Zupp v. State

Decision Date07 June 1972
Docket NumberNo. 1269S299,1269S299
Citation283 N.E.2d 540,258 Ind. 625,31 Ind.Dec. 219
PartiesEgon Bruno ZUPP, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William F. Marshall, Columbus, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of Kidnapping, Rape, and Commission of a Crime While Armed with a Deadly Weapon. He was sentenced to concurrent terms of imprisonment for life, two to twenty-one years and ten years.

His appeal to this Court presents five issues. The evidence reflected by the record, viewed most favorably to the State, discloses that the defendant forced his way into the automobile of the prosecuting witness at gun point and under threat of death. She was then ordered to drive to a secluded rural spot, where he forced her to have sexual intercourse with him. The entire episode took place between the hours of approximately 9:00 p.m. and 12:00 midnight. Earlier in the evening, the defendant had been at the residence of Mr. and Mrs. Ziegler, who were the parents of his concubine, Bonnie. Defendant and Bonnie had previously been living together in Muncie but had become estranged and Bonnie had gone to the home of her parents in Columbus. Defendant was there to effect a reconciliation. He had left the Ziegler home at approximately 6:00 p.m. to purchase cigarettes, and when he failed to return as expected, Mr. and Mrs. Ziegler became concerned and went to look for him. During the search, Mr. Ziegler saw an automobile which he thought to be the defendant's, parked at the lot where the prosecuting witness had first been accosted by the defendant. Defendant returned to the Ziegler home at approximately 12:30 a.m. and said that he had been drinking and 'bar-hopping' in Columbus. The following day the Zieglers read a newspaper account of the rape. The reported description of the rapist, as given to the police by the prosecuting witness, matched that of the defendant. They became suspicious and reported the same to the Columbus police, who procured the arrest warrant. In the meantime, Defendant had returned to Muncie. This information was relayed by the Columbus police to the Muncie police, who arrested the defendant. Following the arrest, the police properly advised the defendant of his constitutional rights concerning his restraint, and asked for and received permission to search his automobile and his living quarters. It is commendable that the police, at this stage, received from the defendant a voluntary written waiver and consent to the search, reciting that he was informed of his 4th Amendment rights to refuse a search and of his right to have no search conducted without a warrant. In recent years this Court has been compelled to overturn many trial court judgments, and doubtlessly much pertinent and otherwise competent evidence has been refused by our trial courts, because of questions surrounding police searches that could have been thusly avoided. We wholeheartedly endorse the police procedure employed herein in this regard.

1. Defendant's first contention is that the warrant upon which he was arrested was issued without a showing of probable cause and that certain evidence thereby obtained should not have been admitted into evidence. Conceding the invalidity of the arrest warrant, the evidence referred to was obtained in the searches made under the aforesaid waiver and consent; and we find no merit to the defendant's claim that such consent was coerced. The illegality of the arrest, therefore, does not bear upon the admissibility of the evidence. Layton v. State (1968), 251 Ind. 205, 240 N.E.2d 489; Wells v. State (1971), Ind., 267 N.E.2d 371.

2. The introduction of a gun into evidence was objected to by the defendant. This gun had not been obtained under the aforementioned consent to search but had been taken from a sleeping room not a part of his regular living quarters but sometimes used by the defendant and was admittedly outside the scope of the aforementioned consent. The gun in question had been given to the police by a Mr. Forhan from whom the defendant rented the sleeping room. There was evidence that he had, on past occasions, acted as a police informer; and it is the defendant's contention that he had thereby established himself as a police agent and, as such, could not conduct such a search and have the evidence thereby obtained utilized in evidence. There is no evidence that Mr. Forhan was in the regular employ of the police or was, on this occasion, employed or authorized to make the search. Assuming, then, that his act of entering the sleeping room and taking the defendant's gun therefrom was unauthorized, nevertheless, in so doing he was merely acting as a private citizen. The constitutional proscriptions against unreasonable searches and seizures are intended only to protect against such actions by the government, and neither the state nor federal provisions apply to the unauthorized acts of private individuals. 79 C.J.S. Searches and Seizures § 5c and cases there cited; Gunter v. State (1971), Ind., 275 N.E.2d 810; Burdeau v. McDowell (1921), 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048.

3. After the defendant had been incarcerated in Muncie, the prosecuting witness was brought from Columbus and viewed and identified him in his jail cell. This was a clear violation of United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. However, defendant did not object when the identification testimony was introduced at the trial. It is a principle of long standing that to be available on review, the error must have been timely presented at the trial stages. Johnson v. State (1972), Ind., 278 N.E.2d 577; Wilson v. State (1970), Ind., 255 N.E.2d 817.

Defendant acknowledges that he cannot avoid the foregoing as being procedurally correct but insists that the application of the rule in this case would deny him a fair trial, in that an objection to the in-court identification would have precluded him from presenting other facts to the jury that bore upon his innocence. Defendant has failed to make clear to us just how this set of circumstances would have operated to produce such a result, but regardless, we do not agree that the established and proven rules of procedure can be varied on a case-to-case basis to accommodate the particular litigant's trial plan. Almost without exception, the most careful and skillful of lawyers, during the course of a jury trial, is faced with frustrating decisions of techniques and must balance the advantages of insisting upon strict compliance with various rules of evidence against the disadvantages thereof. Invariably a review of the record reveals numerous waivers, but many of these may have been well calculated to produce a favorable result. It may well be one of the drawbacks inherent in our adversary system, but we know of no way to permit the litigant to elect between options without holding him to his...

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