Taylor v. State

• Decision Date: 06 March 1992
• Docket Number: No. 84S00-8901-CR-10,84S00-8901-CR-10
• Parties: Earl TAYLOR, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1293

587 N.E.2d 1293

Earl TAYLOR, Appellant, v. STATE of Indiana, Appellee.

No. 84S00-8901-CR-10.

Supreme Court of Indiana.

March 6, 1992.

Rehearing Denied May 7, 1992.

Eric M. Abel, Vigo County Sp. Public Defender, Richard E. Coleson, Terre Haute, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Murder for which he received a sentence of sixty (60) years.

The facts are: On October 4, 1987, Mindy Taylor's body was recovered from the driver's side of her Pontiac Fiero which was submerged in a lake in Terre Haute, Indiana. An autopsy revealed that the victim had died of drowning, and that there were no signs of a struggle to escape the car, nor were there any injuries.

Shortly after the victim's death, appellant, her husband, made a statement to the police. In his statement, he indicated that the victim had difficulty sleeping that night, and at her suggestion, they had gone for a drive at about 3:00 a.m. Appellant stated that the victim swerved the car to avoid hitting a raccoon which was crossing the road in front of them. The car left the road and began to submerge in the lake.

Appellant stated that the victim was unconscious, and he was unable to rouse her. After the car filled with water, appellant opened the passenger door and escaped but was unable to get the victim out of the car. Appellant then ran to a nearby house to summon help.

An investigation revealed that the seat on the driver's side was too far back for the victim to have driven the car. The victim's arms were under the seat belt, and the seat belt was fastened in the wrong receptacle.

From the time of his wife's death, appellant received the advice of counsel regarding the possibility of charges being brought against him for her murder. The day prior to appellant's arrest he made arrangements with a friend, Oscar Brosey, to help move some of his possessions into storage. The next day, December 3, 1987, while moving things in Brosey's pickup truck, appellant was arrested for his wife's murder.

Brosey testified that appellant phoned him from jail. During one telephone conversation appellant indicated that he had signed a release for his keys, and he wanted Brosey to retrieve them. Appellant also wanted Brosey to feed his pets and to remove certain items from his home for safekeeping. During another telephone conversation, appellant asked Brosey to remove a file cabinet from his garage.

Brosey did pick up the keys and remove items from appellant's house. Appellant's file cabinet was unlocked when Brosey found it. Brosey removed the drawers and loaded them and the cabinet into his pickup truck. Brosey returned home, parked the truck in front of his house and left the cabinet and drawers there overnight.

On December 4, police officers obtained a search warrant for appellant's home. The officers drove to Brosey's home, and informed him that they had a search warrant for appellant's home. They indicated that they knew that Brosey had the keys to appellant's home and asked his permission to use the keys in order to execute the search warrant. Brosey gave the keys to the officers. Later that day, the police officers phoned Brosey to inform him that they had completed their search of appellant's home and asked if Brosey wanted them to return the keys or if Brosey wanted to retrieve them at appellant's house.

Brosey drove his truck to appellant's house to retrieve the keys. The officers asked Brosey if anything had been removed from appellant's home. Brosey indicated which items had been removed, including the file cabinet and drawers. The officers asked Brosey if they could take a look at the cabinet and drawers in Brosey's truck, to which Brosey agreed. The officers indicated that they wanted to look at the papers, but because of the volume of the paperwork they would need to take the cabinet "downtown." Brosey agreed to the seizure of the file cabinet and drawers from his truck.

The officers later phoned Brosey to tell him they had examined the contents of the file cabinet and that he could retrieve them at that time. Brosey informed the officers that appellant's mother was now in possession of appellant's keys and was taking care of appellant's personal things.

Appellant argues that the trial court erred when it admitted in evidence documents seized by the police after Brosey's consent because, he argues, Brosey could not give a valid consent to the search and seizure. The evidence offered by the State was a series of documents relating to insurance coverage on the victim naming appellant as the beneficiary.

Generally, a search may only be conducted pursuant to a lawful warrant authorizing it. However, one exception obviating the necessity of a warrant is valid consent. Harper v. State (1985), Ind., 474 N.E.2d 508.

In order to establish the validity of a warrantless search when a person consenting to the search is not in custody, the State is only required to demonstrate that the consent was voluntarily given and was not the result of duress or coercion. Hines v. State (1987), Ind., 514 N.E.2d 296. The record made during the hearing on appellant's motion to suppress the documents seized from the file cabinet indicates that Brosey's consent to search his truck in fact was given voluntarily. Brosey testified that he was neither threatened nor intimidated by the officers.

Appellant attacks the validity of Brosey's consent on the grounds that he instructed Brosey and his wife not to leave the cabinet on the truck, but rather, to place the cabinet in their basement and to lock it. Appellant concedes that he never directly told Brosey not to look in the files, nor did he tell Brosey to prevent others from doing so. Appellant argues now that although he gave Brosey access to his possessions, Brosey did not have the authority to allow the officers to seize the file cabinet from his truck.

The trial court denied appellant's motion to suppress the documents seized. The State relied upon United States v. Sellers (4th Cir.1981), 667 F.2d 1123, for the admissibility of the documents. The Sellers case holds that:

"[V]alid third-party consent to a search may be given by one who 'shares with the absent target of the search a common authority over, general access to, or mutual use of the place or object sought to be inspected under circumstances that make it reasonable to believe that the third person has the right to permit the inspection in his own right and that the absent target has assumed the risk that the third person may grant this permission to others.' [Citations omitted]. Moreover, whenever one 'knowingly exposes his activities [or effects] to third parties, he surrenders Fourth Amendment protections' in favor of such activities or effects. [citations omitted.]" Id. at 1126.

Appellant argues that the Sellers case supports his contention that the documents are inadmissible. We disagree.

The United States District Court for the Northern District of Indiana followed this principle of law in the case of DeRochemont v. Commissioner-I.R.S. (N.D.Ind.1986), 628 F.Supp. 957, 962 where the court stated:

"The plaintiff proclaims his subjective expectation of privacy. However, the totality of the circumstances are not consistent with an expectation of privacy. The boxes were placed in the basement of a furniture store. The plaintiff does not allege to have had the ability or the right to control access to the premises.

The owner or operator of the store could have permitted a search of the premises including the boxes in the basement without consulting the plaintiff." [Citations omitted.]

In the case of Bruce v. State (1978) 268 Ind. 180, 236-37, 375 N.E.2d 1042, 1072-73, reh'g denied, cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662, this Court stated:

"The premises from which the evidence was obtained in this case was a bedroom occupied by appellant and Mrs. Bruce. The clothing and shells were removed from a dresser and a closet. The keys were removed from appellant's jewelry box. Appellant notes testimony that these places were used exclusively by himself; however, we believe that the trial court was amply justified in finding that Mrs. Bruce 'generally had joint access' to all areas within her own bedroom, including appellant's jewelry box. Appellant's assertion resembles that of the petitioner in Frazier v. Cupp, supra, that his cousin, who consented to a search of their shared duffel bag, had permission to use only one compartment therein, [1969], 394 U.S. at 740, 89 S.Ct. [1420] at 1425 ; and his argument fares no better than Frazier's. See United States v. Richardson, (7th Cir.1977), 562 F.2d 476.

Under these circumstances, Brosey certainly had the authority to consent to the search of his truck at the officers' request. It also was reasonable for the officers to believe that Brosey had the right to permit the inspection of the file cabinet contents. Appellant assumed the risk that Brosey might grant permission for the police to inspect the cabinet when he gave Brosey control over his possessions.

The State introduced in evidence Exhibit No. 111, which was a handwritten statement by appellant regarding his initial interview with the police. The content of the statement is a description of the events which led to the victim's death and appellant's actions at that time. This document was seized by the police at appellant's residence during the search of appellant's house. Appellant contends the trial court erred when it admitted this exhibit into evidence because appellant wrote the statement for his counsel, Dan Weber; therefore, he argues that the document is inadmissible due to the attorney-client privilege he claims protects the statement.

Appellant correctly states the rule of law that communications made by a client to his attorney are confidential and neither the attorney...