Boyd v. State
| Decision Date | 31 August 1981 |
| Docket Number | No. 680S190,680S190 |
| Citation | 425 N.E.2d 85 |
| Parties | David Lamont BOYD, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Robert H. Rideout, Boonville, for appellant.
Theodore L. Sendak, Atty. Gen., Frederick N. Kopec, Deputy Atty. Gen., Indianapolis, for appellee.
David Lamont Boyd was tried by a jury and convicted of robbery committed while he was armed with a deadly weapon, a class B felony, in violation of Ind.Code § 35-42-5-1. The trial court sentenced him to a term of fifteen years in prison.
This direct appeal presents five issues for review:
1. Whether the trial court erred in allowing a witness to answer a certain question and to give certain testimony.
2. Whether it was error for the trial court to admit evidence of a lineup identification.
3. Whether the trial court erred in permitting the State to introduce into evidence two photographs of the defendant.
4. Whether the trial court improperly denied a motion for a directed verdict.
5. Whether there was sufficient evidence to support the jury's verdict.
The evidence viewed in the light most favorable to the State shows that on October 17, 1978, Boyd entered a grocery store in Warrick County, near the town of Newburgh, Indiana, with a shotgun concealed under his coat. He selected several items from the shelves and came to the counter, where the cashier stood, three times. He then came to the counter a fourth time, withdrew the shotgun, and thrust its barrel into the stomach of the cashier, Brenda Padgett, threatening to kill her and demanding all the money in the store's cash drawers and in Padgett's purse. After taking the money from the cash drawers and the purse, Boyd ordered Padgett to lie on the floor, again threatening to kill her, and he left.
The trial court, over a defense objection, permitted the prosecutor to ask, and Padgett to answer, the following question on direct examination: "How many times was (Boyd) really close to you?" Boyd complains that the question, emphasizing that the robber came very close to the State's witness, was highly suggestive, prejudicial, and inflamed the passions of the jurors against him.
We find no merit in the contention that the question was improper. The record shows that Padgett's previous testimony had established that after Boyd had entered the store he had come up to the counter and stood across from her three times before finally approaching her and pointing the shotgun. Also, Padgett had already, under questioning, pointed out a counter or shelf in the courtroom and said that it had approximately the same depth as the counter in the store that had separated her from Boyd. The jury had a basis for determining whether the defendant had been close to Padgett or not. The question was relevant on the issue of identification to establish the quality of Padgett's opportunities to observe the robber. There was no error in the asking and answering of the question.
The appellant also asserts that the question should have been excluded because by asking it, the prosecutor usurped the jury's function of determining whether there was a threat of force by use of a deadly weapon. We cannot see in what way the asking of the question invaded the province of the jury. The appellant makes no further explanation of this claim; there is no argument; no authorities are cited. We are unable to review this claim.
Boyd also objected to Padgett's use of the word "robbery" during direct examination when she was describing her opportunities to see the man who held up the store. He argues that the word was used at a point in the trial before the submission of any evidence that established the prima facie crime of robbery, and invaded the province of the jury. Padgett had already testified that Boyd approached the counter, drew out a shotgun, pointed its barrel at her stomach, threatened to kill her, and demanded and took the money. She also had testified that she was frightened. It is clear from the record that she used the word in its popular sense to summarize the entire incident which she had just described in detail. The use of the word did not invade the province of the jury.
Appellant next asserts that a pre-trial identification procedure was impermissibly suggestive in violation of the standards for such procedures set out in Hill v. State, (1977) 267 Ind. 411, 370 N.E.2d 889. The police arranged for Padgett to view a lineup conducted within two weeks of the incident at the store. The lineup consisted of six black men dressed alike and having the following heights and weights:
Subject No. 1: 5'2", 160 pounds
Subject No. 2: 6'1", 150 pounds
Subject No. 3: 6'1", 180 pounds
Subject No. 4: 5'7", 140 pounds
Subject No. 5: 5'10", 195 pounds
Subject No. 6: 5'9", 150 pounds
Padgett had described the robber to the police, immediately after the incident, as being about 5'10 or 5'11 and weighing from 180 to 200 pounds. At the lineup she selected Subject No. 5, who was Boyd, as the man who robbed her. Boyd argues that the other men in the lineup were so grossly dissimilar to him in height and weight that it was a foregone conclusion that Padgett would single him out since he was the only subject who approximated the height, weight, and general physical characteristics of the person she had described as the robber. He likens this lineup to the one discussed by the Court of Appeals in Stacks v. State, (1978) Ind.App., 372 N.E.2d 1201. In Stacks, the appellant was placed in a lineup with three other men within an hour of the commission of the crime. The victim had been told that the man the police suspected was in the lineup. Stacks was the only man with red hair and a red beard. The victim had testified at trial that none of the other men in...
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...included on it, that it was the product of police procedures. The photograph was relevant and not unduly prejudicial. Boyd v. State, (1981) Ind., 425 N.E.2d 85; Gray v. State, (1978) 268 Ind. 177, 374 N.E.2d 518. The relevance of it to the issue of identification was not simply gratuitous. ......
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