Indiana Law Review 116 INDIANA LAW REVIEW [Vol. 12:116 and seems to follow the "fiduciary approach" rejected by the Great Western court by excluding tender offers approved by the board of directors of the target company from the definition of a "takeover offer." 137 Finally, the Indiana law also does not require that a majority of the shareholders of the target company reside in Indiana. Instead, the Indiana statute may be effective where the target company was incorporated in Indiana, or had its principal place of business in In- diana, or had a substantial portion of its assests in Indiana.138 Lex L. Venditti VII. Criminal Law and Procedure Richard P. Good* The decisions discussed in this Article deal solely with criminal procedure. There have been no appellate decisions on substantive criminal law under the new Indiana Penal Code 1 which became effec- tive October 1, 1977. The discussion is presented in the general order in which the respective issues would arise in the various stages of the criminal process, beginning with pre-trial issues and continuing with issues pertaining to the trial and post-trial stages. In addition, several significant amendments to the penal code during the 1978 session of the General Assembly will be discussed.2 A. Search and Seizure 1. Arrest Warrants. —There are two contrary lines of cases in Indiana on whether warrantless arrests are proper absent exigent circumstances.3 One holds that, in order to have a valid warrantless arrest for a crime not committed in the presence of the officer, there must be probable cause to believe that a crime was committed 137 Ind. Code § 23-2-3-l(i)(5) (1976). m Ia\ § 23-2-3-Kj). * Executive Director, Indiana Prosecuting Attorneys Counsel; Instructor in Criminal Justice, Indiana University— Purdue University at Indianapolis and Indiana University at Kokomo. The author wishes to express his appreciation to Paul H. Ellison for his assistance in the preparation of this Article. x Ind. Code § 35-1-1-1 to 50-6-6 (Supp. 1978). 2See notes 275-88 infra and accompanying text. aSee Kerr, Criminal Law and Procedure, 1975 Survey of Recent Developments in Indiana Law, 9 Ind. L. Rev. 160, 162 (1975). 1979] SURVEY- CRIMINAL LAW 117 by the suspect and exigent circumstances that make it impracticable to obtain a warrant. 4 The other line of cases restates the traditional view that exigent circumstances are not required.5 The United States Court of Appeals for the Second Circuit held in United States v. Reed* that the fourth amendment7 requires exigent circumstances for a warrantless felony arrest, based on probable cause, in the suspect's home.8 If Reed were followed by Indiana courts, then the traditional approach would be used for the lesser intrusion of a war- rantless arrest in public and exigent circumstances would be re- quired only when the officer intrudes into the arrestee's home.9 2. Effect of Illegal Arrest — The Indiana Supreme Court twice reiterated the axiomatic doctrine that the illegality of an arrest af- fects only the admissibility of the evidence obtained as a result of a search following it, but not the right of the state to try the arrestee. 10 In Mendez v. State, 11 the defendant questioned the credibility of the probable cause affidavit which supported the ar- rest warrant. The court found no issue for review because the claim related solely to the validity of the defendant's arrest.12 In Massey v. State, 13 the appellant complained that he was returned to Indiana from Ohio without extradition or waiver of extradition and in viola- tion of the Inter-State Juvenile Compact.14 The trial court had over- ruled defendant's motion to dismiss on these facts. The trial court's jurisdiction was held not to depend upon the legality of defendant's 'Stuck v. State, 255 Ind. 350, 264 N.E.2d 611 (1970); Throop v. State, 254 Ind. 342, 259 N.E.2d 875 (1970); Bryant v. State, 157 Ind. App. 198, 299 N.E.2d 200 (1973); Johnson v. State, 157 Ind. App. 105, 299 N.E.2d 194 (1973). 6Garr v. State, 262 Ind. 134, 312 N.E.2d 70 (1970); Kendrick v. State, 325 N.E.2d 464 (Ind. Ct. App. 1975). 6572 F.2d 412 (2d Cir. 1978). U.S. Const, amend. IV provides: 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 per- sons or things to be seized. 8572 F.2d at 424. 'Although the United States Supreme Court has expressly reserved decision on this issue on a number of occasions, the Court has offered important signals pointing to this result. See United States v. Santana, 427 U.S. 38 (1976); Coolidge v. New Hamp- shire, 403 U.S. 443 (1971); Warden v. Hayden, 387 U.S. 294 (1967). 10Massey v. State, 371 N.E.2d 703 (Ind. 1978); Mendez v. State, 367 N.E.2d 1081 (Ind. 1977). In actual practice, some trial courts in Indiana do not follow this rule; in- stead, they dismiss charges in cases involving an illegal arrest. "367 N.E.2d 1081 (Ind. 1977). 12Id at 1082. 18 371 N.E.2d 703 (Ind. 1978). u Ind. Code § 31-5-3-1 (1976). 118 INDIANA LAW REVIEW [Vol. 12:116 arrest or return to the charging state: 'This Court has consistently held that an illegal arrest does not destroy a valid conviction and that such illegality is of consequence on review only if evidence was obtained and admitted as a result of that illegal arrest."15 Dictum in Pierce v. State 16 appears to recognize as valid an ar- rest on less than probable cause. The court wrote that "since the of- ficer had a right to arrest and detain appellant for investigatory reasons on suspicion that he had committed a felony," the alleged il- legality of the city court warrant under which defendant was ar- rested was of no significance and no error was presented.17 3. Warrantless Searches. —The Indiana Court of Appeals in Bandelier v. State 1* upheld a search of an area not within the ap- pellant's control at the time of the arrest.19 After arrest for a traffic offense, the appellant left the police car against orders, returned to his own car, and reached inside. The officer observed a brown paper bag on the suspect's car seat and, upon inspection, discovered mari- juana. The court held that appellant's own conduct brought the evidence within the area of his immediate control.20 The Court distinguished Paxton v. State 21 because in that case the officer could no longer reasonably believe that he was in danger or that evidence contained in the automobile could be destroyed by the defendants.22 The court of appeals in Griffin v. State 23 followed South Dakota v. Opperman24 and upheld an inventory search25 of an automobile where a police officer arrested the defendant for driving without an operator's license and for false registration of a vehicle and im- pounded the vehicle pursuant to statute.26 The inventory was made 15371 N.E.2d at 705 (citing Williams v. State, 261 Ind. 385, 304 N.E.2d 311 (1973); Dickens v. State, 260 Ind. 284, 295 N.E.2d 613 (1973)). See also Frisbie v. Collins, 342 U.S. 519 (1952). 16369 N.E.2d 617 (Ind. 1977). 11 Id. at 619. But see Dommer v. Hatcher, 427 F. Supp. 1040, 1045 (N.D. Ind. 1975). "If 'probable cause' is in doubt the 'investigation' must precede the arrest; anything less results in the serious infringment of the Fourth Amendment right to be secure in one's person." Id. at 1045. 18372 N.E.2d 1235 (Ind. Ct. App. 1978). "See Chimel v. California, 395 U.S. 752 (1969) (holding that a search is limited to the area within the arrestee's immediate control). 20372 N.E.2d at 1237. 21255 Ind. 264, 263 N.E.2d 636 (1970). aM at 274-75, 263 N.E.2d at 641. In Paxton the court found improper the officers' placing the arrestees in the squad car and then returning to the arrestee's car for the purpose of retaking control of the area in which the evidence was found. 28372 N.E.2d 497 (Ind. Ct. App. 1978). 24428 U.S. 364 (1976). ^The purpose of an inventory search is to protect the owner's property and to avoid the occasional danger that may arise in impounding an unsearched vehicle. 372 N.E.2d at 501. m Ind. Code § 9-9-5-5 (1976). 1979] SURVEY- CRIMINAL LAW 119 prior to the actual impoundment of the vehicle and in the presence of the defendant, unlike the situation in Opperman. In another type of routine intrusion, the Indiana Supreme Court in Fair v. State 27 held that a handwriting exemplar, obtained from the defendant at the time he was booked, may be examined without the benefit of a search warrant. 28 The court relied upon Farrie v. State 29 and held that a search incidental to a valid arrest is lawful, even when conducted by a jailer at the time the accused is booked and confined.30 Unlike Farrie, the evidence sought and utilized following the inventory search in Fair was directly related to the crime for which the arrest had been made. The police action was merely a logical continuation of investigative procedures that were lawful at their inception. 31 In May v. State32 the court of appeals held that where a police officer walked up to the front door of the defendant's residence to ask questions concerning two missing individuals and noticed mari- juana in plain view through a window next to the door, the contra- band could be seized and was admissible in evidence under the "plain view" doctrine.33 The police officer was present for a legitimate reason unconnected with a search directed against the ac- cused. 34 The same court in another case had also allowed seizure of heroin in plain view of the police arresting the defendant.35 The Indiana Supreme Court in Gaddis v. State,™ following United States v. Robinson, 31 upheld a search of an abandoned "getaway" car which had been driven by a suspect in the murder of a police officer. 38 The court held that, because the abandoned car in- 27364 N.E.2d 1007 (Ind. 1977). "Id. at 1013. ^S Ind. 681, 288 N.E.2d 212 (1971). 30364 N.E.2d at 1013. 31 In this respect, the police action appears to have been approved by Chambers v. Maroney, 399 U.S. 42 (1970); Whitten v. State, 263 Ind. 407, 333 N.E.2d 86 (1975); Luckett v. State, 259 Ind. 174, 284 N.E.2d 738 (1972). 32364 N.E.2d 172 (Ind. Ct. App. 1977), cert denied, 98 S. Ct. 1657 (1978). M364 N.E.2d at 173. ^The court wrote: Absent express orders from the person in possession against any possi- ble trespass, there is no rule of private or public conduct which makes it il- legal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's 'castle' with the honest intent of asking ques- tions of the occupant thereof— whether the questioner be a pollster, a salesman, or an officer of the law. Id at 174 (citing David v. United States, 327 F.2d 301, 303 (9th Cir. 1964)). ^lark v. State, 363 N.E.2d 1045, 1047 (Ind. Ct. App. 1977). "ms N.E.2d 244 (Ind. 1977). 37533 F.2d 578 (D.C. Cir.), cert denied, 424 U.S. 956 (1976). M368 N.E.2d at 248. 120 INDIANA LAW REVIEW [Vol. 12:116 volved potential mobility, the exigency of the murder suspect being at large justified the warrantless search under the automobile exception, and there was no error in the admission of evidence found in the car.39 The police's need for information in order to iden- tify and locate the suspect gave rise to the exigent circumstance needed to satisfy the warrrantless search exception established in Warden v. Hayden. 40 k. Search Warrants.— A controversial case regarding search or seizure, handed down by the United States Supreme Court last term, was Zurcher v. Stanford Daily.*1 The Court rejected a broadening interpretation of the fourth amendment made by the lower courts.42 The Court held that the fourth amendment does not prevent the issuance of a search warrant to search for evidence when a third party, the owner or possessor of the place to be searched, is not reasonably suspected of criminal involvement. 48 The Court also rejected the contention that, if the third party is a newspaper, additional factors, derived from the first amendment, justify nearly a per se rule forbidding the search warrant and per- mitting only the subpoena duces tecum.44 The Court held that, prop- erly administered, search warrant procedures afford sufficient pro- tection to the third party. 45 The holding in Zurcher is consistent with previous decisions of the Court46 which were ignored by the trial court: "It is an understatement to say that there is no direct authority ... for the District Court's sweeping revision of the fourth amendment."47 The "fruit of the poisonous tree" doctrine48 resulted in a reversal where the "fruit" of an illegal seizure was the basis of a search war- rant. In Stinchfield v. State, 49 the court of appeals held that, because a search warrant was based upon a drug which a paid police infor- mant obtained from the defendant's residence by undisclosed means, the trial court erred in overruling defendant's motion to suppress evidence obtained by the search warrant.50 The court distinguished 39/d *°387 U.S. 294 (1967). 4198 S. Ct. 1970 (1978). tt353 F. Supp. 124 (N.D. Cal. 1972), aff'd, 550 F.2d 464 (9th Cir. 1977), rev'd, 98 S. Ct. 1970 (1978). 4398 S. Ct. at 1978. "Id. at 1982. t6 Ia\ *6See generally, Moylan, The Fourth Amendment Inapplicable Vs. The Fourth Amendment Satisfied, 1977 So. III. U.L.J. 75. 4798 S. Ct. at 1975. "Wong Sun v. United States, 371 U.S. 471 (1963). 49367 N.E.2d 1150 (Ind. Ct. App. 1977). "id at 1155. 1979] SURVEY- CRIMINAL LAW 121 this situation from cases in which the paid informant entered a suspect's house at the latter's invitation and then purchased or otherwise acquired contraband with the consent of the suspect.51 The court also distinguished, for fourth and fourteenth amendment purposes, searches by private individuals from searches by the state and agents for the state.52 In Misenheimer v. State, 53 the Indiana Supreme Court con- sidered whether a defendant can attempt to prove that the facts establishing probable cause in a search warrant application were false and, thereby, suppress evidence obtained by the search war- rant. The court found that the defendant made no offer to prove that the police officer's affidavit misrepresented facts or that the of- ficer acted in bad faith.54 The United States Supreme Court finally addressed this major issue in Franks v. Delaware, 55 two months after Misenheimer. The Court held that the fourth amendment allows the defendant to show that the warrant would not have been issued except upon an affidavit given with knowledge of its falsity or in reckless disregard for its truth. 56 Showing these facts voids the search warrant "and the fruits of the search [are] excluded [from the trial] to the same ex- tent as if probable cause was lacking on the face of the affidavit."57 The Court limited this holding by requiring that "to mandate an evidentiary hearing, the challenger's attack must be more than con- elusory and must be supported by more than a mere desire to cross- examine."58 The allegation of deliberate or reckless falsehood must be specific and accompanied by an offer of proof. Further, there must be a showing that, without the alleged false statement, there is no probable cause.59 51 IcL at 1153. See Mills v. State, 325 N.E.2d 472 (Ind. Ct. App. 1975). 52367 N.E.2d at 1153. Searches by agents of the state are controlled by the fourth and fourteenth amendments while searches by private individuals are not. See Zupp v. State, 258 Ind. 625, 283 N.E.2d 540 (1972); Machlan v. State, 248 Ind. 218, 255 N.E.2d 762 (1967). See also Antrup v. State, 373 N.E.2d 194 (Ind. Ct. App. 1978), which held that evidence found by defendant's parents and turned over to police was not the sub- ject of an illegal search and seizure. M374 N.E.2d 523 (Ind. 1978). M/d at 527. ^S S. Ct. 2674 (1978). ^Id. at 2676-77. 57ta at 2677. ^Id. at 2685. 59 IcL at 2682-83. The Court found six reasons for limiting veracity challenges: First, . . . the exclusionary rule ... is not a personal constitutonal right, but only a judically created remedy ... as a deterrent . . . [and shall not be extended to] interfere] with a criminal conviction in order to deter official misconduct. Second, ... a citizen's privacy interests are adequately protected by . . . 122 INDIANA LAW REVIEW [Vol. 12:116 B. Lineups and Photographic Identifications The Indiana appellate courts decided several cases involving one-on-one identifications. Poindexter v. State 60 held an in-court identification to be independent of a pre-trial one-on-one identifica- tion resulting from an on-the-scene confrontation.61 Arkins v. State 62 upheld an on-the-scene confrontation ten minutes after the robbery when the police brought the handcuffed suspects to the robbery vic- tim, who thereupon identified them.63 The court of appeals reiterated the rule that "[confrontations occuring immediately after the commission of an offense are not per se unduly suggestive even though the accused is the only suspect present."64 Dowdell v. State 65 held that "in view of the circumstances, the showing of only one pic- ture to [the] victim to identify [the] defendant, was not imper- missibly suggestive." 66 Zion v. State67 dealt with an identification problem occurring when the suspect was not in police custody and circumstances suggested that he might flee or further endanger the victim if asked to appear in a police lineup. The rape victim in Zion identified the suspect a day and a half after the crime as he ap- peared outside his place of employment. The court's holding that this was "not impermissibly and unnecessarily suggestive"68 was based on the highly limited scope of identification alternatives available. sworn affidavits] and by the magistrate's independent determination of suffi- ciency .... Third, . . . the magistrate already is equipped to conduct a fairly vigorous inquiry into the accuracy of the factual affidavit [by] questioning] the affiant, or [by] summoning] [other evidence]. Fourth, ... to make [the magistrate's] inquiry into probable cause reviewable in regard to veracity [would denigrate his function]. Fifth, permitting a post-search evidentiary hearing on issues of veracity would confuse the pressing issue of guilt or innocence with the collateral question as to whether there had been official misconduct in the drafting of the affidavit. Sixth and finally, ... a post-search veracity challenge is inappropriate because the accuracy of an affidvait in large part is beyond the control of the affiant. Id. at 2682-83. w374 N.E.2d 509 (Ind. 1978). "Id. at 512. 92370 N.E.2d 985 (Ind. Ct. App. 1977). "Id at 987. M/d (citing Wright v. State, 259 Ind. 197, 285 N.E.2d 650 (1972)). w374 N.E.2d 540 (Ind. Ct. App. 1978). See Calvert v. State, 160 Ind. App. 570, 312 N.E.2d 925 (1974). "374 N.E.2d at 542. 67365 N.E.2d 766 (Ind. 1977). "Id. at 769. 1979] SURVEY- CRIMINAL LAW 123 Finally, in lineup cases, the Indiana Supreme Court indicated that the use of video tape in lineups would be an alternative to the presence of counsel in that the existence of a video tape recording would insure accurate reconstruction of the lineup and deter abuses as effectively as counsel. 69 C. Confessions and Admissions 1. Voluntariness. — The state, in a suppression hearing, has the burden to prove beyond a reasonable doubt that the defendant knowingly and intelligently waived his privilege against self- incrimination. The legal standard to be applied is "whether, looking at all the circumstances, the confession was free and voluntary, and not induced by any violence, threats, promises, or other improper in- fluence." 70 In Blatz v. State, 71 the court of appeals held that the state failed to prove that an eighteen-year-old defendant who had eight years of special education as a slow learner made a voluntary and knowing waiver of his rights to remain silent and to have counsel present during interrogation.72 The court, in reversing the conviction, also considered the defendant's detention of more than ninety-six hours prior to making a statement and that he was not taken before a magistrate as required by statute.73 The same result occurred in Craft v. State,™ where the court of appeals reversed a conviction and held that the state failed to show that the defendant understood his constitutional rights and that he freely and voluntarily waived them.75 The defendant, after spending a night in jail on a public in- toxication charge, signed a waiver of rights form but twice refused to give a statement. After a third request by the police, the defend- ant dictated a statement to the officers without the presence of an attorney. This, combined with an erroneous instruction on intoxica- tion, led to the reversal.76 In Antrup v. State, 17 the defendant's attorney instructed the police not to interrogate his client and told the client not to speak "Bruce v. State, 375 N.E.2d 1042, 1086 (Ind. 1978) (citing United States v. Wade, 388 U.S. 218, 236-37 (1967)). 70Gibson v. State, 257 Ind. 23, 28, 271 N.E.2d 706, 709 (1971) (quoting Nacoff v. State, 256 Ind. 97, 101, 267 N.E.2d 165, 167 (1971)). "369 N.E.2d 1086 (Ind. Ct. App. 1977). n Id. at 1088-89, 1090. "Id. at 1088 (citing Ind. Code § 18-1-11-8 (1976)). 74372 N.E.2d 472 (Ind. Ct. App. 1978). "Id. at 475. "Id. "373 N.E.2d 194 (Ind. Ct. App. 1978). 124 INDIANA LAW REVIEW [Vol. 12:116 with anyone. The defendant, nevertheless, asked to speak to a state police officer, signed a waiver, and then made the damaging admis- sion. The court concluded that the defendant voluntarily waived those rights.78 In several cases the courts upheld the voluntariness of confes- sions and admissions made when the defendants were under the in- fluence of alcohol or drugs. In Lee v. State, 19 the confession was held to be voluntary even though the defendant was receiving medication "not of the type to overcome his resistance . . . ."80 Courts held con- fessions to be valid in other cases in which defendants claimed to be under the influence of drugs or suffering from drug withdrawal.81 There was conflicting evidence in each of the cases whether the defendants were affected by either the drugs or alcohol, which the trial courts resolved by finding no impairment of defendants' volun- tariness in confessing. A criminal defendant is entitled on motion to a hearing on the issue of voluntariness outside the presence of the jury. The initial determination of voluntariness of a confession is for the court, although the same evidence is admissible to the jury regarding the weight to be given a confession.82 A murder conviction was remanded for a hearing before the trial judge on the issue of voluntariness in Craig v. State, 83 where the trial judge refused the defendant's re- quest for a hearing outside the presence of the jury during trial. In Perry v. State,** the court of appeals held that an inter- rogating officer's statement to the defendant "that it would look better for defendant 'in court' " if he cooperated, did not constitute an implied promise of immunity or an implied promise or mitigation of punishment so as to render incriminating statements made by defendant inadmissible.85 The admissibility into evidence of a confession is determined from the totality of the circumstances, by whether it was made voluntarily . M The circumstances to be considered include whether the confession was freely made, if it were the product of a rational "Id. at 197. 79370 N.E.2d 327 (Ind. 1977). W I U1365 N.E.2d at 1215. 112373 N.E.2d at 1098. u3/d 114369 N.E.2d 689 (Ind. Ct. App. 1977). 115 Ind. Code § 35-4.1-1-3 (1976) states: The court shall not accept a plea of guilty from the defendant without first addressing the defendant and (a) determining that he understands the nature of the charge against him; (b) informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence; (c) informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury, to face the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to require the state to prove his guilt beyond a reasonable doubt at a trial at which the defendant may not be compelled to testify against himself; (d) informing him of the maximum possible sentence and minimum sentence for the offense charged and of any possible increased sentence by reason of the fact of prior conviction or convictions, and of any possibility of the imposition of consecutive sentences; (e) informing him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby. 118365 N.E.2d 776 (Ind. Ct. App. 1977). m/d at 779 (citing Ewing v. State, 358 N.E.2d 204 (Ind. Ct. App. 1976)). U8434 U.S. 357 (1978). U9Id at 365; accord, Howard v. State, 377 N.E.2d 628 (Ind. 1978). 128 INDIANA LAW REVIEW [Vol. 12:116 bargaining provides advantages to both defendants and prosecutors who want to avoid trials. 120 Even though a plea agreement was not filed, and the trial court advised the defendant that it would not be bound by any agreement, the court of appeals in Henry v. State 121 reversed a guilty plea as in- voluntarily made because the record showed that the defendant was relying on the prosecutor to recommend sentencing her under the Minor's Sentencing Act.122 The trial court did not advise the defend- ant that the prosecutor failed to make the recommendation and could not make it after acceptance of the guilty plea. E. Criminal Rule 4—Speedy Trial 1. Speedy Trial — The Indiana Court of Appeals in Burress v. State 123 held both that the defendant was not denied due process by reason of the lapse of 230 days between the defendant's purchase of heroin and the filing of the information because there was no proof of prejudice, and that the constitutional guarantees of speedy trial are not applicable until a person has been accused of a crime and ar- rested. 124 2. Criminal Rule k Issues. — Indiana Rule of Criminal Procedure 4(F) states that when a delay is caused by the defendant's act, Rule 4 time limitations on prosecution shall be extended by the amount of such delay. In Bradberry v. State, 125 the Indiana Supreme Court held that the delay caused by the defendant's motion for selection of a new panel of judges from which to strike was attributable to the defendant, not to the prospective judges. 126 In State v. Hancock County Superior Court, 121 the Indiana Supreme Court held that a sixteen-month delay, between the date the defendant struck one name on a panel after a change of judge request and the date the special judge was appointed, was a delay chargeable to the defend- ant for Rule 4(C) purposes.128 Criminal Rule 13129 required that a 120434 U.S. at 363. 121370 N.E.2d 972 (Ind. Ct. App. 1977). 122 Ia\ at 974. 123363 N.E.2d 1036 (Ind. Ct. App. 1977). 12i I