Bivins v. State
| Citation | 433 N.E.2d 387 |
| Decision Date | 02 April 1982 |
| Docket Number | No. 1081S275,1081S275 |
| Parties | Gerald W. BIVINS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Supreme Court of Indiana |
David W. Lamont, Evansville, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, Gerald W. Bivins, was convicted by a jury of robbery while armed with a deadly weapon, a class B felony. Ind.Code § 35-42-5-1 (Burns 1979 Repl.). He was sentenced to a period of thirteen years in the Indiana Department of Correction. In his direct appeal, he presents the following issues for our review:
1. Whether the trial court erred when it permitted the state to introduce slides containing a hair follicle found in the perpetrator's automobile and hair samples removed from defendant's head;
2. Whether the trial court erred when it permitted an expert witness to testify to matters regarding the reliability of comparative hair analysis identification;
3. Whether defendant's constitutional right against self-incrimination was violated when he was required to don the coat allegedly worn by the perpetrator;
4. Whether the court erred when it refused to give defendant's tendered instruction number 4 concerning the sufficiency of the evidence necessary to sustain a conviction;
5. Whether defendant was denied a fair trial by virtue of alleged prosecutorial misconduct occurring during final argument; and
6. Whether the evidence was sufficient to sustain defendant's conviction.
The record reveals that on December 9, 1980, Eugene Porter was robbed at gunpoint while tending the cash register at "Mr. Liquor," a carry-out liquor store located on First Avenue in Evansville, Indiana. Porter informed Evansville Police Officers the perpetrator had worn a stocking mask and baggy corduroy coat and had fled in a blue Mustang automobile, late 1960s vintage, lacking license plates and bearing a black vinyl roof. Police located an automobile matching the description; ownership was traced to George Willis, defendant's friend, and triggered the investigation which culminated in defendant's arrest and the conviction at issue.
During its case-in-chief, the state sought to introduce slides containing a hair follicle found in the perpetrator's automobile and hair samples taken from defendant's head. The evidence was tendered in the course of Evansville Police Officer Stanley Ford's testimony; Ford had sent the hair follicle, as well as the samples, to the Federal Bureau of Investigation's laboratory in Washington D. C. There, Agent Chester Blythe had placed the various hairs on slides, completed a microscopic comparative analysis of them, and returned the hair and slides, as well as the test results, to the Evansville Police Department by certified mail.
Both at trial and on appeal, defendant has argued the slides should not have been admitted because Officer Ford was unable to state from personal knowledge which slides contained which of the hairs he had mailed to the FBI. In support of his argument, defendant correctly asserts that a higher degree of scrutiny is imposed on the foundation or chain of custody necessary to the admission of fungible evidence, such as hair. Cobb v. State, (1980) Ind., 412 N.E.2d 728; Graham v. State, (1970) 253 Ind. 525, 255 N.E.2d 652.
The record reveals, however, that Agent Blythe's testimony concerning the chain of custody eliminated any doubts created by Ford's testimony. Ford testified particular hairs were placed in numbered envelopes; by reference to the specific numbered envelopes, Blythe established which hairs were on particular slides.
Defendant has not challenged any other aspect of the chain of custody of the slides, nor does the record reveal any omission in the chain. The trial court did not abuse its discretion in admitting the exhibits. Johnson v. State, (1977) 267 Ind. 415, 370 N.E.2d 892.
Defendant maintains the trial court erred when, over his objection, Agent Blythe was permitted to answer the following question:
Q. "During the approximately fifteen hundred times that you've had occasion to have two known hair samples (from two different individuals), how many times, if any, have you had a situation where both known hair samples had identical characteristics like in this situation?"
A. "To examine hairs that I know are from two different-I have encountered a situation where I did have hair that I knew were from two different people and I could not tell the hair samples apart on one occasion that I recall, that I know of."
Defendant reiterates his contention that the testimony was objectionable because it wrongfully established a scientific impossibility: that a positive identification can be made through hair comparison analysis.
Whether Agent Blythe's testimony can be read to express the proposition defendant attributes to it is a question we need not decide. Both prior and subsequent to the above testimony, expert witness Blythe had unequivocally indicated that a positive identification could not be made through comparative hair analysis. In this context, which included thorough cross-examination of Blythe by defendant's counsel, Blythe's testimony simply was directed toward the weight to be accorded his analysis and conclusion; consequently, it was properly admitted. Lamar v. State, (1977) 266 Ind. 689, 366 N.E.2d 652.
Defendant next asserts his constitutional right against self-incrimination was violated when, during the state's case-in-chief, he was required to don the corduroy coat worn by the perpetrator. Via the demonstration the state sought to facilitate Porter's identification of defendant as the perpetrator; Porter was unable to positively identify defendant after he had donned the coat.
While the precise question before us is one of first impression, the constitutional principles upon which its resolution hinges are well settled. The Fifth Amendment to the United States Constitution, as well as Article One, Section Fourteen of the Indiana Constitution, prohibit compulsion of statements or actions by a defendant which constitute communications or are testimonial in nature. The constitutional prohibitions, however, are not violated when a defendant is compelled to speak or act in a manner which makes himself the source of physical evidence. Schmerber v. California, (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Frances v. State, (1974) 262 Ind. 353, 316 N.E.2d 364; Wooten v. State, (1981) Ind.App., 418 N.E.2d 538; see also, 8 Wigmore, Evidence § 2265, p. 386 (Chadbourn rev. 1961). In our application of these principles, this jurisdiction has held the constitutional privilege is not violated if a defendant is compelled to provide fingerprints, a handwriting sample, or a voice exemplar; nor has this jurisdiction found a violation of the privilege when a defendant is required to stand, expose a tattoo, or exhibit his hands while in court. Frances v. State, supra; Hollars v. State, (1972) 259 Ind. 229, 286 N.E.2d 166; Wooten v. State, supra; Flynn v. State, (1980) Ind.App., 412 N.E.2d 284; Springer v. State, (1978) Ind.App., 372 N.E.2d 466.
In Holt v. United States, (1910) 218 U.S. 245, 252-3, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 1030, Justice Holmes dismissed as "an extravagant extension of the 5th Amendment" the claim that defendant's privilege was violated by testimony that the blouse worn by the perpetrator had fit defendant when he donned it. We do not subscribe wholesale to that proposition, for, depending on the circumstances, any particular action required of a defendant may or may not be testimonial in nature. See, e.g., Davis v. Israel, (E.D.Wis.1978) 453 F.Supp. 1316.
Here, however, we conclude the defendant's privilege against self-incrimination was not violated when, at trial, he was compelled to don the corduroy coat worn by the perpetrator. By his action, he communicated no information; rather, he merely constituted physical evidence by which the eyewitness could compare his appearance with that of the perpetrator. Other jurisdictions have reached a similar conclusion. United States v. Satterfield, (9th Cir. 1978) 572 F.2d 687; United States v. Turner (4th Cir. 1973) 472 F.2d 958; Vigil v. People, (1956) 134 Colo. 126, 300 P.2d 545; Morris v. State, (Fla.App.1966) 184 So.2d 199; State v. Williams, (1976) 307 Minn. 191, 239 N.W.2d 222; State v. Dean, (Mo.1966) 400 S.W.2d 413; but see, Ward v. State, (1924) 27 Okla.Cr. 362, 228 P. 498.
The trial court did not err.
Defendant asserts the trial court erred when it refused to give his tendered instruction number 4, which read:
Defendant maintains the substantive matters contained in the instruction were not adequately covered in other instructions.
The record reveals, however, the trial court gave a lengthy instruction on the reasonable doubt standard of proof necessary for a conviction. This Court recently held that it is not necessary for the jury to be instructed on the matters contained in defendant's tendered instruction if an extensive instruction on the reasonable doubt standard is given. Showecker v. State, (1982) Ind., 432 N.E.2d 1340; compare, Spears v. State, (1980) Ind., 401 N.E.2d 331; Nelson v. State, (1980) Ind.App., 413 N.E.2d 988. The trial court did not err when it failed to give the instruction.
Defendant maintains that prosecutorial misconduct during final argument placed him in grave peril and denied him a fair trial. Defendant's allegation involves statements made by the deputy prosecutor while interposing objections to defendant's...
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