Lawson v. State, 1--873A140

• Decision Date: 28 January 1974
• Docket Number: No. 1--873A140,1--873A140
• Citation: 159 Ind.App. 216,306 N.E.2d 150
• Parties: Leroy LAWSON, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 150

306 N.E.2d 150

159 Ind.App. 216

Leroy LAWSON, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--873A140.

Court of Appeals of Indiana, First District.

Jan. 28, 1974.

Rehearing Denied March 8, 1974.

Robert Howard Brown, Terre Haute, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Glenn A. Grampp, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Judge.

Defendant-appellant (Lawson) was charged with the crime of robbery by an affidavit. The cause was submitted to a jury for trial, which jury returned its verdict of guilty as charged.

Lawson presents seven issues which he saved in his motion to correct errors, of which each will be identified and written on singularly or will be grouped with others and the grouping so indicated.

The defendant is charged with having, on January 12, 1972, grabbed the purse of Mrs. Odetta Pearman in the night time on a well lighted street at an alley in Terre Haute. At the time he grabbed the purse he was seen by Mrs. Pearman and in her efforts to keep from releasing the purse she was thrown to the pavement and bruised up and lost control of her purse, which was taken by Lawson, who fled on foot.

A Mr. and Mrs. Middleton were in a motor vehicle and saw part of the robbery and went to the aid of Mrs. Pearman, and after helping her to her feet, drove around in search of her attacker and observed a man walking in an unusual manner, which they determined to be the suspect, and whom they later identified as Lawson.

Some days later Mrs. Pearman was in an automobile with her son and observed Mr. Lawson with two other men outside a service station in Terre Haute; at that time she recognized him as her attacker and called the police.

Mrs. Pearman was called to the police station after Lawson was apprehended and given a book of approximately 100 'mug shots' which she went through and after which she picked out the photograph of Lawson, whom she identified as her attacker.

She was also permitted to see through a one-way mirror and observed and identified Lawson in the room behind the same, alone.

Middletons also went to the city hall in Terre Haute and were there after Mrs. Pearman had made her identification, and they too examined the 'mug shots.' Middletons were in the same room with Mrs. Pearman but were far enough from her that she did not know what pictures they were observing. The Middletons, after going through the 'mug book' of approximately 100 shots, each separately identified the picture of Lawson as the man they had seen walking peculiarly immediately after Mrs. Pearman had had her purse snatched.

Issues 1 and 2 presented for review will be grouped and treated as one under Rule AP. 8.3(A)(7). The first question presented is:

'Did the Court commit error in allowing the testimony of State's witness, Odetta Pearman, relative to the identification of the defendant, for the reason that the in-court identification was tainted by improper pre-trial identification procedures.'

The second question presented is:

'Did the Court commit error in overruling the defendant's motion to strike the entire testimony of the State's witnesses, Mr. and Mrs. Middleton, concerning their own in-court identification of the defendant.'

Lawson urges that 'the practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned' and cites Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; and further relies on Simmons v. State (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, wherein the United States Supreme Court said that convictions based on eyewitness identification at trial following a pre-trial identification will be set aside on that ground if the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

He urges error further in that it was unduly suggestive that the police department told Mrs. Pearman about the progress of the investigation and that they had a suspect before she made her identification of Lawson.

Lawson further contends that inasmuch as the court allowed the in-court identification, which he insists is contrary to the holding in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, that the trial court committed reversible error.

Lawson contends that issue number 2 was reversible error in that the court overruled his motion to strike the entire testimony of State's witnesses, Mr. and Mrs. Middleton, concerning their in-court identification of the defendant. Here again he relies on Simmons v. State, supra, and United States v. Wade, supra.

The evidence of Mrs. Pearman was that she got a good look at Lawson when he grabbed her purse on a well lighted street and she scuffled with him; she testified that thereafter she saw him at a service station with other men after which she called the police to report the same.

It cannot by the furthest stretch of imagination be said that she was prejudiced in the identification by the police handing her 'mug shots' for identification or in telling her they had a suspect, as the evidence is unquestioned that she identified him without suggestion from anybody and she called the police after she saw and recognized Lawson and therefore her in-court identification was proper.

In the case of Martin v. State (1972), Ind., 279 N.E.2d 189, 190, 191, 192, Justice Hunter wrote:

'. . . United States v. Wade, supra, holds that the government is required to establish by clear and convincing evidence that the in-court identifications of the defendant were based upon identifications other than at the lineup. Several factors were mentioned upon which to base this determination. They are as follows:

(1) Prior opportunity to observe the alleged criminal act;

(2) Existence of any discrepancy between any prelineup description and the defendant's actual description;

(3) Any identification of another person prior to the lineup;

(4) Identification of defendant by picture prior to lineup;

(5) Failure to identify the defendant on a prior occasion;

(6) Lapse of time between the alleged act and the lineup description;

(7) Those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup. See United States v. Wade, supra, 388 U.S. at 241, 87 S.Ct. 1926, 18 L.Ed.2d 1149.'

In the case at bar there was other evidence presented on the part of witness Pearman and witnesses Mr. and Mrs. Middleton to clearly identify the accused, Lawson.

Justice Hunter stated further in Martin v. State, supra:

'However, there is no need to remand the case if, assuming arguendo the denial of the motion to strike was error, there was other evidence present to clearly identify the accused.

'(T)he cases written by the Supreme Court of the United States on this subject do not require a reversal of the case, if it is clearly demonstrated that notwithstanding irregularities in pre-trial lineup there is positive in-court identification of the accused, which identification in no way depends upon observations made of the accused during the improper lineup.' Fulks v. State (1970), 255 Ind. 81, 262 N.E.2d 651, 653.'

Mr. and Mrs. Middleton had seen Lawson shortly after the purse was snatched and observed his behavior and recognized him. They also identified him from examining a 'mug shot' book at city hall and there is nothing in the record that was done in the furtherance of the investigation at city hall that would make their in-court identification erroneous.

It is only reasonable to determine from the facts we have hereinbefore related that there was a positive in-court identification of the accused, which identification in no way depends on observations made of the accused during the lineup which Lawson claims was improper.

The third issue presented for review is:

'Was there sufficient evidence to prove that there was a taking by fear to justify a conviction for robbery.'

Lawson contends that the verdict is not sustained by sufficient evidence to prove that the taking from Mrs. Pearman was by fear as alleged in the affidavit.

The statute under which this action was commenced reads, in part, as follows, to-wit:

'10--4101 Robbery. Physical injury inflicted in robbery or attempt--Penalty. Whoever takes from the person of another any article of value by violence or by putting in fear, is guilty of robbery, . . .'

Lawson contends that although there was evidence of taking by violence there was no showing that it was by fear and accordingly the case must be reversed and relies for such proposition on Crouch v....