Dooley v. State, No. 1080S401

Docket NºNo. 1080S401
Citation428 N.E.2d 1
Case DateNovember 13, 1981
CourtSupreme Court of Indiana

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428 N.E.2d 1
Carl Fletcher DOOLEY, Appellant,
v.
STATE of Indiana, Appellee.
No. 1080S401.
Supreme Court of Indiana.
Nov. 13, 1981.

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David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant, Carl Fletcher Dooley, was convicted of rape, Ind.Code § 35-42-4-1 (Burns Repl. 1979), and burglary in the first degree, Ind.Code § 35-43-2-1 (Burns Repl. 1979) and was sentenced to a term of twenty (20) years. This cause is the second trial of the defendant, the first having been reversed and remanded for a new trial by this court due to the prosecutor's comments upon defendant's failure to testify at trial. Dooley v. State, (1979) Ind., 393 N.E.2d 154.

The defendant raises six errors on appeal, concerning:

1. whether the trial court erred in permitting the rape victim to make an in-court identification of the defendant;

2. whether the trial court erred in not permitting defendant's new counsel to present an alibi defense because no alibi defense had been presented in the first trial;

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3. whether the trial court erred in allowing the State additional discovery after the trial started;

4. whether the trial court should have granted a mistrial after it was discovered that one of the jurors knew the victim and communicated this fact to other jurors;

5. whether the trial court erred in permitting the rape victim to testify about the purpose of therapy she received after the rape; and

6. whether there was sufficient evidence introduced at the trial linking defendant to the crimes.

On September 10, 1977 at around 11:00 p. m., D. D., the victim, was asleep at her residence on Fieldhouse Avenue in Elkhart. D. D., was awakened by a noise and walked into her living room to investigate. She saw a man standing at her back door. The man broke the door window, reached in, unlocked the door, and started to enter. D. D., slammed the door shut but the assailant pushed the door open and entered the house. D. D., ran into the kitchen where her attacker grabbed her and they struggled. D. D., broke free and switched on a light. She turned and faced her assailant, who was approximately four feet away. The man jumped at D. D., turned off the light, and forced her to the floor where he raped her. D. D., later identified the defendant as the rapist.

I.

The defendant was singled out in a lineup by the victim on September 21, 1977, eleven days after the crime occurred. Prior to the first trial of this cause, defendant filed a motion to suppress, asking that the victim's identification of defendant as the rapist be suppressed at trial. On April 19, 1978, the State stipulated that the lineup had been impermissibly suggestive. All evidence concerning the lineup and identification was suppressed. During the trial of the case at bar, the State asked D. D., to make an in-court identification of her assailant. The defense objected and a hearing was held outside the presence of the jury. When the jury returned, the victim was allowed to identify the defendant as the rapist.

In Harris v. State, (1980) Ind., 403 N.E.2d 327, we stated:

(2) In-court identifications are admissible where the State can "establish by clear and convincing evidence that the in-court identifications (are) based upon observations" gained independently of any unduly suggestive pre-trial confrontations. United States v. Wade, (1967) 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149, 1165. Among the factors to be considered in making this determination are:

" * * * the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification." United States v. Wade, supra, 388 U.S. at 241, 87 S.Ct. at 1940, 18 L.Ed.2d at 1165. In Dillard v. State, (1971) 257 Ind. 282, 289, 274 N.E.2d 387, 389, we set out additional tests, including: " * * * 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, (and) opportunity to observe particular characteristics of the criminal * * *."

Id. at 403 N.E.2d at 329.

The State bears the burden in the trial court of producing "clear and convincing evidence" of an independent basis, Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193, but in reviewing the lower court's finding we do not reweigh the evidence, but look to the evidence most favorable to the appellant. We accept the trial court's finding if it is supported by sufficient evidence. Morgan v. State, (1980)

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Ind., 400 N.E.2d 111; Whitt v. State, (1977) 266 Ind. 211, 361 N.E.2d 913.

During the hearing, D. D., testified that she turned on a light and was able to see the defendant from a distance of four feet. The light was on for a few seconds. When the light was off, defendant was lying on top of D. D., face to face, for ten minutes. D. D., said her eyes adjusted to the darkness and she was able to determine that the rapist had a beard, though she was uncertain whether it was full or partial. When the defendant left, she saw him walk through her well lighted backyard. When the police arrived, D. D., described the rapist as a black male, 5'6 to 5'7 , slender build, beard, and wearing a white T-shirt. On the stand, D. D., testified that the defendant was now heavier and had not been wearing glasses. After defendant took the stand he admitted that he gained about forty pounds since the time of the initial arrest. He also said he did not always wear glasses and that they were not prescription lenses.

We feel D. D., had an independent basis for making the in-court identification. She was alone with her assailant for 10-15 minutes in close proximity, much of the time face to face. D. D., saw her assailant both in the bright light of her dining room and her backyard. D. D., made no inaccurate identification of her assailant and has never failed to identify the defendant as her attacker. The only discrepancy is that one officer, Officer Loney, called to D. D.'s home, said she would not describe the defendant as "slender." The term "slender" is one open to many definitions and this comment has not affected the independent basis for identifying the defendant. There is no error on this issue.

II.

Defendant's attorney at the first trial and on appeal requested permission on November 13, 1979, to withdraw from the case because he could no longer effectively represent the defendant. Counsel and defendant differed over trial strategy. The trial court granted permission to withdraw and informed defendant that trial would begin on March 12, 1980. The judge also informed the defendant that the trial would proceed with or without counsel and discovery was closed at that point.

The trial date was changed to March 18, 1980. On March 10, 1980, new counsel made his appearance on behalf of defendant. The attorney acknowledged the judge's order from November, 1979, but orally requested to submit a notice of alibi. The judge told the attorney it would be advisable, for the record, to file the notice in writing but still denied the request to interject alibi into the trial. Defendant never filed an alibi notice but insists here that it was error for the judge not to admit it into the trial.

Ind.Code § 35-5-1-1 (Burns Repl. 1979) covers the use of alibi in a trial. § 35-5-1-1 reads, in part, as follows:

"Whenever a defendant in a criminal case in a court other than that of a justice of the peace shall propose to offer in his defense evidence of alibi, the defendant shall, not less than the ten (10) days before the trial of such cause, file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to offer such defense...."

(emphasis added).

Oral notice of alibi was given only eight days before the trial. The notice was never put into writing. Defendant has not shown, as an exception to § 35-5-1-1, good cause for his failure to file notice of alibi under Ind.Code § 35-5-1-3. Defendant had ample time to file his notice of alibi. He claims that new counsel made his first appearance only eight days before the trial but we have held that a defendant acting as his own counsel must be held to the established rules of procedure, the same as trained legal counsel. Smith v. State, (1977) 267 Ind. 167, 174, 368 N.E.2d 1154, 1158. In addition, defendant and his counsel failed to satisfy the statutory requirements of submitting the notice in writing; therefore, the trial court was justified in excluding alibi evidence. See Mitchell v.

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State, (1979) Ind., 398 N.E.2d 1254, 1257; Stapp v. State, (1972) 259 Ind. 330, 333, 287 N.E.2d 252, 253-54; Fields v. State, (1977) Ind.App., 367 N.E.2d 36, 38.

III.

Between the time of the crime and the time of the trial, defendant gained a considerable amount of weight. When the State saw the defendant, it moved for additional discovery in order to measure the weight gain. The motion was granted over the defendant's objection. The defendant argues that this violated the mutual reciprocity concept of discovery since discovery was officially closed in November, 1979. The defense in particular points to the trial court's refusal to admit alibi evidence as proof of the non-reciprocal use of discovery.

We have held that the defendant did not satisfy the statutory requirements of presenting an alibi defense; therefore, that exclusion is not relevant in deciding whether or not the judge abused his discretion. The defendant cannot point to that as harm since he did not follow the proper procedure for...

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23 practice notes
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1984
    ...their testimony. White v. State, (1983) Ind., 455 N.E.2d 329; Kusley v. State, (1982) Ind., 432 N.E.2d 1337; Dooley v. State, (1981) Ind., 428 N.E.2d 1. McGrew observed Averhart fleeing from the officer and stashing his clothing in bushes very close to where McGrew was working. He identifie......
  • Coates v. State, No. 485
    • United States
    • Indiana Supreme Court of Indiana
    • March 8, 1989
    ...Acts 1981, P.L. 298, Sec. 9, effective Sept. 1, 1982). 3 Johnson v. State (1982), Ind., 432 N.E.2d 403, and Dooley v. State (1981), Ind., 428 N.E.2d 1, misstate the applicable standard by stating that the evidence is viewed most favorable to the appellant. Morgan correctly states the standa......
  • Vanway v. State, No. 82S00-8606-CR-598
    • United States
    • Indiana Supreme Court of Indiana
    • July 26, 1989
    ...favorable to the defendant. We accept the trial court's finding if it is supported by sufficient evidence. Dooley v. State (1981), Ind., 428 N.E.2d 1, Here, Mullen was approached on May 8, 1985, by a 6-foot white male who at that time had a beard and long hair. He presented check number 621......
  • Meagher v. State, No. 48S00-9804-CR-247.
    • United States
    • Indiana Supreme Court of Indiana
    • April 3, 2000
    ...examination is within the sound discretion of the trial court. See Jones v. State, 600 N.E.2d 544, 547 (Ind.1992); Dooley v. State, 428 N.E.2d 1, 6 (Ind.1981); Kalady v. State, 462 N.E.2d 1299, 1309 (Ind.1984). Absent an abuse of that discretion, the trial court's ruling will not be disturb......
  • Request a trial to view additional results
23 cases
  • Averhart v. State, No. 1182S414
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1984
    ...their testimony. White v. State, (1983) Ind., 455 N.E.2d 329; Kusley v. State, (1982) Ind., 432 N.E.2d 1337; Dooley v. State, (1981) Ind., 428 N.E.2d 1. McGrew observed Averhart fleeing from the officer and stashing his clothing in bushes very close to where McGrew was working. He identifie......
  • Coates v. State, No. 485
    • United States
    • Indiana Supreme Court of Indiana
    • March 8, 1989
    ...Acts 1981, P.L. 298, Sec. 9, effective Sept. 1, 1982). 3 Johnson v. State (1982), Ind., 432 N.E.2d 403, and Dooley v. State (1981), Ind., 428 N.E.2d 1, misstate the applicable standard by stating that the evidence is viewed most favorable to the appellant. Morgan correctly states the standa......
  • Vanway v. State, No. 82S00-8606-CR-598
    • United States
    • Indiana Supreme Court of Indiana
    • July 26, 1989
    ...favorable to the defendant. We accept the trial court's finding if it is supported by sufficient evidence. Dooley v. State (1981), Ind., 428 N.E.2d 1, Here, Mullen was approached on May 8, 1985, by a 6-foot white male who at that time had a beard and long hair. He presented check number 621......
  • Meagher v. State, No. 48S00-9804-CR-247.
    • United States
    • Indiana Supreme Court of Indiana
    • April 3, 2000
    ...examination is within the sound discretion of the trial court. See Jones v. State, 600 N.E.2d 544, 547 (Ind.1992); Dooley v. State, 428 N.E.2d 1, 6 (Ind.1981); Kalady v. State, 462 N.E.2d 1299, 1309 (Ind.1984). Absent an abuse of that discretion, the trial court's ruling will not be disturb......
  • Request a trial to view additional results

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