Griffin v. State, 2--475A97
| Citation | 357 N.E.2d 917,171 Ind.App. 543 |
| Decision Date | 21 December 1976 |
| Docket Number | No. 2--475A97,2--475A97 |
| Parties | , 21 UCC Rep.Serv. 151 John GRIFFIN, alias, Robert L. Ledbetter, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Court of Appeals of Indiana |
Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.
This case was transferred from the Second District to this office in order to lessen the disparity in caseloads among the Districts.
[171 Ind.App. 545] Defendant-appellant John Griffin, a/k/a Robert L. Ledbetter, appeals from his conviction in a bench trial of theft under $100. 1
We affirm.
The evidence most favorable to the appellee State of Indiana reveals that during the morning of March 18, 1974, Ledbetter and two other men drove to the rural Grant County home of Willis Haines, 83, and his sister, Geneva Haines, 71. At first Ledbetter and one of the others remained in their car while one man talked with Willis and Geneva inside their home.
Willis was told that he had paid $49 too much in income taxes. The man gave Willis a $100-bill and had Willis sign a blank check on the Marion National Bank.
Ledbetter and the other man then came into the house where Willis and Geneva were present. The man who had dealt with Willis gave the blank check to Ledbetter, who went outside, returned to get the car keys, and drove off.
Later, the Haines' telephone rang and was answered by one of the two men who had remained in the house. The two men then departed, walking toward Marion.
Meanwhile, Ledbetter had presented to a Marion National Bank teller a check on that bank signed by Willis but completed by another so that it was payable to the order of John Griffin in the amount of $2,150. The cashier directed Ledbetter to a bank officer. Ledbetter produced as identification a duplicate Nebraska driver's license bearing the name of John Griffin; he also gave Willis' phone number to the bank officer who called to get Willis' permission before cashing the check.
But due to the bank officer's prior conversations with Willis he knew that the person who gave him permission by phone [171 Ind.App. 546] was not in fact Willis. He left Ledbetter and told another bank employee, who had known Geneva for many years, to call the Haines residence and speak with Geneva. The bank employee asked Geneva if Willis had drawn a check for $2,150; Geneva replied that the check was supposed to be for only $51. The bank employee suggested that Geneva should go to the Marion Police Department.
Bank personnel then contacted the Marion Police Department. Detective Quentin Pettiford responded, identified himself to Ledbetter, and asked him some questions at the bank.
Ledbetter said the check was his. When confronted with the proper amount of the check he asked to see his attorney. Pettiford arrested him and had him taken to the detectives' office.
1. Whether the trial court erred in admitting Geneva's in-court identification of Ledbetter.
2. Whether the blank check signed by Willis was a 'written instrument' within the statutory definition of theft. 2
3. Whether the Offenses Against Property Act 3 was unconstitutionally vague.
4. Whether there was sufficient evidence to support Ledbetter's conviction.
A statement of the facts relevent to the pre-trial identification procedures in the case at bar is necessary to illustrate our discussion of the first issue. Following the bank employee's suggestion, Geneva went immediately to the headquarters of the Marion Police Department where she was directed to the detectives' office; the evidence as to what then transpired is in conflict.
Pettiford testified that Ledbetter was sitting in the office while being questioned. Geneva, who Pettiford did not then know, entered the room and, without request, pointed out Ledbetter as the man who had been in her home. Pettiford then had Ledbetter stand beside an assistant police chief who was markedly taller than Ledbetter. Geneva picked out Ledbetter, whose attorney was not present.
Geneva's testimony was that after she had walked into the office Ledbetter and the taller man were brought into the room--at which point she picked out Ledbetter.
On the day before trial Geneva attended a meeting at the prosecutor's office where she was shown two pictures--both depicting Ledbetter, who she identified.
Ledbetter raises two challenges to Geneva's in-court identification of him:
(1) denial of his right to counsel in the confrontation in the detectives' office and
(2) unduly suggestive pre-trial identification procedures.
His first challenge is built upon the chronological sequence of the decisions which established and defined a defendant's right to counsel at pre-trial confrontations with witnesses. In U.S. v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and in Gilbert v. State of California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the United State Supreme Court held that a post-indictment, pre-trial lineup was a critical stage of criminal prosecution at which a defendant had a right to counsel. Our Supreme Court in Martin v. State (1972), 258 Ind. 83, 85, 279 N.E.2d 189, held that 'a post-arrest lineup where the investigation has focused on the accused should be considered a critical stage of the prosecution.' Within four months after Martin was decided, the United States Supreme Court in Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, held a defendant did not have a right to counsel at a lineup conducted after his arrest but before prosecution was commenced; the court noted that 'a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.' 406 U.S. 688, 92 S.Ct. 1887. In Indiana all prosecutions of crimes are instituted by information or indictment. IC 1971, 35--3.1--1--1(b) (Burns Code Ed.).
After the confrontation in the instant case had occurred our Supreme Court in Winston v. State (1975), Ind., 323 N.E.2d 228, overruled Martin and followed Kirby.
Ledbetter maintains that the Martin holding must control the case at bar; he argues that to retroactively apply the rule in Winston would be to deprive him of a right which he possessed at the time the confrontation occurred.
This contention is fallacious inasmuch as Ledbetter had no right to counsel at the confrontation under the Martin approach. In Winston, supra, a crime victim viewed the defendant through a window of the detectives' office following the defendant's arrest. The victim identified the defendant, whose attorney was not present. Justice Prentice, concurring only in the result, stated, at 323 N.E.2d 232:
'I concur in the result reached by the majority. I would not however, retreat from our pronouncement in Martin v. State (1972), (258) Ind. (83), 279 N.E.2d 189, that a post-arrest lineup is a 'critical stage' requiring the presence of counsel under Article 1, Section 13 of the Constitution of Indiana. Recognizing Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 as disposing of this issue contrawise under the Sixth and Fourteenth Amendments of the Constitution of the United States, nevertheless, that determination is not dispositive of the same issue as viewed by this Court under our state constitution, inasmuch as our determination in no way violates the federal constitution but merely gives a more expansive right to counsel. The rule in Martin is clear and workable and need be no great burden to the state.
I, therefore, would affirm the decision of the trial court upon the right to counsel issue upon this basis.' (Our emphasis; citations omitted)
In any event, our Supreme Court in Dewey v. State (1976), Ind., 345 N.E.2d 842, 846, reviewed a pre-trial confrontation which occurred on June 19, 1974, and stated:
Ledbetter had no right to have counsel present at the meeting in which the prosecutor allowed Geneva to identify Ledbetter from photographs. U.S. v. Ash (1973), 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619.
We turn now to Ledbetter's second challenge to Geneva's in-court identification of him--i.e., that it was based on unnecessarily suggestive pre-trial identification procedure.
In Kirby, supra, at 406 U.S. 691, 92 S.Ct. 1883, the United States Supreme Court explained:
The court in Stovall, su...
To continue reading
Request your trial
-
Slusher v. State
... ... 1316, 12 L.Ed.2d 377; Sumpter v. State (1974), 261 Ind. 471, 306 N.E.2d 95; Grody v. State (1972), 257 Ind. 651, 278 N.E.2d 280; Griffin v. State (1976), 171 Ind.App. 543, 357 N.E.2d 917 (transfer denied). In addition, as the court pointed out in Wallman v. State (1981), Ind.App., 419 ... ...
-
Head v. State
... ... State, (1976) 265 Ind. 1, 349 N.E.2d 167 (one-man lineup conducted two weeks after robbery improper); Griffin v. State, (1976) 171 Ind.App. 543, 357 N.E.2d 917 (victim's presence not requested by police a factor in upholding legality of spontaneous ... ...
-
Stacks v. State
... ... Moreover, a line-up in which the accused stood beside a noticeably taller man may be overly suggestive. Griffin v. State (1976), Ind.App., 357 N.E.2d 917, 922. Finally, a marked difference in the color of an accused's hair or complexion as compared to other ... ...
-
Bray v. State
... ... Defendant asserts that by virtue of his status as the shortest subject, his position alongside a noticeably taller subject violated Griffin v. State, (1976) 171 Ind.App. 543, 357 N.E.2d 917 ... Griffin, however, involved a two-person lineup consisting of defendant Griffin ... ...