Broadus v. State

• Decision Date: 20 January 1986
• Docket Number: No. 784S304,784S304
• Parties: Edward BROADUS, Jr., and James H. Dunville, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1298

487 N.E.2d 1298

Edward BROADUS, Jr., and James H. Dunville, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 784S304.

Supreme Court of Indiana.

Jan. 20, 1986.

Thomas A. Murto, Murto & Holbrook, Goshen, for appellants.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendants-Appellants Edward Broadus, Jr., and James H. Dunville were jointly tried by a jury in the Elkhart Circuit Court. Each was convicted of robbery while armed with a deadly weapon and sentenced to serve a term of twenty (20) years. Appellants now raise the following twelve (12) issues:

1. admission of testimony tainted by unduly suggestive identification procedures;

2. admission of evidence tainted by an illegal search;

3. exclusion of black jurors from the jury panel;

4. allowing a hearing impaired juror to serve on the jury;

5. denial of a motion for severance;

6. use of an "Allen charge" instruction;

7. denial of Dunville's motion to represent himself;

8. ineffective assistance of counsel;

9. the shackling of Dunville within jury view;

10. admission of certain photographs;

11. improper sentencing procedure; and

12. sufficiency of the evidence.

On November 28, 1983, two black males entered the Villa Pizzeria in Goshen, Indiana at approximately 10:30 p.m. The shorter male pointed a small silver pistol at Diana Neal, who called for her husband, Marty Neal. The assailants took cash and rolled coins from the cash register. After an unsuccessful attempt to enter a broken safe, the robbers fled. The Neals immediately reported the robbery to the police, whereupon a Goshen police dispatcher notified neighboring police departments of the robbery. One of the robbers was described by Marty Neal as approximately five feet, ten inches, weighing one-hundred and fifty (150) pounds, ranging from thirty (30) to thirty-five (35) years old, and wearing a dark stocking cap, dark windbreaker, and dark pants. The other assailant was described as taller, more slenderly built and also attired in dark clothing, including blue jeans. More specifically, he was a black male, approximately six feet, two inches, ranging from twenty-five (25) to thirty (30) years old and wearing his hair in an "afro."

A Ligonier police officer posted a lookout at a major intersection about twenty-one (21) minutes east of Goshen. The officer arrived at his assigned post forty (40) minutes after the robbery. He spotted a car with two black males in a convenience store. Parked in a neighboring gas station, the officer observed that the one black male was dressed in a beige suit and wearing a white dress hat. The other black male exited the restroom wearing red trousers but carrying a pair of dark blue jeans. When the officer notified his dispatcher of this information, a roadblock was arranged. The officer followed the suspects, Appellants, to the roadblock and ordered them to exit the car for a "pat-down". Appellants were told a robbery had occurred and that they fit the general description of the robbers. The Ligonier officer asked if he could search the car and Appellants consented. The officer then shined his flashlight inside the car and detected a black cap. Inside the car he found rolled coins, about three hundred ($300.00) dollars in cash, a small chrome revolver under the front seat, and dark clothing. Appellants were then arrested and given their Miranda warnings. Later, the victims identified the suspects as the perpetrators of the crime.

I

Appellants Broadus and Dunville claim the admissibility of the in-court identification of them by the victims was tainted by unduly suggestive identification procedures. Marty Neal described the robbers, immediately after the crime, in relative height to one another, indicating the shorter one had a beard. A photograph taken of Appellants was published in the Goshen newspaper after the robbery but before an identification line-up. Marty Neal testified that upon viewing Appellants' pictures in the newspaper, he immediately recognized them and realized he had erroneously reported to the police that the shorter male had the beard. Mr. Neal also testified he had not read any of the article accompanying the pictures, nor seen the article's heading. Appellants claim Marty Neal's change in description, to conform more closely with their characteristics after Neal viewed the photographs, suggests an unduly biased and impermissive identification procedure. Appellants concede that the police did not publish the pictures, but claim they reaped the benefits of having them published. Therefore, the pictures should be considered part of the police identification procedures. However, we have held that any suggestion implanted in the witness' mind by seeing a suspect's photograph in the newspaper should go to the weight, and not the admissibility, of the in-court identification. Gaddis v. State (1977), 267 Ind. 100, 368 N.E.2d 244; Norris v. State (1976), 265 Ind. 508, 356 N.E.2d 204. Accordingly, the in-court identification of Appellant was proper.

II

Appellants claim it was error to admit the items seized in the search of the car and their persons. They claim no probable cause existed to stop the car, nor any reasonable suspicion to detain either of them. They further claim they did not consent to a search of their car. Consequently, the incriminating items were seized illegally and should have been suppressed.

Police officers may make an initial or investigatory stop of a person or automobile, under circumstances where probable cause for arrest is lacking when the facts known to the officer at the time of the stop are such as to warrant a man of reasonable caution that an investigation is appropriate. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Taylor v. State (1980), 273 Ind. 558, 406 N.E.2d 247. In the present case Ligonier police received a description of the fleeing robbers, portraying two black males in dark clothing, including jeans, and one wearing a beard. Shortly thereafter two black males, one bearded, were observed in a convenience store. Although they were not wearing dark clothing at the time, one was viewed exiting the restroom, carrying a pair of blue jeans. These observations gave rise to a reasonable suspicion that Appellants were the suspects. The stop and "pat-down" were thus properly conducted. It also is clear from the facts that Appellants voluntarily consented to a search of their automobile. Appellants allege that due to the roadblock procedures used, which entailed policemen with arms drawn, they were coerced into giving consent. However, in Michigan v. Long (1983), 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201, the United States Supreme Court held that searches of passenger compartments of automobiles, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses reasonable belief that the suspect is dangerous and may gain immediate control of weapons. In this case the police knew the robbers were armed. Further, Appellants had fit the description of the suspects and thereby gave the police cause to suspect a weapon was hidden in the car. Thus, the search was legal with or without consent, and, as suspected, a handgun, under the front seat of the car, was discovered in addition to other incriminating evidence. Once the officers found the handgun, a dark cap, blue jeans and other dark clothing, rolled coins, and approximately three-hundred ($300.00) dollars in cash, the police had probable cause to arrest Appellants for the robbery. The police did so and as they were handcuffing Appellants, they read Appellants their Miranda warnings. There were no illegal steps taken in this sequence of events. Therefore all of the evidence admitted at trial and seized in this search was properly admitted.

III

Next Appellant Broadus alleges the trial court erred by failing to discharge the entire jury because it was not comprised of any blacks. Appellant grounds this allegation in the fact that the jury venire was exclusively comprised of Caucasians, thereby resulting in a racially biased jury. The United States Supreme Court held in Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, that the Sixth Amendment right to a jury trial requires the selection of a petit jury be from a representative cross-section of the community. See also Mays v. State (1984), Ind., 469 N.E.2d 1161. The issue stated in Taylor was whether the presence of a fair cross-section of the community on venires, panels or lists from which petit juries are drawn is essential to the fulfillment of the Sixth Amendment's guarantee of an impartial jury trial in criminal prosecutions. Appellant has not shown that the venire in this case consisted of a non-representative group of the community or that there was a systematic exclusion of any particular group. Burr v. State (1980), 273 Ind. 280, 403 N.E.2d 343. Accordingly, Appellant has failed to demonstrate error on this issue.

IV

Appellant Dunville next alleges the trial court committed reversible error when he failed to excuse for cause a juror whose hearing was impaired. A trial court has broad discretion in controlling voir dire. Bieghler v. State (1985), Ind., 481 N.E.2d 78, reh. denied; Grimes v. State (1983), Ind., 450 N.E.2d 512. The record reveals that upon being questioned during voir dire the hearing impaired juror indicated he had no hearing difficulty when sitting in the jury box. He had experienced difficulty only when sitting further away from the bench. Consequently, the trial court had good reason to allow this juror to remain. Further, Appellant has not in any way demonstrated that this particular juror in fact experienced any hearing difficulty during the trial. Thus, Appellant has failed to demonstrate any prejudice or error.

V

Appellant Broadus next contends it was error to deny his...