Guthrie v. State

260 N.E.2d 579, 254 Ind. 356, 1970 Ind. LEXIS 556

• Court: Indiana Supreme Court
• Decided: July 22, 1970
• Docket: 869S176
• Status: Published

Opinions

Hunter, C. J.

Appellant in this case was charged by affidavit with statutory rape of a four year old girl. Upon a second trial by jury, the jury in the first trial being unable to determine his guilt or innocence, appellant was convicted and sentenced to life imprisonment at the Indiana State Prison. The sole assignment of error on this appeal is the overruling of appellant’s motion for new trial. In his motion for new trial, appellant alleges that errors of law occurred during the trial in the following particulars: (1) the court erred in overruling appellant’s objection to the admission of certain evidence claimed to have resulted from an unlawful search of his residence; (2) the court erred in overruling appellant’s objection to the admission of state’s exhibit number six which was a capsule containing two slides preserving alleged vaginal smears of the rape victim in that the state failed to establish a complete chain of custody in regard to said capsule.

We turn first to the question of whether the search of appellant’s residence was unlawful under Fourth Amendment protections. The search complained of was conducted by one Betty Guthrie, grandmother of the victim and sister-in-law of the appellant. Although appellant concedes that searches by private persons have been held not to fall within the ambit of Fourth Amendment protections, Burdeau v. McDowell (1921), 256 U. S. 465, 65 L. Ed. 1048; Barnes v. United States (5th Cir. 1967), 373 F. 2d 306; United States v. Small (D. C. Mass. 1969), 297 F. Supp. 582; United States v. Masterson (D. C. N. Y. 1966) 251 F. Supp. 937, cert. denied, 385 U. S. 833, it is his contention that Mrs. Guthrie acted upon the advice and direction of the prosecuting attorney. Appellant relies principally on the case of Machlan v. State (1967), 248 Ind. 218, 225 N. E. 2d 762 for the proposition that the proscriptions of the Fourth Amendment are applicable where the person conducting the search does so upon the advice and direction of a police officer. We would agree that appellant has correctly stated the holding of the Machlan case. However, it is readily apparent from the tenor of the objections made at trial that the appellant is here urging on appeal an objection of a different nature than that entered before the trial court.

The background facts are as follows: Mrs. Leas, mother of the victim, upon learning that her daughter had been molested, called the police. After the police left, Mrs. Guthrie, the victim’s grandmother called the prosecutor apparently to determine what would be done about the incident. The prosecutor informed Mrs. Guthrie that an arrest warrant could not be issued without more proof since the only information available at the time was mere hearsay. Soon thereafter, Mrs. Guthrie called the prosecutor a second time. Although the full content of that conversation was not disclosed at trial, it appears that at one point the prosecutor asked if there were any witnesses, whereupon Mrs. Guthrie replied that she would get one.

After this conversation, Mrs. Guthrie proceeded to walk over to visit a neighbor of appellant and inquire as to the activities of appellant during that afternoon. After this interview, Mrs. Guthrie again called the prosecutor. There is no indication as to the contents of this third discussion between the prosecutor and Mrs. Guthrie. Immediately thereafter, Mrs. Guthrie went to appellant’s residence, a trailer, and conducted the “search” here complained of consisting solely of observations made upon her entry. She only remained a few minutes when it “dawned” on her that it would probably be inspected by the police later. To gain entrance to the trailer, Mrs. Guthrie had used a key in her possession; it appears from the record that her husband owned the trailer in which appellant resided.

The prosecutor, on direct examination of Mrs. Guthrie was attempting to elicit her observations of the interior condition of the trailer. Defense counsel objected on two occasions to the introduction of this testimony as follows:

“Q. When you went to the trailer what, if anything, did you see — anything unusual? About the trailer or . . .

A. Yes, it was all closed up . . .

MR. WHITELEATHER: Your Honor, at this time I will object to anything this witness has to say regarding the inside of that trailer as being a reasonable search of the trailer which is not owned by her and which she had no right to be in the trailer at that time.

A. My husband owned it — didn’t I have any right?

MR. THRAPP: Your Honor, I think that wouldn’t be unreasonable seizure to a person other than a police officer.

THE COURT: That’s true. I thought the question was, ‘Did you notice anything about the trailer as to whether it was closed up.’ I thought that was the question.

MR. THRAPP: I asked her if she noticed anything unusual about the trailer at the time.

THE COURT: You didn’t say anything about it being closed up ?

A. I said that.

THE COURT: Oh, you said that. I will overrule the objection. Go ahead, answer the question.

A. It was all closed up, and that’s unusual because even in the winter-time he is warm blooded.

Q. You mean the windows were closed?

A. Yes, Sir.

Q. Was that shut up tight? Now what kind of a day was that, was that a cold day?

A. No.

Q. Was it hot?

A. Yes.

Q. That was the first thing you noticed that was unusual. Was there anything else that you noticed? At the trailer or inside the trailer ?

A. Well, it was a mess. The rugs were all torn up and . . .

MR. WHITELEATHER: Excuse me, but may I make the objection at this time that any evidence or testimony by this witness as to the condition of the inside of the trailer amounts to testimony by a person who was not authorized in the trailer and constitutes an unlawful search of the trailer regarding the condition of whatever was found inside the trailer.

THE COURT: Overrule the objection. You may answer.”

Upon the overruling of defense counsel’s second objection in this regard, Mrs. Guthrie proceeded to describe the appearance of the trailer’s interior.

It is clear from the above quoted objections entered by defense counsel that he was challenging the validity of the search on the ground that Mrs. Guthrie had no right to be in the trailer at the time she made her observations. On appeal, however, as above pointed out appellant seeks to raise an entirely new question as to the validity of the search, to wit: was Mrs. Guthrie acting- at the instance and direction of the prosecuting attorney?

The general rule was stated by Wigmore in his treatise on evidence to be as follows:

“Specific Objection. A specific objection overruled will be effective to the extent of grounds specified, and no further. An objection overruled, therefore, naming a ground which is untenable, cannot be availed of because there was another and tenable ground which might have been named but was not: ...” 1 Wigmore on Evidence § 18 at 339-40 (1940).

The courts in this state have applied the rule on numerous occasions. See e.g. Automobile Underwriters v. Camp (1940), 217 Ind. 328, 27 N. E. 2d 370; Michigan City v. Werner (1916), 186 Ind. 149, 114 N. E. 636; Stout v. Rayl (1896), 146 Ind. 379, 45 N. E. 515. Although we do not pass lightly on the question of appellant’s constitutional right, neither are we ready to expand the scope of review in this court to include anything which appellant chooses to argue on appeal. The grounds of appellant’s objection at trial being of a different nature than here urged on appeal, we need not pass on the validity of the argument now presented.

We turn next to appellant’s second assignment of error namely that the court erred in overruling appellant’s objection to the admission of state’s exhibit number six which was a capsule containing two slides preserving vaginal smears of the rape victim on the ground that a link in the chain of custody was missing.

It is further argued that lacking such a proper foundation and identification of the slides, they were not shown to be relevant to the Issues of the case. The crux of the issue before us, therefore, is the propriety of the trial court’s admitting the exhibit since if a proper foundation be laid there can be no doubt but what the slides directly bear on the question of whether the alleged victim was in fact raped. Consequently, we shall deal only with the admissability of the slides into evidence, their relevancy being assumed if properly admitted.

The facts pertaining to the capsule are substantially as follows. The victim, Penny Sue Leas, was taken immediately after the incident to one Dr. Greenlee for treatment. During the course of his treatment, Dr. Greenlee took two vaginal smears which he gave to trooper Les Allegood of the Indiana State Police at about 6:30 P.M. Trooper Allegood delivered the capsule containing the slides to the Command Post at approximately midnight. The police officer in charge at the Command Post, one Sergeant McKowan, was asleep at the time the evidence was delivered. When he got up the next morning at about 8:00 A.M. he found the capsule on the Post Commander’s desk and took it to the lab. From the time Sergeant McKowan delivered the capsule to the lab, the state was able and did account for its whereabouts up through and including analysis. Appellant, however, contends that the state’s failure to positively account for the capsule’s whereabouts from midnight until 8:00 A.M. the next morning raises a serious doubt as to its identity.

Recently this court, in the case of Graham v. State (1970), 253 Ind. 525, 255 N. E. 2d 652, was required to pass on the introduction of certain evidence where the state had failed to establish a complete “chain of custody.” That case involved a conviction for the possession and sale of heroin. The evidence there showed that the narcotic had been recovered from a person who had just bought the heroin from the defendant. At the time it was contained in a chewing gum wrapper. The evidence in that case further showed that the chewing gum wrapper and its contents had been removed from the police property room prior to its analysis for a period of six days and was in the possession of at least two different policemen during that time period yet neither policeman was put on the stand to explain the whereabouts of the evidence. The rule there announced was as follows:

“. . . where as in the case of seized or purchased narcotics, the object offered in evidence has passed out of the possession of the original receiver and into the possession of others, a chain of possession must be established to avoid any claim of substitution, tampering or mistake, and failure to submit such proof may result in the exclusion of the evidence or testimony as to its characteristics. Where such evidence or testimony is improperly introduced and is prejudicial to the party against whom it is directed, then the judgment of the trial court should be reversed.” 255 N. E. 2d at 656.

Appellant in the instant case makes much of the fact that Sergeant McKowan was unable to say with exact certainty whether the slides were on the Post Commander’s desk the entire time from midnight until 8:00 A.M. the next morning. It should be noted that the record clearly shows that Trooper Allegood delivered the slides to the Command Post at midnight. Further, although the recollection of Officer McKowan was somewhat less than certain as to what he did with the slides the next morning, one Donald Moody testified that they were on his desk in the lab when he arrived at work at 8:00 A.M.

The precise question, therefore, is whether the state’s inability to produce evidence of the capsule’s exact whereabouts from midnight to 8:00 A.M. is fatal to its admissibility. To decide this question we must decide the extent to which the state must go in negating the possibilities that the evidence was tampered with. Here the state showed that the evidence was delivered to the State Police Command Post and that it was still there in the morning. Need the evidence be excluded merely because there is a possibility, regardless of how remote that possibility is, that the evidence may have been tampered with ?

Although the Graham case did not specifically deal with that question, it is important to note the differences between the two cases. First of all, the evidence involved in that case, heroin, was similar in form to other substances such as baking powder, sugar or powdered milk. The ease with which one might tamper with such evidence is obvious. Further, the testimony in that case clearly established that the evidence was in the hands of two different individuals for a period of six days under somewhat questionable circumstances, yet neither person was put on the stand by the state to explain or verify their possession. Finally, the evidence sought to be introduced, namely heroin, represented proof of an element essential to conviction on the charge of possession and sale of narcotics. Needless to say, extreme care is required in such a situation to insure that the composition of the evidence is not altered.

We point to -these factors, not for the purpose of establishing that such considerations are determinative when passing on the question of a.break in the chain of custody, but for the proposition that in certain cases the burden on the state to negate the possibilities of tampering may be greater than in others. The question was simplified in the Graham case because there was a clear break in the chain for a six day period. However, where as here, the state has introduced evidence which strongly suggests the exact whereabouts of the evidence, the issue becomes one of probabilities.

Appellee has cited several cases the holdings of which indicate that all possibility of tampering need not be excluded; upon reasonable assurance that the exhibit has passed through, the various hands in' an undisturbed condition its admission is proper and any remaining doubts go to its weight only. See People v. Riser (1956), 47 Cal. 2d 566, 305 P. 2d 1; Breeding v. State (1959), 220 Md. 193, 151 A. 2d 743; State v. Baines (Mo. 1965), 394 S. W. 2d 312; Commonwealth v. White (1967), 353 Mass. 409, 232 N. E. 2d 335. We believe such a rule is well grounded in logic and reason.

The facts in the case of State v. Smith (Mo. 1920), 222 S. W. 455, are particularly illustrative of the point here sought to be made. In that case the defendant allegedly poisoned some moonshine which was later consumed by the victim at a Fourth of July picnic. After the victim’s death, his stomach was removed by a local doctor who placed it in a glass jar and gave it to the prosecuting attorney. The prosecuting attorney left the jar and contents with persons in charge of a local ice plant for approximately two days. The men in charge testified that it remained undisturbed, though it was possible that someone might have seen it while there. Later, the prosecutor picked up the jar from the ice plant and placed it in his car where it remained the rest of the day and overnight, often unattended. The court there noted:

“The viscera of the deceased in this case were not preserved with that care which should characterize the conduct of an officer in such a case, and the glass jar containing the stomach was carted around in a careless sort of way; but there was no time when anything occurred to suggest a suspicion that the stomach was molested or that anyone who might be interested in tampering with it knew that the prosecuting attorney had the jar in his possession . . . We think the court did not err in admitting the evidence.” 222 S. W. at 459.

Likewise in the case at bar. Concededly the police could have exercised a greater degree of care to insure that the capsule was not tampered with. However, there is a complete lack of evidence which suggests the remotest suspicion that anyone did in fact tamper with the evidence. The slides had been left at the State Police Command Post on the Post Commander’s desk; they were still there the next morning at eight o’clock. The time period for which custody was unexplained was brief. Further the nature of the evidence here involved, slides of vaginal smears, is not the type that could easily be tampered with or substituded. Under the facts in this case, we cannot say that the chain of custody was sufficiently broken to render the evidence inadmissible.

For all the foregoing reasons the judgment of the trial court is affirmed.

Judgment affirmed.

Arterburn and Givan, JJ., concur; Jackson, J., dissents with opinion in which DeBruler, J., concur.