Howard v. State
| Decision Date | 08 February 1984 |
| Docket Number | No. 1282S481,1282S481 |
| Citation | 459 N.E.2d 29 |
| Parties | Malcolm HOWARD, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Walter E. Bravard, Jr., Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, Malcolm Howard, was convicted by a jury of two counts of robbery, Class B felonies, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.), but was found not guilty of two counts of kidnapping. He was sentenced to the Indiana Department of Correction for concurrent terms of twelve years on each count. Defendant raises the following three issues in this direct appeal:
1. Whether there was sufficient evidence to sustain the verdict of the jury on the two robbery counts;
2. Whether the court erred by permitting the jury to view defendant dressed in orange coveralls he had worn from the jail; and
3. Whether the trial court stated sufficient reasons for giving defendant an enhanced sentence.
A brief summary of the facts from the record most favorable to the state shows that on December 22, 1981, at about 8:30 p.m., Virginia McDonald and her daughter, Leslie Whitted, walked to their car in a shopping center parking lot. Whitted got into the driver's side of the car and McDonald got into the passenger side. As they were getting into the car, a young black man forced his way into the back seat. Both women started to scream and hit at the man, but he pulled out a knife and held it at McDonald's back. The man ordered Whitted to drive around and flipped up the rearview mirror so she couldn't see him in the back seat. Whitted protested that she couldn't drive without the mirror and the man allowed her to put the mirror back down to its normal position.
As Whitted drove around, the man demanded that both women give him their purses and their jewelry. Eventually, the man told Whitted to stop the car and ordered both women to get out of the car without turning around. The man then drove off with the car, the purses, jewelry, groceries and other packages that were in the car. The women immediately notified the police and the stolen car was recovered about two weeks later in front of defendant's residence. A latent fingerprint on the steering column matched defendant's fingerprint. McDonald was not able to identify defendant at a lineup or from photographs; however, she explained that she has to wear eyeglasses to drive and that her eyes are developing cataracts. Whitted was able to identify defendant from a photographic array and at a lineup. One of defendant's friends testified that about two weeks after the incident, defendant told him he had stolen McDonald's car at the shopping center by jumping in the car with a knife.
Defendant first contends that there was not sufficient evidence of his identity as the robber to sustain the convictions. He argues that the night was dark and neither woman got a good look at him since he remained in the back seat until they got out of the car. It is axiomatic that as a court of review we will neither judge the credibility of witnesses nor reweigh the evidence. Rather, we will look only to that evidence most favorable to the state and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. Muse v. State, (1981) Ind., 419 N.E.2d 1302; Wofford v. State, (1979) 271 Ind. 518, 394 N.E.2d 100; Poindexter v. State, (1978) 268 Ind. 167, 374 N.E.2d 509.
In this case, one of the victims unequivocally identified defendant as the person who had jumped in the car and robbed her and her mother. She explained that she was able to see and observe the robber as he got into the car when the interior lights were on. She also stated that she had observed him in the rearview mirror of the car while she drove and that he had a cap pulled over his hair but not over his face. Both victims were shown a large number of photographs on the night of the crime and picked out a photograph of a person who was not defendant, but resembled him. At a later time, Whitted was shown a smaller photographic array and selected the same picture she had selected earlier, along with a photograph of defendant. On the evening prior to trial, a lineup was held and Whitted selected the defendant from that lineup as the person who had robbed her and her mother. She acknowledged that her identification of defendant in court was based upon a combination of her observations of him during the robbery and of the pictures she had seen.
The jury was fully informed about the discrepancies in the identification testimony and the opportunities the victims had to observe the robber. They were able to judge the demeanor of the witnesses. Whitted's identification of defendant as being the robber was corroborated to some extent by the testimony of defendant's friend and other circumstantial evidence. In light of the standard of review incumbent upon us, defendant's arguments that Whitted's identification was not credible, must fail. There was sufficient evidence of identification to sustain the verdict of the jury. Gatewood v. State, (1982) Ind., 430 N.E.2d 781; Munsey v. State, (1981) Ind., 421 N.E.2d 1115; McCawley v. State, (1980) Ind., 409 N.E.2d 594.
Defendant also contends that there was not sufficient evidence to show that two distinct robberies occurred. We have clearly decided this issue contrary to defendant's position. Where a robber takes property from two individuals and the property taken was owned by the person from whom it was taken and was in the owner's possession, two separate robberies have occurred even though they are part of the same transaction or series of events. Richardson v. State, (1981) Ind., 429 N.E.2d 229; Young v. State, (1980) Ind., 409 N.E.2d 579; Ferguson v. State, (1980) Ind., 405 N.E.2d 902. In this case, the record shows that defendant took purses and jewelry from each of the two women and that is sufficient to sustain the verdicts on two counts of robbery.
Defendant next contends that he was denied his right to a fair trial because he...
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