Kilgore v. State, No. 3--475A68

• Docket Nº: No. 3--475A68
• Citation: 354 N.E.2d 254, 170 Ind.App. 569
• Case Date: September 09, 1976
• Court: Court of Appeals of Indiana

Page 254

354 N.E.2d 254 170 Ind.App. 569 Floyd KILGORE, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 3--475A68. Court of Appeals of Indiana, Third District. Sept. 9, 1976.

[170 Ind.App. 570]

Page 255

Anthony V. Luber, South Bend, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

A jury convicted Kilgore of committing a felony (robbery) while armed.

The evidence favorable to the state disclosed the following sequence of events.

In the early morning hours of July 28, 1972, after he had attended a union meeting, played some cards and had a number of beers at a bar, Mr. Stanley Rouch was flagged down by a black couple who were standing next to a 1966 or 1967 white Mercury which was parked on Chapin Street in the City of Elkhart. When Rouch stopped his car, the girl propositioned him. Rouch was then told by the man to drive down the alley, which he did. After the couple approached on foot and arrived at the car, the man pointed a gun at Rouch and held it from six inches to a foot away from his head. The man told Rouch to give him everything in his pockets. As the same time, he grabbed the keys from the ignition of the car. Rouch gave the man his wallet, which contained a ten dollar bill and three one dollar bills. After Rouch twice refused to take his pants and shoes off, the man struck him on the side of the head. The man then ordered Rouch out of the car and handed the gun to the girl, who held it on Rouch while the man searched Rouch's car. The man then took a pair of binoculars which he found in the glove compartment. Moments later, Rouch jerked free from the robber and ran down the alley. When he had gone approximately thirty yards, he heard a gunshot. After running out of the alley, Rouch noted the license number of the Mercury, which was still parked in the same place on Chapin Street.

These events transpired in approximately ten minutes. There was a street light at the beginning of the alley which shed light on the place of the robbery, and while the robber [170 Ind.App. 571] was searching through the car, the dome light was on in the victim's vehicle.

After escaping, Rouch went to a house about two blocks from the place of the robbery where a woman called the police for him. The police arrived about ten minutes later, and Rouch described the robber to them as follows: he was wearing a blue hat with a short brim and a blue windbreaker; he was approximately six feet tall, thirty years of age, and had a light moustache.

Approximately one half hour after the robbery as a police officer was transporting Rouch to the police station to make a report, Rouch again saw the white Mercury on Chapin Street. He identified it by its license number as the one used by the

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robber. The police stopped this car and removed three black male occupants. Rouch was called over. He positively identified Kilgore as the man who had robbed him. At this time, Kilgore was not wearing a hat or a windbreaker. Rouch's identification of him was based on Kilgore's voice and appearance. The other occupants of the car were approximately the same height as the defendant; all were of medium build; none were wearing windbreakers or hats. Only Kilgore wore a moustache. All of the occupants were wearing dark clothing. Rouch stated that there was no doubt or possibility of any error that the defendant on trial was the robber.

The police officer who answered the victim's call stated that the lighting in the alley from Chapin Street was sufficient to see faces distinctly. He also testified that at the time of the incident, Rouch did not appear intoxicated, and that the manner in which he walked and talked were the same as when Rouch was in court testifying.

Kilgore's first assignment of error is the failure of the court to suppress or strike the identification testimony provided by Rouch at the trial. This assignment must fail. While identification testimony which is based upon an overly suggestive out of court identification [170 Ind.App. 572] is to be excluded, confrontations made shortly after the commission of the crime are not per se improper even if limited to one suspect. Dillard v. State (1971),257 Ind. 282, 274 N.E.2d 387.

More significantly, an identification is permissible despite a suggestive pretrial confrontation where there is a factual basis for the identification independent of the pretrial confrontation. Tewell v. State (1976), Ind., 339 N.E.2d 792. Here the total circumstances testified to clearly establish an independent factual basis for Rouch's identification.

Since the identification evidence was proper and was adequate to sustain a conviction, we need not separately address Kilgore's assignment that the total evidence on the question of identification was insufficient to sustain the conviction.

During final argument, Kilgore's counsel proposed to read to the jury from Simmons v. U.S. (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, on the question of identification testimony. The state objected, and the court sustained the objection. Kilgore asserts this was error since Article I, Section 19 of the Indiana Constitution makes the jury the judge of the law, as well as the facts.

Under our constitution it is proper for counsel to argue the law as well...