Hampton v. State

• Decision Date: 03 May 1990
• Docket Number: No. 45S00-8710-CR-959,45S00-8710-CR-959
• Citation: 553 N.E.2d 132
• Parties: James HAMPTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 132

553 N.E.2d 132

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

No. 45S00-8710-CR-959.

Supreme Court of Indiana.

May 3, 1990.

Marce Gonzalez, Jr., Appellate Public Defender, Crown Point, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was convicted by a jury of one count of Class A felony burglary and was sentenced on that count to forty years. He was also convicted of three counts of Class B felony burglary and was sentenced on those counts to one term of ten years, to run consecutively to the A felony sentence and to two terms of twenty years, both to run concurrently with the other sentences. Appellant therefore received an executed sentence of fifty years, and he brings this direct appeal. Appellant claims that the trial court erred by denying his motion to suppress evidence of a photo array shown to victims and subsequent identification testimony given pursuant to that array, arguing that the array was impermissibly suggestive. He also claims that the sentence imposed by the trial court was manifestly unreasonable.

The evidence adduced at trial most favorable to the verdict showed that in the early morning hours of July 2, 1986, two homes on Olcott Street in East Chicago were burglarized. Entry into both was made by cutting screens and climbing in ground floor windows. Martha Martinez testified that she was asleep in bed with her five-year-old daughter and that at about 5:30 a.m., she heard a noise at her bedroom window. She started to get up to close the partially open window and saw a young man going through her closet. She started screaming, then her daughter did, and the man told them to shut up or he would kill them.

He demanded money, and Martinez, who does not speak English well, answered him in Spanish. She tried to get up from the bed, but the man would not let her. Her daughter told her to tell him where the money was or that he would kill her. The man put a pillow over Martinez's face, and her daughter started screaming again and told him that her mother hid her money in a purse in the kitchen. The man then grabbed the girl by the wrists and started dragging her toward the kitchen. Martinez got up, and the man released the girl and caught Martinez's hands behind her back and started propelling her toward the kitchen with the five-year-old following behind, begging him not to hurt her mother or baby brother. He located the purse, then released Martinez and ran out the kitchen door. Martinez testified that she observed the intruder by the light of day coming into the house and that he was wearing blue pants, a T-shirt, and tennis shoes. She testified further that a small amount of money, some food stamps, and her personal identification were taken.

Dianne Horton, who lived about a block away from Martinez, testified that at approximately 5:40 a.m., she awakened to the sound of someone crawling across the wooden floor of her bedroom. As she began to stir, a man reached out and put his hand between her legs. Horton stated that light was streaming into the bedroom from a kitchen light and that she looked full into the man's face as he stood over her, then began screaming for her husband to wake up. The man began backing out of the bedroom, and the Hortons chased him through the house until he ran out the front door, jumped off the porch and disappeared. Horton described the intruder as an eighteen- to twenty-year-old man wearing jeans, a white and blue striped shirt, and white gym shoes. She testified further that a small amount of money had been taken from a purse and a wallet.

Four days later, during the early morning hours of July 6, 1986, a series of break-ins was committed within a seven-block radius. Carol Buggs reported that at 4:20 a.m., she heard someone running down her stairs. She ran to her bedroom door and saw, from the back, a young male wearing white tennis shoes run through the back door and vault a fence. Hilda Sosa testified that between 5:00 and 5:15 a.m., she saw that her window screen had been removed and that a young male in a bluish gray shirt had climbed halfway into her house. He abandoned his entry as she yelled at him to get out. Hortensia Calderon testified that at 5:20 a.m., she saw a young man wearing dark blue pants, a blue, short-sleeved dress shirt, white high top tennis shoes, and a blue denim baseball cap in her bedroom. When she called for her husband to get up, the man went out the window. She also testified that the window screen had been removed and that the intruder had stood on a lawn chair to gain access to the window. Sylvia Pulido testified that between 5:35 and 5:45 a.m., she was awakened by the sound of someone going through the drawers of the waterbed in which she and her husband, Jose, were sleeping. She said the man was wearing a short-sleeved, grayish or light bluish dress shirt and blue pants. The man saw her nudge Jose, then turned and walked out of the room. Jose testified that his wife said, "There's a black man in here." The Pulidos got up and followed the man and saw him go out the back door and jump the fence. About sixty dollars and some food stamps were taken, and Sylvia testified that stamps found on appellant at the time of his arrest were folded in the manner that she typically folded hers. Entry into the Pulido home was made by removing a kitchen window screen. All of these witnesses testified that they observed the intruder by the daylight coming into their homes.

Miriam Perez testified that at approximately 6:00 a.m., she was asleep in bed with her two sons, aged two and three. She felt someone touching her and opened her eyes. A young man wearing a light blue shirt and blue pants told her not to make any noise and asked where she kept her money. When she told him she didn't have any, he grabbed her arm and jerked her off the bed. She began to scream, which awakened her sons, who also started screaming. The man told her to shut the boys up or he would hurt them, and he started pulling her out of the bedroom. Both boys were crying and clinging to their mother's leg, and the man told her to make them stay in the bedroom. Perez testified, "[H]e pulled me towards the bathroom and made the comment that since I didn't have any money, I was going to have to take care of him," and she said that when they got into the bathroom, he made a motion as if to unzip his pants.

The boys were crying, and Perez was unable to quiet them and was begging to be let go. The man pulled her past the bathroom and toward the open back door. Thinking that her neighbors might hear her, Perez began to call for help, and the man struck her repeatedly in the face with his fist. He then pulled her away from the door and back into the children's bedroom. As he reached to close the door, Perez grabbed a small plastic Bambi lamp and hit him in the head with it. He fell back, got back up and struck her a couple of more times in the face, then released her and ran out the back door. Perez called the police, and an officer responded almost immediately. She gave a description of her assailant, and five to ten minutes later was asked to step outside to view a suspect. She stepped out onto the sidewalk and looked at a man standing next to a police car. She confirmed that the suspect was the man who had broken into her house and beaten her, and at trial she positively identified appellant as her attacker and as the suspect she viewed at the show-up.

Later that morning at the East Chicago Police Department, each of the July 6 victims, including Miriam Perez, was shown the same photo array of six pictures out of the presence of all the other victims. Each picked out appellant's picture and stated positively that he was the man they had seen in their homes. Horton and Martinez, the victims of the July 2 burglaries, were also summoned to the police station and shown the same array. Both identified the photo of appellant as being that of the man who had been in their homes. At trial, the victims again positively identified appellant as the person who broke into their homes.

Appellant was charged with one count of Class A felony burglary for the Perez break-in and with four counts of Class B felony burglary for the break-ins at the Horton, Martinez, Buggs, and Pulido residences. He was acquitted of the Buggs burglary, and convicted and sentenced on the others as noted above.

Appellant first argues that his conviction must be reversed because the photo array shown to the victims was constructed so as to be impermissibly suggestive. Each victim was shown color photographs of six young black men of thin build, all of similar complexion and with...