively involved in the crime.
Taylor also argues the evidence failed to establish ownership or control of the items stolen. Again, Taylor ignores the testimony of Haag, who identified the chain saws as the property of J. C. Penney Co.
Following Taylor's arraignment and release on bond, Taylor asked the investigating police officer to allow him to take a polygraph examination. A test date was set and Taylor appeared to take the test. The polygraph operator, Dave Lewis, advised Taylor of his Miranda rights. He then read Taylor a form entitled "Waiver of Objection to Use of Results of Polygraph." Taylor also read the form and signed it. The form read as follows:
Taylor was not represented by counsel prior to or during the examination and he was not specifically informed the results of the examination would be inadmissible if he did not waive his right to object.
Because he was not represented by counsel, Taylor contends the waiver was ineffective. We do not agree. Although an accused has the right to the advice and assistance of counsel, he also has the right to forego such representation. Russell v. State, (1978) Ind.App., 378 N.E.2d 872. Here Taylor requested to take the polygraph examination. He was advised of his right to counsel orally and in writing. He chose to proceed without counsel. He does not contend on appeal that his waiver of the right to counsel was involuntarily or unknowingly made. Therefore the lack of representation does not vitiate the waiver. See Owens v. State, (1978) Ind.App., 373 N.E.2d 913.
Taylor also argues the waiver was not valid because he was not specifically advised the results would not be admissible absent his waiver. He apparently contends the Indiana Supreme Court in White v. State, (1978) Ind., 381 N.E.2d 481, mandated such an advisement. However, in White, the defendant argued the results of a polygraph examination could only be used in rebuttal and not in the State's case in chief. The court reiterated "some form of waiver is all that is required" for the admission of the results of a polygraph examination. In footnote 1 the court set forth the record of the waiver hearing to show the defendant did not make any reservation upon the use of the evidence at trial and had clearly waived the right to object. Although the record reveals the defendant was advised the test results were inadmissible absent the waiver, the court did not hold such advisement was a necessary part of "some form of waiver."
Recently in Slagle v. State, (1979) Ind.App., 393 N.E.2d 798, the Third District held that a waiver of rights form which read, in part, that the defendant agreed that the results may be made available to the proper authorities and further that the defendant had the right to remain silent and anything he said could be used against him in a court of law was not a valid waiver of his right to object to the introduction of the test results. The court stated, "The record fails to show that Slagle fully appreciated the fact that the results of the test would have been inadmissible had he not waived his right to object." Slagle at 801.
This case differs greatly from the fact situation before us. In Slagle the waiver form did not state that the defendant waived the right to object to the introduction into evidence of the test results or even that the test results would be introduced into evidence. The waiver form signed by Taylor states in pertinent part:
Clearly, Taylor was made aware he had a right to object to the admission of the test results by the mere fact he was asked to sign a waiver of objection to use of the results. He acknowledged he understood and agreed the test results could be introduced into evidence. We find Taylor's express waiver of any and all objections to the use of the test results was valid...
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