Wagner v. State

• Decision Date: 14 February 1985
• Docket Number: No. 582S200,582S200
• Citation: 474 N.E.2d 476
• Parties: David Wayne WAGNER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 476

474 N.E.2d 476

David Wayne WAGNER, Appellant, v. STATE of Indiana, Appellee.

No. 582S200.

Supreme Court of Indiana.

Feb. 14, 1985.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant David Wayne Wagner was found guilty by a jury in the Grant Circuit Court of the crimes of murder, class A felony robbery and class A felony burglary. He subsequently was sentenced by the trial court to sixty years imprisonment for the murder conviction, fifty years imprisonment for the robbery, and fifty years imprisonment for the burglary, all terms to be served consecutively. He now directly appeals and raises the following twenty-five generally indexed issues:

1. motion to suppress;

2. discovery;

3. plea bargain;

4. motion to strike;

5. motion for discharge;

6. sufficiency of the evidence;

7. jury conduct;

8. trial court conduct;

9. motion for mistrial;

10. witness Wagner;

11. exhibits 6, 7, and 8;

12. alleged cumulative evidence;

13. alleged hearsay testimony;

14. witness Waldo;

15. exhibits 1 and 56;

16. exhibits 2 and 3;

17. witness Hopper;

18. witness Lopez;

19. exhibits D, E, F and G;

20. witnesses Reece and Leist;

21. exhibits 45, 46, and 47;

22. witnesses Manges and Moore;

23. motion to let to bail;

24. presentence investigation report; and

25. sentencing.

At approximately 10:00 p.m. on May 16, 1980, Marcella and Raymond Waldo retired for the evening in their home in Shideler, [Delaware County] Indiana. Later, Mrs. Waldo heard a noise emanating from the front door of the residence and arose to check the area. When Mrs. Waldo returned to the bedroom, she heard a gunshot and felt a bullet pass by her. She next observed a person whom she later identified as Defendant standing near the bed and felt a gun press against her neck. While she was attempting to assist her husband who had been shot while lying in bed, Defendant inquired as to the location of her husband's wallet and money. After Defendant had obtained the wallet and money, he also stole several guns, Mrs. Waldo's wallet, and the car keys. Defendant left the residence but later reentered by breaking a window in the locked rear door of the residence with his gun. He finally left the area taking the Waldo automobile with him. Mrs. Waldo walked to a neighbor's residence and summoned the police. Officer Walter Blackmere of the Eaton Police Department arrived at the neighbor's residence, obtained a statement from Mrs. Waldo, and issued an all points bulletin by radio to watch for the Waldo's 1972 green Ford LTD which had been stolen.

Officers Larry Springer and Jeffrey Leist of the Muncie Police Department meanwhile were working at the Delaware County Jail when they heard the broadcast concerning the Waldo murder and the advisement to watch for the 1972 green LTD Ford. As they were leaving the jail sometime shortly after 2:00 a.m., Leist observed a car which appeared similar to the description of Waldo's vehicle. The officers followed the vehicle, determined that it was a green Ford LTD and transmitted the license plate number to the Muncie Police Department to identify the owner. The green Ford made a right turn onto Main Street where it stopped and the driver exited the vehicle and started to walk across the street. About this time, the officers activated the red light on top of their vehicle and called the driver to return to the vehicle where they asked him for his driver's license and identification. As the driver was leaning into the automobile to reach into the glove compartment, the officers noticed three shotguns on the rear floor of the vehicle. About this time they also got a return call from the Muncie Police Department confirming that the green Ford belonged to the Waldos. The officers immediately placed the driver under arrest, handcuffed him and advised him of his "Miranda " rights. See Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Defendant was the driver. Officer Lawrence Pritchard of the Indiana State Police later searched the vehicle at the Muncie Police Department and found, inter alia, a purse, jacket, hat, camera, and three shotguns.

While at the police station, the "Miranda " warnings were again administered to Defendant and he signed a waiver of rights form and gave Officer Richard Reece a statement. Officer Steve Schlegel of the Delaware County Police Department conducted a neutron activation test to determine if there was gunshot residue on Defendant's hands and William Kinard of the Bureau of Alcohol, Tobacco, and Firearms, analyzed the test and found gunshot residue. On May 30, 1980, Officer Russell Walker of the Indiana State Police conducted a voice identification lineup. Mrs. Waldo was seated in an interview room and listened to five white males with no distinctive speech accents repeat certain phrases that were communicated to her by the perpetrator of the instant crimes. Mrs. Waldo did not see the individuals, was not informed as to the identity of any of the individuals and was not told that a suspect was present in the lineup. After several phrases were read by each individual, Mrs. Waldo requested subject No. 2 to repeat the phrases. Mrs. Waldo then identified subject No. 2, the defendant, as the perpetrator of the crimes.

I

Defendant first claims that the trial court erred by denying his motion to suppress which asserted that the investigatory stop of the vehicle he was driving when arrested was illegal. The State points out that Defendant has waived this issue since he did not object to the admission of certain of the evidence recovered from the vehicle. When a motion to suppress has been overruled and the evidence sought to be suppressed is later offered at trial, no error will be preserved unless there is an objection at that time. Minneman v. State, (1982) Ind., 441 N.E.2d 673, cert. denied, (1983) 461 U.S. 933, 103 S.Ct. 2099, 77 L.Ed.2d 307. Notwithstanding Defendant's waiver, however, we find that it is apparent that Officers Leist and Springer had sufficient grounds to make the investigatory stop as they did. These officers had been advised of the murder and robbery at Shideler and that a 1972 green Ford LTD had been stolen from the victims. They observed a green Ford LTD which matched the description given of the Waldo vehicle and was the only vehicle on the streets at that early morning hour. The United States Supreme Court has held that the brief stop of a suspicious individual in order to determine his identity may be most reasonable in light of the facts known to police officers at the time. Adams v. Williams, (1972) 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The officers here had sufficient grounds to stop this vehicle and to identify the driver and the automobile. While questioning Defendant about his identity and driver's license, the police saw weapons in the back of the automobile and obtained information that this was, in fact, the Waldo vehicle. The police therefore were justified in making the investigatory stop and in subsequently placing Defendant under arrest.

Defendant also asserts that his statement to police should have been suppressed because it was given involuntarily and without an intelligent waiver. In support of this contention, Defendant argues that he was so intoxicated at the time his statement was made that he was incapable of knowingly and intelligently waiving his "Miranda " rights. The admissibility of a statement is controlled by determining, from the totality of the circumstances, whether or not it was made voluntarily. The same test determines whether a waiver of "Miranda " rights has occurred. We review this question as we do any question of fact, that is, we do not reweigh the evidence but look to the evidence supportive of the trial court's ruling to determine if the evidence was substantial and probative and thus sufficient to sustain that ruling. Tawney v. State, (1982) Ind., 439 N.E.2d 582, reh. denied; Chambers v. State, (1979) 271 Ind. 357, 392 N.E.2d 1156.

Officer Springer testified that when he stopped Defendant on May 18, he detected the odor of alcohol on Defendant's breath. He also testified, however, that Defendant appeared to have full use of his faculties. Officer Reece, who took the statement from Defendant at approximately 3:55 a.m., testified that he also smelled alcohol on Defendant's breath but that Defendant did not appear to be intoxicated. He stated that Defendant appeared to understand when the "Miranda " rights were given to him and when he signed a waiver of rights form before proceeding to give his statement. Defendant testified at the suppression hearing that he was an alcoholic, that he had been drinking heavily on May 17, and that he began drinking alcoholic beverages on May 17 at approximately 9:00 p.m. and had his last drink at about 1:30 a.m. on May 18, at least two hours before Officer Reece took his statement. Both Officer Springer and Officer Reece stated that Defendant was coherent during the time they talked to him and did not appear to be under the influence of alcohol. Since the facts are in conflict and, from a review of the totality of the circumstances, there is substantial evidence to support a finding beyond a reasonable doubt that Defendant's waiver and statement were given voluntarily, we find no error in the trial court's overruling of Defendant's Motion to suppress his statement.

Defendant further argues that the identification of his voice by Mrs. Waldo should have been suppressed since the voice identification procedure utilized was unnecessarily suggestive. His contention seems based on the fact that Mrs. Waldo asked that Defendant repeat certain phrases while none of the others in the lineup were required to repeat the phrases. We...