Wethington v. State

• Decision Date: 04 October 1990
• Docket Number: No. 06S00-8805-CR-438,06S00-8805-CR-438
• Citation: 560 N.E.2d 496
• Parties: William L. WETHINGTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 496

560 N.E.2d 496

William L. WETHINGTON, Appellant, v. STATE of Indiana, Appellee.

No. 06S00-8805-CR-438.

Supreme Court of Indiana.

Oct. 4, 1990.

Allen F. Wharry, Martin & Wharry, Lebanon, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stephenson, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant William L. Wethington and David Pemberton were arrested in connection with a robbery and associated crimes which occurred on October 2, 1986. Their causes were initially joined for trial, but after Pemberton was granted a motion for severance, each was tried in a separate jury trial. Appellant was found guilty on Count I, robbery, a Class B felony, I.C. 35-42-5-1; Count II, theft, a Class D felony, I.C. 35-43-4-2; Count III, criminal confinement, a Class B felony, I.C. 35-42-3-3; and Count IV, intimidation, a Class C felony, I.C. 35-45-2-1. The trial court sentenced appellant to twenty years on Count I and four years on Count II, these sentences to run concurrently, and to twenty years on Count III and eight years on Count IV, these sentences to run consecutively to the sentences imposed on Counts I and II and to each other. Appellant therefore received an executed sentence of forty-eight years. He now brings this direct appeal, claiming that errors were committed in the contexts of 1) search and seizure, 2) pre-trial identification procedures, 3) pre-trial publicity, 4) chain of custody, 5) admission of photographs, and 6) sentencing.

Between 7:30 and 8:00 a.m. on October 2, 1986, appellant and Pemberton were walking south along State Road 39 just outside of New Brunswick. Boone County Deputy Sheriff Dennis Brannon stopped his police car near the two men and asked them where they had been and where they were going. They responded that they had been at a girlfriend's house and were on their way back to Indianapolis. Brannon testified that he told appellants that there had been a "situation that morning and that [he] would like to take them back so that the deputies could talk to them just to see if they were, in fact, maybe involved in the situation...."

The "situation" to which Brannon was referring had occurred about two hours previously at the home of Pat Adair, which was approximately three miles away from where the men were stopped. At about 6:00 a.m., two men had forced Pat and her two adult children, Danny and Dianne, to lie on their living room floor. The first man was armed with an automatic handgun, and the other was armed with a shotgun or a rifle. Pat's bedroom was ransacked by the first man, who was looking for marijuana, while the one with the shotgun stood over the Adairs. The first man found $120 in a purse and demanded to know where the marijuana was hidden. Pat told him it was in the freezer, and he took out a package of clothesline rope, cut it with a knife, and bound the hands of the Adairs. He tore up a sheet and gagged them. A blanket was then put over them, and gasoline was poured onto it from a container the intruders had brought with them. At one point, Dianne stuck her head out and was told to keep under the blanket or her head would be blown off. Both Pat and Dianne testified that they were told that they would be burned if they did not cooperate. The man with the shotgun was about to go upstairs to look for others in the house when a woman's voice called out from the porch that she had seen something, and the two men left the house. The money, in denominations of a hundred dollar bill and a twenty dollar bill, and a large freezer bag containing six smaller plastic bags of marijuana were taken. David Presley, who is Dianne's boyfriend, their child, and Presley's cousin had been upstairs throughout the incident, and after the men left, Dianne freed herself and ran up to check on the baby. Presley exchanged shots with the departing intruders. Danny then took Dianne next door to summon the police.

Deputy Brannon was one of the officers called to the Adair residence, and on his way back to the station, he heard a police radio broadcast that "two scruffy looking hitchhikers" had been seen walking along State Road 39. After stopping appellants as noted above, he patted them down because he had noticed something protruding from above Pemberton's belt. It was a large freezer bag with six smaller plastic bags of marijuana in it. His patdown of appellant revealed an automatic handgun, a knife, some gloves, and a billfold containing some change and the following bills: one hundred, one fifty, six twenties, one five, and four ones.

Brannon then received a radio dispatch that he was to take the two men to a nearby intersection. Upon their arrival, appellant and Pemberton got out of the police car and stood behind it so that, from across the road, they were visible from the waist up. The items taken from them were placed on the hood of the car. Danny and Dianne Adair were seated in separate police cars across the road, from which they viewed the men. Upon Danny's request, his police escort drove by them so that he could get a closer look. At one point, Brannon picked up the handgun and the knife and handed them to Sheriff Ern Hudson in full view of both the Adairs.

The men then got back in the police car, and while en route to the Boone County jail, Brannon got another radio dispatch that he was to take them instead to the Center Fire Station. There, the items produced by the patdown were placed on a chest freezer in the meeting room of the station, clearly visible from a table and chairs set up in the room. In turn, Pat, Danny, and Dianne Adair were seated at the table with a police officer. The men were brought in before each victim, one at a time and accompanied by a policeman. Each walked from a side door, across the room in front of the table, then turned and walked back out the door.

I. Search and Seizure

Appellant claims that the gun and knife taken from him by Deputy Brannon were the products of a warrantless search conducted without probable cause and should have been suppressed at trial. Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may make an investigatory stop and limited search of an individual, even without a warrant and in the absence of probable cause to arrest, if the police officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion" on the individual's right of privacy. Id. at 20-21, 88 S.Ct. at 1879-80, 20 L.Ed.2d at 906; see also Coates v. State (1989), Ind., 534 N.E.2d 1087; Owens v. State (1986), Ind., 497 N.E.2d 230.

Deputy Brannon responded to the call to investigate the crimes committed against the Adairs, but was released from the scene by Sheriff Hudson shortly after his arrival. While en route back to the jail, Brannon heard a police radio dispatch regarding two hitchhikers in the area. At that time, Brannon knew that one of the intruders had been armed with a shotgun and that two white male suspects were believed to have fled on foot through a plowed field south of the house. The woman was believed to have driven north in a blue Camaro, which Presley had seen parked in the driveway. Brannon testified that he located the hitchhikers and stated,

As I got closer I could tell that one of them had a, something sticking[,] a protusion [sic] sticking out in the front of the pants in the belt buckle area and uh, I, then their jeans were wet from about the knees down, wet and muddy, uh, which I just started putting things together....

Given these circumstances and the facts known to Brannon at that time, along with the reasonable inferences to be drawn from them, Brannon was justified in stopping appellant and Pemberton to investigate further and under the standards set forth in Terry, the search and seizure at issue here was reasonable. The police dispatch alerted Brannon to the presence of two men walking in the opposite direction of a crime scene from which armed perpetrators had escaped on foot. As he pulled his car to the side of the road, Brannon noticed that both were wearing flannel shirts and jeans, which matched the description of the clothing worn by the intruders, and that their jeans were wet and muddy from the knees down, which would be consistent with having come through a plowed field. He also noticed something protruding from the belt of one of the men. A policeman may search a person prior to questioning to remove any weapons that might be used to harm the officer or to effect an escape. Jones v. State (1985), Ind., 472 N.E.2d 1255.

When Brannon put the two men in his car to transport them to the location of the first identification, he effectuated a full custodial arrest which had to be supported by probable cause. At the time Brannon made the Terry stop, probable cause to arrest did not exist. However, even if probable cause to arrest does not exist at the time a legitimate investigation commences, probable cause may develop during the course of that investigation. Fyock v. State (1982), Ind., 436 N.E.2d 1089. When Brannon discovered the handgun and marijuana during his patdown of appellant and Pemberton, probable cause to arrest was established. Jones, 472 N.E.2d 1255.

The items of physical evidence were not the product of an unlawful search and seizure, and the trial court did not err in denying appellant's motion to suppress their admission into evidence.

II. Identification Procedures

Appellant contends that the confrontations conducted by the police at the roadside and the fire station were impermissibly suggestive and that evidence of identification resulting from these confrontations should have been suppressed. This Court must determine whether "the confrontation[s] conducted in this case [were] so unnecessarily suggestive and conducive to irreparable mistaken identification" that appellant was denied due process of law under the Fourteenth Amendment....