Atkins v. State, No. 3-377A77

Docket NºNo. 3-377A77
Citation175 Ind.App. 230, 370 N.E.2d 985
Case DateDecember 28, 1977
CourtCourt of Appeals of Indiana

Page 985

370 N.E.2d 985
175 Ind.App. 230
Howell O. ATKINS, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 3-377A77.
Court of Appeals of Indiana, Third District.
Dec. 28, 1977.

Page 986

Harriette Bailey Conn, Public Defender, Lawrence D. Giddings, Bobby Jay Small, David P. Freund, Deputy Public Defenders, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

A jury found Howell O. Atkins guilty of robbery. He was sentenced to the Indiana Department of Corrections for a period of not less than ten (10) nor more than twenty-five (25) years. In his appeal to this Court, Atkins raises the following issues:

(1) Did probable cause exist for a warrantless arrest?

(2) Was an on-the-scene confrontation unnecessarily suggestive?

[175 Ind.App. 231] (3) Did the trial court err in denying Atkins' oral motion for a continuance made on the day the trial was to begin?

(4) Was the jury properly instructed?

We find no error, and we affirm.

I.

Probable Cause

Atkins' first contention is that the police officers who arrested him did not possess the probable cause required to make a warrantless arrest, thus rendering certain evidence taken from Atkins in a subsequent search inadmissible. The test for probable cause to make an arrest is whether at the time of the arrest the facts and circumstances within the knowledge of the officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man of reasonable caution in believing that the person about to be

Page 987

arrested had committed or was committing an offense. Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133.

The evidence discloses that on April 1, 1976, Paul Jewell, a police officer, received a radio dispatch that two black males had robbed a bakery. As Jewell proceeded to the bakery, he observed two black males, one of whom was Atkins, running in an easterly direction away from the bakery. The men were running through alleys and backyards and were jumping over fences. Jewell gave chase; he shouted to Atkins that he was a police officer and instructed Atkins to stop. Atkins continued to run. Under these circumstances, probable cause for a warrantless arrest did, in fact, exist.

II.

Identification

The clerk who was working at the time of the robbery told the police that the two perpetrators were tall black men, one wearing a grey ski-type cap, the other wearing a colorful plaid jacket. Ten minutes after the robbery, police officers returned to the bakery with two handcuffed men, one of whom was Atkins. The clerk [175 Ind.App. 232] identified the two men as the perpetrators of the robbery. Atkins contends that the trial court should have suppressed testimony of the pre-trial identification because the confrontation was extremely suggestive.

The test, as formulated by the United States Supreme Court, is whether the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. In the instant case we are dealing with an on-the-scene confrontation. Confrontations occurring immediately after the commission of an offense are not per se unduly suggestive, even though the accused is the only suspect present. Wright v. State (1972), 259 Ind. 197, 285 N.E.2d 650. However, this does not necessarily mean that every on-the-scene confrontation will pass the Stovall test. Parker v. State (1970), 254 Ind. 593, 261 N.E.2d 562. Whether an on-the-scene confrontation is overly suggestive must be determined from the total circumstances. Hampton v. State (1977), Ind.App., 359 N.E.2d 276. Thus, while the period of time between the commission of the crime and the confrontation is an extremely important factor, it is not the only factor which must be considered.

The facts indicate that the two suspects were taken to the bakery immediately upon their apprehension and within ten minutes of the robbery. The police did not pressure the clerk or force her to identify the suspects as the perpetrators. Atkins places great emphasis on the fact that two men participated in the robbery and only two men were taken to the bakery for identification. Any one-on-one, or, as in this case, two-on-one, confrontation is somewhat suggestive. Wright, supra. The issue, however, is whether the confrontation was unnecessarily suggestive. Stovall, supra. Thus, the fact that only two suspects were shown is not dispositive. Atkins also places emphasis on the fact that the clerk based her identification primarily on the clothes worn by the suspects, as opposed to any distinguishing physical characteristics. We feel that that fact goes to the credibility of her identification and not its admissibility. It is true [175 Ind.App. 233] that the clerk was told in advance that two suspects were being brought to the bakery. It is also true that the suspects were handcuffed when they arrived. However, upon examining...

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13 practice notes
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1982
    ...after armed robbery); Poindexter v. State, supra (show-up fifteen minutes after robbery at scene of crime); Atkins v. State, (1977) 175 Ind.App. 230, 370 N.E.2d 985 (show-up ten minutes after robbery). Confrontations occurring shortly after the commission of the crime have been held to be p......
  • Parr v. State, No. 1083S363
    • United States
    • Indiana Supreme Court of Indiana
    • March 9, 1987
    ...at the appropriate stage of the proceeding. McCraney v. State (1979) Ind.App. , 388 N.E.2d 283; Atkins v. State (1977) Ind.App. , 370 N.E.2d 985. The freedom of choice of counsel may not be manipulated to subvert the orderly procedure of the courts or to interfere with the fair administrati......
  • Royal v. State, No. 379S73
    • United States
    • Indiana Supreme Court of Indiana
    • November 13, 1979
    ...discretionary with the court and will be reversed only for a clear showing of abuse of that discretion. Atkins v. State, (1977) Ind.App., 370 N.E.2d 985; Collier v. State, (1977) Ind.App., 362 N.E.2d 871. See, Finton v. State, (1963) 244 Ind. 396, 193 N.E.2d 134. While defendant contends th......
  • Lee v. State, No. 182S38
    • United States
    • Indiana Supreme Court of Indiana
    • September 9, 1982
    ...motion was addressed to the sound discretion of the trial court. Royal v. State, (1979) Ind., 396 N.E.2d 390; Atkins v. State, (1977) 175 Ind.App. 230, 370 N.E.2d 985. Here, we conclude there is no clear demonstration that the trial court abused its discretion. The motion indicated that any......
  • Request a trial to view additional results
13 cases
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1982
    ...after armed robbery); Poindexter v. State, supra (show-up fifteen minutes after robbery at scene of crime); Atkins v. State, (1977) 175 Ind.App. 230, 370 N.E.2d 985 (show-up ten minutes after robbery). Confrontations occurring shortly after the commission of the crime have been held to be p......
  • Parr v. State, No. 1083S363
    • United States
    • Indiana Supreme Court of Indiana
    • March 9, 1987
    ...at the appropriate stage of the proceeding. McCraney v. State (1979) Ind.App. , 388 N.E.2d 283; Atkins v. State (1977) Ind.App. , 370 N.E.2d 985. The freedom of choice of counsel may not be manipulated to subvert the orderly procedure of the courts or to interfere with the fair administrati......
  • Royal v. State, No. 379S73
    • United States
    • Indiana Supreme Court of Indiana
    • November 13, 1979
    ...discretionary with the court and will be reversed only for a clear showing of abuse of that discretion. Atkins v. State, (1977) Ind.App., 370 N.E.2d 985; Collier v. State, (1977) Ind.App., 362 N.E.2d 871. See, Finton v. State, (1963) 244 Ind. 396, 193 N.E.2d 134. While defendant contends th......
  • Lee v. State, No. 182S38
    • United States
    • Indiana Supreme Court of Indiana
    • September 9, 1982
    ...motion was addressed to the sound discretion of the trial court. Royal v. State, (1979) Ind., 396 N.E.2d 390; Atkins v. State, (1977) 175 Ind.App. 230, 370 N.E.2d 985. Here, we conclude there is no clear demonstration that the trial court abused its discretion. The motion indicated that any......
  • Request a trial to view additional results

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