Davis v. State, 971S270

• Decision Date: 30 May 1972
• Docket Number: No. 971S270,971S270
• Citation: 258 Ind. 533,31 Ind.Dec. 21,282 N.E.2d 805
• Parties: Cleotha DAVIS, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 805

282 N.E.2d 805

258 Ind. 533

Cleotha DAVIS, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 971S270.

Supreme Court of Indiana.

May 30, 1972.

John D. Breclaw, Highland, for appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.

GIVAN, Justice.

Appellant was charged in a two count affidavit with the crimes of kidnapping and rape. Trial by court resulted in a finding of guilty on both counts. Appellant was sentenced to the Indiana State Prison for the remainder of his natural life on the charge of kidnapping and for a term of two to twenty-one years on the charge of rape.

The record discloses the following:

Jean Foreman testified that on December 14, 1968, she was in Hammond, Indiana, with her boyfriend, Richard Warchol. While they were seated in Mr. Warchol's automobile, a person she later identified as the appellant, opened the door on the passenger side and asked what was going on. A second man approached the car and ordered her to get out and open the trunk, which she did. The two men then forced Mr. Warchol into the trunk and closed the lid. They then placed Miss Foreman between them in the front seat. With the appellant driving, they drove around for awhile. After a period of driving around, appellant's companion forced Miss Foreman into the back seat of the car and raped her. Then the two men changed places, and the appellant raped Miss Foreman while his companion drove the car. Miss Foreman saw the headlights of an approaching automobile and yelled for help, at which time the appellant struck her. The approaching automobile was a police patrol car. The officer responded to Miss Foremen's call for help. Both appellant and his companion escaped on foot. Miss Foreman first identified a photograph of the appellant at the police station and later identified him at the police station without the benefit of a lineup.

Appellant first contends the confrontation at the Hammond, Indiana, police station was without a waiver and without his attorney being present and, therefore, was in violation of the Sixth Amendment to the United States Constitution under the doctrines of United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 and Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. However, in the case at bar both Mr. Warchol and Miss Foreman were present at the pre-trial identification. Both made in-court identification of the appellant. No objections were made at the trial by appellant or his counsel to the in-court identification. This Court has previously held that in this type of situation in must be shown that the appellant took the available procedural steps to protect himself from an in-court identification which was possibly tainted by an improper pre-trial identification. Johnson v. State (1972), Ind., 278 N.E.2d 577, 29 Ind.Dec. 308. In view of the fact that appellant made no timely objection to preserve any possible error in the admission of the in-court identification, he cannot be heard to complain for the first time in his motion to correct errors. New v. State (1970), Ind., 259 N.E.2d 696, 21 Ind.Dec. 720.

Appellant next claims the state failed to prove that the kidnapping occurred in the State of Indiana. With this we do not agree. Appellant cites the testimony of the complaining witnesses which tends to show some confusion as to the exact location of the commission of the...