Hardin v. State, No. 372A124

Docket NºNo. 372A124
Citation153 Ind.App. 317, 32 Ind.Dec. 579, 287 N.E.2d 359
Case DateSeptember 22, 1972
CourtCourt of Appeals of Indiana

Page 359

287 N.E.2d 359
153 Ind.App. 317
David HARDIN, Appellant,
v.
STATE of Indiana, Appellee.
No. 372A124.
Court of Appeals of Indiana, Second District.
Sept. 22, 1972.
Rehearing Denied Oct. 17, 1972.

[153 Ind.App. 318] David F. McNamar, Steers, Klee, Sullivan & LeMay, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

SULLIVAN, Judge.

This is an appeal from a robbery conviction after trial without jury. The defendant was sentenced to the Indiana State Farm for a term of 360 days under the

Page 360

Minor's Statute, I.C. 35--8--3--1, Ind.Ann.Stat. § 9--1815 (Burns 1956). The only contested fact at trial was whether defendant was the robber. The only evidence that he was is his identification by the victim. Whether that identification constitutes substantial evidence of probative value is the question before us.

First, however, we speak to defendant's attempt to assert for the first time on appeal that he was denied constitutional rights by an on-the-street confrontation with the robbery victim while defendant was being detained by the police a few blocks from the robbery scene shortly after its commission. He contends that under United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, he was entitled to be represented by counsel present at the confrontation scene. Since this appeal was briefed, the United States Supreme Court, in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, has held that the Wade-Gilbert rule is inapplicable to confrontations which take place before the defendant has been formally charged with a crime. As to confrontation-identifications of the type here involved, the Indiana [153 Ind.App. 319] Supreme Court had already ruled Wade-Gilbert inapplicable. Dillard v. State (1971), Ind., 274 N.E.2d 387; Parker v. State (1970), Ind., 261 N.E.2d 562. In any event, with respect to appellant's assertion that his confrontation identification denied his right to due process, the question was never raised below and has been waived. Davis v. State (1972), Ind., 282 N.E.2d 805, 31 Ind.Dec. 21.

SUFFICIENCY OF EVIDENCE

This court may not weigh the evidence nor resolve questions of credibility. We are permitted only to view that evidence, and the reasonable inference to be drawn therefrom, which support the judgment. Hall v. State (1972), Ind., 284 N.E.2d 758, Asher v. State (1969), 253 Ind. 25, 244 N.E.2d 89. If that evidence and the permissible inferences which may be drawn meet the test of substantiality, the judgment must be affirmed. Johnson v. State (1972), Ind., 283 N.E.2d 532.

The victim John Bolinger was the State's only witness. His identification is all that connects defendant to the crime. Summarized, his testimony is as follows: On September 28, 1971, he ran an insurance debit in the area of 28th and Talbott Streets, Indianapolis. Shortly after 2:00 P.M. of that day, he drove his automobile eastward on 28th Street approaching Talbott. He stopped at the curb near the intersection with his car window down. Someone slipped up behind the car and grabbed him around the neck. The assailant said that he had a knife and not to move. He also told Bolinger that 'if I tried anything, he had a pistol and he'd blow me up.' Bolinger's further testimony was:

'He told me to give him my billfold, which I did, and also, I had a watch, well, a pocket watch and, also, another wrist watch laying in the car, and he also asked me to give him the one I had on my arm, which I did. Then he reached over and felt in my right front pocket, which I [153 Ind.App. 320] had my bills in, and which I had approximately Seventy Dollars, and said, 'Give me what you got in that pocket.' And, he said, 'Also, give me your car keys.' Then about that time, why, whatever he had on the back of my neck, he rubbed it hard across my neck, so evidently, I couldn't tell for sure what it was at that time. But, then he ran.'

The prosecuting witness related that shortly thereafter a police officer advised him that they had apprehended a suspect nearby and wished Bolinger to try and identify him. Bolinger rode with police to the intersection of 27th and Capitol (a distance of approximately five blocks) where Bolinger

Page 361

identified the defendant Hardin as the man who robbed him.

We are well aware of the admonition contained in Gaddis v. State (1969), 253 from Gaddis, supra, and other the court...

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25 practice notes
  • Ballard v. State, No. 1174S224
    • United States
    • Indiana Supreme Court of Indiana
    • 12 Noviembre 1974
    ...independent basis to support her unequivocal identification of Ballard in court. See, Hardin v. State, (1972) Ind., [262 Ind. 491] 287 N.E.2d 359; Bryant v. State, (1972) 257 Ind. 679, 278 N.E.2d 'ISSUE FOUR 'Did the trial court erroneoulsy allow Detective Hart to testify (1) to Opal's cond......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Marzo 1979
    ...Tyler v. State (1968), 250 Ind. 419, 236 N.E.2d 815; Mosby v. State (1975), Ind.App., 329 N.E.2d 600; Hardin v. State (1972), Ind.App., 287 N.E.2d 359; Johnson v. State (1972), Ind.App., 281 N.E.2d 922." * * "The Supreme Court's definition of fundamental error in Grier v. State, supra, as b......
  • Robinson v. State, No. 2-1072A80
    • United States
    • Indiana Court of Appeals of Indiana
    • 15 Abril 1974
    ...jury to determine whether it is satisfactory and trustworthy.' This court is committed to that view. Hardin v. State (1972), Ind.App., 287 N.E.2d 359, 32 Ind.Dec. 579 (Trans. den.). Therefore, we cannot sustain appellant's challenge to the sufficiency of the evidence on that But there is st......
  • Ballard v. State, No. 2--273A37
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Abril 1974
    ...there was sufficient independent basis to support her unequivocal identification of Ballard in court. See, Hardin v. State, (1972) Ind., 287 N.E.2d 359; Bryant v. State, (1972) 257 Ind. 679, 278 N.E.2d Page 823 ISSUE FOUR Did the trial court erroneously allow Detective Hart to testify (1) t......
  • Request a trial to view additional results
25 cases
  • Ballard v. State, No. 1174S224
    • United States
    • Indiana Supreme Court of Indiana
    • 12 Noviembre 1974
    ...independent basis to support her unequivocal identification of Ballard in court. See, Hardin v. State, (1972) Ind., [262 Ind. 491] 287 N.E.2d 359; Bryant v. State, (1972) 257 Ind. 679, 278 N.E.2d 'ISSUE FOUR 'Did the trial court erroneoulsy allow Detective Hart to testify (1) to Opal's cond......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • 5 Marzo 1979
    ...Tyler v. State (1968), 250 Ind. 419, 236 N.E.2d 815; Mosby v. State (1975), Ind.App., 329 N.E.2d 600; Hardin v. State (1972), Ind.App., 287 N.E.2d 359; Johnson v. State (1972), Ind.App., 281 N.E.2d 922." * * "The Supreme Court's definition of fundamental error in Grier v. State, supra, as b......
  • Robinson v. State, No. 2-1072A80
    • United States
    • Indiana Court of Appeals of Indiana
    • 15 Abril 1974
    ...jury to determine whether it is satisfactory and trustworthy.' This court is committed to that view. Hardin v. State (1972), Ind.App., 287 N.E.2d 359, 32 Ind.Dec. 579 (Trans. den.). Therefore, we cannot sustain appellant's challenge to the sufficiency of the evidence on that But there is st......
  • Ballard v. State, No. 2--273A37
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 Abril 1974
    ...there was sufficient independent basis to support her unequivocal identification of Ballard in court. See, Hardin v. State, (1972) Ind., 287 N.E.2d 359; Bryant v. State, (1972) 257 Ind. 679, 278 N.E.2d Page 823 ISSUE FOUR Did the trial court erroneously allow Detective Hart to testify (1) t......
  • Request a trial to view additional results

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