Dillard v. State, No. 170S6

Docket NºNo. 170S6
Citation274 N.E.2d 387, 257 Ind. 282, 27 Ind.Dec. 346
Case DateOctober 26, 1971

Page 387

274 N.E.2d 387
257 Ind. 282
George DILLARD, Appellant,
v.
STATE of Indiana, Appellee.
No. 170S6.
Supreme Court of Indiana.
Oct. 26, 1971.

[257 Ind. 284]

Page 388

George A. Purvis, Indianapolis, for appellant.

[257 Ind. 285] Theodore L. Sendak, Atty. Gen., Lon D. Showley, Deputy Atty. Gen., for appellee.

DeBRULER, Judge.

This is an appeal from a conviction for robbery in a trial by jury in Marion County Criminal Court, No. 1, and appellant was sentenced to ten to twenty-five years in prison.

A.

Appellant's first allegation is that the trial court erred in refusing to strike the

Page 389

testimony of George Richey concerning his identification of appellant at a pre-trial, police conducted confrontation between appellant and the witness. On February 8, 1968, Richey was the assistant manager of a Standard Grocery Store at 2131 N. Central in Indianapolis. At approximately 9:30 p.m. on that date Rose Flanagan, a cashier, was in the store office counting receipts when a Negro man climbed over the partition wall and fell into the office. He had a stocking mask pushed up onto his forehead and carried a sawed-off shotgun. He took the money available and asked the witness to open the safe. She replied that she could not but she called George Richey to do it. When Richey entered the office the robber placed the gun against Richey's stomach and demanded the safe be opened. Before the safe could be opened the accomplice outside the office persuaded the robber inside to leave because they had been there too long. Within twenty minutes a police squad car came to the grocery store parking lot with a lone Negro man in the car. Richey testified that a police officer asked Richey if he could identify the man as one of the robbers. After the man got out of the car Richey positively identified him as the robber by his looks and also by his voice.

Appellant argues that Richey's trial testimony concerning that identification in the parking lot should have been stricken because the identification violated appellant's constitutional rights. In United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California[257 Ind. 286] (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the United States Supreme Court held that a police conducted pre-trial confrontation between a witness and a suspect is a critical stage in the criminal proceeding and hence that the suspect has a right under the Sixth Amendment to the United States Constitution to be represented by counsel at that confrontation. However, this Court has held that an on-the-scene confrontation between a witness and a suspect conducted within a reasonably short time after the commission of the crime for the purpose of determining whether the witness can identify the suspect is not within the scope of the Wade-Gilbert rule. Parker v. State (1970), Ind., 261 N.E.2d 562; McPhearson v. State (1970), Ind., 253 N.E.2d 226; Lewis v. State (1970), Ind., 250 N.E.2d 358.

Appellant concedes this but argues the identification was invalid under the rule of Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, which applies to those cases not covered by the Wade rule, both pre-Wade and non-Wade cases. The test in Stovall is, looking at the totality of the circumstances, whether 'the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification' that he was denied due process of law under the Fourteenth Amendment. 388 U.S. at 302, 87 S.Ct. at 1972.

We believe the Stovall test 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 [257 Ind. 287] 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 observe particular characteristics of the criminal, etc. See Parker v. State, supra.

The appellant sets out ten factors to support his charge of unreliability of the identification: 1. 'Absence of counsel'; 2. 'Defendant returned in police car'; 3.

Page 390

'Defendant only person in police car'; 4. 'Witness Richey surrounded by five or six officers in uniform'; 5. 'Defendant made to get out of police car'; 6. 'Defendant had blood on his face'; 7. 'Defendant was handcuffed'; 8. 'Defendant was not shown to Rose Flanagan nor apparently to any customers'; 9. 'A shotgun was also returned to the store and identified by George Richey'; 10. 'A sum of money was brought back to the store, counted in front of the manager, George Richey'.

Points one through five are usual elements in any police conducted on-the-scene confrontation and to the extent they are suggestive they are not unnecessarily so. This Court determined they did not render an identification unconstitutional when it originally sanctioned such confrontations in McPhearson v. State, supra, and Lewis v. State, supra. Appellant argues that six, seven, nine and ten suggested to the witness that the police had recovered the stolen money, found the weapon used, and captured the robber after subduing him. The fact that appellant was bloodied and in handcuffs might tend to suggest that the police thought appellant was the robber and the police should be careful to eliminate such unnecessary conditions in conducting a confrontation because they could be decisive in a case where the support for the identification was weaker than in this case. It is also argued that the police should not have shown the witness the money or the gun until after he had viewed the appellant and made up his mind on the identification. However, there is nothing offered by appellant to show that this is not exactly what happened. The fact that appellant was not presented to other [257 Ind. 288] witnesses for identification at that time does not detract from the solidity of Richey's identification.

The evidence in support of the reliability of Richey's identification was strong. Richey testifed that the police officers made no suggestive remarks but simply asked him if he could identify this man as the robber. Richey was positive in his identification based on appellant's face, build, clothes and voice. Richey had been face to face with the unmasked robber in the store office for approximately ten minutes and had ample time to look at his face, clothes and build and hear his voice. Under these circumstances we do not believe appellant was denied due process of law within the meaning of Stovall v. Denno, supra.

B.

Appellant's next allegation is that the trial court erred in refusing to give appellant's tendered instructions No. 5 and No. 7 relating to appellant's insanity defense.

A trial court refusal to grant tendered instructions will be reversed only if, considering the evidence in the case, the substance of the instruction was required to be given and was not adequately covered by other instructions actually given by the trial court. Maxey v. State (1969), 251 Ind. 645, 244 N.E.2d 650. In this case there was an insanity defense and the trial court, without objection from the appellant, instructed on the M'Naghten and irresistible impulse rules as required by Indiana law at that time. Appellant's sole argument is that the trial court was required to give his two tendered instructions because they embodied the new insanity rule adopted by Hill v. State (1969), 252 Ind. 601, 251 N.E.2d 429, which rule reads as follows:

'A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.

[257 Ind. 289] 'As used in this Article, the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.' American Law Institute, Model Penal Code (Final Draft, 1962)

Page 391

In Hill, as in this case, the appellant did not object to the trial court instruction on M'Naghten and irresistible impulse, but claimed the trial court erred in not giving one of his tendered instructions. We affirmed the trial court instruction on the M'Naghten rule and irresistible impulse because they were unobjected to in the trial court and adequately set out the Indiana law on the subject. That is also true in this case.

Appellant relies on that portion of the Hill opinion where the Court adopted the modified A.L.I. insanity rule for use in Indiana:

'It appears that a rule on criminal insanity, expansible and flexible in concept, is necessary and should be advocated. The ALI rule is such a rule and is an attempt to provide a framework under which the jury will be afforded a complete picture of the defendant's state of mind * * * the ALI rule is not substantively a new rule but, by its recognition of both the cognitive and volitional elements, is rather an evolutionary restatement of existing law.

'We are of the opinion therefore that the modified ALI rule, Freeman, supra (United States v. Freeman, 2 Cir., 357 F.2d 606), is the rule that would better aid the courts of Indiana in arriving at truth and justice when considering defense pleas of insanity.

'Here however, appellant made no objection to the court's instructions on the M'Naghten and...

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122 practice notes
  • Ballard v. State, No. 1174S224
    • United States
    • Indiana Supreme Court of Indiana
    • 12 Noviembre 1974
    ...N.E.2d 622; Cody v. State, (1972) Ind., 290 N.E.2d 38; Emerson Page 804 v. State, (1972) Ind., 287 N.E.2d 867; Dillard v. State, (1971) 257 Ind. 282, 274 N.E.2d 387; Rhodes v. State, (1972) Ind.App., 290 N.E.2d 'On the day of the incident, Opal has an opportunity to observe Ballard at close......
  • State v. York
    • United States
    • Supreme Judicial Court of Maine (US)
    • 29 Agosto 1974
    ...cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245; State v. Salcido, 1973, 109 Ariz. 380, 509 P.2d 1027; Dillard v. State, 1971, 257 Ind. 282, 274 N.E.2d 387; Davis v. State, 1971, 13 Md.App. 394, 283 A.2d 432; Commonwealth v. Denault, Mass.1972, 289 N.E.2d 863; People v. Martin, 19......
  • Schade v. State, No. 1620
    • United States
    • Supreme Court of Alaska (US)
    • 27 Julio 1973
    ...judicial change of the test for insanity would be prospective only. State v. Conte, 157 Conn. 209, 251 A.2d 81 (1968); Dillard v. State, 274 N.E.2d 387 (Ind.1971); League v. State, 1 Md.App. 681, 232 A.2d 828 5 AS 01.10.090 provides: Retrospective statutes. No statute is retrospective unles......
  • Ballard v. State, No. 2--273A37
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Abril 1974
    ...Ind., 295 N.E.2d 622; Cody v. State, (1972) Ind., 290 N.E.2d 38; Emerson v. State, (1972) Ind., 287 N.E.2d 867; Dillard v. State, (1971) 257 Ind. 282, 274 N.E.2d 387; Rhodes v. State, (1972) Ind.App., 290 N.E.2d On the day of the incident, Opal had an opportunity to observe Ballard at close......
  • Request a trial to view additional results
122 cases
  • Ballard v. State, No. 1174S224
    • United States
    • Indiana Supreme Court of Indiana
    • 12 Noviembre 1974
    ...N.E.2d 622; Cody v. State, (1972) Ind., 290 N.E.2d 38; Emerson Page 804 v. State, (1972) Ind., 287 N.E.2d 867; Dillard v. State, (1971) 257 Ind. 282, 274 N.E.2d 387; Rhodes v. State, (1972) Ind.App., 290 N.E.2d 'On the day of the incident, Opal has an opportunity to observe Ballard at close......
  • State v. York
    • United States
    • Supreme Judicial Court of Maine (US)
    • 29 Agosto 1974
    ...cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245; State v. Salcido, 1973, 109 Ariz. 380, 509 P.2d 1027; Dillard v. State, 1971, 257 Ind. 282, 274 N.E.2d 387; Davis v. State, 1971, 13 Md.App. 394, 283 A.2d 432; Commonwealth v. Denault, Mass.1972, 289 N.E.2d 863; People v. Martin, 19......
  • Schade v. State, No. 1620
    • United States
    • Supreme Court of Alaska (US)
    • 27 Julio 1973
    ...judicial change of the test for insanity would be prospective only. State v. Conte, 157 Conn. 209, 251 A.2d 81 (1968); Dillard v. State, 274 N.E.2d 387 (Ind.1971); League v. State, 1 Md.App. 681, 232 A.2d 828 5 AS 01.10.090 provides: Retrospective statutes. No statute is retrospective unles......
  • Ballard v. State, No. 2--273A37
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Abril 1974
    ...Ind., 295 N.E.2d 622; Cody v. State, (1972) Ind., 290 N.E.2d 38; Emerson v. State, (1972) Ind., 287 N.E.2d 867; Dillard v. State, (1971) 257 Ind. 282, 274 N.E.2d 387; Rhodes v. State, (1972) Ind.App., 290 N.E.2d On the day of the incident, Opal had an opportunity to observe Ballard at close......
  • Request a trial to view additional results

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