State v. Griffin

626 P.2d 478, 1981 Utah LEXIS 723

• Court: Utah Supreme Court
• Decided: February 20, 1981
• Docket: 16388, 16669
• Status: Published

Opinions

CROCKETT, Justice:

*

These cases arise out of the same facts and have been consolidated for purposes of this decision.

Defendants were charged with aggravated robbery¹ of patrons and employees at the House of Sherman Beauty Salon. Upon a trial by jury, the defendants were found guilty. They appeal contending that their rights to be free from unreasonable searches and seizures, and to have witnesses testify in their behalf, were violated.

In the afternoon of July 18, 1978, acting on information giving rise to suspicion, police had been following a black and silver Camaro in the vicinity of Second East and 21st South in Salt Lake City. They temporarily lost sight of the car. The evidence is that the Camaro stopped in front of the House of Sherman Beauty Salon and two men, (later identified as the defendants) armed and wearing disguises, got out of the car and went in. At gun point, they ordered everyone in the salon to hand over their purses and jewelry. These they put into a duffel bag along with money taken from the salon’s safe.

Meanwhile, Detective Jay Labrum had again spotted the Camaro. He observed the defendant Marcella Griffin get out of the car, go into the salon, and return carrying several purses. She drove away in the Camaro and shortly thereafter was apprehended by police officers.

During the progress of the robbery, Detective Labrum entered the salon where he was confronted by an armed man who took his wallet, handcuffs and gun. Defendant Shawn Henline handcuffed the police detective and then fled the scene with defendant Dennis Griffin in a 1974 Volkswagon belonging to one of the employees of the salon. Defendants were seen to abandon the Volkswagon and drive away in a green Chevrolet. The officers ascertained that it was owned by defendant Marcella Griffin. They stopped defendant Marcella Griffin in the Camaro, and suspecting that there was a connection between the crime, the car, and her residence, asked her if they could enter and search, mentioning the safety of her children and the possibility of the robbers being there. Mrs. Griffin consented.

While the officers were still in the house, they observed the defendants Dennis Griffin and Shawn Henline drive up and park near the house in a green Chevrolet. The defendants then walked around to the back of the Griffin residence. Shortly afterward, they returned to the front of the house and the officers placed them under arrest as participants in the robbery. They also seized a duffel bag which they observed on the back porch where the defendants had been. It contained two guns and some of the jewelry and other evidence taken in the robbery. The green Chevrolet was impounded and an inventory was taken of its contents.

In attacking their convictions, the defendants contend that the trial court erred in refusing to suppress the evidence taken in the duffel bag and the green Chevrolet.

Commenting first in regard to the defendant Henline: He has no standing to complain of the seizure at the Griffin residence or the impoundment of the Griffin automobile. The right of the people to be secure in their persons and houses against unreasonable searches and seizures, as assured by Sec. 14, Art. I, Utah Constitution and Amendment IV of the federal Constitution is personal in nature and can be asserted only by one whose right is so violated.² Defendant Henline had no such rights in the house, the car, or in the evidence seized, and therefore cannot complain of the court’s refusal to suppress that evidence.

The contention of the defendants Marcella and Dennis Griffin as to improper search presents a different problem. The test as to the propriety of a search is whether fair and reasonable persons would judge the search to be unreasonable as constituting an unjustified invasion into a person’s right of privacy and security in his home or his property.³ In making that determination, there should be considered not only the rights of the individuals affected by the search, but also the right of the public to have crimes investigated and prosecuted.⁴

There should be no question about the propositions: that an officer may conduct a search if he has obtained the consent of the person whose property is to be searched;⁵ and when an officer is where he has a right to be, evidence which is in plain view and reasonably believed to be evidence of a crime can properly be seized.⁶ Defendants’ contention here is that the actions of the officers exceeded the consent given. It has been held that whether the search exceeded the consent given is a question of fact to be determined by the trial court.⁷ When the court has made that determination, its findings on such an issue will not be upset unless they are without foundation.⁸

We next turn attention to the seizure and search of the green Chevrolet. The justification for taking and searching that automobile is so obvious as to hardly require discussion. The officers had seen the persons who perpetrated the robbery drive that car.⁹ Where they had good reason to believe that the automobile had been used in the commission of that crime, they were justified in searching it for evidence.¹⁰ The same principle applies in these circumstances where the occupants were placed under arrest. The reasonable and prudent thing would be, not to leave it on the street, but to impound it, and also to take an inventory of its contents.¹¹

Defendants’ assignment of error denying their right to compel the attendance of witnesses relates to the trial court’s refusal of an offer to call Dr. Marigold Lintin, a psychologist, as an expert witness to testify about the credibility of eye-witness identification. There should be no question but that an accused has the right to have wit»nesses testify in his behalf. But this is usually and fairly interpreted as applying to witnesses who have knowledge of the facts about the crime alleged or of facts or circumstances which have' a direct bearing thereon.¹²

The calling of expert witnesses to testify as to matters which would apply to any crime or any trial does not in the true sense offer testimony of a witness who has knowledge of the facts of the case. Rather, it would be in the nature of a lecture to the jury as to how they should judge the evidence. The subject matter of the proffered testimony of Dr. Lintin would be to evaluate the credibility of the state’s witnesses in their identification of the defendants. The question of credibility of the testimony as to the identification of the defendants was for the jury to determine. Respective counsel were at liberty to argue as to the credibility and sufficiency of the evidence. There is always the possibility of calling expert witnesses to testify to various matters relating to the trial. This could include the merits of the jury system itself, or any of numerous aspects thereof.¹³

Defendants’ counsel himself took the position which we regard as correct: that whether expert testimony should be allowed as to the merits of eye-witness identification is within the discretion of the trial court. The following is part of the discussion of the subject between court and counsel:

Counsel: Now, I submit that it’s within the Court’s discretion, and frankly, if it’s only fear of reversal on appeal that motivates this Court, then there’s no reason to allow me to call Dr. Lintin, because it’s within your discretion.

The Court: I will disabuse your minds of that. I’m not concerned about being reversed any time. That’s how the law grows, Mr. Rich.

The use of non-expert lay jurors has served quite well in our system of justice. It is based upon the premise that they are people of ordinary intelligence and experience and that they conscientiously perform their duties. We are in accord with the cases which hold that whether a‘jury should have a lecture from a psychologist as to the credibility of evidence is within the discretion of the trial court; and that he is not compelled to allow such testimony.¹⁴

Having found no error which would justify reversing the convictions of the defendants, they are affirmed. No costs awarded.

HALL, J., concurs.

Justice Crockett wrote this opinion prior to his retirement.

1 . In violation of U.C.A.1953, § 76-6-302.

2 . See State v. Montayne, 18 Utah 2d 38, 414 P.2d 958 (1966); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

3 . See statement in Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035, cited in our case of State v. Lopez, 22 Utah 257, 451 P.2d 772 (1969). Also see State v. Folkes, Utah, 565 P.2d 1125 (1977), certiorari denied, 434 U.S. 971, 98 S.Ct. 523, 54 L.Ed.2d 461; State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968).

4 . See State v. Kaae, 30 Utah 2d 73, 513 P.2d 435 (1973).

5 . State v. Tuttle, 16 Utah 2d 288, 399 P.2d 580 (1965); State v. White, Utah, 577 P.2d 552 (1978).

6 . State v. Folkes, Utah, 565 P.2d 1125 (1977); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1960).

7 . United States v. Dichiarinte, 445 F.2d 126 (7th Cir., 1971); Honig v. United States, 208 F.2d 916 (8th Cir., 1953); State v. Koncoules, Maine, 343 A.2d 860 (1974). Also see 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, sec. 8-l(c) at 624 (1978).

8 . State v. Eastmond, 28 Utah 2d 129, 449 P.2d 276 (1972).

9 . Evidence shows that police officers had a description of the defendants suspected of robbing the House of Sherman obtained from prior surveillance.

10 . See State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968).

11 . See State v. Criscola, 21 Utah 2d 272, 444 P.2d 517 (1968); State v. Crabtree, Utah, 418 P.2d 484 (1980). And see Chambers v. Mahoney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 419 (1970); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

12 . See statement in Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 1924-25, 18 L.Ed.2d 1019 (1976).

13 . Other areas adjunctive to such a proceeding, such as the degree of efficiency of: the police in catching robbers, of prosecutors, defense counsel, the judges, or of jury trials themselves.

14 . See, e. g., United States v. Brown, 540 F.2d 1048 (10th Cir., 1976); State v. Valencia, 118 Arizona 136, 575 P.2d 335 (1977).