Clark v. State

• Decision Date: 27 May 1976
• Docket Number: No. 874S168,874S168
• Parties: Steven Ray CLARK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 27

348 N.E.2d 27

264 Ind. 524

Steven Ray CLARK, Appellant, v. STATE of Indiana, Appellee.

No. 874S168.

Supreme Court of Indiana.

May 27, 1976.

Rehearing Denied Aug. 16, 1976.

Malcolm G. Montgomery, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Asst. Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Steven Ray Clark, was charged by affidavit with Physical infliction of an injury by a deadly weapon while engaged in a robbery, I.C.1971, 35--13--4--6, being Burns § 10--4101. In a jury trial, on February 13--15, 1974, appellant was found guilty as charged and sentenced to life imprisonment. He timely filed a motion to correct errors, which was overruled.

On appeal, appellant presents three contentions: that the evidence identifying him as one of the perpetrators of the crime was insufficient; that the court erred in allowing the State to elicit, as evidence of bias, the fact that the father of appellant's alibi witness had been convicted the previous week; and that five remarks of the prosecuting attorney were so prejudicial as to deny appellant a fair and impartial trial.

The evidence which supports the verdict of the jury shows that William J. Tornatta a taxi driver, received a call over his radio about 2:00 a.m., August 5, 1973, which directed him to a certain restaurant. The radio informed him that the call had been made from a phone booth, and, as he passed the phone booth closest to the restaurant, he saw that the receiver was hanging loose. At that moment, two men called out to him, and he turned around to pick them up. When he stopped, he was under a street light and the dome light inside his car was on. Appellant got in the back seat and the other man, George Willis Copeland, got in the front. When Copeland told Tornatta to drive down a street and gave him no specific address, Tornatta became suspicious. He had been robbed three or four times before. Looking in his mirror, he noticed that appellant kept looking around. Finally, appellant directed him to go to a certain corner. When Tornatta reached that corner, he switched on his dome light.

At that point, Copeland pulled a gun from his belt and said this was a stick-up. He poked the gun in Tornatta's ribs and continued to jab him with it during the whole period of the robbery. Tornatta told Copeland his money was in his shirt pocket, and appellant reached over and got the money out of the pocket. Copeland asked if he had more money, Tornatta held up his money changer, and appellant took it. Again asked if he had money, he got out a small coin purse and gave it to Copeland. Asked again, Tornatta gave Copeland his billfold and bankbook. Finally, Copeland asked him if he had a watch, and appellant took it off his wrist. Copeland asked if that was all Tornatta had, and he said it was.

Copeland then ripped the cab microphone out and threw it in the back seat, stomped the radio out of its carrier, and bent back the sealed door of the glove compartment. Then he opened the right hand door and got out. As he got out, he said, 'Okay, man,' and appellant struck Tornatta on the head with a blackjack. Appellant then hit him again. Tornatta put his hands over his head, and appellant continued to hit him with the blackjack. Finally, Tornatta grabbed the door, opened it, got out, turned around and just barely kicked appellant on the leg. Appellant and Copeland ran down the street, but Copeland got ahead of appellant because appellant had a hard time running and limped a little. Tornatta estimated that appellant and Copeland were in his cab for about thirty minutes.

Tornatta's pants and shirt were covered with blood and his head was bleeding badly. He walked down the street until he found someone who would call the police for him. When the police arrived, they took him to the hospital.

Appellant's first argument is that Tornatta's identification of appellant is unreliable, because Tornatta's opportunity to observe, description of appellant, and uncertainty make his identification suspect. Appellant notes that it was dark at the time of the robbery, that Tornatta testified positively that Clark was darker than Copeland and yet Copeland is the darker of the two, and that Tornatta also testified that there was always the possibility of an error.

Tornatta was with the two men for thirty minutes. He picked them up under a street light and had the dome light in his cab on when they got in. He was immediately suspicious and watched appellant in the mirror as he drove. He had the dome light in his cab on while appellant and Copeland robbed him. He saw appellant again when he kicked him and watched him as he ran away. Tornatta testified that he had the opportunity to look at appellant face to face at least three times.

At the hospital, appellant described the two men. He said that both were about 6 4 , one weighed about 200 lbs. and the other about 225 lbs. They wore floppybrimmed hats, and one wore sunglasses. They were black and were between twenty and thirty years old. While this description was brief, its accuracy with regard to appellant was not challenged.

The testimony to which appellant refers, concerning the possibility of mistaken identification, is as follows:

'Q. Mr. Tornatta, you have told the jury here that in good faith you believe that Steven Clark is the #2 man, isn't that correct?

A. Yes, sir.

Q. You could be wrong, thought, isn't that correct?

A. No, sir, I don't think I am.

Q. Didn't you make a statement back before that there's always a possibility?

A. Yes, sir, I did. When the question was asked--I forget whether you asked it or Attorney Flynn or whether it was Attorney Noffsinger--asked me the question, wasn't there a possibility of an error? Well, yes, there's always a possibility of an error, and that was the reply that I gave to the question, but there was no doubt in my mind.

Q. I understand that, but you could be mistaken, isn't that correct?

A. Could I be mistaken?

MR. MONTGOMERY: Yes, sir.

A. There's always a possibility.

MR. MONTGOMERY: I believe that's all.

RE-DIRECT EXAMINATION OF WILLIAM J. TORNATTA BY JAMES M. REDWINE, DEPUTY PROSECUTING ATTORNEY:

Q. Mr. Tornatta, is there any reasonable doubt in your mind that the defendant in this case robbed you?

MR. MONTGOMERY: Now, to which I'm going to object to that; that calls for a legal conclusion on the part of the prosecutor; that's for the jury to decide. The prosecutor used the term reasonable doubt.

BY THE COURT: You want to rephrase your question.

Q. Is there any doubt that the defendant is the man that robbed you on August 5th, 1973?

A. No, sir, there's no doubt.

Tornatta was wrong about the color of the men's faces and admitted that there was always the possibility of an error in identification. Although these matters do imbue his testimony with a very slight tinge of equivocation, it is not legally significant here. Tornatta had observed appellant at the time of the crime intermittently, over a thirty minute period and in a lighted area. He had accurately described appellant's weight and height immediately after the crime. From the witness stand, he identified appellant as one of his assailants. His testimony constituted evidence from which the jury might conclude beyond a reasonable doubt that appellant was present in the taxi and participated in the crime.

The second issue is whether the court erred in permitting the prosecuting attorney to cross-examine a defense witness concerning the recent conviction of her father, in order to show her bias against the State. The witness, Sandra Clark, provided appellant with an alibi. The alleged crime occurred at 2:00 a.m., August 5, 1973. At 7:00 or 8:00 in the evening of August 4th, appellant, who was engaged to Sandra Clark, returned to the house where they were living. She fixed dinner, and they watched television, played records and went to bed. She testified quite clearly that appellant was at home all night long and could not have committed the alleged offense at 2:00 a.m.

During cross-examination of Sandra Clark, over appellant's objection, the State was permitted to put before the jury the fact that she knew that her father had been convicted of possession of an unlicensed pistol. The cross-examination appears in the following excerpt from the record:

'CROSS EXAM. OF SANDRA CLARK BY STATE CONT.:

Q. Who else lived at 806 John Street?

A. My father.

Q. What's your father's name?

A. Mr. Armegene Clark.

Q. Armegene Clark?

A. Yes.

Q. You're not too happy with the State of Indiana are you, Miss Clark?

A. Yes, I am.

Q. You're very happy with us, right?

A. Yes.

Q. You're very happy with the fact that your father was convicted--.

MR. MONTGOMERY: Oh, Judge, I'm going to object to this. He knows this is improper. Her father is not the subject of this case.

BY THE COURT: I believe you're cross-examining Sandra Clark, not anything having to do with her father.

MR. REDWINE: I'm attempting to show motive on her part to attempt to prejudice the State's case.

(At this point, the court had a hearing on the issue.)

RULING BY THE COURT:

BY THE COURT: The objection is overruled. Go ahead.

MR. REDWINE: Would you read back the question, please, Miss Reporter?

REPORTER: You're very happy with the fact that your father was convicted just last week in a Court in this county?

Q. What is your answer to that, Miss Clark?

A. I am happy with the State. I love the State of Indiana.

Q. What is your answer to my question concerning your father in the trial last week?

MR. MONTGOMERY: Show my continuing objection to these type questions.

BY THE COURT: All right.

Q. Were you aware of that trial?

A. Not until the 4th when I came here for this trial, which was postponed until today.

Q. Miss Clark, the charge against your father was filed June the 27th, 1973, are you telling this jury that you knew nothing about a charge against your father for six months?

A. I knew about the charge. You said the...