Bowen v. State

• Decision Date: 02 October 1975
• Docket Number: No. 1274S249,1274S249
• Citation: 334 N.E.2d 691,263 Ind. 558
• Parties: William J. BOWEN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 691

334 N.E.2d 691

263 Ind. 558

William J. BOWEN, Appellant (Defendant below), v.STATE of Indiana, Appellee (Plaintiff below).

No. 1274S249.

Supreme Court of Indiana.

Oct. 2, 1975.

C. Jerome Smith, Smith & Granack, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., of the State of Indiana, Robert F. Alden, Deputy Atty. Gen., Indianapolis, John Halcarz, Lake County Prosecutor, Crown Point, for appellee.

HUNTER, Justice.

Appellant Bowen was charged with the kidnapping of Rebecca Westcott and Krystal Colclosure.In a second count, he was charged with the sodomy of each.The jury returned its verdict of guilty on all charges.Appellant was sentenced to life imprisonment for each conviction of kidnapping and for two to fourteen years for each conviction of sodomy.

I.

Appellant asserts that the evidence was insufficient to sustain the verdicts.The evidence most favorable to the state and the reasonable inferences therefrom show that the victims, ages ten and seven, were walking to a park when a man approached them and offered them two dollars to deliver some newspapers.When they accepted his offer, he returned with his automobile.After driving for some distance, the driver stopped the vehicle in an alley and ordered the victims to take down their pants.Rebecca was then instructed to perform a fellatio upon the driver.Then Krystal was required to do the same act.Finally, Rebecca was ordered to repeat the act.At the conclusion of these acts, the victims were told to get out of the car and take their clothes with them.

The crime of kidnapping may be accomplished by force, fraud or decoy.IC 1971, 35--1--55--1, Ind.Ann.Stat. § 10--2901(Burns1956 Repl.).The kidnappings for which appellant was convicted were obviously of the latter variety.The girls were not forced to enter appellant's vehicle, but did so voluntarily in reliance upon appellant's business offer.The offer was a ruse, and the law regards the victim's transportation under such circumstances as illicit.Shipman v. State(1962), 243 Ind. 245, 183 N.E.2d 823, cert. denied, 371 U.S. 958, 9 L.Ed.2d 504, 83 S.Ct. 515.There was sufficient evidence to sustain appellant's conviction for kidnapping.

IC 1971, 35--1--89--1, Ind.Ann.Stat. § 10--4221(Burns Supp.1974), defines sodomy as 'the abominable and detestable crime against nature with mankind or beast.'In Estes v. State(1946), 244 Ind. 691, 195 N.E.2d 471, we stated that the form of sodomy here charged required proof of copulation of the male organ with the mouth of another.While Krystal did not testify, the testimony of Rebecca is sufficient in all respects to show that both victims were required to place their mouths upon appellant's penis.

II.

A. Pre-trial Identification Procedures.

Appellant contends that the trial court erred in denying the motion to suppressRebecca Westcott's in-court identification of him, as her attacker, claiming that such identification was solely the product of tainted pre-trial identification procedures.The day after the occurrence, the police came to Rebecca's home to show her some photographs.Rebecca had described her assailant to her mother and from such description her mother selected several photographs which the mother thought fit the description.Rebecca rejected her mother's selections.Rebecca also rejected all the other photographs she was shown, noting only that the eyes of certain of the pictures resembled those of the defendant, which she described as bulging out from the side.Appellant claims that actions of Rebecca's mother were so impermissibly suggestive as to lead to his misidentification by Rebecca.On the contrary, Rebecca refused to be swayed by her mother's suggestion and stated that the pictures proffered by her mother(which apparently were not pictures of the appellant) were not of her abductor.

About three weeks later, the Highland police came to Rebecca's home and told her they had a man in custody (actually, the appellant was in the custody of the Gary Police Department, apparently on other charges).She was taken to a room in the Gary Police Department and 'asked to look around the room.'In an adjoining room, she saw the appellant, seated next to another man whom she apparently knew was a detective.She also was shown photographs of the appellant only, although the record is confused as to whether this was before or after the show-up.This action by the authorities in singling out the appellant as the perpetrator of the crime is shoddy and deplorable police work.Such identification procedures are undeniably 'impermissibly suggestive' within the guidelines of Simmons v. U.S.(1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

About a week later, Rebecca attended a lineup at the Highland Police Station.From a lineup of four men, she selected the appellant as her abductor.Appellant maintains that the lineup was impermissibly suggestive because it lasted for only five minutes.With regard to lineups, we believe that suggestivity may be evidenced by overt words or actions; for example, where the police ask the viewer if the third person from the left isn't the one who committed the act.Improper suggestivity may also be evidenced by the composition of the lineup itself, as where the members of the lineup are all of one race and the accused is of another.It might be possible to set up a lineup where the viewer would observe via closed-circuit television while the camera panned the line in stroboscopic fashion, so that a great likelihood of misidentification would exist.Such was not the lineup here conducted, and in the absence of other proof of suggestivity as outlined above, we see nothing inherently violative of due process in a lineup which takes but five minutes.

B.Independent Basis.

When an improper pre-trial identification has occurred, as it did in this case at the Gary Police Station, the witness may, nevertheless, identify the accused in court if there exists a substantial independent basis for such identification.In Neil v. Biggers(1972), 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, the U.S. Supreme Court stated that '. . . (T)he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'See alsoSwope v. State (1975), Ind., 325 N.E.2d 193;Vicory v. State (1974), Ind., 315 N.E.2d 715.

The events under review in this case transpired on a Saturday morning, and Rebecca Westcott first observed the appellant at a distance of no more than five feet when he approached her and her companion about delivering the papers.When she entered appellant's vehicle, she sat next to him on the front seat with Krystal sitting by the door.The drive to the sodomy scene took about ten to fifteen minutes, and Rebecca recognized her grandmother's and her aunt's house as they drove by.She was able to identify the vehicle as bluish-gray Oldsmobile.She further stated that 'It had a paper rose on the right visor.It had three stickers on the windshield.One was a moose head, and one was a flag and one was part of a star.'Rebecca was in the car after it stopped for approximately ten to fifteen minutes, during which time her ability to observe appellant's facial features was periodically curtailed, for reasons stated above.Nevertheless, she was able to give a detailed description of appellant's clothing and his general physical appearance, including several missing teeth.On both direct and cross-examination, Rebecca remained steadfast in her identification of the appellant as the man who abducted her.Under all the circumstances, we believe the identification was reliable and rests upon a basis sufficiently independent of the impermissible show-up conducted at the Gary Police Department.The trial court properly denied appellant's motion to suppress.

III.

Appellant assigns as error the overruling of his motion in limine which allowed the state to introduce evidence of a prior act of sodomy allegedly committed by the appellant with one Tracy Oglesby.Appellant objected to such testimony on the ground that it was prejudicial and would inflame the jury.On appeal, appellant argues that the evidence was further inadmissible for the reason that prior acts are admissible only when based upon a conviction.While the conviction may be introduced, seeGilman v. State(1972), 258 Ind. 556, 282 N.E.2d 816, it is not a prerequisite, seeAustin v. State (1974), Ind., 319 N.E.2d 130.The act itself tends to show a depraved sexual instinct and is admissible subject only to exclusion for remoteness.As recently stated in Pieper v. State (1975), Ind.,321 N.E.2d 196, 199, 'the length of time between the two acts would only affect the weight the jury would assign to the evidence as a support for the prosecutrix's testimony.'In Pieper, the interval between the two acts was forty-five days.Here, the prior act took place on February 28, 1973, and the act for which appellant was committed occurred on June 23, 1973.We cannot say the prior act should have been excluded as a matter of law as being too remote, and it was otherwise admissible.SeeKerlin v. State(1970), 255 Ind. 420, 265 N.E.2d 22.Appellant's motion in limine was properly overruled.

IV.

Appellant moved to take the depositions of the state's witnesses pursuant to IC 1971, 35--1--31--8, Ind.Ann.Stat. § 9--1610(Burns1956 Repl.).The docket entry indicates that the motion was granted, '. . . provided, however, that in view of the tender age of the complaining witness herein; that the taking of the depositions of said witness will be done without the presence of the defendant.'The record contains no objection to this...