Walker v. State

• Decision Date: 26 August 1988
• Docket Number: No. 29S00-8704-CR-443,29S00-8704-CR-443
• Citation: 527 N.E.2d 706
• Court: Indiana Supreme Court
• Parties: Paul T. WALKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

Page 706

527 N.E.2d 706

Paul T. WALKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 29S00-8704-CR-443.

Supreme Court of Indiana.

Aug. 26, 1988.

Gerald M. DeWester, Noblesville, for appellant.

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

PIVARNIK, Justice.

Defendant-Appellant Paul T. Walker was tried by jury in the Hamilton Circuit Court and convicted of a class D felony handgun violation which was enhanced by thirty (30) years pursuant to a habitual offender filing, for a total term of thirty-four (34) years.

We have consolidated the issues presented to us on this direct appeal into five:

1. denial of Walker's motion to suppress evidence;

2. error in comments of the State during closing argument;

3. refusal of Walker's tendered final instructions No. 2;

4. sufficiency of the evidence; and

5. errors in sentencing.

On May 19, 1986, Officer Kenneth Whisman of the Hamilton County Sheriff's Department and other law enforcement officers had Walker under surveillance. Walker was suspected of perpetrating a number of burglaries in Hamilton and Boone counties. In 1978 Walker had been convicted of burglary in Shelby County; the method used in those burglaries was precisely that used in the series of burglaries in Hamilton and Boone counties. The perpetrator drove a van which contained maps of the area, various tools, and a bicycle or motorcycle. The burglaries were committed late at night, usually when the occupants of the residences were asleep upstairs and not aware of his presence. He would park his vehicle at some distance from the target residence and use the bicycle to approach the home. He would usually force open a rear door and incapacitate any protective electronic devices to gain entry. He would hide contraband from the burglarized residence in shrubbery near the scene of the burglary, return to the van, replace the bicycle and, later that night, drive to the point where he hid the contraband and retrieve it. Oftentimes a billfold or briefcase, with the money removed, was found in shrubbery near a burglarized residence.

When the police observed Walker in the Hamilton County area in a van they placed him under surveillance. They knew Walker was paranoid about being followed so they set up a very loose network of vehicles which did not approach Walker's vehicle closely but was located so he could not leave an area without one of the surveillance team observing him.

On May 19, 1986, Officer Whisman and other law enforcement officers were watching Walker; they observed Walker at his sister's garage. He placed an unknown object underneath the van he was driving. They also observed that a licence plate illumination light and a taillight were not functioning on the vehicle. At about 3:20 a.m., the police stopped Walker for the licence plate and taillight violations. Other vehicles from the surveillance team and a large number of officers closed in on the stop with drawn pistols. Officer Whisman testified the police were aware Walker carried a hand weapon on his person or in his vehicle. They had been advised of this by police officers who arrested him in the Shelby County burglaries in 1978. Officer Whisman had also received information from a Detective of the Indianapolis Police Department that Walker met the description of a burglary suspect who had been flushed from a residence in 1985, and then had exchanged shots with a police officer before running into a clothesline and dropping his gun, an H & R 22 caliber nine shot revolver. Whisman testified further that a reliable informant advised that Walker was currently carrying a nine shot H & R 22 caliber revolver with him in a holster and belt.

When Walker was stopped he immediately exited his vehicle, the police approached him and ordered him to place his hands against the side of the van. Detective Landis, aware of Walker's having been seen placing something under his vehicle, reached under the vehicle at the point indicated and found, attached to the underside of the van, a metal box with a lid that was not locked. He withdrew several items including a handgun. Walker was known to have previous felony convictions; he stated to officers he did not have a permit for the gun. He was then placed under arrest.

I

The first issue we address is that of trial court error in denying Walker's motion to suppress. Walker seeks suppression based on the contention the police did not have probable cause to stop his vehicle in the first place and therefore had no right to search his vehicle. He further claims that after having stopped him for misdemeanor violations which were clearly a pretext utilized to stop and search his vehicle, police went beyond the bounds of permissible area of search by going into the latched metal box attached to the underpart of the van.

In response the State relies on Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, followed by this court in Broadus v. State (1986), Ind., 487 N.E.2d 1298. Terry provides that a police officer may make an initial or investigatory stop of a person or automobile where probable cause for arrest is lacking when the facts known to the officer at the time of the stop are such as to warrant a belief in a man of reasonable caution that investigation is appropriate. Walker's activities on this night were such that by loose surveillance it was known he left his vehicle for some time and may have committed a burglary in the Hamilton County area. The police were aware he was a convicted felon and had cause to believe he was carrying a weapon.

The State further relies on United States v. Ross (1982), 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572. The fact situation in Ross was that a reliable informant telephoned Detective Marcum of the District of Columbia Police Department and told him an individual known as "Bandit" was selling narcotics from the trunk of a car parked at 439 Ridge Street. The informant stated he had observed "Bandit" complete a sale and had been told by "Bandit" that additional narcotics were in the trunk. The informant gave Marcum a detailed description of "Bandit" and his automobile. Marcum and other police officers drove to the area and observed the automobile described to them, including the license plate. They also saw Albert Ross, who fit the description given to them by the informant. They observed "Bandit" for some time but did not see him doing anything. They then observed him leaving the area so they pulled alongside of him, noted the driver matched the informant's description, and stopped the car. He was ordered out of the vehicle. When they searched the vehicle they found a bullet in the front seat and a pistol in the glove compartment. Ross was then arrested and handcuffed. Detective Cassidy then took Ross's keys and opened the trunk where he found a closed brown paper sack. He opened it and discovered a white powder which later was determined to be heroin. The vehicle was confiscated and taken to the police garage where Officer Cassidy searched it further, without a warrant, and found a zippered pouch containing $3200.00.

Ross was charged with possession of heroin with intent to distribute and was later convicted. His motion to suppress was denied by the district court. The court of appeals reversed his conviction but on appeal the United States Supreme Court reversed the court of appeals, and found the police had probable cause to stop and search Ross's vehicle. The Court also found under Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, the police were justified in the stop and search of Ross's vehicle. We see no merit to Walker's contention that stopping his vehicle for the taillight and licence plate light violations was nothing more than a pretense and a ruse to stop and search him. It is apparent this was not the police officers' primary interest in him that night. It was, however, observation of a violation and justified a stop. Furthermore, the facts set out above demonstrate the police had facts within their knowledge sufficient to form probable cause that Walker was illegally carrying a weapon. In addition, they had grounds to stop and investigate pursuant to Terry, 392 U.S. 1, 88 S.Ct. 1868, based on their suspicions of a burglary in Hamilton County. It turned out there was no burglary in Hamilton County and, of course, no contraband was apparent to indicate there was one, but a reasonable suspicion is enough to justify such an investigatory stop. After having stopped Walker, the police readily found the weapon in a search authorized by Ross, 456 U.S. 798, 102 S.Ct. 2157, Carroll, 267 U.S. 132, 45 S.Ct. 280; and opinions by this court. Broadus, 487 N.E.2d 1298; Taylor v. State (1980), 273 Ind. 558, 406 N.E.2d 247. See also Jones v. State (1985), Ind., 472 N.E.2d 1255; Partlow v. State (1983), Ind., 453 N.E.2d 259, cert. denied 464 U.S. 1072, 104 S.Ct. 983, 79 L.Ed.2d 219.

Walker also moved for judgment on the evidence at the close of the State's evidence based on his position that the pistol should not have been admitted into evidence. Resolution of the motion to suppress so resolves this issue. The trial court properly denied Walker's motion to suppress.

II

Walker claims the prosecuting attorney improperly commented on his failure to testify. The first comment in question was:

It's a pretty strange coincidence that if this other person supposedly bought this gun and it showed up in this defendant's vehicle. Strange coincidence which on the evidence in front of you we have absolutely no support for, Number One. And Number Two, no explanation for. That's again, that's speculation. You know, somehow and someway maybe this person who we have no evidence about may have come in and somehow put that gun there ...

Walker claims the prosecutor made a second improper comment in closing argument, regarding a metal box into which Walker was...