Graddy v. State

376 N.E.2d 506, 176 Ind. App. 518, 1978 Ind. App. LEXIS 923
CourtIndiana Court of Appeals
DecidedMay 31, 1978
DocketNo. 1-577A100
StatusPublished
Cited by3 cases

This text of 376 N.E.2d 506 (Graddy v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graddy v. State, 376 N.E.2d 506, 176 Ind. App. 518, 1978 Ind. App. LEXIS 923 (Ind. Ct. App. 1978).

Opinion

ROBERTSON, J.

—Respondent-appellant, Randall Graddy (Graddy), was adjudged a delinquent child pursuant to a petition for delinquency alleging the crime of second degree burglary. From that adjudication, Graddy now brings this appeal.

The issues presented on appeal are:

1. Whether the court erred in overruling each of two motions to suppress.
2. Whether the court erred in admitting into evidence a number of the State’s exhibits.
3. Whether the court erred in failing to rule on a motion to strike portions of a preliminary investigation report.
4. Whether the evidence was insufficient to support a conviction for second degree burglary.1

We affirm.

The facts most favorable to the State are as follows. Shortly after midnight on August 7,1976, Corporal Harrison of the Greenfield Police Department observed Graddy in front of the Hook’s Drugstore near the west end of the Weston Village Shopping Center in Greenfield, Indiana. Graddy was walking back and forth in front of Hook’s and turning his head east and west as though he was looking for someone. Harrison then proceeded to the rear of the shopping center where he was notified by radio dispatch from Officer Bell that someone had broken into the Weston Village Laundromat located at the west end of the shopping center. Harrison returned to the front of the shopping center where he observed that the laundromat door was unlocked and the burglar alarm had been shut off.

Corporal Harrison and Sergeant Davis, another officer, then went to the Greenfield Pizza House which, aside from a grocery also located near the east end of the shopping center, was the only establishment open for business at that hour. Harrison found Graddy there and asked him to step outside. Graddy was then asked to accompany the officers [521]*521to the laundromat. Although complaining of police harrassment and directing obscenities toward the officers, Graddy did walk to the laundromat where other police officers had gathered. In response to questions about the laundromat and a request that he empty his pockets, Graddy continued his verbal abuse of the officers, refused the request, and stepped back with fists doubled. He was then advised that he was under arrest for being a disorderly person and was placed against a patrol car. At this point, Graddy broke away and took a swing at Sgt. Davis whereupon the officers forced him over the hood of the car and placed him in handcuffs. While Graddy was in this position, Corporal Bell observed arid retrieved a blue money bag which was protruding from the back pocket of Graddy’s pants.

Subsequently, Graddy was searched at the police station and $58.08 was found, most of it in his left sock, the only one he was wearing. After daybreak on August 7, 1976, the mate of Graddy’s sock was found in some weeds near the Greenfield Pizza House. This second sock contained coins.

At the hearing, it was adduced that the money bag taken from Graddy was the same type that the laundromat used and that this money bag contained specially made daily expenditure tickets used by the laundromat. Further, Gail Johnson, an employee of the laundromat testified that she had unlocked the laundromat door, shut off the alarm, unlocked a “changer”, and left, leaving Graddy behind in the laundromat. He had a hammer with him at the time. A hammer was later found near the laundromat’s battered cigarette machine.

I

Graddy asserts as separate instances of error the court’s overruling his prehearing motion to suppress and his motion to suppress made during the course of the hearing. Both motions sought to suppress all evidence obtained subsequent to Graddy’s encounter with Officer Harrison at the Greenfield Pizza House. The rationale for the motions to suppress is that the evidence was secured by means of a search that was not incident to a valid arrest.

Graddy contends that the above encounter was an unconstitutional seizure under U.S. CONST, amend. IV. We disagree. Under either the [522]*522standard set out in Terry v. Ohio (1968), 392 U.S. 1, 885 S.Ct. 1868, 20 L.Ed.2d 8892 or the language of IC 1971, 35-3-1-1 (Burns Code Ed.) of our “stop and frisk” statute,3 an investigatory stop of Graddy was warranted by the circumstances. Those circumstances were Officer Harrison’s observations of Graddy and his conduct near the laundromat when all the business establishments at that end of the shopping center were closed, coupled with the receipt by Harrison shortly thereafter of information that someone had broken into the laundromat.

The above circumstances did not, however, justify a search of Graddy, especially in light of Officer Harrison’s testimony that he was not in fear of his safety when Graddy was stopped for temporary questioning. Thus, the request that Graddy empty his pockets was clearly inappropriate, and any evidence obtained thereby would have been rendered inadmissible.

Nevertheless, Graddy’s arrest for being a disorderly person pursuant to his abuse of the police officers represents a separate, albeit related, transaction, and the evidence most favorable to the State seems to provide probable cause for such an arrest. Considering Graddy’s physical resistance, including the swing taken at Sgt. Davis, the subjugation and handcuffing of Graddy appear to have been reasonable responses by the police, and it is our view that under these facts, a search incident to the arrest would have been proper, [523]*523regardless of whether the offense precipitating the arrest is characterized as a misdemeanor or as a felony.

Graddy has contended that the aforementioned arrest for being a disorderly person did not occur. This is a question of fact which we may not decide on appeal. There was conflicting evidence from which the court could have inferred, and apparently did infer, that such an arrest was effected.

The overruling of the motions to suppress did not constitute error.

II

Graddy next alleges error in the admission into evidence of a number of the State’s exhibits.

State’s Exhibit One was a money bag. State’s Exhibit Seven was an evidence card completed by Corporal Bell which described Exhibit One and the circumstances by which Exhibit One came into his possession. These exhibits were introduced through Detective Sgt. Offutt, the investigating officer who received and had charge of all the evidence in this matter.

The bases for Graddy’s objections were that Exhibit Seven contained inadmissible hearsay and that, by his own admission, Sgt. Offutt could not identify Exhibit One without the accompanying evidence card. Thus, it seems that the admissibility of Exhibit Seven is the key to the admissibility of Exhibit One. Indeed, we infer from the record that the evidence card was not destined as evidence until it became apparent that the admissibility of Exhibit One might be in jeopardy.

The admission into evidence of the evidence card was not error because there simply was no hearsay involved.

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Related

Spikes v. State
460 N.E.2d 954 (Indiana Supreme Court, 1984)
State v. Barlow
390 N.E.2d 1046 (Indiana Court of Appeals, 1979)

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Bluebook (online)
376 N.E.2d 506, 176 Ind. App. 518, 1978 Ind. App. LEXIS 923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graddy-v-state-indctapp-1978.