Whitten v. State

• Decision Date: 27 August 1975
• Docket Number: No. 1073S213,1073S213
• Citation: 263 Ind. 407,333 N.E.2d 86
• Parties: Ernest WHITTEN and Michael L. Bailey, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 86

333 N.E.2d 86

263 Ind. 407

Ernest WHITTEN and Michael L. Bailey, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1073S213.

Supreme Court of Indiana.

Aug. 27, 1975.

John F. Davis, Evansville, for appellants.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

The defendants (appellants) were convicted in a trial by jury of felony murder (robbery), Acts of 1941, ch. 148, § 1; IC 35--13--4--1; Burns Ind.Stat.Ann. § 10--3401. They were both sentenced to life imprisonment. This appeal presents the following issues:

1. Sufficiency of the evidence.

2. Validity of searches of the defendants' automobile.

3. Legality of cross examination of defendants' psychiatrist concerning prior criminal acts and police involvement of the defendants.

4. Admissibility into evidence of police 'mug' photographs.

5. Correctness of the trial court's denial of a motion for mistrial following the disclosure by a State's witness of a statement by one of the defendants that he was wanted for another armed robbery.

6. Correctness of the trial court's ruling permitting the court appointed psychiatrist to testify as to a statement made by the defendant, Bailey, during the examination to determine his competency to stand trial.

7. Correctness of an instruction limiting the verdicts to guilty, not guilty or not guilty by reason of insanity.

ISSUE I. Considering first the charge of insufficiency of the evidence and looking only to the evidence favorable to the State and to the reasonable inferences to be drawn therefrom, we hold that such evidence was sufficient to sustain the verdicts.

The homicide victim operated a business house wherein substantial sums of currency were kept. In addition to the main entry thereto, such business house also had a side entry off a corridor which it shared with a tavern situated next door. Shortly after the decedent's establishment was opened for afternoon business hours, a waitress in the tavern heard gunshots in the decedent's premises. She went through the common corridor to investigate. In the corridor she encountered the defendant, Whitten, who threatened her with a pistol. She returned to the tavern but re-entered the corridor moments later only to encounter the defendant, Bailey, who pointed a pistol at her and told her to 'shut up.' He too exited, and as he did so, he dropped a substantial sum of money in the corridor.

Immediately thereafter, the defendants fled at high speed in an automobile, one entering the 'get away' vehicle after it had commenced to move. A chase by the police ensued during which the defendants, after stopping the vehicle along side the highway at police command, drove through a cornfield and through fences with the policeman chasing them on foot. Their automobile became stuck in a farm lot, whereupon they abandoned it and subsequently commandeered a nearby resident to drive them away in his utility vehicle. When the police stopped this vehicle, the defendants again fled, this time separating.

Ultimately, Whitten was apprehended where he had taken a family hostage in their home, and Bailey was apprehended in a nearby wooded area where he had attempted to bury the decedent's revolver in the ground. At the time of their capture, both defendants had substantial sums of currency upon their persons. At the scene of the homicide, six hundred and ten dollars in cash was strewn about the room, some upon the counter and some upon the floor. Some of it was underneath the decedent, who was found lying upon the floor.

The defendants, on two occasions, announced to their hostages that they had killed a man. Both defendants were armed when apprehended. Nitrate tests of the defendants disclosed that both had recently fired their guns and ballistics tests disclosed that the death shots had been fired from the gun taken from one of the defendants. Both defendants were identified by the hostages and by the waitress who heard the gunshots and saw them exiting from the murder scene.

The defendants cite Manlove v. State (1968), 250 Ind. 70, 232 N.E.2d 874, and assert that the only evidence of what, in fact, took place in the decedent's premises was provided by the defendant, Bailey, who testified that he and Whitten went to the decedent's business house to collect money owing from the decedent to Bailey, that decedent refused to pay the debt and that an argument ensued. The defendant further testified that Sheets (the decedent) pushed a burglar alarm button and opened fire upon them before either of them 'pulled' their guns. Whitten did not testify.

The circumstantial evidence against the defendants goes far beyond that presented in Manlove (supra) and Schusler v. State (1868), 29 Ind. 394 cited therein, wherein it was stated that 'To sustain such a conviction the facts proved must be susceptible of explanation upon no reasonable hypothesis consistent with the innocence of the person charged.' The jury was not bound to believe Bailey's version of the killing simply because there was no direct evidence of its falsity.

' The sufficiency test on appeal is not whether or not the verdict is one upon which reasonable minds might differ but rather whether or not there has been a failure of proof by substantial and probative evidence, so that no reasonable man could say that the issue had been proved beyond a reasonable doubt.' Beard v. State (1975), Ind., 323 N.E.2d 216, 218. It cannot be seriously denied that the evidence above related gives rise to an inference that the defendants were engaged in an act of robbery at the time of the homicide. Such inference is entirely reasonable and is supported by substantial and probative evidence. Even if we were to believe the defendants' version of the encounter with the decedent, we could not override the verdict of the jury in view of the conflicting evidence.

ISSUE II. After the defendants broke arrest and escaped momentarily by driving through the fields, other policemen were summoned and appeared and began a search for them. They came upon the stranded automobile and searched it. Subsequently, the vehicle was removed by the police to the police station, where it was again searched without the formality of a warrant, and evidence obtained in these searches was admitted into evidence.

Defendants would have us exclude the evidence obtained in the searches of the automobile upon authority of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. Chimel was cited for very general language taken from an earlier dissent by Justice Cardozo proscribing exemptions from the constitutional requirement of warrant '* * * without a showing * * * that the exigencies of the situation made that course imperative.' In Coolidge v. New Hampshire (supra) the evidence taken in a warrant for search of the appellant's automobile, after it had been unconstitutionally seized and taken to the police station, was excluded as fruits of the unlawful seizure.

The case at bar offends against neither of the aforementioned cases and is controlled by Chambers v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, Reh. Den. 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94, and by Luckett v. State (1972), 259 Ind. 174, 284 N.E.2d 738. The initial search of the automobile, while it was in the farm lot, and its removal to the police station immediately thereafter were entirely reasonable under the exigent circumstances. The subsequent search at the police station was merely a logical continuation of investigative procedure that was lawful in its inception and we see no illegality.

ISSUES III and IV. The defendants both entered pleas of not guilty by reason of insanity. In...