Douglas v. State

• Decision Date: 12 August 1970
• Docket Number: No. 169S18,169S18
• Parties: Carrie DOUGLAS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 567

261 N.E.2d 567

254 Ind. 517

Carrie DOUGLAS, Appellant, v. STATE of Indiana, Appellee.

No. 169S18.

Supreme Court of Indiana.

Aug. 12, 1970.

[254 Ind. 518] Frederick J. Graf, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Ind., Walter E. Bravard, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

JACKSON, Judge.

Appellant was charged by indictment filed June 19, 1968, in the Criminal Court of Marion County, Indiana, with 'Commission of a Felony While Armed With a Deadly Weapon, To-Wit: Rape.' The indictment, omitting heading, formal parts and signature, in pertinent part reads as follows:

'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that CARRIE DOUGLAS on or about the 14th day of MARCH, A.D. 1968, at and in the County of Marion and in the State of Indiana, being then and there over the age of sixteen (16) years, did then and there unlawfully and feloniously commit the crime of rape, by then and there having carnal knowledge of LUVENIA McCOY, a woman, forcibly against her will, she, the said LUVENIA McCOY then and there not being the wife of the said CARRIE DOUGLAS, while, he the said CARRIE DOUGLAS, was then and there armed with a deadly weapon, to-wit: a Pistol, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'

Thereafter, on August 6, 1968, appellant filed a Notice of Alibi, and on August 7, 1968 a Motion to Amend Notice of Alibi by interlineation. On August 8, 1968, appellant by counsel filed a 'Motion for Disclosure and Production of Evidence Favorable to Accused.' In view of appellant's Motion for New Trial, etc. we include in pertinent part such motion, omitting heading, formal parts, etc., viz:

'Comes now the Defendant in the above entitled cause, by Counsel, and respectfully moves this Court for an appropriate Order requiring the State of Indiana to disclose, produce and make available certain evidence favorable to the Defendant herein, now in the possession of the State of Indiana, and in support of said Motion would respectfully represent to this Court as follows:

1. That he has just cause to believe, and does believe, that the Prosecuting Attorney and/or the Police Department of the City of Indianapolis, has in their possession specific information and/or evidence, which is relevant, germane and pertinent to the Defendant's defense herein, either as an affirmative defense or as impeachment evidence, namely, the names and addresses of the State's witnesses and/or the names and addresses of alleged eye witnesses and/or eye witnesses who can identify the Defendant herein as being the participant in the crime charged against him in this cause.

2. Defendant, by Counsel, would further respectfully show this Honorable Court that he has just cause to believe and does believe that numerous other persons were arrested for the crime charged against the Defendant herein, and that the State of Indiana has the names and addresses of said witnesses, and that said witnesses were either interrogated or held for interrogation by the prosecuting authorities in this cause and, further that the State of Indiana has in its possession evidence and/or statements from said persons so arrested, detained, interrogated and questioned which is relevant and material to the defense of your Defendant herein, either as an affirmative defense or impeachment evidence; furthermore, said evidence is beneficial to the Defendant in that the same will show that the testimony of some of the persons named by the State of Indiana as its witnesses that the State of Indiana intends to rely on, gave conflicting testimony and that the testimony was confused, conflicting and contradictory that was given in a hearing heretofore held in this Court on this cause.

3. Defendant further says that he has reason to believe that the State of Indiana has in its possession certain reports of investigations pertinent to this case which would show that the Defendant was not and is not the perpetrator of the crime charged herein, which Defendant would like to have made available to him for the purposes aforesaid, or in the alternative, that the Court make an in camera inspection of the complete reports of the investigations made by the police and/or law enforcement officers herein, relative to this case and germane and pertinent to the issue of identity so that the Defendant's rights to a fair and impartial trial are protected.

4. Defendant further says that the State of Indiana has suppressed and/or has failed to disclose at the preliminary hearing aforesaid in this Court, certain evidence favorable to the Defendant herein with reference to identity, the time of the crime, the names and addresses of all the witnesses the State of Indiana is relying upon and/or will rely upon in the prosecution of this cause, as well as certain exculpatory statements secured in the investigation of this case, and the Defendant respectfully moves the Court for an appropriate Order requiring the State to deliver over to Defendant or Defendant's counsel, said information.

5. Defendant further says that the State of Indiana has in its possession certain evidence with reference to the alleged identification of the defendant in a police line up and that said line up was conducted in an illegal and unconstitutional manner with reference to--(a) the supervision of witness or witnesses who saw the line up with reference to the activities of the detectives and police investigating the case in that the defendant was described to the witnesses viewing the line up prior to the line up; and that the police showed the witnesses to the line up a photograph of the defendant and in this case focused attention on the defendant because of the identification by the photograph prior to the line up; and furthermore, the law enforcement officers connected with the case at bar talked to the witnesses prior to the line up with reference to and concerning the defendant and thus the line up amounted to little more than a show up of one person; and furthermore, in the composition of the line up the physical characteristics of those persons in the line up did not approximate the same as those of the defendant with reference to color, age, weight, height, and as a consequence thereby the line up was no more than a provoked identification through accentuation of the presence of the defendant herein, in contravention of United States v. Wade, 388 U.S. 218 (87 S.Ct. 1926, 18 L.E.2d 1149), particularly where the defendant had counsel and counsel was not advised of the line up and was not notified of the same, and was not present during the same; furthermore, the procedure involved in said line up violated the pronouncements of the United States Supreme Court in Gilbert vs. State of California, 388 U.S. (263) 267 (87 S.Ct. 1951, 18 L.Ed.2d 1178) concerning the absence of counsel and the defendant's 6th Amendment rights to counsel at said line up, all of which is highly prejudicial to the defendant herein. The defendant respectfully prays the Court for an appropriate Order made by the officers conducting the line up and the statements taken by the police officer making the line up and the addresses and statements both written and oral of the person viewing the line up and that the same be made available to the defendant herein.

WHEREFORE, Oefendant, by Counsel, respectfully prays this Honorable Court for the above requested information now in possession of the State of Indiana by reason of the dictates of Brady v. Maryland, 373 U.S. 83 (83 S.Ct. 1194, 10 L.Ed.2d 215).'

August 20, 1968, the State of Indiana filed its answer to appellant's Notice of Alibi, such answer in substance stated 'the August 21, 1968, the court sustained a part of appellant's Motion for Disclosure etc. and ordered the 'Prosecutor's Office to furnish names and addresses of witnesses to the defendant on or before August 23, 1968.' Thereupon the defendant filed a waiver of trial by jury and requested an early trial.

date when the defendant committed the offense charged was: between 6:00 P.M. on March 14th, 1968 and 6:00 A.M. on March 15th, 1968,' and the 'place where the defendant committed the offense charged was: in the vicinity of 22nd Street and College Avenue, in the City of Indianapolis, Marion County, Indiana.'

October 4, 1968, the issues herein were submitted to the court for trial finding and judgment. On the same day the court found defendant Guilty as charged by the indictment, ordered a pre-sentence investigation and set sentencing for October 17, 1968. On October 17, 1968, a pre-sentence investigation report was filed, and sentencing was continued at the request of defense counsel.

On October 24, 1968, appellant filled his Motion for New Trial, which motion, omitting heading, reads as follows:

'Comes now the Defendant in the above entitled cause, by Counsel, and respectfully moves the Court for a new trial herein upon the following grounds and for the following reasons, to-wit:

1. Irregularity in the proceedings of the Court and orders of the Court and abuse of discretion by which said Defendant was prevented from having a fair and impartial trial in this, to-wit:

(a) The Court erred in overruling the major portions of Defendant's Motion For Disclosure and Production of Evidence Favorable To Accused.

(b) The Court erred in refusing to order the State to disclose all evidence and information in its possession which was favorable and beneficial to accused which request was made by the Defendant in his Motion For Disclosure and Production of Evidence Favorable To Accused.

(c) The Court erred in not sustaining In Toto, Defendant's Motion For Disclosure and Production of Evidence Favorable To Accused.

2. Newly discovered evidence, material to the Defendant, which he could not, with diligence have discovered and produced at the trial, all as shown...