Johnson v. State

Decision Date09 November 1983
Docket NumberNo. 582S185,582S185
Citation455 N.E.2d 897
PartiesEarl Lynn JOHNSON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Kenneth T. Roberts, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Earl Lynn Johnson was charged with kidnapping, a class A felony, Ind.Code Sec. 35-42-3-2 (Burns 1979 Repl.), rape, a class A felony, Ind.Code Sec. 35-42-4-1 (Burns 1979 Repl.), criminal deviate conduct, a class A felony, Ind.Code Sec. 35-42-4-2 (Burns 1979 Repl.) and robbery, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.). He was found guilty as charged of these offenses by a jury. The trial judge imposed enhanced sentences of forty years for the kidnapping, forty years for the rape, forty years for the criminal deviate conduct and fifteen years for the robbery. These sentences were ordered served consecutively with defendant receiving a total sentence of one hundred and thirty-five years imprisonment. He appeals, raising several issues:

(1) Whether there was sufficient evidence to support the convictions.

(2) Whether certain exhibits entered into evidence by the State should have been excluded as cumulative and prejudicial or as the fruits of an unlawful arrest.

(3) Whether the trial court should have excluded the victim's in-court identification of the defendant as the product of an unnecessarily suggestive pre-trial confrontation.

(4) Whether the trial court erred by refusing defendant's tendered final instructions on lesser included offenses.

(5) Whether the trial court erred by giving an instruction tendered by the State on the subject of resistance.

(6) Whether the sentence imposed was erroneous.

The victim, I.V., testified that after leaving the Waffle House Restaurant in Indianapolis where she worked as a waitress and part-time manager at 1:00 a.m. on July 26, 1981, she stopped at a gas station. Defendant approached her as she stood outside her car there in a well-lit area and asked her for a light and a ride several times. When she refused, he pointed a small silver gun at her and told her to get in her car. She complied and he got in the back seat.

At defendant's direction, and with the gun pointed at her, I.V. drove to a nearby alley. He demanded her money and she gave him "three (3) or four (4) five's (5's) and a one (1) or two." After placing the money in his front pants' pocket he ordered her to remove part of her clothing and to get in the back seat with him. Defendant then raped her and forced her to perform fellatio on him. He asked I.V. for cigarettes, and she gave him a package of "Kool Milds." He also asked for her name and phone number. She wrote down the fictitious name "Linda" and the phone number of the Waffle House on a slip of paper torn from an envelope in the car. Defendant took both the cigarettes and the piece of a paper and ordered I.V. to drive several blocks where he got out of the car.

I.V. immediately drove the short distance back to the Waffle House, returning there at approximately 1:30 a.m., and informed Wilbur Tyler, an off-duty sheriff's deputy who was a customer there, about the assault. After listening to her description of her assailant as about five feet, six inches tall with a small build, having a medium afro, and wearing a white tank top shirt, cut-off blue jeans and white tennis shoes, Deputy Tyler telephoned the police dispatcher and left immediately in his unmarked car to attempt to locate the assailant.

Deputy Tyler drove to the intersection of 49th and Norwaldo where the victim had reported that the defendant had gotten out of the car. There he spotted a man exactly matching the description provided by I.V. He identified himself as a police officer, displayed his badge and asked defendant if he would accompany him. After responding "sure", defendant got into the car, whereupon Tyler advised him of his rights. Tyler drove the defendant to the Waffle House, returning less than ten minutes after he left, at approximately 1:40 a.m.

Upon seeing the defendant emerge from the car, I.V. exclaimed, "That's him." He was brought to the window of the restaurant where I.V. observed him from inside at a distance of three to five feet. She reaffirmed her identification and defendant was then told by police officer Douglas Scott that he was being placed under arrest. A search of his front pants' pocket yielded sixteen dollars (three five dollar bills and a one dollar bill), a package of "Kool Milds" and a slip of paper with the name "Linda" and a phone number on it. I.V. identified this at trial as the same piece of paper she had given her attacker.

The defendant proffered an alibi defense at trial, testifying that he had spent the evening with a friend, visiting and drinking, and had not committed any of the offenses charged. That friend, Robert Woods, also testified that defendant had spent the day with him and that defendant was arrested at approximately 1:30 a.m. as he left Woods' home at 46th and Norwaldo.

I.

Defendant first argues that there was insufficient evidence that he committed these crimes to support the jury's verdict. In reviewing such a claim of evidentiary insufficiency, this Court neither weighs the evidence nor resolves questions of credibility, but only looks to the evidence and reasonable inferences therefrom which support the verdict. Smith v. State, (1970) 254 Ind. 401, 260 N.E.2d 558. If from that viewpoint there was evidence of probative value from which a reasonable trier of fact could conclude that a defendant was guilty beyond a reasonable doubt, we will affirm the conviction. Taylor v. State, (1973) 260 Ind. 64, 291 N.E.2d 890; Glover v. State, (1970) 253 Ind. 536, 255 N.E.2d 657.

The victim's account of the crime together with the evidence that defendant exactly matched the victim's description of him, was found in the vicinity of the crime moments after it occurred and was reported, and had on his person the amount of money taken from the victim, a package of the same kind of cigarettes and the note that the victim had given her assailant, provided sufficient evidence of probative value from which a reasonable jury could have concluded that defendant was guilty beyond a reasonable doubt.

II.

Defendant next contends that the trial court erred in overruling his objections to certain evidence offered by the State. After Officer Scott informed defendant that he was under arrest and he was handcuffed, photographs of him were taken by another officer at the scene. These two photographs were offered at trial by the State as evidence. Defendant argues that these pictures were cumulative of testimony concerning his appearance at the time of his apprehension and were prejudicial since they portrayed defendant "in a state of obvious restraint and arrest." While competent evidence may be excluded where its probative value is outweighed by its tendency to prejudice, this balancing is to be done in the discretion of the trial judge. Powers v. State, (1978) 177 Ind.App. 560, 380 N.E.2d 598. These photographs were graphic, probative evidence that defendant matched perfectly the physical description provided by the victim. The trial judge did not err by admitting this evidence.

Defendant also claims that these pictures, as well as the sixteen dollars, package of "Kool" cigarettes and slip of paper with the name and phone number written on it were improperly admitted because they were the products of an unlawful arrest. He claims that he was arrested at the time he got into the car with Deputy Tyler although no formal words of arrest were recited at that point. Contending that this restraint lacked probable cause, he argues that the arrest was unlawful and any evidence gathered pursuant to it must be excluded. The State contends that there was sufficient probable cause to effect the arrest but assumes that the arrest occurred after the defendant was positively identified by I.V. at the Waffle House.

We may assume, in agreement with the defendant, that he was placed under arrest at the time he was stopped by Deputy Tyler and got into Tyler's car. However, we find that there was probable cause for this arrest, and thus evidence gained thereafter was properly admitted. The probable cause necessary for an arrest has been defined as "those facts and circumstances known to the arresting officer that would warrant a reasonable man to believe that a crime had been committed by the suspect." Pawloski v. State, (1978) 269 Ind. 350, 352-53, 380 N.E.2d 1230, 1232. See also, Akins v. State, (1981) Ind., 429 N.E.2d 232.

Deputy Tyler was warranted in believing that this defendant had committed a crime since he met the detailed physical description provided by the victim and was present on the street at 1:30 a.m. in the vicinity of the crime, several minutes after the victim reported the incident. Therefore, the arrest was lawful because it was based on probable cause and the evidence gained in a search incident to the lawful arrest was properly admitted.

III.

The defendant alleges that the trial court erred by allowing the in-court identification of him by the victim because it was the result of an unnecessarily suggestive pre-trial confrontation. Claiming that the victim viewed him on a rainy night while she was upset and when he was the only person in custody, had just stepped out of a police car and was being watched by two police officers, the defendant argues that the show-up procedure employed here was impermissibly suggestive and tainted the subsequent in-court identification.

An identification procedure which is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification violates a defendant's right to due process. Simmons v. United States, (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Sawyer v. State, (1973) 260 Ind. 597, 298 N.E.2d 440. However, we have held that a...

To continue reading

Request your trial
10 cases
  • Fointno v. State
    • United States
    • Indiana Supreme Court
    • 6 Enero 1986
    ...sentencing scheme should punish more severely those who brutalize the victims of their crimes. Cf. Johnson v. State (1983), Ind., 455 N.E.2d 897, 902 (opinion of DeBruler, J.); accord, Bolhouse v. State (1984), Alaska App., 687 P.2d 1166, 1173-79 (reviewing court modified sentences for sexu......
  • Hopping v. State
    • United States
    • Indiana Supreme Court
    • 1 Agosto 1994
    ...2 Even if this issue had not been waived, the sentence must be manifestly unreasonable if this Court is to modify it. Johnson v. State (1983), Ind., 455 N.E.2d 897, 902. In order to find a sentence manifestly unreasonable we must determine that no reasonable person could find the sentence a......
  • Little v. State
    • United States
    • Indiana Supreme Court
    • 25 Marzo 1985
    ...the conclusion of the trier of fact, the judgment will not be overturned. Borom v. State, (1984) Ind., 470 N.E.2d 712; Johnson v. State, (1983) Ind., 455 N.E.2d 897; Duffy v. State, (1981) 275 Ind. 191, 415 N.E.2d Citing Neil v. Biggers, (1972) 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, de......
  • Johnson v. Hanks
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 16 Julio 1996
    ...credit of 169 days for time spent in confinement prior to sentencing. Johnson's convictions were affirmed on appeal in Johnson v. State, 455 N.E.2d 897 (Ind.1983). The evidence at trial, as summarized by the Indiana Supreme Court, showed the The victim, I.V., testified that after leaving th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT