Rector v. State

271 N.E.2d 452, 256 Ind. 634, 1971 Ind. LEXIS 689

Opinions

Arterburn, C.J.

Defendant was charged with the crime of kidnapping and pleaded not guilty thereto. The jury returned a verdict finding him guilty as charged. Judgment was entered thereon and the defendant was sentenced to life imprisonment at the Indiana State Prison.

Appellant was arrested at about 10:00 p.m. on April 16, 1968. The appellant was arrested pursuant to a call to the police by an informer, Steve Shepard. The informer told the police that he had seen a man being held at gun point in a car which had stopped for gas at a gas station where he was present. The informer also described the make, model and color of the car and gave the car’s license plate number. The arresting officers, having received a radio broadcast describing the car, stopped the car and arrested the appellant and his companion. The appellant was taken in custody. The following day Thomas Fisher, Jasper County Prosecutor executed an affidavit charging the appellant with the crime of kidnapping. The affidavit was sworn to by the complaining witness, Claise W. Tarrant and approved by the prosecutor. Pursuant to the charging affidavit an arrest warrant was issued, even though the Appellant was already under arrest.

Appellant first contends that the initial arrest was illegal because there was not probable cause for such arrest. Appellant has not preserved this question for our consideration, as he made no proper objection at any time. Kelley v. State (1958), 226 Ind. 148, 78 N. E. 2d 547 and Beeler v. State (1951), 230 Ind. 444, 104 N. E. 2d 744.

Appellant next contends that testimony of State Police Officer Lewis Wolfe pertaining to an identification tag which he had allegedly attached to a shotgun, taken from the appellant’s car at the time of the arrest, was inadmissible because the tag was not thereafter introduced into evidence and because it was the fruit of a search incident to an illegal arrest. This objection comes too late since the complaining witness, the arresting officer, and appellant’s companion had all previously testified as to the existence of the shotgun in the car at the time of the arrest, without objection. The testimony of Officer Wolfe was merely cumulative and wé find no merit in the contention. Davis v. State (1968), 251 Ind. 133, 239 N. E. 2d 601 and Adams v. State (1946), 224 Ind. 472, 69 N. E. 2d 61. Also, appellant’s contention that the testimony of the State Police Officer was erroneously admitted into evidence because it was fruit of an illegal arrest is untenable because no objection was made based on that point, but only on the ground that the weapon was not offered in evidence. No objection was ever made that the testimony relating to the identification tag was inadmissible because it was obtained in the course of an illegal arrest. In Tyler v. State (1968), 250 Ind. 419, 422, 236 N. E. 2d 815, we stated: “We are compelled to hold that since the appellant failed to object at trial for the same reasons now being urged, he is deemed to have waived his alleged errors. One may not raise objections for the first time on appeal in this Court when there was afforded an ample opportunity to raise the objection during the course of the trial.” See also: Gernhart v. State (1954), 233 Ind. 470, 120 N. E. 2d 265 and Dull v. State (1962), 242 Ind. 633, 180 N. E. 2d 523. Thus for the reasons discussed above the appellant’s contention is without merit.

Appellant next urges, that the affidavit charging him with the crime of kidnapping was fatally defective in that it did not set forth sufficient facts from which the court could find or establish probable cause for issuance of an arrest warrant. In this contention the appellant is in obvious error. The only instance where a “probable cause affidavit” must accompany a “charging affidavit”, setting forth the facts constituting probable cause, is where the person has not been arrested for commission of an alleged crime. Where a person has already been arrested by a police officer upon probable cause without an arrest warrant, as where a misdemeanor or felony was committed in his presence, or where he has probable cause to believe a felony has been or is being committed, the charging affidavit does not have to be accompanied by a probable cause affidavit. To require such would be purposeless. Appellant has erroneously cited Kinnaird v. State (1968), 251 Ind. 506, 242 N. E. 2d 500, on this point. Where probable cause is shown for the original arrest Kinnaird v. State, supra, is not applicable. Further, the appellant having been previously arrested, by a police officer on probable cause, was not prejudiced by the subsequent (and unnecessary) arrest warrant issued pursuant to a bare “charging affidavit”. No search followed the issuance of the arrest warrant and the admissibility of no evidence is based upon the warrant. Further, this Court stated in Dickens v. State (1970), 254 Ind. 388, 260 N. E. 2d 578, “Even if an arrest is illegal, it has been held that it does not amount to a denial of due process. Further, there is authority for the proposition that an illegal arrest, in itself, in no way affects a judgment of conviction. People v. Rose (1961), 22 Ill. 2d 185, 174 N. E. 2d 673. The general rule also being that the jurisdiction of a court over the person of the defendant is not terminated by an illegal arrest . . .” On this point we stated in Layton v. State (1968), 251 Ind. 205, 209, 240 N. E. 2d 489, 491, that:

“It seems that the appellant further contends that if the arrest was illegal, the mere fact in itself, if the appellant is tried, is sufficient grounds for a new trial. The illegality of the arrest affects only the admissibility of the evidence, as in the case of a search warrant. It does not affect the right of the state to try the appellant. The appellant fails to point out what the remedy would be if an appellant could not be tried merely because the arrest was illegal. Must he be set free in event of an illegal arrest? Must the defendant be returned and set free in California or on the steps of the courthouse and immediately rearrested under a valid warrant before he can be tried? We do not believe a court should engage in such futile and idle motions. To do so makes the judicial processes a laughing matter for the public.”

For these reasons appellant’s contention is of no merit and fails.

Finally appellant urges that the trial court erred in admitting into evidence, for impeachment purposes on cross-examination, a letter written by the appellant. During the cross-examination of the appellant, appellee introduced in evidence a letter written to one Eva Lou Norris by the appellant while in jail before his trial. While the letter was not crucially detrimental to the character of the appellant, or'tó the veracity of his testimony, it did offer some evidence impeachable in nature. Appellant had testified that he was a married man with several children and that the woman to whom the letter was written was just a friend. The letter disclosed that the relationship between the woman to whom the letter was written was perhaps more than just friendship. Appellant objected to the introduction of the letter in evidence on the ground that he had made a demand upon the prosecutor before trial for a complete list of witnesses and documents which the prosecution intended to use in the course of the trial, and that only a list of witnesses was produced by the prosecutor. We point out that no written demand, specific in nature, was made for the list of witnesses and documents, therefore there is nothing in the record from which we can determine specifically the request made. The record only alludes to an alleged agreement between the appellant’s counsel and the prosecutor that a list of witnesses and documents intended to be used by the prosecution would be given to the appellant for preparation of his defense. In this regard, the pertinent testimony of appellant’s counsel Mr. Tetek is as follows: “. . . that I had made a demand on the prosecuting attorney to furnish me with a complete list of witnesses and documents that he intended using in the course of this trial and he agreed to do so.” The prosecutor could not have known what documents or other evidence he intended to use on cross-examination of the appellant, who might not take the stand, therefore no error was committed by his failure to give the letter to the appellant before the trial. He could only have known what documents or other evidence he was going to use in the State’s case in chief. To do as the appellant suggests would require the State to lay bare its entire case in advance of trial. Our conclusion here is in accord with our comment in Bernard v. State (1967), 248 Ind. 688, 692, 230 N. E. 2d 536, 540, as follows: “We do not require that the State lay bare its case in advance of trial nor that the criminal defendant be allowed a fishing expedition, . . .”

Judgment of the trial court is therefore affirmed.

Givan, Hunter, JJ., concur; DeBruler, J., concurs in result; Prentice, J., dissents with opinion.