Minneman v. State , 441 N.E.2d 673 ( 1982 )

PIVARNIK, Justice.

Defendant-Appellant, Dalton Russell Minneman, was convicted of Burglary, Ind. Code § 35-43-2-1 (Burns Repl.1979), and of being a habitual offender, Ind.Code § 35-50-2-8 (Burns Repl.1979) at the conclusion of a jury trial in Rush Circuit Court on August 12, 1980. Appellant was sentenced to thirty-five (35) years imprisonment. He now appeals.

Appellant raises nine errors on appeal, concerning:

1. Whether the appellant voluntarily confessed and voluntarily consented to searches of his residence.

2. Whether it was reversible error to deny the appellant’s motion for discharge.

3. Whether it was reversible error for the habitual criminal allegation to allege that the appellant committed more than two prior felonies.

4. Whether it was reversible error to deny the appellant’s motion to dismiss the habitual criminal count.

5. Whether this Court should reverse case precedent regarding the inadmissibility of polygraph tests.

6. Whether the Indiana Habitual Offender statute is constitutional.

7. Whether it was reversible error for the trial court to receive into evidence State’s Exhibits H-2 and H-4.

8. Whether it was reversible error for the jury to hear final instruction No. 6.

9. Whether it was reversible error for the jury to hear final instruction No. 3.

The evidence most favorable to the State reveals that sometime during the night of February 20-21, 1979, the Hair Affair Beauty Salon in Rushville, Indiana, was burglarized. Barbara Reynolds, the owner of the salon, discovered the burglary the following morning when she opened up for business. The salon had been ransacked, about $65.00 in cash was missing, and the boxes in which the beauticians placed tips were missing. This burglary was reported to the Rushville police.

The salon was burglarized again on March 8,1979. Officer Weber of the Rush-ville Police Department investigated the burglary. Weber discovered an unusual footprint, measured it, and posted the shoe print on the bulletin board of the police station. On April 1, 1979, Barbara Reynolds, while speaking with a friend over the telephone, noticed a prowler outside the salon. She went outside, confronted the man and demanded his name. He responded “Dalton Minneman.” Reynolds identified the appellant, at trial, as the man she caught outside her salon. Minneman fled and Reynolds notified the police. The police went to Minneman’s residence and he agreed to go to the police station and answer some questions. Minneman allowed the police to search his home for the shoes he had been wearing earlier. Later, Minne-man gave a statement admitting his involvement in the Hair Affair Salon burglary.

I

Prior to trial, Appellant filed a Motion to Suppress on October 29, 1979. In the motion Appellant alleged that his confession and all physical evidence obtained because of the confession should be suppressed because “the confession was not, knowingly, intelligently, and voluntarily given.” The trial court, after a hearing on the motion, denied Appellant’s request on January 23, 1980. On appeal, Appellant argues that the motion should have been granted and State’s exhibits 2, 5, 6, and 7 should not have been introduced into evidence.

Exhibit 2 was a small money or coin bank, and Exhibits 6 and 7 were the same Permission to Search forms that Appellant executed for the police. When those three exhibits were offered into evidence, counsel for Appellant asked some preliminary questions but made no objection to their admission into evidence. It has long been the rule in Indiana that although a motion to suppress has been overruled prior to trial, when the evidence is later offered at trial no error will be preserved unless there is an objection at that time. Haynes v. State, (1982) Ind., 431 N.E.2d 83, 85; Lock v. State, (1980) Ind., 403 N.E.2d 1360, 1367. Appellant’s failure to object to the admission of State’s Exhibits 2, 6, and 7 has resulted in a waiver of error on appeal.

Exhibit 5 was Appellant’s statement in which he admitted burglarizing the Hair Affair Beauty Salon. Appellant argues on appeal that the evidence shows that he did not knowingly, intelligently, and voluntarily waive his Fourth Amendment right to be free of governmental intrusions when he accompanied the police to the station in order to answer questions about the burglary. Appellant points to Morris v. State, (1980) Ind., 399 N.E.2d 740, stating that a warrantless arrest not supported by probable cause is unlawful, and therefore his statement should have been suppressed at trial.

After reviewing the record we find that Morris is not applicable to Appellant’s situation. There is no indication that Appellant was arrested prior to the questioning by the police. The following testimony was elicited from Officer Servies at the hearing on Appellant’s motion to suppress:

“Q. Did you state to Mr. Minneman to come with you or what did you say to him?

A. I ask (sic) him if he would come to the police station for a few questions.

Q. And his response was? •

A. ‘Yes.’

Q. If he had replied ‘no,’ what, if anything would you have done?

A. Nothing.

Q. Would you have just turned around and went back to wherever you were going?

A. I would probably have gone out to the police car and done some checking.

Q. And after you did your checking, what would you have done?

A. It would depend on what I found out checking.”

Officer Servies stated that Appellant was not placed under any restraints and would have been free to leave the police station at any time. The officers wanted to interrogate Appellant because the owner of the beauty salon told the police that the man she caught trying to enter the salon identified himself as Dalton Minneman. The police were justified, for investigative purposes, in wanting to question Appellant about the burglary. Appellant himself admitted at the hearing that he was not under arrest nor was he forced or coerced into signing or saying anything. There is nothing to indicate that the Appellant was the victim of an illegal detention.

The only other question to answer is whether the appellant was properly advised of his constitutional rights before giving a statement to the police. It is well settled that the procedural safeguards of Miranda apply only to what the United States Supreme Court has termed “custodial interrogation.” Oregon v. Mathiason, (1977) 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714; Orozco v. Texas, (1969) 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311; Bugg v. State, (1978) 267 Ind. 614, 372 N.E.2d 1156; Maxey v. State, (1969) 251 Ind. 645, 244 N.E.2d 650, cert. denied, (1970) 397 U.S. 949, 90 S.Ct. 969, 25 L.Ed.2d 130. We held in Dickerson v. State, (1972) 257 Ind. 562, 567, 276 N.E.2d 845, 848:

“[A]n interrogation, initiated by the police and conducted in the compelling atmosphere of the interrogation room at the police station, at a time the investigation had focused on the accused, constitutes circumstances which would indicate a significant deprivation of freedom so as to require the interrogating officers to advise the suspect of his constitutional rights.”

Upon arrival at the police station, Appellant was advised of his rights under Miranda by Officer Servies, and Appellant signed the waiver of rights form. Appellant admitted that his constitutional rights were read to him prior to any questioning. We see no error in admitting his statement into evidence.

II

Appellant’s next argument concerns his Motion to Dismiss under Ind.R.Crim.P. 4(B)(1). Appellant contends that under Rule 4(B)(1) a court has the duty to bring a defendant to trial within the required time in the statute and because the court failed to set Appellant’s case for trial within that period, the trial court committed error.

Rule 4(B)(1) provides in pertinent part: “If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.”

The relevant sequence of events pertaining to this issue are as follows:

July 25, 1979 Information filed.

August 9,1979 Motion for Early Trial filed.

October 29,1979 Motion to Compel Discovery and Motion to Suppress filed.

October 30,1979 Motion for Fast and Speedy Trial filed.

November 26,1979 Hearing on Motion to Suppress begun and continued.

January 3,1980 Hearing on Motion to Suppress begun and continued at Appellant’s request.

January 22,1980 Hearing on Motion to Suppress completed.

January 23,1980 Motion to Suppress denied.

March 4,1980 Trial date set for June 16, 1980.

March 8,1980 Objection to trial setting filed by Appellant.

May 1,1980 Motion to Dismiss for denial of speedy trial filed.

June 4,1980 Motion to Dismiss denied.

When a defendant files a motion for early trial under Ind.R.Crim.P. 4(B), such filing constitutes an abandonment of previous motions for early trial filed by that defendant. Rutledge v. State, (1981) Ind., 426 N.E.2d 638. The law requires the movant to maintain a position which is reasonably consistent with the request he has made. Utterback v. State, (1974) 261 Ind. 685, 310 N.E.2d 552. Therefore, when Appellant filed his motion for speedy trial on October 30, 1979, he abandoned the earlier motion filed on August 9, 1979, and we are no longer concerned with that motion.

When Appellant filed his motion for early trial on October 30, 1979, there were two other motions pending at the time: Motion to Suppress and Motion to Compel Discovery, both filed by Appellant on October 29, 1979. The seventieth day from October 30, 1979 fell on January 8, 1980. However, on January 3,1980, at Appellant’s request, the hearing on his Motion to Suppress was continued to January 22, 1980. The position of the State is well taken that by moving for a continuance beyond the seventy-day period, particularly when that time period was used up by his delaying motions, the appellant abandoned his speedy trial motion. This Court held in Serrano v. State, (1977) 266 Ind. 126, 360 N.E.2d 1257, that where the record is devoid of any indication during the seventy-day period that the defendant is seeking a speedy trial, the court may conclude that the defendant’s speedy trial motion is not bona fide. The same can certainly be said of this case since there were pre-trial motions filed the day before the filing of the Motion for Fast and Speedy Trial which were known to and did, in fact, delay the matter before a trial date could be set. As we stated above, the delay used up more than the seventy days contemplated in the motion. As a matter of fact, delays appear to have been apparent even up to March 4, 1980 when the court set the trial for June 16,1980. The trial court properly overruled the May 1, 1980 motion to dismiss.

Ill

Count II charged Appellant with being a habitual offender. On February 1, 1980, the State filed an amended information which included a change in Count II. The amended count contained allegations of four prior felonies committed by Appellant. Prior to trial Appellant filed a motion asking the trial court to strike, as prejudicial surplusage, any and all allegations of more than two prior felony convictions. The trial court overruled Appellant’s motion.

Appellant does not allege that any of the procedural aspects of the habitual offender proceeding were in error; instead, he alleges that the two additional felony convictions prejudiced his right to a fair trial. While Ind.Code § 35-50-2-8(a) (Burns Supp.1982) requires that the State need only prove two prior unrelated felony convictions, proof of three or more felony convictions is mere surplusage under the requirements of the habitual criminal statute. Collins v. State, (1981) Ind., 415 N.E.2d 46, cert. denied, (1981) 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 1851; Jessup v. State, (1971) 256 Ind. 409, 269 N.E.2d 374. There is no error here.

TV

Prior to trial, Appellant moved to dismiss the habitual offender count in the Information because “... nowhere in Count II of said Information is there any allegation that the individual bringing the charge was ever duly sworn upon his oath as is required pursuant to I.C. 35-3.1-1-2(a).” The trial court overruled Appellant’s motion on August 17, 1979.

Ind.Code § 35-50-2-8(a) (Burns Repl. 1979) provides that “[t]he state may seek to have a person sentenced as an habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions.” The statute provides that the information itself shall contain these allegations and provides that it be on a separate page so the jury will not be informed at that time of the defendant’s prior convictions. This procedure was spelled out in Lawrence v. State, (1972) 259 Ind. 306, 286 N.E.2d 830 and has been reaffirmed in many recent opinions. Griffin v. State, (1982) Ind., 439 N.E.2d 160; Dorton v. State, (1981) Ind., 419 N.E.2d 1289; Mitchell v. State, (1979) Ind., 398 N.E.2d 1254. Examining the habitual offender count in the record, we find that it was taken under oath, that it was on a separate page, that it listed the prior unrelated felony convictions, that it identified Ind.Code § 35-50-2-8 as the governing statute, and that it was signed by the prosecuting attorney. All of this accords with the proper procedure in habitual offender charges. The trial court did not err in denying Appellant’s motion.

V

The prosecutor filed a motion in limine requesting that the appellant be prohibited from stating that he had taken or would be willing to take a polygraph examination. The trial court granted the motion and issued the following order:

“IT IS THEREFORE ORDERED AND DECREED that [Appellant], his attorney and any defense witnesses are prohibited at the trial of this cause from in any way suggesting, mentioning or implying that [Appellant] has taken or would be willing to take a polygraph examination in this or any other cause.”

Appellant, although he is aware that the law in Indiana holds that the evidence of polygraph examination is inadmissible absent a waiver by the opposing party, requests this Court to reconsider our views stated in Robinson v. State, (1974) 262 Ind. 463, 317 N.E.2d 850, and Zupp v. State, (1972) 258 Ind. 625, 283 N.E.2d 540. We still agree that in view of the unreliability of polygraphs, Vacendak v. State, (1976) 264 Ind. 101, 340 N.E.2d 352, cert. denied, (1976) 429 U.S. 851, 97 S.Ct. 141, 50 L.Ed.2d 125, “the rule prohibiting reference to polygraph evidence absent waiver or stipulation ... is properly applied to prohibit a defendant from stating that he offered to take a polygraph test.” Moore v. State, (1977) 267 Ind. 270, 274, 369 N.E.2d 628, 630. There was no error in the trial court’s granting of the state’s motion in limine.

VI

Appellant asks us to review once again the constitutionality of Indiana’s Habitual Offender Statute, Ind.Code § 35-50-2-8. Appellant does not give any persuasive argument why the statute is unconstitutional. Precisely the same issues now raised as to the constitutionality of this statute were previously presented to this Court in Maier v. State, (1982) Ind., 437 N.E.2d 448 and Wise v. State, (1980) Ind., 400 N.E.2d 114. We reaffirm our holdings that the habitual offender statute is constitutional.

VII

The State, during the habitual offender phase of the trial, sought to introduce State’s exhibits H-2 and H-4 into evidence. Defense counsel objected to their introduction, claiming that the exhibits were not properly authenticated pursuant to Ind.Code § 34-1-17-7 (Burns 1973). The trial court overruled these objections and admitted exhibits H-2 and H-4 into evidence. H-2 dealt with Appellant’s prior felony conviction in Louisiana and H-4 dealt with his prior felony conviction in California.

§ 34-1-17-7 reads as follows:

“ — Exemplifications or copies of records, and records of deeds and other instruments, or of office books or parts thereof, and official bonds which are kept in any public office in this state, shall be proved or admitted as legal evidence in any court or office in this state, by the attestation of the keeper of said records, or books, deeds or other instruments, or official bonds, that the same are true and complete copies of the records, bonds, instruments or books, or parts thereof, in his custody, and the seal of office of said keeper thereto annexed if there be a seal, and if there be no official seal, there shall be attached to such attestation, the certificate of the clerk, and the seal of the circuit or superior court of the proper county where such keeper resides, that such attestation is made by the proper officer. [Acts 1881 (Spec.Sess.), ch. 38, § 329, p. 240.]”

In Griffin v. State, (1981) Ind., 415 N.E.2d 60, we held that a probable cause affidavit, an information, and a criminal docket sheet, all under the same circuit court number and certified by the circuit court clerk as being true and complete copies of the records of the case were sufficient to prove the defendant’s prior felony conviction. Exhibit H-2 contained many documents, including Appellant’s fingerprints, his conduct report while in prison, his pre-sentence incarceration credit, an order informing the sheriff to transport Appellant to prison in order to serve a four year term for burglary, the minutes of the hearing where Appellant pleaded guilty to burglary, and the information filed against Appellant. All documents were certified by Jewel Williams, record clerk and legal custodian of the records of Dixon Correctional Institute, to be true and exact copies of the record in the case. H-4 contained a probation order, complaint, and a change of plea to guilty signed by Appellant. These documents were certified by Robert D. Zumwalt, Clerk of San Diego County, to be true and correct copies of the original documents pertaining to Appellant’s conviction for burglary. Both exhibits are sufficient to prove Appellant’s prior convictions and there was no error in admitting them into evidence.

VIII

Appellant objected to the trial court’s final instruction No. 6 which reads as follows:

“You are further instructed that the State is not required to make proof of felonious intent, as a fact by direct and positive evidence. The State is only required to produce such evidence as will satisfy the jury beyond a reasonable doubt that the crime charged was committed by the defendant with the felonious intent charged in the information. A determination of the defendant’s intent may be arrived at by the jury from a consideration of the defendant’s conduct and the natural and usual sequence to which such conduct logically and reasonably points.”

Ind.R.Tr.P. 51(C) provides in part: “No party may claim as error the giving of an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” (emphasis added). Ind.R.App.P. 8.3(A)(7) provides in part: “When error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto.” Appellant only made a general objection to instruction No. 6 at trial, but on appeal he claims that it has an overreaching effect on a matter properly left to the jury. We find that the failure to make a distinct objection at trial has resulted in a waiver of this issue on appeal. Mathes v. State, (1982) Ind., 437 N.E.2d 51, 52; Murphy v. State, (1977) 267 Ind. 184, 196, 369 N.E.2d 411, 417.

In addition, this same instruction has been approved in prior cases and correctly states the law in Indiana. Luckett v. State, (1973) 158 Ind.App. 571, 303 N.E.2d 670. There was no error in the giving of the instruction.

IX

Finally, Appellant objected to the giving of final instruction No. 3 during the habitual offender phase of the trial. Instruction No. 3 reads as follows:

“You are instructed that the term ‘felony conviction’ means a conviction, in any jurisdiction at any time, with respect to which the convicted person might have been imprisoned for more than one (1) year.”

Again, as referred to above in Issue VIII, Appellant has waived any error by failing to make a distinct and specific objection. Mathes, supra; Murphy, supra. We also fail to see how this instruction harmed Appellant since the language used is identical to Ind.Code § 35-50-2-1 (Burns Repl.1979), which defines a “felony conviction.”

The judgment of the trial court is affirmed.

GIVAN, C.J., and DeBRULER, J., concur. PRENTICE, J., dissents with separate opinion in which HUNTER, J., concurs.