323 N.E.2d 228 (Ind. 1975), 674S118, Winston v. State

Docket Nº674S118.
Citation323 N.E.2d 228, 263 Ind. 8
Party NameBilly Ray WINSTON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
Case DateFebruary 25, 1975
CourtSupreme Court of Indiana

Page 228

323 N.E.2d 228 (Ind. 1975)

263 Ind. 8

Billy Ray WINSTON, Defendant-Appellant,

v.

STATE of Indiana, Plaintiff-Appellee.

No. 674S118.

Supreme Court of Indiana.

February 25, 1975

Page 229

[263 Ind. 10] Stephen .johnson, Deputy Public Defender, Biddinger & Johnson, Marion, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GIVAN, Chief Justice.

Appellant was charged with the crime of armed robbery. Trial by jury resulted in a verdict of guilty as charged. Appellant was sentenced to the Department of Corrections for a period of fifteen (15) years.

The record reveals the following: On October 7, 1973, at about 10:00 p.m., Appellant, wearing a loose stocking over his face, entered the Handy Andy Supermarket in Marion, Indiana. He approached Vicki Pogers, an employee who was in the process of closing out the cash register. Appellant produced a pistol and demanded money. Miss Rogers complied with Appellant's demands placing the store's money in a brown paper bag carried by Winston. Miss Rogers recognized the Appellant as a man named 'Billy.' He had been in the store on four (4) or five (5) prior occasions. Because of the manner in which the mask fit the Appellant, his facial features and characteristics were discernible by Miss Rogers.

Following the robbery, Miss Rogers called the police and gave a description of the Appellant including his first name. Acting upon this description, the police arrested the Appellant and took him to the police station for questioning. While at the police station, Miss Rogers viewed the Appellant through a window in the detective's room and by this observation, made a positive identification of the Appellant.

Appellant consented to a search of his apartment. During the search a brown paper bag containing Eighty-Six Dollars and Fifteen Cents ($86.15) was found in a toilet tank in [263 Ind. 11] the bathroom. A store audit revealed that Ninety-Six Dollars and Three Cents ($96.03) was missing from the cash register of the store robbed.

Appellant first argues that the evidence was insufficient to support the verdict in that it was entirely circumstantial and revealed merely the opportunity to commit the crime. This Court will not weigh the evidence nor determine the credibility of a witness's testimony. Black v. State (1973), Ind., 304 N.E.2d 781, 40 Ind.Dec. 200. Miss Rogers made a positive identification to the Appellant. She had ample opportunity to view him in adequate light and had seen him previously on several occasions. The testimony of Miss Rogers standing alone is sufficient to sustain the conviction of Appellant. Grimm v. State (1970), 254 Ind. 150, 285 N.E.2d 407, 21 Ind.Dec. 349.

Appellant's next contention is in two parts: (1) that the trial court erred in overruling his motion to suppress the State's identification evidence; (2) the trial court erred in overruling his motion to suppress evience recovered in the search of his apartment. To support his argument on the first point, Appellant cites United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct.

Page 230

1951, 18 L.Ed.2d 1178. Appellant claims that the identification made by Miss Rogers at the police station was improper in that it was suggestive and that at that time he had not waived the right to counsel. The record shows that within an hour after the commission of the robbery, Miss Rogers viewed the Appellant at the police station, at which time he was not represented by counsel. The Supreme Court of the United States had decided the question based upon an almost identical factual situation. The Court held that the Sixth and Fourteenth Amendment right to counsel did not attach until 'judicial adversary proceedings' (in Indiana this is a filing of an affidavit or indictment) had been initiated. [263 Ind. 12] Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

In Martin v. State (1972), Ind., 279 N.E.2d 189, 29 Ind.Dec. 427, we held that any 'post arrest' lineup was a critical stage in a criminal prosecution and, hence, the right to counsel attached. This result was reached by application of the vague 'critical stage' analysis set forth in Wade and Gilbert.

Four months after our decision in Martin, the U.S. Supreme Court handed down Kirby v. Illinois, supra. Specifically, Kirby identified the point at which adversary proceedings begin, and thus the right to counsel attaches as:

'. . . the defendant had been indicted or otherwise formally charged with any criminal offense.' 406 U.S. 684, 92 S.Ct. 1879, 32 L.Ed.2d 414.

and further:

'. . . at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'

Once this point (and/or points) is defined by reference to the laws of the state, Kirby makes clear that any lineup preceding such initiation may be challenged only upon general due process grounds set out in Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct 1967, 18 L.Ed.2d 1199. Kirby at 406 U.S. 690--91, 92 S.Ct. 1883, 32 L.Ed.2d 418, states:

'What has been said is not to suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures. Such abuses are not beyond the reach of the Constitution. As the Court pointed out in Wade itself, it is always necessary to 'scrutinize any pretrial confrontation . . .' 388 U.S. at 227, 87 S.Ct. at 1932 (, 18 L.Ed.2d at 1157). The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and...

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