Walker v. State

• Decision Date: 19 February 1974
• Docket Number: No. 673S129,673S129
• Citation: 261 Ind. 519,307 N.E.2d 62,40 Ind.Dec. 655
• Parties: Dwight WALKER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 62

307 N.E.2d 62

261 Ind. 519

Dwight WALKER, Appellant, v. STATE of Indiana, Appellee.

No. 673S129.

Supreme Court of Indiana.

Feb. 19, 1974.

Robert G. Mann, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Larry C. Gossett, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted of armed robbery, inflicting physical injury in the commission of a felony, to-wit robbery and of violation of the 1935 firearms act. He was sentenced to life imprisonment upon the count of inflicting physical injury. By this appeal the defendant seeks a review upon four issues, which shall be treated in the order following.

I. Whether or not the defendant was denied effective assistance of counsel by the acts of the police officers who told potential witnesses not to speak with defense counsel.

II. Whether or not it was reversible error for the trial court to refuse to suppress all testimony by reason of the alleged illegal arrest of the defendant.

III. Whether or not it was reversible error upon the 'firearms act' charge, for the court to refuse a motion to strike the testimony of the custodian of the licensing records upon grounds that it was not sufficiently connected with the defendant to be of probative value.

IV. Whether or not the evidence was sufficient upon the issue of whether or not the injury inflicted by the defendant was inflicted while he was engaged in the commission of a robbery.

I. Upon this issue, counsel has gone to great lengths presenting us with authority in support of the right of a defendant to have his case properly prepared and in support of the proposition that, for the State to engage in conduct which would prevent or interfere with such preparation by counsel, would amount to a denial of effective counsel. We agree with these propositions and with the authorities cited; however, there has been no showing of such interference. Upon cross-examination of the witness, Kennedy, defense counsel attempted to extract a statement that investigating officer Watford had instructed him not to talk with defense counsel. The only information that was brought forth, however, was that the officer had told the witness that he did not have to talk to counsel. This in no way substantiates the charge of interference.

The defendant has further charged that the State failed to give defense counsel written statements or memoranda of statements from witnesses and evidence which could be exculpatory in nature, in response to his motion which the court had sustained. There has been no showing, however, that the State had any such statements, memoranda or exculpatory evidence. It could not produce what it did not have. Nor was there any showing, as suggested by counsel, that the witness, Kennedy, had any evidence or information that would have been exculpatory to the defendant.

II. The warrant for the defendant's arrest had been issued upon the probable cause affidavit of investigating officer, Watford. During the course of the trial, defense counsel introduced the affidavit into evidence and thereafter moved to 'suppress the arrest.' The court sustained the motion as a motion to suppress further testimomy from the officer, and counsel later conceded that such was the intent of his motion. By his motion to correct errors and by his assignment herein, however, he refers to his 'motion to suppress all testimony * * * for the reason it was the result of an arrest which was not upon probable cause.' This would amount to a motion to discharge. The record discloses no such motion. Were we to regard the motion to suppress the witness' testimony as such a motion, which appears to be the wish of the defendant in these proceedings, we would, nevertheless, hold that it was properly overruled. Without passing upon the validity of the arrest, it was of no consequence except insofar as it might have produced evidence at the trial. In that event, such evidence would be properly suppressed, if the arrest had been illegally made. The illegality of the arrest, if it was in fact illegal, did not destroy the valid conviction. Williams v. State (1973), Ind. 304 N.E.2d 311. It did not affect the right of the State to try the case. Bryant v. State (1972), Ind., 278 N.E.2d 576. And it did not amount to a denial of due process. Dickens v. State (1970), 254 Ind. 388, 260 N.E.2d 578.

III. Connie Morris, Supervisor of the Firearms Licensing Section of the Indiana State Police, testified that she had made a thorough search of the records of individuals with permits to carry pistols in Indiana and that Dwight Walker was not so permitted, on the date of the offense. We fail to comprehend the defendant's contention that '* * * no where is there evidence that the defendant was the same Dwight Walker who had no license.' The records searched were of persons having a license not of persons having no license. When the search revealed that no one by the name of Dwight Walker was licensed, it revealed that of all persons by that name, not one had such license. The possible inclusion of other persons within a group to which the defendant belonged cannot be held as excluding the defendant from that group.

IV. The evidence viewed most favorably to the State revealed that the victim, Jerry Hyatt, was making deliveries for his employer, the Borden Milk Company. He was requested by the defendant to deliver several containers of fruit juice to the defendant's home. As he did so, the defendant instructed him to knock upon the door, advising that his wife would appear and pay him. As Mr. Hyatt turned to knock upon the door, the defendant pressed a gun against his back and told him not to move. Thereupon, the defendant tore the pockets from Mr. Hyatt's clothing and took approximately three hundred dollars from them. Apparently not being satisfied that he had all the money under Mr. Hyatt's control, the defendant asked him where the rest of it was. Mr. Hyatt denied having any more, and the defendant ordered him, at gun point, to go with him to the truck, which the defendant searched. Finding no more money and still holding Mr. Hyatt at gun point, the defendant said, 'let's go over in the weeds.' Mr. Hyatt protested, and the defendant said, 'I said, let's get over in the weeds. You want it right here, or do you want it over there.' The two began to walk with the defendant holding the gun at the back of Mr. Hyatt's head. Mr. Hyatt concluded that he was going to be shot, and in an instant when the defendant's attention was diverted, he grabbed the gun. A scuffle ensued, during which the defendant shot Mr. Hyatt in the stomach.

Upon the foregoing evidence, the defendant contends that the robbery has been completed at the time of the shooting and that the proscribed conduct of inflicting physical injury while 'engaged in the commission of a robbery' had not been proven. A robbery is seldom, if ever, accomplished by a single act. Rather a series of acts must transpire. We can no more say that it has been completed upon obtaining possession of the thing taken than we can say that it has not been commenced until that instant. To accomplish his mission, it was necessary for the defendant to complete his dominion over the money taken from Mr. Hyatt. Apparently this was to be accomplished by taking him to a more remote spot and in some manner restraining him. Possibly the defendant's purpose in giving Mr. Hyatt whatever it was that he was to receive in the weeds, was to coerce him into revealing a presumed hidden repository of more money. In either event, it was clearly a part of the robbery operation. In the case of Bissot v. State (1876), 53 Ind. 408, we held that the killing of a watchman, while the accused was yet within the house and immediately after the watchman had come to the door by which the accused had entered, was committed 'in the perpetration' of the burglary, notwithstanding that the breaking and entering had been effected prior to the killing. We referred to such killing as having been committed with the res gestae of the burglary and observed that if we were to...