Dearing v. State
| Decision Date | 29 August 1979 |
| Docket Number | No. 1277S814,1277S814 |
| Citation | 271 Ind. 432,393 N.E.2d 167 |
| Parties | Eldridge DEARING and Tommy Knoch, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendants (Appellants) were convicted in a non-jury trial of Commission of a Felony (Robbery) While Armed, Ind.Code § 35-12-1-1 (Burns 1975). Defendant Dearing was sentenced to fifteen (15) years imprisonment and Defendant Knoch received ten (10) years. In this direct appeal, they raise four issues:
(1) Whether there was probable cause to justify the arrest and subsequent search of the defendants.
(2) Whether a remark by the trial judge to one of the defendants was so intimidating and prejudicial that it denied the defendants a fair trial.
(3) Whether the identification of the defendants by the victim was so tainted by an allegedly suggestive show-up as to have required its suppression.
(4) Whether the trial court erred in admitting evidence obtained in a warrantless search of one defendant's personal effects following his incarceration.
The evidence most favorable to the State indicates that on the evening of May 9, 1977, the victim, Mrs. Lee Coulter, was working the night shift as a cashier at the Denison Parking Garage in downtown Indianapolis. At approximately 10:30 p. m., she left the cashier's booth to go to the ladies' room, taking with her $130.00 from the cash register as required by her employer. She put money into her handbag. As she passed through the lobby, she encountered two men sitting on a bench, the older of whom was wearing a pink T-shirt. She had a short conversation with them and then proceeded to the ladies' room. A few minutes later, as she was preparing to leave, the door was opened and the two men whom she had talked to in the lobby entered. The older man with the pink shirt was armed with a sawed-off shotgun. Upon their demand, she handed over the money belonging to the parking garage as well as $35.00 of her own. Mrs. Coulter and the robbers then discussed whether there was more money elsewhere. The lighting in the restroom was good, and the men made no attempt to conceal their features as they talked with Mrs. Coulter. They then fled.
Mrs. Coulter called the Indianapolis Police Department and Officer Rothenbush responded. She described one subject as being a "white male, 60 to 65, five four, balding, with gray hair, wearing a pinkish-red shirt, brown corduroy jacket, carrying a sawed-off shotgun." She described the other suspect as being a "white male, fifteen, five five, 145 pounds, with dark hair." These descriptions were broadcast over the radio. Lt. Duckworth was on patrol at the time and, upon hearing the descriptions, he stopped at the York Hotel which is several blocks from the garage and asked the night clerk if she had seen anyone matching the descriptions. The night clerk directed him to Room 328 and the officer called for assistance. Officer Rothenbush, Lt. Duckworth
and an Officer Veza proceeded to Room 328 and knocked on the door. Defendant Dearing opened the door. He was wearing a reddish-pink T-shirt. The officers could also see defendant Knoch inside. They noted the marked similarities between the defendants and the descriptions given them by Mrs. Coulter. They also noticed a large amount of change on the bed. The defendants were arrested and the officers read them their rights. They searched the defendants and found $105.00 on Dearing and $20.00 in currency, some change, and five shotgun shells on Knoch. A woman's purse, which was subsequently identified by Mrs. Coulter as her's, was found on the floor at the foot of the bed. Mrs. Coulter was brought to the hotel, and she identified the defendants as the two men who had robbed her.
The defendants were arrested without warrants on the basis of the descriptions given by the robbery victim, Mrs. Coulter. They were searched and evidence was seized. Defendants contend that the arrests were illegal as being made without probable cause and that the evidence seized in the search incident to those arrests should have been suppressed.
The question of whether or not there is probable cause is determined by the facts and circumstances within the knowledge of the officers at the time that they made the arrests. Sanchez v. State, (1971) 256 Ind. 140, 142, 267 N.E.2d 374. In this case, the resolution of this issue turns upon the specificity of the descriptions and the degree to which the arrested suspects matched those descriptions. Defendants submit that the descriptions were not sufficiently specific to justify their arrests, and further state, "To hold otherwise would give Officers the authority to arrest and detain anyone in the downtown area wearing a pinkish-red T-shirt." This argument is without merit. It implies that the only factor in the officers' consideration was the color of Dearing's shirt and it ignores the fact that both defendants also matched the height, weight, age, race, and hair descriptions broadcast over the police radio. The defendants a short, old man in a pink T-shirt and his companion, a short teenager were a rather distinctive pair and were in the immediate vicinity of the scene of the robbery shortly after it occurred. The descriptions from which probable cause was determined herein are far more specific than that with which the court was concerned in the case cited by defendants, Gatlin v. United States, (D.C. Cir. 1963) 117 U.S.App.D.C. 123, 326 F.2d 666. In that case, the subject was described as a black male wearing a trench coat.
The similarities between the defendants and the descriptions, together with their presence in the vicinity shortly after the crime was committed provided probable cause to make the arrests. The searches complained of were incidental to those arrests and, therefore, were proper.
The defendants argue that remarks by the trial judge to the defendant, Dearing, concerning possible perjury charges intimidated him and substantially prejudiced his case.
The prosecuting attorney was attempting to impeach the defendant with evidence of prior convictions, to which Dearing's attorney objected. In the ensuing discussion, the following dialogue occurred:
Defendants contend that the judge's remarks were unnecessary and inappropriate and had the effect of intimidating the defendant Dearing, thereby preventing him from testifying freely about the facts of this case. This argument is without merit. The cases cited by the defendants are ones in which the trial court made obviously biased statements against the defendant or his witness usually in the presence of a jury. In the case at hand, the remarks appear to have been merely cautionary and need be distorted to support a claim of bias by inference or implication. Additionally, the trial was to the judge. It can hardly be contended that the judge's assessment of the witness' credibility would be affected by his own comments. The defendant's claim, however, is that the judge's comments may have prevented him from presenting additional evidence. If so, it was incumbent for him to support his claim by a disclosure of the evidence so omitted. The burden is upon the defendant to show how he was harmed.
At trial the defendants moved to suppress any in-court identification of them by the victim of the robbery, Mrs. Coulter, upon the grounds that her pre-trial identification of them at the "show-up" had been the product of an unnecessarily suggestive identification procedure.
The in-court identification was admissible if the State presented clear and convincing evidence of a basis for that identification independent of the on the scene "show-up" identification. United States v. Wade, (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Cooper v. State, (1977) 265 Ind. 700, 359 N.E.2d 532; Swope v. State, (1975) 263 Ind. 148, 157, 325 N.E.2d 193. Such evidence is required to assure the trial court that the witness' in-court identification is not a product of a confrontation "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." Stovall v. Denno, (1967) 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199; Swope v. State, supra. The Stovall test looks to the totality of the circumstances and focuses attention on two different sets of facts:
"(1) The facts bearing on whether the confrontation was conducted in such a fashion as to lead the witness to make a mistaken identification, e. g., how the police asked the witness to attempt the identification, what the witness thought he was doing, the displayed attitude of the police towards the suspect, etc. (2) The facts bearing on how good a chance the witness had to observe the perpetrator of the crime such that any suggestiveness in the conduct of the confrontation could be resisted by the witness and he could make an accurate decision as to whether the man presented was the man who committed the crime. These would include the length of time the witness was in the presence of the perpetrator, the distance of the witness from him, the lighting conditions at the time, capacity for observation by the witness, opportunity to...
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... ... See, e.g., United States v. Bloomfield, 594 F.2d 1200, 1201-1202 (8th Cir. 1979); Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571, 577 (1979); Dearing v. State, 393 N.E.2d 167, 171 (Ind.1979). As noted by the Supreme Court of Indiana in Dearing v. State, supra 393 N.E.2d at 171: ... "Our analysis of this issue begins with the case of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000. The issue there before ... ...
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