Holland v. State, 979S251
| Decision Date | 13 November 1980 |
| Docket Number | No. 979S251,979S251 |
| Citation | 412 N.E.2d 77,274 Ind. 382 |
| Parties | Michael HOLLAND, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Sharon Carroll Clark, Gregg & Clark, Anderson, for appellant.
Theodore L. Sendak, Atty. Gen., John K. Silk, Deputy Atty. Gen. Indianapolis, for appellee.
The defendant (appellant) was convicted in a jury trial of Attempted Murder, a Class A Felony, Ind.Code §§ 35-41-5-1, 35-42-1-1 (Burns 1979), and Kidnapping, also a Class A Felony, Ind.Code § 35-42-3-2 (Burns 1979). Upon each verdict, the defendant was sentenced to a term of fifty (50) years imprisonment, the terms to run concurrently. This direct appeal presents the following issues:
(1) Whether the trial court erred in denying the defendant's motion for leave to reserve making opening statement, until the close of the State's case.
(2) Whether the victim's in-court identification of the defendant was improper.
(3) Whether the trial court erred in admitting certain exhibits into evidence.
(4) Whether the trial court erred in denying the defendant's motion for a mistrial, predicated upon a witness' volunteered statement of his reason for telephoning the police.
(5) Whether the verdicts were supported by sufficient evidence.
(6) Whether the trial court erred in placing the verdict forms in separate envelopes.
At the inception of the trial, the defendant moved for leave to reserve making his opening statement until after the State had presented its case. The trial court denied the motion, and error is assigned to that ruling.
In Buise v. State, (1972) 258 Ind. 321, 281 N.E.2d 93, we construed Ind.Code § 35-1-35-1 (Burns 1979) as not allowing a defendant a choice of when to present his opening statement; a defendant's opening statement must follow the State's, or it is waived. The defendant herein asserts that the rule compels the divulgence of defenses prior to the presentation of evidence. That is simply not the case for "(t)he degree to which (the defendant) discloses his defenses and trial strategy in that statement is left to his own choosing." Candler v. State, (1977) 266 Ind. 440, 448-49, 363 N.E.2d 1233, 1238. In Candler, we rejected an argument identical to the one advanced today. We are not persuaded by Defendant's argument that that decision should be overruled.
The defendant next contends that the in-court identification of him by the victim of the instant crimes was improper. The victim had been unable to identify the defendant from a pre-trial photographic display, but at trial, he clearly and unequivocally identified him as his assailant. The defendant submits that, under the circumstances, the in-court identification was unduly suggestive and, therefore, violative of due process. We disagree.
We have in the past recognized a certain suggestiveness inherent in all in-court identifications. See Emerson v. State, (1970) 253 Ind. 515, 255 N.E.2d 532. See also Emerson v. State, (1974) 261 Ind. 436, 305 N.E.2d 435; Stinson v. State, (1974) 262 Ind. 189, 313 N.E.2d 699. Yet, in light of the defendant's constitutional right to attend his own trial and confront the witnesses against him, that suggestiveness can not be avoided. Suggestiveness is proscribed, however, only when under the circumstances, it can reasonably be avoided. Here, no extraordinary effort was made to single out the defendant at trial, and the victim professed no doubt as to the identity of his assailant. That he had been unable to identify the defendant from the photographic display and, yet, was able to identify him at trial were matters of weight and credibility for the jury to consider.
The defendant's citation of Gaddis v. State, (1969) 253 Ind. 73, 251 N.E.2d 658 is not on point. In that case the suggestiveness occurred in a pre-trial confrontation and was highly suspect because of improper pressure applied by the State to induce the identification, both at the pre-trial confrontation and at trial.
The defendant contends that the trial court erred in admitting three (3) items into evidence: a photograph, a gun and the bullets taken from that gun. With reference to the photograph, the defendant asserted at trial that it was irrelevant because it depicted the scene of the attempted murder as that scene appeared some two (2) weeks after the commission of the crime, rather than at the moment of the occurrence. A further basis for the objection was that the photograph had been taken during the daylight hours, whereas the crime occurred at night. We hold that there was no error in admitting the photograph into evidence.
The photograph was offered and admitted for a limited purpose: to allow the witnesses and the jury to orient themselves to the physical characteristics of the scene of the crime. It was neither offered, nor admitted as a representation of the scene as it existed at the time the crime occurred. As such, the photograph was relevant and therefore, admissible. Furthermore, the defendant can demonstrate no prejudice flowing from the admission of the photograph, in light of the admission of other photographs depicting the scene of the crime as it existed at night.
With reference to the gun and the bullets, the defendant again asserts that the items were irrelevant, because they were insufficiently connected to him and because the State had not established that the gun was the one fired at the victim. The trial court properly admitted these items into evidence.
An item is relevant if it has a logical tendency to prove a material fact. Minton v. State, (1978) Ind., 378 N.E.2d 639. Here, the gun had been found in the barn...
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