Daye v. State
| Decision Date | 03 November 1976 |
| Docket Number | No. 376S84,376S84 |
| Citation | 265 Ind. 522,356 N.E.2d 213 |
| Parties | Willie DAYE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Kenneth T. Roberts, Wilson, Coleman & Roberts, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a jury verdict against the appellant charged in three counts with: Count I, Rape; Count II, Commission of a Felony While Armed To-wit, Rape; and Count III, Sodomy. Trial by jury was held on December 4, 1975, in the Marion County Criminal Court, Division III, before Special Judge Carl Winter. Appellant was found guilty on all three counts. Appellant was sentenced to 15 years for Count II, and 2--10 years in addition to a fine of $100 for Count III.
The single issue presented by this case is the overruling of motions for mistrial based upon the presentation of photographs which the appellant says constituted prosecutorial misconduct which prevented him from having a fair trial. There is no question presented on the sufficiency of the evidence. A brief statement of the facts most favorable to the state reveals that the victim, a female of age 29, was raped at gun point and forced to commit sodomy on July 11, 1975, at her residence in Indianapolis. On the date of the offense, the victim walked down the steps from her apartment with her very young daughter. As she was walking down the steps, she first saw the appellant on the landing. She thought he was pulling up his socks and went around him. At that time the appellant pulled a revolver, put it to the child's head and told the victim he would shoot her daughter if she screamed and ordered her back upstairs into her apartment. She laid the child in her bed and the appellant forced her at gun point to submit to rape and sodomy. She was afraid that if she resisted he would kill her young daughter.
The issue of prosecutorial misconduct centers around the introduction of a police photo. It was necessary to make a copy of the photo that would have no gallery number to avoid any allusion to the appellant's prior criminal record. The victim had looked at between 250 and 400 pictures and selected the picture in question as that of the man who committed the acts against her. To the question as to whether she could identify state's Exhibit No. 3, the victim replied, 'It's the one I picked up off the--.' The defense objected and asked also that 'in terms of what the victim stated when she identified that picture as to the location and where it was, I would move at this time to have that stricken from the record.' The court then instructed the jury The state then put the question to the victim, 'How many pictures did you look at in trying to identify the person who assailed you?' The defense objected and moved for a mistrial. The court overruled the motion for mistrial, but sustained the objection to the question. The victim then testified that she could identify state's Exhibit No. 3 and that it was a picture of Willie Earl Daye. To the question 'When did you first see this picture?' the defense again objected. The objection was sustained. The victim then testified that the picture had been shown to her, and that she did not know the appellant's name at the time it had been shown to her, and that if there had been a name on the picture she could not see it because she did not have her glasses on. The...
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State v. Clanton
...pre-trial identification by line up, the rule was applied to pre-trial identification by photographic array in Daye v. State (1976), 265 Ind. 522, 356 N.E.2d 213. Of the series of questions asked at Daye's trial regarding pictures viewed at the police station, our Supreme Court found that o......