Lindsey v. State

• Decision Date: 23 May 1972
• Docket Number: No. 172A29,172A29
• Parties: Raymond LINDSEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 854

282 N.E.2d 854

Raymond LINDSEY, Appellant, v. STATE of Indiana, Appellee.

No. 172A29.

Court of Appeals of Indiana, Third District.

May 23, 1972.

Rehearing Denied June 20, 1972.

Patrick Brennan, Larry L. Ambler, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen. by Darrel K. Diamond, Deputy Atty. Gen., for appellee.

SHARP, Judge.

The Appellant was charged by way of affidavit with the offense of first degree burglary which allegedly occurred on the 3rd day of July, 1970, in St. Joseph County, Indiana. The affidavit was filed against him on the 23rd of July, 1970, and thereafter the Appellant entered a plea of not guilty by reason of insanity. The Appellant filed a motion to be examined as a possible criminal sexual psychopath on the 15th of March, 1971, and the court appointed two psychiatrists to examine the Appellant and report to the court. On July 11, 1971, the trial court overruled the Appellant's request for a hearing to adjudicate the Appellant as a criminal sexual psychopath. The Appellant also filed a motion to suppress certain identification evidence, which will be discussed in more detail later, which was overruled by the court. The trial of the case commenced on June 21, 1971, and at the end of the presentation of the State's case in chief the cause was continued until the next morning and the jury separated. The next morning Appellant filed a motion for mistrial because of a newspaper article that appeared in The South Bend Tribune, which motion was overruled by the trial court and is assigned as error here.

The jury returned a verdict of guilty. On July 7, 1971, Appellant filed his petition to adjudicate the defendant as a criminal sexual deviant, which petition was denied.

Thereafter, the court sentenced the Appellant to the Indiana State Reformatory for a period of not less than ten nor more than twenty years.

The Appellant presents and argues three essential issues in this case: (1) Whether the trial court erred in treating the criminal sexual psychopath statute, which had been repealed, as inapplicable to this case. (2) Whether the trial court erred in denying a motion to suppress evidence of identification. (3) Whether the trial court erred in denying a mistrial requested because of the newspaper article about the trial.

The criminal sexual deviancy act is Acts 1971, P.L. 452, I.C.1971, 35-1-3.1-1 et seq., which is found in Ind.Ann.Stat. § 9-4001 (Burns' 1971 Cum. Pocket Supplements). This act contained an emergency clause and was approved on April 8, 1971. It also contained a specific repeal of the criminal sexual psychopath act which was Acts 1949, ch. 124, §§ 1-4, and Acts 1959, ch. 356, § 1, I.C.1971, 35-11-3-1 through 35-11-3-4, as found in Ind.Ann.Stat. §§ 9-3401-3404 (Burns' 1956 Repl.). Under the criminal sexual psychopath act our Supreme Court has stated that the trial judge was given the broadest discretion in such cases which will be reversed only when the sole possible explanation of the conduct is an abuse of discretion. See State ex rel. Savery v. Marion Criminal Court, 234 Ind. 632, 130 N.E.2d 128 (1955), Wolfe v. State, 247 Ind. 540, 219 N.E.2d 807 (1966). In the Savery decision our Supreme Court specifically stated that the interposing of a plea of not guilty by reason of insanity is itself a ground for denying a petition for relief under the criminal sexual psychopath act.

The Criminal Sexual Deviancy Act contains the provision:

'A petition may be made that a person be examined as a possible criminal The crime of first degree burglary is not a sexual offense within the meaning of the criminal sexual deviancy act.

sexual deviant after he has been convicted of and prior to sentencing for a sexual offense not excluded by the scope of this chapter.'

Our position here is confirmed by the opinion of our Supreme Court in State ex rel. Stiles v. Hendricks Cir. Ct., Ind., 281 N.E.2d 89 (decided April 12, 1972).

The Appellant was not entitled to relief as a matter of law under either the criminal sexual psychopathic act or the criminal sexual deviancy act.

The offense in this case is alleged to have occurred at a residence in South Bend, Indiana, at approximately 4:30 o'clock A.M. when the occupant of the residence went to the living room of her home to turn off a lamp that had been left burning during the night. At that moment she discovered a man standing in the doorway of the kitchen. The man had apparently gained admission by slashing the screen on the rear door. The witness made a positive identification of the man as being the Appellant. At the time she first saw him in the kitchen doorway he was only three feet away from her and facing her. The light from the lamp was shining directly in his face. She then noticed that there was something wrong with his eyelid. The man demanded money from her and she tried to flee but he caught her in her bedroom. He forced her to hand over money in the amount of $20.00 and struck her several times and threatened her. Sometime later this witness was shown a photograph by the police and stated that a picture of the Appellant bore a strong resemblance to the man she saw in her house on the morning of July 3, 1970. On the 12th of July, 1970, the Appellant was led into a certain room with two other males in a Paw Paw, Michigan, jail for the purpose of lineup identification by this witness. The Appellant did not have the presence of counsel nor was he notified that he was participating in lineup. The witness made an an identification of the Appellant while viewing the Appellant through the window for about five minutes.

In the briefs and in oral argument the Attorney General has admitted that the lineup in this case was not made under the procedures required by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). However, the Attorney General argues that the identification in this case has an independent source apart from the illegal lineup. In Gilbert, the Supreme Court of the United States divided identification into two groups. The first group of witnesses testified on direct examination only that the defendant was the man that robbed them, without mention of any lineup. The lineup was brought out on cross-examination, as it was in this case. In Gilbert the second group testified on direct examination that they had viewed the lineup and there identified the defendant as the robber. The illegal lineup was thus used by the State as corroborative evidence of the in-court identification. The Supreme Court in Gilbert ruled that as to the second group, who had testified on direct examination of the lineup, evidence of an independent origin could not salvage the conviction. As to the group that, on direct examination, made only an in-court identification without referring to prior identification, the Supreme Court stated:

'The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. United States v. Wade, supra. We there held that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial In this case the evidence from an independent source includes the opportunity that he witness had at the time of the offense to examine the burglar's features. When she first saw him in her house that night, he was standing only about three feet away from her, facing her, with a light shining in his face. She was able to see that there was a scar or some other noticeable feature on his eyelid. She also noted the color of pants he was wearing and was able to describe, in detail, his hat. They were also in close proximity for sometime in the bedroom which was partially lighted. In Fluks v. State, Ind., 262 N.E.2d 651 (1970), Justice Givan, speaking for a majority of our Supreme Court, stated:

of the in-court identifications of the accused by witnesses who attended the lineup. However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the in-court identifications had an independent source, or that their introduction in evidence was in any event harmless error.' 388 U.S. at 272, 87 S.Ct. at 1956 (Emphasis added).

'Appellant also claims that the preliminary hearing in the City Court was for all intents and purposes an unlawful lineup.

The United States Supreme Court has held in the cases of United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, that evidence of identification obtained at a pre-trial lineup is not admissible, if the accused is not represented by counsel or if the lineup is unfair in that it tends to call attention to the accused in an undue manner. However, the 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.

The court in Gilbert, discussing Wade, stated:

'* * * a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical state of the criminal prosecution; that police...