Ferguson v. State

• Citation: 405 N.E.2d 902,273 Ind. 468
• Decision Date: 05 June 1980
• Docket Number: No. 1079S266,1079S266
• Parties: Elatha FERGUSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 902

405 N.E.2d 902

273 Ind. 468

Elatha FERGUSON, Appellant, v. STATE of Indiana, Appellee.

No. 1079S266.

Supreme Court of Indiana.

June 5, 1980.

Walter E. Bravard, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Elatha Ferguson was charged with two counts of robbery on October 30, 1978. The State then filed an additional Count charging defendant Ferguson with being an habitual offender. A jury found Ferguson guilty on both counts of robbery and then found him guilty of the offense of being an habitual offender. On July 6, 1979, the court sentenced Ferguson to ten (10) years on Count I, ten (10) years on Count II, and thirty (30) years on Count III, to be served consecutively. This appeal followed.

The appellant raises the following issues for our consideration regarding the identification procedures used in a pre-trial photographic identification, the sufficiency of the evidence to support his conviction, the sentencing procedures used, and the constitutionality of the habitual offender statute.

Joe Taylor, Manager of Sight and Sound TV Rentals on East 38th Street in Indianapolis, Indiana, was at work when a man came into the store and asked to fill out a rental application. He said he had to leave to obtain some information necessary to complete the form. When the man returned, another employee, Mr. Kellum, got up from his desk behind the counter to give him another application. Mr. Taylor heard a "thumping sound" and looked up to see the man standing on the counter with a pistol pointed at Mr. Kellum. The gun was pointed at the middle of his forehead. Mr. Taylor and Mr. Kellum were told to drop their wallets and they were forced into the restroom. After a minute Mr. Kellum stepped out. The man screamed at him to get back or he would be shot. Several minutes later he left the restroom and told Mr. Taylor to call the police. Both wallets were gone. Mr. Taylor stated that his wallet contained a hundred dollar bill which he kept tucked in a corner for emergencies.

Martha Gross, a temporary secretary at Sight and Sound on the day of the robberies, testified that she was in the back of the store when a man came in asking to be helped. She directed him to the front of the store and went home. She later identified Ferguson as the man she saw on the day of the robberies. She testified that she was within inches of him and that it was light.

On the evening of the robberies, August 11, 1978, Mr. Taylor and Mrs. Gross looked at books containing two or three hundred photographs, but were unable to pick out the robber. The next day Mr. Kellum spent two hours looking at "mug shots" but did not recognize anyone.

On September 1, 1978, Detective Combs showed two sets of photographs to those who witnessed the crime. He showed six color photos and five black and white photos to each witness. These photos were spread out in no particular order. Mrs. Gross picked out a color photograph of Ferguson. Mr. Kellum positively identified a black and white photograph of Ferguson. Mr. Kellum also subsequently recognized the defendant while he was sitting in municipal court with several other people on September 15, 1979. He stated he was certain about the identification. Mr. Taylor, Mr. Kellum, and Mrs. Gross identified the appellant in court and were certain in their identifications.

I.

Appellant contends that the evidence is insufficient to sustain the verdict of the jury.

Appellant was convicted of two counts of a Class B felony under Ind.Code § 35-42-5-1 (Burns 1979). The elements of the felony are set forth in the statute as follows:

"A person who knowingly or intentionally takes property from another person or from the presence of another person:

(1) By using or threatening the use of force on any person; or

(2) By putting any person in fear;

commits robbery, a Class C. felony. However, the offense is a Class B. felony if it is committed while armed with a deadly weapon, . . ."

The evidence included eyewitness testimony of the two victims. The testimony of both showed that appellant came into their store, then left. He returned to the store, pulled out a gun, vaulted onto the counter, held the gun to Mr. Kellum's head, made the victims drop their wallets and forced them into a bathroom. The victims stated they were afraid. When Mr. Kellum looked out the door appellant screamed at him to get back into the bathroom or he would be shot. When the robber left, both wallets were gone. Kellum saw the appellant twice in good lighting at close range. He testified that because he had been the victim of a previous robbery, he took special note of the robber's physical characteristics. Taylor saw the robber twice, once within two or three feet. Martha Gross testified that she was close enough to "have kissed him." In Proctor v. State, (1979) Ind., 397 N.E.2d 980, we reiterated our standard for review and found the testimony of victims was sufficient to support the jury's verdict on three counts of armed robbery as follows:

"On appeal, we will examine only the evidence most favorable to the State and all reasonable inferences to be drawn therefrom, in order to determine if there existed sufficient evidence of probative value to support the jury's verdict. (citation omitted) We will neither weigh the evidence nor judge the credibility of the witnesses."

Under these well-established principles of appellate review we find the testimony of the victims and the other witness in the present case sufficient to support the jury's verdict.

II.

Appellant claims that he was denied his presumption of innocence throughout his trial and that the trial court did not reconcile all doubts and uncertainties in his favor. He claims that all the evidence showed was that he had a mere opportunity to commit the offenses and that there was a mere suspicion that he committed the offenses. We find no merit in this contention. The jury was given the following instructions:

"INSTRUCTION NO. 3

Under the law of this State you are the sole judges of both the law and the evidence and you must presume that the Defendant is innocent. You must continue to believe he is innocent throughout the trial, unless the State proves that the Defendant is guilty, beyond a reasonable doubt, of every essential element of the offense charged. The burden of proof herein is on the State alone and never shifts to the Defendant.

"Since the Defendant is presumed to be innocent, he is not required to present any evidence to prove his innocence, nor to prove, do, or explain anything. If at the conclusion of the trial, there remains in your mind a reasonable doubt concerning the Defendant guilt, you must find him not guilty.

INSTRUCTION NO. 4

" 'Reasonable doubt' as referred to herein, is a fair, actual and logical doubt that arises in your mind after an impartial consideration of all the evidence and circumstances in the case. It should be a doubt based upon reason and common sense and not a doubt based upon imagination or speculation.

"If, after considering all of the evidence, you have reached such a firm belief in the guilt of the Defendant that you would feel safe to act upon that conviction, without hesitation, in a matter of the highest concern and importance to you, when you are not required to act at all, then you will have reached that degree of certainty which excludes reasonable doubt and authorizes conviction.

"The rule of law which requires proof of guilt beyond a reasonable doubt applies to each juror individually. Each of you must refuse to vote for conviction unless you are convinced beyond a reasonable doubt of the Defendant's guilt, and your verdict must be unanimous."

These instructions clearly define the presumption of innocence and the State's burden in overcoming that presumption. There is no merit to appellant's claim that he was denied the presumption of innocence throughout the trial. Kennedy v. State, (1977) Ind., 370 N.E.2d 331.

III.

Appellant next argues that he was denied a fair trial because the jury verdict was based on improper pre-trial identification procedures. Appellant failed to raise this issue at any time prior to or during trial. No Motion to Suppress evidence of the photographic identification was filed. At trial three eyewitnesses and the detective all testified as to pre-trial photographic identifications. Two of them testified about seeing and recognizing the appellant as he sat with others in municipal court. No objection was made at any time to this testimony nor to the witnesses' in-court identifications. There was no objection to the admission of the photographs used in the identification procedures into evidence. In Nelson v. State, (1976) 265 Ind. 542, 356 N.E.2d 682, no objections were made to testimony concerning a photographic identification, an encounter with the defendant at the police station, nor to an in-court identification. This Court held that in order for error in the admission of evidence to be preserved for review, a timely and specific objection must be made, and emphasized that no exception is made for identification testimony regardless of a possible constitutional infirmity. Citing Zupp v. State, (1972) 258 Ind. 625, 283 N.E.2d 540.

In another similar case, Lewis v. State, (1978) Ind., 383 N.E.2d 65, it was held that the competent testimony of a single eyewitness is sufficient to support a verdict of guilty. Citing Lewis v. State, (1976) 264 Ind. 288, 342 N.E.2d 859. The evidence of identification is sufficient to support the verdict here, and there is no error on this issue.

IV.

Appellant next claims that the jury's finding that the appellant was guilty of two Class B felonies, armed robberies, is contrary to law and the evidence because this requires finding that he was armed with a deadly weapon. Appellant claims that although the witnesses testified that the robber had a gun, there was...