Gentry v. State

• Decision Date: 29 November 1984
• Docket Number: No. 283S68,283S68
• Parties: James GENTRY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 263

471 N.E.2d 263

James GENTRY, Appellant, v. STATE of Indiana, Appellee.

No. 283S68.

Supreme Court of Indiana.

Nov. 29, 1984.

Ronald K. Smith, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from convictions of rape, a class A felony, Ind.Code Sec. 35-42-4-1, and burglary, a class B felony, Ind.Code Sec. 35-43-2-1. Appellant filed a notice of defense of insanity. The case was tried by the court. The finding was guilty but mentally ill. Appellant was sentenced to a term of thirty years for rape and ten years, to run concurrently, for burglary.

Appellant raises seven issues on appeal: (1) whether it was error to allow the victim's in court identification of appellant; (2) whether appellant's first statement to the police was the result of an illegal detention; (3) whether he made a voluntary and intelligent waiver of his rights prior to making his first statement to the police; (4) whether the police interrogation should have ceased after he requested an attorney; (5) whether it was error to permit the trial prosecutor to ask a leading question concerning the location of the crime; (6) whether it was error to allow into evidence State's exhibits Q, R and S; (7) whether the trial court's finding of guilty but mentally ill was contrary to law.

Facts tending to support the determination of guilty and material to some suppression issues include the following.

On July 1, 1981, J.S., the alleged victim, was in the process of moving into an apartment in Muncie, Indiana. About 10:00 p.m. that evening she heard the doorbell and went to the door. A man at the door asked if Bobby Wallen lived in the apartment. She answered no and the man left. She then finished unpacking and closed all the windows in the apartment. Afterwards, she took a bath and left the bathroom window open a few inches. She then laid on the couch to read but fell asleep.

Meanwhile, a man climbed up a tree and entered the apartment through the bathroom window. The man awakened the victim by placing a pillow over her face and a knife at her throat, and forced her to engage in sexual intercourse in the living room and then forced her to engage in sexual intercourse in the bedroom. He then tied her to the bed using her own belt and gagged her. Then, he went through her purse and drawers, threatened to kill her if she told anyone, and then left.

During the incident, he wore one of the victim's stockings on one hand and a pair of the victim's panty hose on the other hand. He also wore a bandanna to cover his face, but he took it off half way through the incident, and the victim saw his face.

The victim eventually freed herself and subsequently called the police and went to the hospital for tests.

On July 7, 1981, the victim was interviewed by detectives, and she selected appellant's photograph from a photographic array as the one most closely resembling her assailant. Later the same day, she was hypnotized by the police and provided a composite sketch of her assailant. On July 9, 1981, appellant was advised of his rights, and he signed a rights waiver form. In the first statement, appellant confessed to the crime in the presence of Detectives Anthony Mench and Mike Kelso. Then, appellant requested an attorney. After realizing that the tape recorder was not working properly during the first statement, the Detectives took a second statement from the appellant in which he told them that he was in the apartment; however, he denied raping her. On July 13, 1981, the victim picked the appellant out of a physical line-up at the Delaware County Jail. The victim also identified the appellant at trial.

I

Appellant contends that the admission, over his objection, of the victim's in-court identification testimony was error because it was allegedly the result of a hypnotic session the victim had with the police on July 8, 1981.

Appellant moved to suppress any identification of him to the police by the victim. A hearing was held on the matter, and the trial court ruled that the evidence of identification gained as a result of the hypnotic session was inadmissible; however, the trial court ruled that there was a sufficient independent basis for the in-court identification testimony of the victim.

In Love v. State, (1977) 266 Ind. 577, 580, 581, 365 N.E.2d 771, 773, this Court noted the appropriate method of analysis in this type of case:

"A witness who has been subjected to an unnecessarily suggestive confrontation with the accused may nonetheless identify the accused at trial as the perpetrator of the offense if the pre-trial confrontation has not created a 'very substantial likelihood of irreparable misidentification,' Norris v. State, (1976) 265 Ind. 508, 356 N.E.2d 204, or in other words, if the witness has a basis for his in-court identification independent of the suggestive procedure. Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d 525. The factors considered in determining the existence of an independent basis have been set out in several cases, and may be divided into two sets: those dealing with the witness' opportunity to observe the offender, and those relating to the reliability of his recollection of his original observation of the offender. Specific factors in the first group; were enumerated in Parker v. State, (1976) 265 Ind. 595, 599, 358 N.E.2d 110, 112:

The facts of paramount importance to this question relate to the opportunity of the witness to view the offender at the time of the offense; the duration for which the witness can observe the perpetrator; the distance between them; the lighting conditions; and circumstances affecting the amount of attention the witness can devote to observing the guilty party.

See also Dillard v. State, (1971) 257 Ind. 282, 298, 274 N.E.2d 387, 389.

Factors in the second group were described in Swope v. State, (1975) 263 Ind. 148, 157, 325 N.E.2d 193, 197, quoting United States v. Wade, (1967) 388 U.S. 218, 214, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1165:

The prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-line-up description and the defendant's actual description, any identification 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. It is also relevant to consider those facts which despite the absence of counsel, are disclosed concerning the conduct of the lineup.

The State bears the burden in the trial court of producing 'clear and convincing evidence' of an independent basis, Swope v. State, supra, at 325 N.E.2d 197, but in reviewing the lower court's finding we do not reweigh the evidence, but look to the evidence most favorable to the trial court and any uncontradicted evidence favorable to the appellant. We accept the trial court's finding if it is supported by sufficient evidence. Whitt v. State, (1977) 266 Ind. 211, 361 N.E.2d 913."

The evidence bearing on the first group of factors reveals that the victim saw the appellant at the front door under good lighting. The victim stated that during the crime she was only three to four inches from the appellant and that the lighting in her apartment was sufficient for her to see the appellant's face. The victim was able to observe the appellant for the duration of the two acts of forcible sexual intercourse.

The evidence bearing on the second group of factors reveals that, within a day or two after the crime, the victim provided the police with a description of her assailant. She described the man as "... a young, slim, black male, about five-seven to five-eight, one hundred and forty pounds." Subsequently, the victim was shown a photographic array of eight pictures, and she selected the appellant's photograph and one other photograph. At trial, she testified that, when she selected appellant's photograph, she told the police that it looked just like her assailant. Also, she testified that she selected the other photograph only because his long face was similar to the type of face her assailant had. After the photographic array, the victim was hypnotized by the police in order to quiet her emotional problems concerning the rape and in order to help in the police investigation of the case. During the hypnotic session, a composite sketch was made, and she was shown a second array of photographs. Following the hypnotic session, the victim observed a physical line-up, and she selected the appellant. Furthermore, while hypnosis was employed in order to facilitate the subsequent identification procedure, she never mis-identified another person, and did, in fact, identify appellant from a photo-array before the hypnotic trance and physical line-up were administered to her. Therefore, we believe there was sufficient evidence to support the trial court's finding that the victim's in-court identification of appellant had a basis independent from the suggestive pretrial procedures. Morgan v. State, (1980) 272 Ind. 504, 400 N.E.2d 111.

II

Appellant argues that the police lacked probable cause to arrest him, and therefore, his statement to police is inadmissible because it was the result of an illegal detention.

All that is necessary to establish probable cause are facts and circumstances "... which would warrant a man of reasonable caution to believe the defendant has committed the criminal act in question." Funk v. State, (1981) Ind., 427 N.E.2d 1081, 1085.

The victim's selection of appellant's photograph at the first photograph array and the victim's identification of the appellant during hypnosis provided a sufficient basis for establishing probable cause. Although information obtained during hypnosis is not always admissible at trial, such information may suffice to establish probable cause for an arrest or a detention for questioning. Experts generally agree that hypnosis...