Cornett v. State

• Decision Date: 07 April 1989
• Docket Number: No. 64S00-8801-CR-152,64S00-8801-CR-152
• Citation: 536 N.E.2d 501
• Parties: William M. CORNETT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 501

536 N.E.2d 501

William M. CORNETT, Appellant, v. STATE of Indiana, Appellee.

No. 64S00-8801-CR-152.

Supreme Court of Indiana.

April 7, 1989.

James V. Tsoutsouris, Public Defender, Porter County and James A. Johnson, Chief Deputy, Portage, for appellant.

Linley E. Pearson, Atty. Gen. and Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

Appellant's first trial resulted in a hung jury. His second trial by jury resulted in his conviction of Robbery, a Class B felony, for which he received a sentence of ten (10) years. He also was found to be an habitual offender and was sentenced to an additional thirty years to run consecutively with the ten-year sentence, which was improper. The habitual offender status is not a separate sentence, but requires the trial court to enhance appellant's ten-year sentence under the robbery conviction by a term allowed by statute. Lord v. State (1988), Ind., 531 N.E.2d 207.

The facts are: At approximately 11:00 p.m. on October 21, 1986, appellant walked into a service station in Porter County, Indiana where Sonia Mason was working as a cashier. She testified that after appellant entered the station he turned and scanned the room. He then pulled out a gun. He pointed the gun at her, told her to give him all the money out of the register, and to hurry. She gave him approximately $200 from the register.

Mason called the Portage police. They arrived within a few minutes, and she gave them a detailed description of appellant, who did not wear a mask or face covering. Police broadcast a description of his clothing and physical characteristics. At about 3:15 a.m. on the day of the robbery, an employee of a restaurant two blocks from the service station told police about a man in the restaurant who fit the description of the robber. Police entered the restaurant, sat at a booth, and noticed that the man turned around and looked at them five or six times and appeared to be very nervous. He left his seat and because he fit the description of the robber, they apprehended him. They found a large sum of cash in his wallet and observed that he was intoxicated. They arrested him for public intoxication.

Mason later identified appellant's shirt as the one worn by the robber. She selected his photograph from a photographic array and identified him in court as the robber.

Appellant argues he was erroneously compelled to make a statement at trial which was self-incriminating and violated his constitutional rights.

Part of Mason's description of appellant to police included her observation that when he spoke, his lips puckered "like somebody wearing false teeth and didn't have them in." At trial, the court granted the prosecutor's request that appellant repeat the words spoken during the robbery. Mason testified that appellant's was the same voice and manner of speaking as that of the robber. Appellant argues that it was unnecessary for him to speak at trial because Mason already had identified him. He also asserts that because Mason identified him by his manner of speaking and not his tone of voice, the compulsory speaking went beyond mere physical demonstration and was testimonial in nature.

We held in Allen v. State (1981), Ind., 428 N.E.2d 1237 that compelling the defendant to repeat the words about which the witness had testified was not a violation of his constitutional right to remain silent. The privilege against compulsory self-incrimination does not shield a defendant against a court-ordered submission to a "purely physical" test such as body measurements, handwriting, fingerprinting, and voice exemplars. Id.

Appellant's compulsory utterance was for the sole purpose of examining the physical characteristics of his mouth as he spoke. His statement was not testimonial in nature. We find no trial court error.

Appellant argues the trial court erred by permitting the in-court identification of him by Mason. He asserts that the circumstances did not justify his warrantless arrest and the photograph later taken of him and used by Mason to identify him was "fruit of the poisonous tree." He further argues that the photographic lineup was unduly suggestive because the other subjects were dissimilar to him in appearance. He concludes that the in-court identification and photographic array should have been suppressed.

A warrantless arrest is permissible if a misdemeanor is committed in the officer's presence or if, at the time of the arrest, the officer had probable cause to believe that the defendant had committed a felony. Collins v. State (1987), Ind., 509 N.E.2d 827; Brown v. State (1982), Ind., 442 N.E.2d 1109.

Probable cause exists when, at the time of arrest, the arresting officers have knowledge of facts and circumstances which would warrant a man of reasonable caution and prudence to believe that a suspect committed the criminal act in question. Craig v. State (1983), Ind., 452 N.E.2d 921.

In appellant's case, Mason described the robber's height, weight, facial hair, receding hairline, hair color, and clothing, and Officer Myers testified that appellant fit the description "to a T." Appellant became nervous when police entered the restaurant, and he was intoxicated. Because he was in a public place, it was proper to arrest him for the violation of Ind.Code Sec. 7.1-5-1-3,. Brown, supra. We find appellant's warrantless arrest was lawful.

Appellant complains that the photographic array was suggestive because three men in the photographs were obviously younger, larger, and had darker hair than himself, and only one other subject had a receding hairline.

A photographic array is impermissibly suggestive when its use raises a substantial likelihood of misidentification given the totality of the circumstances. Dumbsky v. State (1987), Ind., 508 N.E.2d 1274.

The photographic array consisted of six photographs of men with full beards who appeared to be approximately six feet tall. Though some subjects appeared to be younger than forty years old, three subjects appeared to be about that age. Additionally, Mason positively identified appellant not only by his physical characteristics but by his clothing and manner of speaking as well. We find the photographic array in appellant's case did not raise a substantial likelihood of misidentification. Therefore, the in-court identification of appellant was not improper.

Appellant argues that his shirt, a photograph, and testimony regarding his other possessions were improperly admitted into evidence because they were products of an illegal warrantless arrest.

We stated above that appellant's warrantless arrest was lawful. Therefore, evidence seized from him after the lawful arrest was properly admitted into evidence. Kirby v. State (1985), Ind., 481 N.E.2d 372.

Appellant contends he was denied a fair trial because the State was permitted to amend the information during the trial.

Appellant was charged with being an habitual offender, and the information alleging his habitual offender status listed a 1968 conviction of assault and battery with intent to commit a felony in West Lafayette, Indiana. During the hearing on the habitual offender charge, the evidence showed that his 1968 crime occurred in Fountain County, Indiana instead of in West Lafayette as the information stated. The prosecution's motion to amend the habitual offender information to reflect the Fountain County location was granted. Appellant argues the amendment violated Ind.Code Sec. 35-34-1-5, which prohibits the amendment of an information if not within the thirty days prior to the omnibus date.

An information may be amended at any time to cure a defect if the substantial rights of the defendant are not prejudiced. Ind.Code Sec. 35-34-1-5(a)(9).

In appellant's case, neither the substance of the offense alleged nor the date on which it was committed was amended. App...