# Petition for Writ of Certiorari — Frasier v. Indiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1032%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 1092 ## Text LIBRARY, “= — SUPREME COURT, U. B ; t | NOV 2 IST IN THE SUPREME COURT OF THE — Sr arEs OCTOBER TERM, 1974. _£9 - No. (i , —L tad bay EDDIE LEE FRASIER. ) ) Petitioner. ) ) -Vs- ) ) STATE OF INDIANA, ) ) Respondent. ) N W E RI TO THE SUPREME COURT OF INDIANA FERD SAMPER, JR. 703 First Federal Bldg. Indianapolis, Indiana 46204 JAMES H. VOYLES, JR. 1500 Consolidated Bldg. 115 North Pennsylvania Street Indianapolis, Indiana 46204 ATTORNEYS FOR PETITIONER PET GRANT HAWKINS 703 First Federal Bldg. Indianapolis, Indiana 46204 Opinion Below. . Jurisdiction . . Question Presented ..... Constitutional Provisions .. Statement of the Case .... Argument. ... Conclusion... Appendix "A". .. Appendix "B" .. e e @o e e e TABLE OF CASES Burton v. State, 680, 142 N.E. Carroll v. U.S., 45 S.Ct. 280 Chambers v. Maroney, U.S. 2d 419 42, 90 S.Ct. apman Vv. Chap Caz i fornia, (1967) U.S. ° S.Ct. 24, 17 L.Ed. 2d 705 Chimel v. California, (1969) 395 U.S. / ’ -Ct. (1957) 236 Ind... (1925) 267 U.S. (1970) 399. . 974, 26 L.Ed. , 23 L.Ed. 2d 685 Page 20 132,.22 36 34 & 22 OAL, 8 Page Crume v. Beto, 383 F.2d 36, 39. ... 39 (CA 5 1967), cert denied, 395 U.S. 964, ; 89 S.Ct. 2106, 23 L.Ed. 2d 749 (1969) Foster v. California, 394 U.S. 440, 443 .39 89 S.Ct. 1127, 22 L.Ed. 2a 402 (1969) Frasier v. State, (1974) 312 N.E. ... 20 24. 77, 79-80 Gilbert v. California, 388 U.S. 2) ae 87 S.Ct. 1926 (1967) Gustafson v. Florida,(1973) 42 L.W. .. 19, 21, U.S. , 94 S.Ct. 488, 38 23, 24, L.Ed. 2d 456 30'& 35 Harrington v. California, (1969) .... 36 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed. 2d 284 Ma v. Ohio,(1961) 367 U.S. 643 . ... 18 81 S.Ct. 1684, 6 L.Ed. 2d 1081 People v. Marsh, 20 N.Y. 2d 98, 101 .. 28 281 N.Y.S. 2d 789, 228 N.E. 24a 783, 786 (1967) People v. Superior Court of Yolo Co. .. 29 [Kiefer] 3 Cat. 3d 807, 91 Cal. Rptr. 729, 744, 478 P.2d 449, 464 (1970) (en banc) Rudd v. Florida, (CA5 1973) 477 F.2d ... 40 805 Sisk v. State, (1953) 232 Ind. ..... 20 214, 110 N.E. 2d 627 Stovall v. Denno, 388 U.S. 293, 875 .. 43 Ct. 1967, 18 L.Ed. 1199 (1567) ii ERO; ALO LO SAPP S So _IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1974 NO. EDDIE LEE FRASIER, Petitirner. STATE OF INDIANA, ee ee ee ee eee ee ee ee Respondent. ‘PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA Eddie Lee Frasier, by his attorneys Ferd Samper, Jr., and James H. Voyles, Jr., prays tHat a writ of certiorari issue to review the judgment of the Supreme Court of Indiana in ‘affirming the judgment of the Marion County Criminal Court, Division Four, , Indianapolis, Indiana, upon his conviction of armed robbery in violation of Burns Indiana Statute Annot., §10-4709; IC 35-12-1-1. OPINION OF THE SUPREME COURT OF INDIANA The opinion of the Supreme Court of Indiana has been officially reported, and is cited in 312 N.E. 2d 77, 42 Ind. Dec. 167. A copy is reproduced herein as Appendix "A" to this petition. JURISDICTION 1. The judgment of the Supreme Court of Indiana was entered on June 4, 1974. 2. A timely Petition for Rehearing was filed with the Clerk of the Supreme Court of Indiana on June 21, 1974. The petition for rehearing was denied on August 5, 1974. A copy is reproduced herein as Appendix "B." ss The jurisdiction of this | Court is invoked under the provisions of Title 28, United States Code, §1257 (3). oa FARTS Ty QUESTIONS PRESENTED 1. Were rights of the defendant under the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States violated when the trial court allowed into evidence, over the objection of the defendant, the fruits of a warrantless search and seizure made without probable cause, subsequent to a non-custodial arrest and testimony as to the occurrences sequential to that illegal search and seizure? 2. Were rights under the Fifth, Sixth and Fourteenth Amendments to the Consvitution of the United States violated when witnesses were allowed to testify, Over the objection of the defendant, to the product of an unduly Suggestive police- conducted "show-up"? 3. Were rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States violated when a motion for a mistrial was denied -3- subsequent to the iscovery that the bailiff of the trial court had made comments to the jury during its de- liberation, and those comments were made out of the presence of the petitioner and his counsel and said comments were not only incorrect as to the law stated therein, but highly prejudicial to the defendant? CONSTITUTIONAL PROVISIONS Fourth Amendment to the Constitution of the United States reads as follows: "Unreasonable searches and seizures.--The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Fifth Amendment to the Constitution of the United States Reads as follows: “Criminal actions-Provisions concerning-Due process of law and just compensation clauses.--No person Shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Sixth Amendment to the Constitution of the United States reads as follows: "Rights of the accused.--In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in favor, and to have the assistance of counsel for his defense." OLED Mi Lg. AEN BMW RE I Rhee AP intl RGA NE Aa Section 1 of Amendment 14 to the Constitution of the United States reads as follows: “Citizenship--Due process of law-- Equal protection.--All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." STATEMENT OF THE CASE On the night of August 28, 1972, two men with guns robbed Mr. and Mrs. Larry Bosley in the Bosleys' apartment (Tr. p. 278). Moments after the robbery and in the neighborhood of the Bosleys' apartment, Deputy Sheriff Fields, an employee of the Marion County Sheriff's Department, without knowledge of the robbery, routinely stopped a Volkswagen with a noisy muffler (Tr. p. 232). -6=- Using a flashlight to glance inside the car, the Deputy saw in plain view a "tire tool or pry bar protruding from a ' brown paper sack" lying on the floorboard between the two seats (Tr. p. 239). On direct examination et the suppression hearing prior to trial, Deputy Fields testified that he had been checking security at a gasoline station when he observed a Volkswagen go past him (Tr. p.- 187). That Volkswagen was exhibiting a loud muffler. Upon noticing the vehicle, he left the gasoline station with the intention of stopping the car and checking the muffler, the driver, and the driver's license of the driver (Tr. p. 188). When he pulled out behind the Volkswagen to first stop it, a district car running west of him had received a disturbance run at a certain address. The Deputy did not immediately stop the car because he thought he might be called to assist the other officer. ~ OTE. SAR pent mL oe ah When this did not eventuate, he turned on his red light and spotlighted and stopped the Volkswagen (Tr. Pp. 189). At this time, he walked up to the Volkswagen and told the driver to proceed as he had been dispatched on this other run (Tr. p. 240). As he first looked in , the car he saw the tire tool, but still ; ‘told the driver to proceed. When he returned to his car, he was told to disregard the disturbance run. In the intervening time, the Volkswagen had not attesoted te pull away from the scene. /When he returned to the Volkswagen the second time, still without knowledge of the robbery, he flashed his light into the back seat. At this time the Deputy again noticed the brown sack on the floorboard between the seats. The Deputy SET ES SH TPT ED NT a ER EET OED: SEE AE eM told the petitioner and the driver of the Tyee Volkswagen to get out of the car (Tr. p. 201) -8- | ats REI ae Wy Re wero . pyeteot . - steer LIA OAR IL EEN AMV ITED Sr i 6 900% Ul ' ‘ ‘ ‘ ! sO , : ‘ ; ‘ ' i ‘ - + ' a . ‘ ' ‘ ! ‘ ; ‘ a2 . ‘ ‘ ; ' After the individuals left the car, the Deputy reached into the car and examined the contents of the paper sack. He looked into the car again and saw a blue overnight case and another brown sack therein (Tr. p. 202). After finding the articles in the paper sack, the Deputy walked to the rear of the car and stood in front of the two men and asked for identification from both of them. At this time, the driver took one Step backwards and when his: hand came back up he had an automatic in his right hand (Tr. p. 204). After hearing a "click" from the driver's weapon, the Deputy shot the driver (Tr. p. 208). During this entire period of time, the Deputy had no knowledge of the robbery (Tr. p. 211). The Deputy handcuffed the petitioner, lay him near the recently deceased and called headquarters (Tr. p. 214). When the Bosleys arrived the Petitioner was still handcuffed and about three or four feet from the body of the driver. On cross-examination, Deputy Fields stated that the only reason for ordering the two men out of the car was his instinctive feelings aroused by the tool in the paper sack. He did not suspect a weapon (Tr. p. 250). Two detective-sergeants employed by the Marion County Sheriff's Department also testified at the suppression hearing. Detective James Guilinger stated he arrived at the Bosleys' home at approximately 2:39 a.m. and found the couple handcuffed to a railing going to the upstairs of their apartment. The couple indicated to the sergeant that they had been robbed, but that they could not identify the men who had robbed them because the men wore masks over their faces (Tr. p. 270). Both suspects were white males wearing brown suede shoes and skin colored rubber gloves (Tr. p. 270). -10- Approximately 3:30 to 3:45 a.m. the detective took the couple to the scene of the shooting and told them that there had been an incident not far from their home and that the individuals involved in that incident might be the same people who robbed them. He led them to believe that the police had apprehended the people who had robbed them (Tr. pgs. 271-273). The other detective-sergeant was William J. Roberts. Roberts received a call at home which informed him that Deputy Fields had shot a man (Tr. p. 256). When he arrived on the scene, the petitioner was lying on the ground inside a cordoned off area next to the deceased. There was a gun in the vicinity and blood on the deceased (Tr. p. 260). Roberts had conversation with the Bosleys and questioned them about the incident at their home. He told the Bosleys that the sheriff's -j1- ee department had two suspects who matched the description given by the couple (Tr. p. 261). Mr. Bosley went to the car and identified an Overnight case which had been reported stolen in the robbery (Tr. p. 262). The couple was asked if they knew an Eddie Lee Prasier. They responded that they did. However, they added that they could not identify the men who robbed them, but they did know an Eddie Lee Frasier (Tr. P. 263-264). Roberts stated that the man lying hand- cuffed on the ground was Eddie Lee Frasier (Tr. p. 263). Larry Bosley, one of the victims of the robbery, stated that two men wearing masks -- apparently pillow cases -- were waiting at this home when he and his wife returned from the State Fair with the receipts from the booth they operated at the fair (Tr. p. 279). Although he -12- could not identify either of the men, he did give the officers a description of the clothing they were wearing (Tr. p. 280). At the pre-trial suppression hearing he testified that the officers had told him that the two men at the scene of the shooting were suspects in the robbery (Tr. p. 282). During the trial, Mr. Bosley stated that he based his identification of the petitioner from seeing him lying in the street next to the dead man (Tr. Pp. 523). Karen Bosley, the other robbery victim, confirmed her husband's testimony. When the officer freed her, she was unable to give any description of the men who robbed them (Tr. Pp. 292). Detective Roberts asked her at the scene of the shooting whether the two men lying in the street were the ones that were in the apartment that night. She answered -13- in the affirmative (Tr. p. 301). The motion to suppress both the confrontation evidence and the physical evidence was overruled sequential to the above testimony. Later at the trial Mrs. Bosley confirmed her previous testimony and added that at the time of the robbery she thought she recognized one of the voices (Tr. p. 356). Subsequent to the trial, while the jury was deliberating, the bailiff, James Fletcher, heard a knock on the jury room door. Inquiring, the bailiff learned that the jurors had a question concerning the result of sentencing on a finding of guilty on both charges (Tr. p.- 16). The jurors wanted to know whether the sentences would run concurrently or consecutively (Tr. p. 16). Mr. Fletcher told them he would talk to the judge. Judge Wilson told Mr. Fletcher to tell the jurors that the question could not be answered. When he returned to the jury room, instead of -14- repeating the judge's comment, the bailiff told the jury that the sentencing of the defendant was up to the judge (Tr. p. 16). Petitioner's counsel, was not informed of this conversation until a few moments before the jury returned with the verdict. The jury ordered the highest possible sentence on both counts of the two count indictment: those sentences being thirty (30) years at the Indiana State Prison out of a possible penalty of ten (10) to thirty (30) years for the offense of armed robbery and ten (10) years at the Indiana State Prison out of a possible penalty of one (1) to ten (10) years for the offense of violation of the 1935 Firearms Act. In summary, it is petitioner's contention that there are three important Constitutional questions presented by the -15- evidence. First, was any evidence , admissable since the entire episode subsequent to the stopping of the Volkswagen for a loud muffler--not an offense which would result in a “custodial” arrest as the violator would normally sign a summons and be sent on his way-- was the result of a search inspired solely by Deputy Fields’ instinct and suspicions? Second, was not the on-the- .scene identification unduly tainted by the statements of the police officer who made comments to the Bosleys? Third, is it not improper for a court official to make comments to the jury--comments improper as to the law states therein-- out of the hearing of the Defendant and his counsel? -16- The Petitioner first raised the constitutional questions concerning the unlawful search and police show-up in a Motion to Suppress Evidence which was filed with the trial court prior to trial on December 26, 1972 (TR. P. 58). A hearing was held on the first day of the trial (Jan. 29, 1973), on this Motion to Suppress Evidence which motion was then overruled by the trial court (TR. P. 72). These same constitutional questions, along with the new issue concerning the comments by the court bailiff were presented in the Motion to Correct Error's (TR. P. 161-162). These same questions were then argued to the Supreme Court of Indiana on the direct appeal from the judgment of the trial court. -17- ARGUMENT I. Petitioner's first claimed con- stitutional error arises from the initial search of the automobile in which he was a passenger. This search was conducted by a Deputy of the Marion County Sheriff's Department. Petitioner objected prior to and during the trial to the admission of any of the fruits of that improper and unconstitutional search. Neither the trial court not the Supreme Court of Indiana agreed: Appellant believes that the many items of evidence found in the car should have been excluded from the trial because they were the fruits of an illegal, unconstitutional search. Ma v. Ohio (1961) 367 U.S. 643, 81 S. Ct. 1684, 6 L.Ed. 2d 1081. Appellant's reasoning is that the Deputy had no probable cause to look into the paper sack and that the ensuing shootout and search of the car were caused by this original search. Thus, runs Appellant's argument, the tainted fruits of that search must be -18- excluded. We do not decide this point for the reason that we decide this issue pursuant to Gustafson v. Florida, (1973) 42 L.W. , 414 U.S. 260, 94S. ct. 488, 38 L. Ed. 2d 456. Gustafson, Supra, held that police officers effecting a valid custodial arrest for a traffic offense may thoroughly Search the arrestee even absent the need to disarm or the need to seize evidentiary items which had been the justifications previously used for searches incident to valid arrests As the United States Supreme Court said in the companion case to Gustafson, supra: "It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment" United States v. Robinson, (1973) 42 L.w. at 4060, U.S. 218 at 235, 94 S.Ct. 467 at 477, 38 L.Ed. 2d 427 In Indiana an inadequate muffler is a misdemeanor. Ic 1971, 9-8-6-36 (Burns' Ind. Stat. Ann. §47-2230 (Code Edition)). A Deputy Sheriff may arrest any person violating any law of this state in his presence. IC 1971, 35-1-21-1 (Burns' Ind. Stat. Ant. §9-1024 (1956) Repl.) ) Acting within this authority, the Deputy asked for identification. -19- oe Since he had the right to make an arrest and a search incident thereto, he had the right to make the considerable lesser intrusion of a request for identification. The ensuing assault on the Deputy validates the subsequent search of the car and seizure of the items therein. Chambers v. Maroney , (1970) 399 U.S. 42, 50 S. Ct. 1975, 26 L. Ed. 24 419; Brannon, Burton v. State, (1957)236 Ind. 680, 142 N.E. 2d 215; Sisk v. State, (1953) 232 Ind. 214, 110 N.E. 24 627. Frasier vs. State, 312 N.E. 2d 77, 79-80 (1974) This is the Supreme Court of Indiana's justification for the search and seizure of all evidence. However, key facts are not clear and in proper context. These defects were presented to the Indiana Supreme Court in the petitioner's Motion for Rehearing. Mainly, the illegal search referred to by petitioner is the initial search of the paper sack located within the Volkswagen. But for this search of the paper sack, there would have been no killing, and neither would there have been any subsequent search and notification of the robbery victims. -20- The Indiana Supreme Court, in its majority opinion in this case has sanctioned this initial search of a saan sack seen on the floor of a 1965 Volkswagen with the theory that it was a search incident to a lawful arrest and therefore not violative of the Fourth and Fourteenth Amendments under this Court's decisions in U.S. vs Robinsan, (1973) 94 S. Ct. 467, and Gustafson vs. Florida, (1973) 94 S. Ct. 488. This opinion thus creates an immediate expansion of the power of the police officers to search motorists. The uncontroverted facts are that when Deputy Sheriff Fields first stopped the 1965 Volkswagen automobile he had no knowledge of the recent armed robbery at the Bosley home. His only authority to stop the car at that time was for a misdemeanor violation of one of the sections -2l- of the Indiana Motor Vehicle Code which concerns the operation and maintenance of certain automotive equipment. When he saw part of a tire tool protruding from a paper sack lying on the floor of the auto- mobile he ordered the occupants out of the car, Opened the sack and discovered a tire tool, pink rubber gloves and a hunting knife. All these of these exhibits, along with . numerous others discovered after the shooting incident were admitted at trial. Clearly the opening of the paper sack on the floor of the car constituted a search within the meaning of the Fourth Amendment. Chambers v. Maroney, (1970) 399 U.S. 42, 90 S.Ct. 1974, 26 L.Ed. 2d 419; Carroll v. U.S., (1925) 267 U.S. 132, 45 S.Ct. 280. The Indiana Supreme Court found, however, that although Deputy Fields had no probable cause at the time of the search of the sack, it was nevertheless proper solely on the -22- ’ \ grounds that the defendant and his companion had been "arrested" on the loud muffler charge and that the Robinson and Gustafson decisions allow a police officer to "thoroughly search the arrestee” in this situation as a search incident to a lawful arrest. This holding misinterprets those decisions in two significant Ways. First, Gustafson and Robinson concern the permissible scope Of a search of a person incident to a custodial arrest, but they do not authorize, as the majority holding would seem to imply, a search of those sections of a car which lie beyond the area of control of the arrestee. Secondly, neither decision concerns the type of "arrest" with which we are confronted here. On those occasions when a police officer in Indiana stops a motorist for a minor traffic violation, as we have here, the officer is not empowered to automatically -23- taps nnn effect a full custodial arrest and haul a motorist off to the stationhouse. Both I.C. 1971, 9-4-1-130, being Burns §47-2307 and a 1971, 9-4-1-131, being Burns §47-2308, requjre that the officer may only issue a summons to the offender and then must allow him to proceed on his way. It is only in the case of a serious traffic offense (Burns §47-2307 (2) to (5), or in the event a motorist refuses to promise to appear in court at a future date (Burns §47-2307(6) that the police may effect a full arrest and take the motorist to the police station for booking. In a normal traffic misdemeanor situation a police officer may only impose what May be termed a limited arrest for the purpose of issuing the summons and then must release the motorist from this limited form of custody. Both the facts and language of Gustafson and Robinson specifically concern the type of traffic violations which requires -24- \ ~ 7 or allows an officer to effect a full custodial arrest. It is apparent from the opinions that the sole basis for the full scale search of the motorist was the full custodial type of arrest being effected in both of those situations. "The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial." "It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the iice station than in the case of the relatively fleeting contact resulting from the typical Ter type stop. This is an adequate Exeis for treating all custodial arrests alike for purposes of search justification.” (Emphasis added.) U.S. v. Robinson (1973) 94 S.Ct. at 476. In a footnote in Robinson this Court made a sharp distinction between the full custodial arrest with which it was concerned in that case, and what was characterized -25- by the Court as a "routine traffic stop, i.e. where the officer would simply issue a notice of violation and allow the offender to proceed." Fn. 6 at 477. The majority specifically stated that they were not deciding the constitutionality of searches incident to these routine traffic stops. It is precisely that type of limited arrest resulting from a routine traffic stop which faces us here, and while the Fourth Amendment does not prevent a full search incident to a lawful custodial arrest it does not condone a full search incident to a routine traffic stop where the police officer is not authorized to take the motorist into custody. The Supreme Court of Indiana justifies the search of the arrestee on the grounds of the full custodial nature of the arrest, but where, as here, there is no full custodial arrest the -26- justification and rationale allowing the search is obviously absent. The United States Court of Appeals, District of Columbia Circuit, Bazelon, C.J., in overruling the conviction of Willie Robinson, Jr., by the United States District Court for the District of Columbia, clearly and ably discussed the difference between a full custodial arrest and a routine traffic stop, and the searches which may be made attendant thereto. Although the Court of Appeals holding was subsequently reversed by this Court in its decision on Robinson, the aforementioned footnote indicated this Court would not "reach the question." As that question is the linchpin issue in this cause, the Court of Appeals discussion should be awarded careful scrutiny. "In determining the extent to which the legitimate governmental ~2J= | . interest in insuring the safety of law enforcement officers justifies a search of the person incident to a lawful arrest, a distinction must be drawn between the “routine” traffic arrest--where the officer simply issues a notice of violation and allows the offender to proceed--and the more serious cases in which the officer effects an “in-custody” arrest in order to transport the traffic offender to the stationhouse for booking. Turning first to the “routine” traffic arrest, it seems evident that the dangers presented in that situation are to some extent similar to, and certainly no greater than those presented in the stop-and-frisk situations involved in TERRY and SIBRON. Like the investigatory stop, the routine traffic arrest is merely a brief on-the-street encounter. Moreover, the vast majority of traffic violators are law-abiding citizens. Indeed, ‘'[v[ery few drivers can traverse any appreciable distance without violating some traffic regulation.’ and as Chief Judge Fuld of the New York Court of Appeals has noted, "A motorist who exeeeds the speed limit does not thereby indicate any propensity for violence or iniquity, and the officer who stops the speeder has not even the slightest cause for thinking that he is in danger of being assaulted.” PEOPLE V. MARSH, 20 N.Y. 2d 98,101, 281 N.Y.S. 20 789, 228 N.E. 2d 783, 786 (1967). This is not to say, of course, that a minor traffic stop can never erupt into =28- violence. On the contrary, whenever a police officer confronts a citizen on the street an element of danger is present. But as the stop-and-frisk cases make clear, the mere possibility of danger cannot justify any and all searches the officer may wish to conduct. The touchstone of the Fourth Amendment is reasonableness, and the possibility that a routine traffic stop might result in injury to the officer, although unquestionable real, is so remote that '[t]o allow the police to routinely search for weapons in all such instances would * * *constitute an ‘intolerable and unreasonable' instrusion into the privacy of the vast majority of peaceable citizens who travel by automobile’ PEOPLE V. SUPERIOR COURT OF YOLO COUNTY [Kiefer], 3 Cal. 3d 807, 91 Cal. Rptr. 729, 744, 478 P.2d 449, 464 (1970) (en banc). We therefore conclude that the permissible scope of searches incident to routine traffic arrests, where there is no evidentiary basis for a search and where the officer intends simply to issue a notice of violation and to allow the offender to proceed, must be governed by the teaching of the Supreme Court as set forth in TERRY and SIBRON. Thus the most intrusive search the Constitution will allow in such situations is a limited patdown for weapons, and then only when there exist special facts or circumstances which give the officer reasonable grounds to believe that the person with whom he is dealing is armed and presently -29- dangerous.” UNITED STATES V. ROBINSON, 471 F.2d 1082, 1056-97 (CADC I97Z}~ AS tS abundantly clear, the scope of a search incident to a routine traffic arrest should be severly restricted. However, the Indiana Supreme Court's present interpretation of the Gustafson and Robinson decisions as allowing a full scale search of anyone who violates any traffic regulation, invites wholesale and groundless intrusions upon the personal privacy of thousands of motorists. Thus, under this interpretation the vast number of citizens who travel by automobile and who may be stopped for having a multitude of minor traffic offenses, are subject, without further authorization or circumstances, to not only having the contents of their wallets, pockets and pants cuffs examined by the police, but their entire vehicle as well. | There are only two real justifications -30- @ etwas Ce el as ee ote, pone ea ere (RM) ORO bCRYS —e ee: csiraanenmeenny 9 for searching a person and his surroundings after a valid arrest, whether the arrest be custodial in nature, or merely a limited, routine traffic stop under conditions where the defendant-suspect is not to be transported to the local jail or police headquarters. Those justifications are (1) where evidence of the crime charged or suspected must be secured, and (2) removal of any weapon the arrestee might seek to employ to resist arrest or effect an escape. The two categories are deserving of different treatment as their central purposes are not the same. The first category is the "search incident to a lawful arrest.” The lawful arrest justifies the search for fruits, instrumentalities and evidence for which the arrest is made, but may only be made after the arrest is effected. The second category operates on a contrary basis. A broader time period than the time -3l1- sa i aaa i 0 Wyre LOS TM are “repeEn* a ad ro | for the search incident to a lawful arrest is created by the i: nee of a police officer's protecting himself at all times and pursuant thereto a proctective, Terry- type search may be constitutionally executed prior to an arrest based upon probable cause. A narrower area for the search is created by the very fact that there are only certain areas from which threats to the police officer may be obtained. Therefore, although fruits of a search incident to a lawful arrest may be drawn from an area outside the immediate reach of the arrestee, a search for weapons and other dangerous instrumentalities should be limited only to those areas within the immediate control of the arrestee. Under either treatment model, there is a scope beyond which the search is clearly improper. In the situation at bar, the stop and limited, routine traffic arrest were pursuant to the Deputy'’s observation of a -32- misdemeanor being committed in his presence. After the plain view sighting of the tire tool in a paper sack, the Deputy told both occupants of the Volkswagen to get out of the car and stand at the rear of the car. Rather than ask for a driver's license and car registration, and rather than search the occupants for weapons, both searches being within the scope of either a search incident to a lawful arrest or a protective search, the Deputy proceeded to search the paper bag on the back seat of the car. even though he knew of no crime with which they might be associated. This specific search was outside the scope of both treatment models mentioned above. The search of the car was not incident to the lawful, limited routine traffic arrest because no evidence of the crime charged was inside the car. Also, in addition to the fact that the Deputy testified that he apprehended no -33- ere PP epr2 7 fear and was not worried for his safety, the occupants were outside the Car, and therefore the scope of a protective search was exceeded, as there is no way, standing at the rear of the car, the occupants could have reached into the car and gained control of some instrumentality which would pose a threat to the Deputy. "It]his Court has held that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope "and" [t]he scope of the search must be Strictly tied to and justified by the circumstances which rendered its initiation permissible. " TERRY V. OHIO, 392 U.S. 1, 17-19, 88 S. Ct. , 1878, 20 L.Ed. 2a 889 (1968). Subsequent to Terry, in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d 685 (1969), this Court more firmly outlined the law applicable to both Searches incident to a lawful arrest and Searches constituted for the protection of the arresting authority. In Chimel, where -34- | the defendant was arrested in his home, pursuant to an arrest warrant, the arresting officers, who had no search warrant, proceeded to search the defendant's entire house. The result, reached by this Court, was that "(A]pplication of sound Fourth Amendment principles to the facts of this case produces a clear result. The search here went far beyond the petitioner's person and the area within which he might have obtained either a weapon or something that could have been used in evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was therefore, ‘unreasonable’ under the Fourth and Fourteenth Amendments... "Supra, 395 U.S. at 768, 23 L.Ed. 2d at 697. Petitioner contends that even if Gustafson and Robinson are to be extended to cover situations where the arrest is only -35- for a minor traffic offense, and the customary procedure would not entail taking the misdemeanant into polics custody, Chimel still remains to act as a brake on the scope of any search made either incident to the lawful arrest or for the protection of the arresting officer. Therefore, even if a search was proper in the situation at bar, the scope of that search was excessive. The actions of Deputy Fields were in clear violation of the defendant's Fourth and Fourteenth Amendment rights when the Deputy examined the paper sack on the floor of the car. The evidence subsequently admitted at the trial was not harmless error under the decisions of Chapman v. California, (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed 2d 705, and Harrington v. California, (1969) 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed. 2d 284. Therefore, this case should be reversed. -36- vo Pn . II. At least five persons testified during the various hearings and the trial as to the identifications made by the Bosley's at the police conducted “show-up." Petitioner contends that any such identification was ‘unduly tainted by the very nature of the show-up. The Bosley's told the officers that they either could not identify the robbers or else could not give a description. Mr. Bosley could not identify the robbers, but he did furnish a description of their clothing. Ms. Bosley, at the robbery scene, could not identify anyone, and could not give a description of the clothing, but she did say that she recognized a voice, although she could not associate that voice with a name until she had seen Petitioner at the scene of the shooting. | Regardless of the sequence of events leading up to the identification of Petitioner -37- Dy / ee aan om th he (2 ee as one of the robbers, there is no doubt but that the show-up was so unduly suggestive as to warrant the suppression of the Bosley's identification of Petitioner. "If the pre-trial lineup did not meet constitutional standards, then the witnesses' in-court identifications were the fruit of a forbidden procedure and should not have been used in the state's case." United States v. Wade 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967). The above conclusion from Wade reaches to the heart of Petitioner's contention. It has been held improper for the officials of the state, in this case the police, to give the witness making the identification the impression that the person they are asked to view is the suspect in the case. It is true that this is very hard to accomplish, but if the witness were merely being asked to identify -38- isi ese enn ner Hone an individual who was another witness to the event in question, but exhibited hesitancy to step forward, it is certain the first witness, who is making the identification, would be apprised of the proper relationship of the parties to the event. Here, on more than one occasion, the Bosley's were told that the individuals they were looking at were indeed suspects in the robbery. The Fifth Circuit Court of Appeals has very ably capsulized the current law in this area: By inviting to view the suspect as he sat alone in the state attorney's office beside one_or two police officers, the police in effect suggested that ‘This is the man.' Foster v. California 394 U.S. 440, 3, 89 S.Ct. , 22 L.Ed. 2d 402 (1969). Such singling out, or indicating to the witness that the man in custody is the man the police believe to have committed the crime, is a classic example of impermissible Suggestiveness. See Crume v. Beto, 383 F2d 36, 39 (CA5 1567), cert denied, 395 U.S. 964, 89 S.Ct. 2106, 23 L.Ed. 2d 749 (1969). Consequently, the state committed constitutional error -39- : ei i. i. ese | in eliciting testimony of identifications made at this tainted procedure, and since it has made no attempt to show that its error was harmless beyond a reasonable doubt under the teachings of Chapman v. California 386 U.S. 18, 87, S.Ct. 824 17 L.Ed.2d 705 (1967), petitioner is entitled to federal habeas relief. Should the state decide to retry petitioner, it must do so without testimony of identifications made at the show-up. Rudd v. Florida (CA5 1973) 477 F2d 805. Following the above model, Petitioner contends that there was indeed too much information of a suggestive nature transfered from the deputies to the Bosley's. The transcript is full of testimony wherein the deputies just tell the Bosley's that they think they have the suspects. Further, as no one had supplied more than a description of the suspects, and even upon Seeing one suspect dead and the other handcuffed on his face in the immediate vicinity of the dead man, there was no positive identification except for the -40- i ad -— testimony of Ms. Bosley, who had not been able to supply even a description until ti.at time. Because of the very nature of the on- the-scene identification, any testimony at trial should have been suppressed. Yet the fruit of the improper show-up was allowed into evidence. The state contended previously that there might have been sufficient independent indications that the identification was trustworthy and therefore - the suggestiveness of the identification should not result in the identification being thrown out. However, the only information which tended to associate either suspect to the robbery was the fact that the blue ceniemteics case, reported stolen during the robbery ,was found in the car also. However, the overnight case had been described as having airplane stickers on it and also as having had no holes in it when the witness, -41- Ms. Bosley, last saw it. The blue overnight case found in the car had no such stickers on it, and was damaged much more than Ms. Bosley had ever indicated. Aside from the overnight case, there was only the illegally seized tire tool to create the aura of a robbery. There is no question but that there was not sufficient additional evidence, of a corroborative nature, to allow the identification to stand regardless of the suggestive nature of the show-up. As there was no manner in which the suggestive show-up could be redeemed, the testimony as to that show-up should have been excluded. This is not a situation where subtlety and innuendo are employed in order to suggest that the witness should select a certain individual as the prime suspect in a crime. This is a situation where the witnesses were blatantly told that the individuals they were to view were indeed -42< ee ee ae See ee suspects in a particular crime. Such behavior far exceeds the narrow limits established in Wade, Gilbert, Stovall v. Denno, and all subsequent cases which reflect not only on the proper procedure to employ when on-the-scene confrontations are made, but also on those procedures which are to be avoided when on-the-scene confrontations are made. IIl. As stated in the Facts section, the bailiff, James Fletcher made a statement to the jurors, evidently in response to a question posed by the jury: members, which petitioner contends was not only prejudicial, but highly improper in a Constitutional sense. There are two approaches to this particular argument. First, petitioner contends the actions of the bailiff denied him a fair trial. Second, petitioner ~43- s } believes he was denied due process by virtue of being denied that fair trial. Petitioner is not contending that any conversations between deliberating jurors and an outside party automatically result in a denial of a trial and a denial of due process. The key fact to remember in this particular situation is that the bailiff made comments to the jurors, and aha content of those statements was contrary to the law in Indiana. Inasmuch as the question posed by the jurors had to do with a particular point of law, and the question was answered incorrectly, the prejudice is practically apparent. Law in Indiana, contrary to law in the Federal Court systems, states that the jury not only renders a verdict, but upon a finding of guilty sets the penalty. The statutes under which the petitioner was being tried allowed the jury discretion in -44- reaching their ultimate verdict. However, it is likely the jury was of the impression that any penalty they chose would be merely a recommendation to the Judge, and then the Judge would make the final determination. With this in mind, and after having decided that the petitioner was guilty, the jury may have wished to impress the Judge with their attitude towards the penalty which they would levy, and their impression of the heinous nature of the offense. It is always possible, had the jury known that their word was final, they would have either taken more care or made further consideration before returning their verdict. On appeal to the Supreme Court of Indiana, the State contended, and the Indiana courts agreed, that the fact that the Judge had explained the role of the jury to the members of this jury immediately after voir dire was sufficient to create -45- the proper impression in the members. However, if that were true, the jury would have had no need to ask the question in the first place. The fact of the asking is the best proof that the jury did not know its full and complete role, and there is no way the giving of the instruction at the beginning of the trial can militate against the fact that the jury did not realize the extent of its functions, and therefore felt compelled to ask further questions. The proper procedure to have followed would have been for the jury to have been brought back into the courtroom, and have all parties present while the Judge asked the jurors what their question vas, and then have the Judge, in open court, answer the question if indeed it could be answered. Instead, the bailiff returned to the jury and not only failed to relay the decision -46- ~ ots athe EE ETAT ESE TS PE eB BRNO aa re er _ _ — St of the Judge, but actually gave the jury information which was incorrect as to the law stated therein. Much of the above information relates equally well to the second half of the argument on this particular issue. Namely, petitioner further feels he was denied due process under thé (Fifth and Fourteenth Amendments to the Constitution of the United States. The right to a trial is a fundamental right. As such, before the state may take any action which will justify depriving someone of that right, the state must exhibit a compelling interest. In this case, the state must either have had some compelling interest in ruling that there had been no prejudice or denial of right inherent in its actions, or else they must argue there was no denial of right in the first place. Evidently, the state is arguing that there is no denial of right. a4 Ju Fad * ‘ Pe RD Pee PA ate Ee Ry Ae ee AN FL TONE ERLE. However, the previous argument, which demonstrates- that prejudice and damage may well have resulted from the actions of the bailiff, applies equally well here. Further, the only interest which the state apparently attempts to advance is the interest in avoiding multiple trials simply because the jury may have been misinformed as to the applicable law. These facts and inferences indicate the state's argument is weak under either of the possible justifications they may employ. Finally, it is unlikely the State could successfully contend that the action of the bailiff was harmless beyond a reasonable doubt. An act which conflicts with such a fundamental right as the right to a trial can only be harmless beyond a reasonable doubt if every possibility of harm can be presented and analyzed to determine just what might have -48- had an effect on the parties involved. Here, the harmful act was made off the record; yet directly to the jury. There is no way the petitioner can hope to accurately demonstrate what effect the misstatement had on the jury members. It is equally true, there is no way the state can predict what occured in the jury room. Therefore, at the very least, either the jury should have been sent back to deliberate with the new--and proper-- facts in mind, or a_new trial should have been ordered. CONCLUSION For the foregoing reasons, Petitioner, Eddie Lee Frasier, prays that a Writ of Certiorari issue to review the Judgment and pinion of the Supreme Court of Indiana entered in these proceedings. Respectfully submitted, -49- SRE BEE LEGION LIE LS TP OM ee EAT LE ILE OR OR TOIT ER tL FERD SAMPER, JR. 703 First Federal Bldg. Indianapolis, Indiana 46204 JAMES H. VOYLES, JR. 1500 Consolidated Bldg. 115 North Pennsylvania St. Indianapolis, Indiana 46204 Attorneys for Petitioner ON PETITION 763 First Federal 'ildg. Indianapolis, Indiana 46204 < -50- SORT PRES ESN AE BERET RETR Ee He MO ee | FRASIER V. STATE 167 APPENDIX "A" EDDIE LEE FRASIER v. STATE of INDIANA SUPREME COURT OF INDIANA No. 873 8149 June 4, 1974 APPEAL FROM THE MARION CRIMINAL COURT Hon. JoHN B. WILSON, JR., JUDCE Synopsis: Appeal from convictions by jury of violating the 1935 Fire- arms Act (unlicensed possession of a gun) and of armed robbery. Frasier contended (1) that many items of evidence found in the car should have been excluded because they were the fruits of an illegal, unconstitutional search; (2) that his identification by the robbery victims at the scene of the shooting violated due process of law in that the circumstances were overly suggestive; (3) that many items of evidence admitted either did not have a proper foundation or a sufficient chain of custody; (4) that a photograph of his dead alleged accomplice and the narration of the shooting incident by the Deputy Sheriff should not have been admitted as evidence because they were irrelevant to the crimes charged; (5) that his identity as one of the robbers was not sufficiently established; (6) that the trial judge abused his discretion in allowing the State to reopen its case-in-chief in order to prove the age of appellant; (7) that the builiff conducted an improper conversation with the jury; (8) that the “Handbook 168 INDIANA DECISIONS for Indiana Jurors” distribvted to the jury contained material prej- udicial to his Fifth Amendment rights; and (9) that the court erred in giving an instruction on flight. The Supreme Court of Indiana, Arterburn, C.J., reversed in part. DeBruler, J., dissented with opinion. Prentice, J., concurs in result. “. . . police officers effecting a valid custodial arrest for a traffic offense may thoroughly search the arrestee even absent the need to disarm or the need to seize evidentiary items which had been the justifications previously used for searches incident to valid arrests.” “A Deputy Sheriff may arrest any person violating any law of this State in his presence. . . . Acting within this authority, the Deputy asked for identification. Since he had the right to make an arrest {for an inadequate muffler] and a search incident thereto, he had the right to make the considerably lesser intrusion of a request for identification. The ensuing assault on the Deputy validates the sub- sequent search of the car and the seizure of the items therein. [Cita- tions omitted.]” “. .. the totality of the relevant circumstances does not indicate a ‘substantial likelihood of misidentification.’” Appel- lant did not assert that he was prejudiced by the admission of the items. The photograph and the relation of the shooting incident were part of the res gestae. The victims of the robbery made positive in- court identifications of the appellant. The appellant did not in- dicate why the reopening of the State’s case-in-chief was an abuse of discretion. “The important point is not who offers an explanation but that this Court be satisfied that ‘no harm or prejudice resulted’ from the misconduct of the bailiff.” The Handbook did not create an implication that the defendant had a duty to testify and the judge ad- monished the jury on that point. “An instruction on a certain theory in a case is proper if within the issues and there is any evidence to support it. [Citation omitted.]” DeBruler, J., was of the opinion that “this view [the majority opinion] is a dangerous misinterpretation of Robinson and Gustafson and creates a precedent which erroneously and unwisely expands the authority of the police to search motorists on Indiana highways.” SEARCHES AND SEIZURES—Custodial Arrest for Traffic Offense. “. . . police officers effecting a valid custodial arrest for a traffic offense may thoroughly search the arrestee even absent the need to disarm or the need to seize evidentiary items which had been the justifications previously used for searches incident to valid arrests.” p. 170. SEARCHES AND SEIZURES—Search Incident to Arrest. “A Deputy Sheriff may arrest any person violating any law of this State in his presence. . . . Acting within this authority, the Deputy asked for identification. Since he had the righ: to make an arrest [for an inade- quate muffler] and a search incident thereto, he had the right to make the considerably lesser intrusion of a request for identification. The ensuing assault on the Deputy validates the subsequent search of the car and the seizure of the items therein. [Citations omitted.]” pp. 170, 171. APPEARANCES: Richard Milan, Indianapolis, Indiana, for Appellant. Theodore L. Sendak, Attorney General of Indiana, Glenn A. Grampp, Deputy Attorney General, for Appellee. FRASIER V. STATE 169 ARTERBURN, C.J. On January 30, 1973, a jury convicted appellant of violating the 1935 Firearms Act (unlicensed possession of a gun) and of armed robbery. Appellant was sentenced to ten (10) years on the gun-possession charge and thirty (30) years on the armed robbery charge. Appellant has raised numerous issues. Some of his specifi- cations of error relate to the armed robbery charge alone, and some to the gun-possession charge, and some refer to the over- all conduct of the trial itself. We reverse the trial court’s judg- ment on the gun-possession charge. The evidence, from the viewpoint most favorable to the State, Blackburn v. State (1978), Ind. [34 Ind.Dec. 684], 291 N.E.2d 686, and cases cited therein, is simply that appellant was a passenger in an automobile stopped by a Deputy Sheriff. Both the driver and appellant, who was riding in the front passenger seat, got out of the car and stood at the rear of the car. A gunfight developed between the driver and the Deputy Sheriff. Subsequent to this gunfight, in which the driver of the car was killed, the appel- lant was arrested. A search of the car revealed a pistol lying on the passenger’s seat. These meager facts do not support, as a matter of law, an inference that beyond a reasonable doubt appellant once possessed this gun. We affirm the conviction for armed robbery. We next consider those specifications of error which relate to that charge as well as those which involve the general conduct of the trial. The following additional facts are relevant to the issues raised by appellant. On the night of August 28, 1972, two men with guns robbed Mr. and Mrs. Larry Bosley in the Bosley’s apartment. Moments after the robbery and in the vicinity of the Bosley’s apartment, which was an area of frequent burglaries, Deputy Sheriff Fields, without knowledge of the robbery, routinely stopped a Volkswagen with a noisy muffler. Using a flashlight to glance inside the car, the Deputy saw in plain view a “tire tool or pry bar protruding from a brown paper sack” lying on the floorboard between the two seats. The Deputy’s experience suggested to him that such an object was a frequent burglar tool. At the command of the Deputy, the two occupants of the car got out and stood at either rear side of the car. The Deputy then reached down and opened the paper sack. He discovered that the object was a tire tool and that the sack contained three - §3- ~ 170 INDIANA DEC.s10NS pink rubber gloves and a hunting knife. His suspicions further aroused, the Deputy approached the two men and asked for identification. The driver drew an automatic pistol and the Deputy heard the pistol “click.” The Deputy shot and killed this man. Appellant ran to the right front of the car but surrendered when the Deputy fired at him through the rear window. Sub- sequently, the car was searched at the scene and many items seized which were introduced as evidence at trial. The robbery victims were brought to the scene and there identified both the dead man and appellant as the two men who had minutes earlier robbed them. Appellant believes that the many items of evidence found in the car should have been excluded from the trial because they were the fruits of an illegal, unconstitutional search. Mapp v. Ohio (1961), 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684. Appellant’s reasoning is that the Deputy had no probable cause to look into the paper sack and that the ensuing shootout and search of the car were caused by this original search. Thus, runs appellant’s argument, the tainted fruits of that search must be excluded. We do not decide this point for the reason that we decide this issue pursuant to Gustafson v. Florida (1973), 42 L.W. 4068 [94 S.Ct. 488], 38 L.Ed.2d 456. Gustaf- son, supra, held that police officers effecting a valid custodial arrest for a traffic offense may thoroughly search the arrestee even absent the need to disarm or the need to seize evidentiary items which had been the justifications previously used for searches incident to valid arrests. As the United States Supreme Court said in the companion case to Gustafson, supra: “It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. Robinson (1973), 42 L.W. 4055 at 4060 [94 S.Ct. 467], 38 L.Ed.2d 427 at 441. In Indiana an inadequate muffler is a misdemeanor. IC 1971, 9-8-6-36 (Burns’ Ind.Stat.Ann. § 47-2230 (Code Ed.)). A Deputy Sheriff may arrest any person violating any law of this State in his presence. IC 1971, 35-1-21-1 (Burns’ Ind.Stat. Ann. § 9-1024 (1956 Repl.)). Acting within this authority, the Deputy asked for identification. Since he had the right to make an arrest and a search incident thereto, he had the right to make the considerably lesser intrusion of a request for stk ~s re | aes en OOM OO PLA EE EEO He be FRASIER V. STATE 171 identification. The ensuing assault on the Deputy validates the subsequent search of the car and seizure of the items therein. Chambers v. Maroney (1970), 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975; Brannon, Burton v. State (1957), 236 Ind. 680, 142 N.E.2d 215; Sisk v. State (1953), 232 Ind. 214, 110 N.E.2d 627. Appellant claims that his identification by the robbery victims at the scene of the shooting violated due process of law in that the circumstances were overly suggestive. Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967. The inquiry, as formulated by the United States Supreme Ccurt, is “whether . . . the confrontation was so unnecessarily sug- gestive and conducive to irreparable mistaken identification that (the defendant) was denied due process of law.” Stovall, supra, 388 U.S. at 302. Our confrontation cases (Sawyer v. State (1973), —— Ind. —— [87 Ind.Dec. 405], 298 N.E.2d 440 (photographs); Wright v. State (1972), —— Ind. —— [32 Ind.Dec. 151], 285 N.E.2d 650; Dillard v. State (1971), 257 Ind. 282 [27 Ind.Dec. 346], 274 N.E.2d 387), have crystal- lized the duty of the reviewing court to the basic inquiry of whether or not the witness was, in fact, influenced by the totality of the circumstances in a manner which indicates a “very substantial likelihood of misidentification.” Sawyer, supra, 298 N.E.2d at 443 [37 Ind.Dec. at 408]. Under the par- ticular circumstances of this case, appellant is able to isolate numerous circumstances which suggest what Justice Hunter recognized as the inherent suggestiveness of “any one-on-one confrontation.” Wright, supra, 285 N.E.2d at 653 [32 Ind. Dec. at 155]. But in the case before us these circumstances are outweighed by the fact that the victims knew appellant prior to the robbery. Additionally, witness Larry Bosley, one of the robbery victims, testified that his on-the-scene identification was not based on anything the police said to him that night. We think the totality of the relevant circumstances does not indicate a “‘substantial likelihood of misidentification.” Appellant makes an objection to the admission into evidence of each of sixteen (16) different items of evidence. The grounds for objection in each instance are that either a proper founda- tion or a sufficient chain of custody had not been established for any of the sixteen (16) items. Appellant does not, relative to each item, specify in what way the foundation laid or the chain of custody shown was inadequate. Consequently, we can only say that in our opinion each item was sufficiently connected to - §§- 172 INDIANA DECISIONS | appellant to constitute a proper foundation. Rose v. State — (1972), —— Ind. —— [30 Ind.Dec. 422], 281 N.E.2d 486; © Dizon v. State (1963), 243 Ind. 654 [1 Ind.Deéc. 318], 189 N.E.2d 715; Smith v. State (1961), 241 Ind. 598, 172 N.E.2d 678, and that within the guidelines of Bonds v. State (1973), —— Ind.App. —— [39 Ind.Dec. 634], 303 N.E.2c 686, proper chain of custody was established for the nonfungible kinds of evidence involved in this case. Moreover, the items of evidence here at issue were all cumulative evidence. There was an in- _ court identification of appellant as the armed robber. Therefore, ‘ any error, with respect to the admissibility of these items of evidence would be harmless since appellant in showing how the alleged error was prejudicial to his cause, Turner v. State (1972), —— Ind. —— [32 Ind.Dec. 605], 287 N.E.2d 339, and cases cited therein, merely asserted that some of the items “were specifically introduced by the State of Indiana to influence the jury and to prejudice the defendant” which is not even an as- sertion that defendant was in fact prejudiced. Appellant asserts that a photograph of his dead alleged ac- complice and the narration of tiat shooting incident by the Deputy Sheriff should not have been admitted as evidence be- cause they are irrelevant to the crimes charged, armed robbery and unlicensed possession of a firearm. The proper form for this kind of objection would be that the evidence lacks “ma- teriality.” That is, it does not tend to prove or disprove a proposition in issue. 12 I.L.E. Evidence § 41 (1959). Neverthe- less, the evidence here in dispute was part of the res gestae and was material for the reason that it tended to show flight, which is a circumstance relevant to the commission of a crime, and tended to show reasons for possession of a gun, which is ob- viously a necessary element of a charge of unlawful possession of a gun. Appellant suggests that his identity as one of the armed robbers was not sufficiently established since a minor dis- crepancy existed between the description given by the robbery victims to a sheriff’s deputy who came to their apartment, and the clothing worn by the appellant when he was apprehended. However, the decisive fact is that both victims made in-court positive identification of appellant as one of the two men who robbed them on the night in question. Another contention made by appellant is that the trial judge abused his discretion in allowing the State to reopen its case-in-chief in order to prove the age of appellant. However, -56- men ? > ‘ SGA RO 16 Sa FbNIS FRASIER V. STATF 173 since appellant totally fails to indicate why the reopening was an abuse of discretion we have no showing that appellant was prejudiced by the court’s decision. Appellant’s attorney has submitted an affidavit that through an undescribed source appellant’s attorney learned dur- ing the deliberation of the jury that the bailiff had had an improper conversation with the jury. Specifically, it is al- leged that a juror asked whether sentences would run consecu- tively or concurrently. The bailiff said he would speak to the judge. He did, and the iudge instructed him to tell the jury that the question could not be answered. Instead, the bailiff told the jury that the sentencing of the defendant was up to the judge. The State has not replied to this contention, either by submitting counter-affidavits or by argument. The rule for situations of this kind is as follows: “When an irregularity such as this occurs harm will be presumed, and if the irregularity is not explained, a re- versal of the judgment should follow. However, if an explanation for the alleged misconduct is offered, and if this Court is satisfied that no harm or prejudice resulted, then the judgment of the trial court will not be disturbed.” Conrad v. Tomlinson (1972), —— Ind. —— [29 Ind.Dec. 539 at 545-6], 279 N.E.2d 546 at 551. The important point is not who offers an explanation but that this Court be satisfied that “no harm or prejudice resulted” from the misconduct of the bailiff. In the case at bar, appellant suggests that the bailiff’s improper remark could have influenced undecided jurors to vote guilty in the belief that the judge would mitigate such a vote by light concurrent sentences. However, jurors had before them the possible verdict forms. The verdict forms reveal on their face the punishment to be inflicted. Moreover, the trial judge told the voir dire panel that “the amount of penalty is to be set by the jury in it’s (sic) verdict.” Therefore, we are convinced that the jury was not misled in their deliberations. Another allegation of error by appellant is that an Indiana State Bar Association publication entitled “Handbook for Indi- ana Jurors” which was distributed to the panel contained ma- terial prejudicial to appellant’s Fifth Amendment rights. The material complained of was the following descriptive passage: “The court room trial events are substantially the same in both civil and criminal cases. In all criminal cases the plaintiff is the State of indiana and the plaintiff's lawyer = St « 174 INDIANA DECISIONS ree is the Prosecuting Attorney or a Deputy Prosecuting At- — torney... 6. Defendant’s Evidence A. Witnesses for Defendant (1) Direct examination by defendant’s lawyer. (2) Cross-examination by plaintiff’s lawyer. (3) Re-direct examination by defendant’s lawyer. B. Exhibits for Defendant (These may be submitted dur- ing the questioning of witnesses). 7. Defendant Rests 8. Plaintiff’s Rebuttal Evidence (Same as Number 4 above, except that this evidence is confined to answering the defendant’s evidence.)” Appellant’s argument is that this passage creates an implica- tion that a defendant has a duty to testify. We see no such implication available to men of ordinary ways of thinking and reasoning. Furthermore, we think any possible misunderstand- ing would have been cured by the trial judge’s admonishment, in response to appellant’s complaint about the Handbook, to the jury that “the Defendant is not required to testify by law and constitution, and if he does not, this should not be con- sidered or commented upon by the jury.” Appellant’s final specifications of error relate to instruc- tions. Appellant believes that the evidence did not warrant the following instruction: “The flight or attempt to escape by a person immediately after the commission of the crime with which he is charged, if there was such a flight, is a circumstance to be con- sidered by you in connection with all the other evidence to aid you in determining the question of his guilt or in- nocence.” Defendant’s argument is that what appeared to be flight— running, when the shooting occurred, from the back of the car to the front—was merely a reaction of fear and apprehension for one’s own safety. Such an interpretation is for the jury. An instruction on a certain theory in a case is proper if within the issues and there is any evidence to support it. Moore v. ee FRASIER V. STATE 175 Funk (1973), —— Ind.App. —— [35 Ind.Dec. 532], 293 N.E.2d 534. A court in determining whether an instruction is ap- plicable to the evidence must consider all reasonable infer- ences which might be drawn from the evidence. John Hancock Mut. Life Ins. Co. v. Gordon (1941), 109 Ind. App. 58, 32 N.E.2d 727. Appellant asserts that those instructions (22A, 22B) which encompassed the multiplicity of possible verdicts were “long and cumbersome; they are unclear and relatively impossible to understand.” These assertions, offered without specific ex- amples or elucidation, are too general and too vague to be of consequence. We cannot fathom the significance of an instruc- tion being “relatively impossible to understand.” The jury either understood or it did not. We have been offered no rea- son by appellant to think that the jury did not understand. In his “Motion to Correct Errors” appellant preserved an objection to a certain instruction. Then, in his brief appel- lant did not discuss the issue preserved by his motion to cor- rect errors. However, in his reply-brief appellant attempted to discuss the issue for the first time but the instruction and the objection thereto were not quoted. Rule AP. 8.3(A) provides that: ; “When error is predicated on the giving or refusing of any instruction, the instruction shall be set ovt verbatim in the argument section of the brief with the verbatim ob- jections, if any, made thereto. Any error alleged in the motion to correct errors not treated as herein directed shall be deemed waived.” Appellant has thus twice failed to follow these requirements and therefore the alleged error is deemed waived. As hereinbefore explained, the judgment of the trial court is reversed as to Count I, Violation of the 1935 Firearms Act, and affirmed as to Count II, Armed Robbery. Givan, and Hunter, JJ., concur. Prentice, J., concurs in result. DeBruler, J., dissents with opinion. DISSENTING OPINION DEBRULER, J. The majority opinion sanctions the initial search of the paper sack seen on the floor of the car with the theory that it -59- 176 INDIANA DECISIONS was a search incident to a lawful arrest and therefore is not violative of the Fourth Amendment under the United States Supreme Court decisions in United States v. Robinson (1973). 94 S.Ct. 467, and Gustafson v. Fla. (1973), 94 S.Ct. 488. I believe this view is a dangerous misinterpretation of Robinson and Gustafson and creates a precedent which erroneously and unwisely expands the authority of the police to search motorists on Indiana highways. When Deputy Sheriff Fields first stopped this automobile he had no. knowledge of the recent armed robbery at the Bosley’s home. His only authority to stop the car at that time was for a misdemeancr violation of one of the sections of the Motor Vehicle Code which concerns the operation and main- tenance of certain automotive equipment. When he saw part of a tire tool protruding from a paper sack lying on the floor of the automobile he ordered the occupants out of the car, opened the sack and discovered a tire tool, pink rubber gloves and a hunting knife. All three of these exhibits, along with numerous others discovered after the shooting incident, were admitted at trial. Clearly the opening of the paper sack on the floor of the car constituted a search within the meaning of the Fourth Amendment. Chambers v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280 [69 L.Ed. 543]. The majority today finds, however, that although Deputy Fields had no probable cause at the time of the search of the sack, it was nevertheless proper solely on the ground that the de- fendant and his companion had been “arrested” on the loud muffler charge and that the Robinson and Gustafson decisions allow a police officer to “thoroughly search the arrestee” in this situation as a search incident to a lawful arrest. This holding misinterprets those decisions in two significant ways. First, Gustafson and Robinson concern the permissible scope of a search of a person incident to a custodial arrest, but they do not authorize, as the majority holding would seem to imply, a search of those sections of a car which lie beyond the area of control of the arrestee. Secondly, neither decis‘on concerns the type of “arrest” with which we are confronted here. On those occasions when a police officer in Indiana stop: a motorist for a minor traffic violation, as we have here, the officer is not empowered to automatically effect a full custodial arrest and haul the motorist off to the stationhouse. Both IC 1971, 9-4-1-130, being Burns’ $ 47-2307 and IC 1971, 9-4-1- - 60 - ~ . FRASIER V. STATE 177 181, being Burns’ § 47-2308, require that the officer may only issue a summons to the offender and then must allow him to proceed on his way. It is only in the case of a serious traffic offense (Burns’ § 47-2307 (2) to (5)), or in the event a motorist refuses to promise to appear in court at a future date (Burns’ § 47-2307 (6)) that the police may effect a full arrest and take the motorist to the police station for booking. In a normal traf- fic misdemeanor situation a police officer may only impose what may be termed a limited arrest for the purpose of issuing the summons and then must release the motorist from this limited form of custody. Both the facts and language of Gustafson and Robinson specifically. concern the type of traffic violations which re- quires or allows an officer to effect a full custodial arrest. It is apparent from the opinions that the sole basis for the full scale search of the motorist was the full custodial type of arrest being effected in both of those situations. “The justification or reason for the authority to ‘ search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. It is scarcely open to doubt that the danger to an of- ficer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry type stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justifi- cation.” (Emphasis added.) United States v. Robinson (1973), 94 S.Ct. at 476. In a footnote in Robinson the Court made a sharp dis- tinction between the full custodial arrest with which it was concerned in that case, and what was characterized by the Court as a “routine traffic stop, i.e., where the officér“ would simply issue a notice of violation and allow the offender to proceed.” Fn. 6 at_477. The majority specifically stated that they were not deciding the constitutionality of searches inci- dent to these routine traffic stops. It is precisely that type of limited arrest resulting from a routine traffic stop which faces us here, and while the Fourth Amendment does not prevent a -61.-.... 178 INDIANA DECISIONS full search incident to a lawful custodial arrest I do not believe it to condone a full search incident to a routine traffic stop where the police officer is not authorized to take tiie motorist into custody. It is evident that the Supreme Court justifies the search of the arrestee on the grounds of the full custodial nature of the arrest, but where, as here, there is no full custodial arrest nl gpa cncae and rationale allowing the search is obviously absent. ; The majority’s present interpretation of the Gustafson and Robinson decisions, as allowing a full scale search of any- one who violates some traffic regulation, invites wholesale and groundless intrusions upon the personal privacy of thousands of Indiana motorists. Thus, under this interpretation the vast number of Indiana citizens who travel by automobile and who may be stopped for having a nonfunctioning license plate light (IC 1971, 9-8-6-6, being Burns’ § 47-2204), or for failure to dim their headlights for an oncoming car (IC 1971, 9-8-6-24, being Burns’ § 47-2220), or for driving on studded snow tires after the first of May (IC 1971, 9-8-6-39, being Burns’ § 47- 2233), or for any of a multitude of minor traffic offenses, are subject, without further authorization or circumstances, to having the contents of their wallets, pockets and pants cuffs examined by the police. I am not, of course, claiming that an officer can never conduct a search after a routine traffic stop. We have repeatedly recognized the essential concerns of a police officer for his own safety when he encounters any citizen in the performance of his duty, and where there exists special facts or circumstances which gives the officer reasonable grounds to believe that the occupants of a car are armed, he may conduct a protective frisk. Terry v. Ohio (1967), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889: Sayne v. State (1972), Ind. (29 Ind.Dec. 196], 279 N.E.2d 196; Parton v. State (1970), 255 Ind. 264 [23 Ind.Dec. 483], 263 N.E.2d 636. The majority opinion, however, does not attempt to base its holding on the Terry exception, but makes, what is in my opinion, the mistake of authorizing full scale searches based on the sole fact of a minor traffic violation. Since I believe Deputy Fields was in violation of the stric- tures of the Fourth Amendment when he examined the paper sack on the floor of the car and because I do not think the admission of the pink gloves into evidence was harmless error under the rules of Chapman v. California (1967), 386 U.S. 18. 87 S.Ct. 824, 17 L.Ed.2d 705 and Harrington v. California MBO LLIV IA ts Orit oe FRASIER V. STATE 179 (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, I find I must dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1032%3A1. Public record. Not legal advice.