Brown v. State
| Decision Date | 13 May 1982 |
| Docket Number | No. 981S253,981S253 |
| Citation | 435 N.E.2d 7 |
| Parties | Gary BROWN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
C. Robert Rittman, Pauper Counsel, Marion, for appellant.
Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant Gary Brown was convicted of Robbery, Ind.Code § 35-42-5-1 (Burns Repl.1979), at the conclusion of a jury trial in Grant Circuit Court on April 22, 1981. The robbery was a Class A felony because one victim was injured during the crime. Brown was sentenced to twenty (20) years in prison and his conviction is the subject of this appeal.
Defendant raises two issues for consideration, concerning: (1) whether there was sufficient evidence to establish Brown's identity as one of the two robbers; and (2) whether there was sufficient evidence to establish the element of bodily injury.
Shortly after midnight on September 14, 1980, two men came into Bob's Tavern in Marion, Indiana, one carrying a rifle and the other a hand gun, and robbed many of the patrons in the tavern as well as taking money from the cash register of the premises. The taller of the two robbers was armed with a rifle and wore a bandanna over the lower half of his face. This person was later determined to be one Bobby Joe Triplett. The defendant, who was described as the shorter of the two, was armed with a pistol and wore a ski cap pulled down over his head and a pair of large sunglasses. The robbers ordered the patrons in the bar, some fifteen in number, to lie on the floor while they went about taking their wallets and personal possessions from them. Witness Wayne Applegate testified that he was drinking beer with friends at Bob's Tavern on that evening. He stated he was told of two suspicious looking men outside so he went outside to check on his truck. Upon opening the tavern door to leave the tavern, he was confronted by the two men, one carrying a rifle and the other a hand gun. One of the men stuck a gun in Applegate's back and ordered him inside where the man with the handgun, the shorter of the two, took his wallet. Applegate testified he was about two feet away from the shorter robber during much of the robbery and he spent the time observing the activity of him and his accomplice. Applegate later observed the defendant in a police lineup and positively identified the defendant as being the shorter robber. He further positively identified the defendant as one of the robbers in open court during the trial.
Larry Brennaman was also a patron in the bar and was one of the victims. He was lying on the floor with the other victims and after being robbed of his billfold, started to get up. The taller robber with the rifle then approached him and struck him in the head with the rifle, knocking him back to the floor. Brennaman testified that he was hit hard in the head, breaking the skin and causing it to bleed slightly. He said the blow caused pain to him and gave him a headache, and further resulted in a knot on his head about half the size of an egg. He said it did not knock him out and he did not seek medical attention from a doctor or a hospital.
Witness Applegate did not come forward immediately to inform the police that he could identify one of the robbers. The police acquired the names of the perpetrators through a tip and arrested the defendant and the accomplice a few days after the robbery. Both Brown and Triplett gave statements admitting their participation in the robbery as well as identifying the other as an accomplice. On a motion to suppress, Brown's statement was suppressed by the court and separate trials were granted to Triplett and Brown.
After this had occurred, and some six months after the robbery, Applegate came forward and told the police that he thought he could identify one of the robbers. The State then notified the defense that they had an additional witness and organized a lineup for witness Applegate to observe. The defendant was notified of this lineup and his attorney was present. The defendant admits the lineup was conducted properly. He says there was no misconduct by the prosecutor or the police. There was no suggestive conduct by the police nor any wrongdoing or improper procedure by those conducting the lineup. Those in the lineup were all of the same race, age, and general characteristics and the defendant admits this. Applegate positively identified defendant Brown in the lineup as the shorter of the two robbers. He later identified the defendant in open court during the trial as one of the perpetrators of the robbery.
Defendant's argument seems to be that the appearance of Applegate at a time when the prosecution's statement of defendant had been suppressed, leaving them with no one to identify defendant, was so fortuitous of the State's case, that it raises a strong suspicion of a taint and therefore makes the testimony incredible. We cannot agree with defendant's analysis here. Defendant's argument on this issue attacks the credibility of the testimony which identified him as one of the perpetrators of this crime, but the credibility of the witness who gave this testimony is to be determined by the jury. Sloan v. State, (1980) Ind., 408 N.E.2d 1264, 1265; Hill v. State, (1979) Ind., 394 N.E.2d 132, 135. It is true we will closely scrutinize testimony that is inherently unbelievable or incredible by its very nature. Wallace v. State, (1981) Ind., 426 N.E.2d...
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