Johnson v. State, 1180S430

• Citation: 432 N.E.2d 403
• Decision Date: 22 March 1982
• Docket Number: No. 1180S430,1180S430
• Parties: James Lester JOHNSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 403

432 N.E.2d 403

James Lester JOHNSON, Appellant, v. STATE of Indiana, Appellee.

No. 1180S430.

Supreme Court of Indiana.

March 22, 1982.

Jay R. Rodia, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant, James Lester Johnson, was convicted of Robbery, Ind.Code § 35-42-5-1 (Burns Repl. 1979) in the Henry Circuit Court on May 23, 1980. He was sentenced to a term of sixteen years in prison. Johnson's conviction is the subject of this appeal.

Three errors are asserted by defendant, concerning: 1) whether the trial court erred when it granted the state's motion ordering defendant to produce a list of defenses and defense witnesses; 2) whether the trial court erred in allowing in-court identifications of the defendant; and 3) whether the trial court erred in sentencing defendant to a sixteen year imprisonment for a conviction of robbery.

The crime in question occurred on March 21, 1980, when the Child's Liquor Store, located in New Castle, was robbed by Johnson about 10:00 p. m. Johnson ordered the clerks to turn over all monies and checks in the cash register. David Morris, an officer with the Cambridge City Police Department, pulled over a car defendant and three other people were riding in later that evening. A search revealed a large wad of money and a handgun.

I.

Prior to trial, defendant Johnson requested the names and addresses of the witnesses the State intended to call and their statements. The State, in turn, requested the names and addresses of the witnesses defendant intended to call and a statement of possible defenses. The trial court granted the defendant's discovery request and at a hearing held two days before the trial ordered the defendant to comply with the State's request. Johnson now alleges that it was error to compel him to give the State the required information. The record, however, does not disclose that the defendant complied with the discovery order. Johnson did not call any witnesses or present any evidence on his behalf. Defendant has not met his burden of showing prejudice in this error; he alleges that it is error to comply with the order, but does not show that he did so. There is no error on this issue. See Flewallen v. State, (1977) Ind., 368 N.E.2d 239, 242.

II.

Defendant's photograph was picked out of a photographic display by two witnesses to the robbery. Prior to trial, defendant filed a Motion to Suppress this identification. The trial court agreed with defendant that the display was impermissibly suggestive and ordered that evidence suppressed. During the trial, State's witnesses Jerry Hartgrove and Paul Beck were allowed to make an in-court identification of Johnson as the man who robbed the liquor store. Defendant alleges that the in-court identification was tainted by the photographic display and thereby prejudiced his right to a fair trial.

In-court identifications are admissible where the State can establish by clear and convincing evidence that the in-court identifications are based upon observations gained independently of any unduly suggestive pre-trial confrontations. United States v. Wade, (1967) 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149, 1165. Among the factors to be considered in making this determination are:

"... the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. United States v. Wade, supra, 388 U.S. at 241, 87 S.Ct. at 1940, 18 L.Ed.2d at 1165. In Dillard v. State, (1971) 257 Ind. 282, 289, 274 N.E.2d 387, 389, we set out additional tests, including: '... the length of time the witness was in the presence of the perpetrator, the distance of the witness from him, the lighting conditions at the time, capacity for observation by the witness, (and) opportunity to observe particular characteristics of the criminal....' "

Harris v. State, (1980) Ind., 403 N.E.2d 327, 329.

The State bears the burden in the trial court of producing "clear and convincing evidence" of an independent basis, Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193, but in reviewing the lower court's finding we do not reweigh the evidence, but look to the evidence most favorable to the appellant. We accept the trial court's finding if it is supported by sufficient evidence. Dooley v. State, (1981) Ind., 428 N.E.2d 1, 3; Morgan v. State, (1980) Ind., 400 N.E.2d 111; Whitt v. State, (1977) 266 Ind. 211, 361 N.E.2d 913.

Jerry Hartgrove and Paul Beck worked as clerks for Child's Liquor Store. On the night of the robbery, sometime between 7:00 and 8:00 p. m., both men noticed the defendant when he came into the store. The clerks testified that he was a black male, 5'7 or 5'8 tall, having a moustache and wearing a green suit. Johnson was also wearing a long black coat and hat. The reason Johnson was remembered so well by both men was because of a gun they noticed tucked inside his pants. Johnson bought a quart of beer and left.

Around 10:00 p. m., Johnson returned, still wearing the green suit but not the coat. Both Beck and Hartgrove remembered him from the earlier visit. Johnson took a bottle of wine and placed it on the counter but left it there while he looked around the store. When the other customers had left the store, Johnson asked for another bottle of wine. While Beck was sacking the wine and Hartgrove was ringing up the purchase, Johnson pulled out a gun and demanded the money from the cash register. Johnson stood three to four feet away from the clerks. After handing over the money, Hartgrove and Beck were ordered to...