Little v. State

• Decision Date: 25 March 1985
• Docket Number: No. 1282S489,1282S489
• Citation: 475 N.E.2d 677
• Parties: Floyd LITTLE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 677

475 N.E.2d 677

Floyd LITTLE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1282S489.

Supreme Court of Indiana.

March 25, 1985.

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Floyd Little, was convicted by a jury of two rapes, one a Class B felony, Ind.Code Sec. 35-42-4-1(a) (Burns 1984 Supp.), and the second rape, a Class A felony, Ind.Code Sec. 35-42-4-1(a) (Burns 1984 Supp.), robbery, a Class C felony, Ind.Code Sec. 35-42-5-1 (Burns 1984 Supp.), and attempted robbery, a Class C felony, Ind.Code Sec. 35-41-5-1 (Burns 1979 Repl.) and Ind.Code Sec. 35-42-5-1 (Burns 1984 Supp.). He was sentenced to the Indiana Department of Correction for a term of ten years for Class B rape, five years for robbery, thirty years for Class A rape, and five years for attempted robbery. The Class A rape and attempted robbery terms are to be served concurrently and the Class B rape and robbery terms are to be served concurrently. The sentences imposed upon the rape and robbery are to be served consecutively with the sentences imposed upon the second rape and attempted robbery convictions.

Defendant's direct appeal to this Court raises the following issues:

1. Whether there was sufficient evidence to support the verdicts; and

2. Whether the trial court abused its discretion by imposing consecutive sentences in the absence of any finding of aggravating circumstances.

A brief summary of the facts most favorable to the state reveals that on October 6, 1981, the first victim was watching television alone in her home at around 11:00 p.m. A black man knocked at her front door to inquire about a man named Tom. The victim testified that the porch light was on which enabled her to see the man well, and she identified defendant both prior to and during the trial as this man.

Defendant left and the victim continued to watch television for another one-half hour and then went to bed. The victim was awakened at approximately 12:15 a.m. by defendant who placed his hand over her mouth and nose and a pillow over her head. After a struggle with defendant, the victim was asked whether she was going to cooperate. Defendant then pushed her down onto the bed and covered her head with a blanket. Defendant asked whether she had any money and then took approximately $180 from her. Defendant then stated he had a knife and that he knew her husband kept more money at home. At this point the victim recognized his voice as that of a black man who had been at her door earlier that evening, and whom she subsequently identified as Floyd Little. Defendant raped the victim, told her not to look and then left. The entire criminal incident took approximately ten minutes from the time the victim was awakened by defendant.

On October 7, 1981, the day after the first victim was raped, she identified defendant's picture in a mug book at the police station. The police did not inform the victim as to the name of the man she chose. The following day, October 8, 1981, completely on her own initiative, she found a picture of defendant in her high school year book and identified him as the man who raped her. Beginning at the front of the yearbook, she looked at approximately thirty photographs of black men before she identified defendant. On October 27, 1981, the victim viewed and identified defendant--both by voice and in person--from a police station lineup composed of six black men. The victim testified that she was positive that the man whom she identified (Floyd Little) was the same man who was on her porch October 6, 1981, and who had raped her on October 7, 1981.

The record also shows that on October 24, 1981, the second victim was awakened shortly after midnight when she felt something over her mouth. Defendant warned her that he was armed and threatened to shoot or kill her if she screamed. When defendant requested money, this victim emptied the contents of her purse to show that she did not have any money. While defendant was holding onto the neck of the victim, she looked up and saw defendant's face and Afro hair style. After defendant raped the victim, he threw an afghan over her head. While he was attempting to steal her stereo, she watched defendant through the holes in the afghan.

On October 26, 1981, two days after the rape, this victim looked at approximately one hundred photographs of black men in a police mug book. She identified defendant as the man who raped her, but requested a lineup and voice identification. The next day, October 27, 1981, this victim viewed a police station lineup of six black men wherein each lineup participant asked the same innocuous question. The victim identified defendant both by voice and appearance. She testified that she was positive that the man in the courtroom, where she again identified defendant, was the man who raped her. She also testified that she had not been told the name of defendant when participating in pretrial identification procedures and only learned defendant's name later from a newspaper account.

To summarize, the first victim identified defendant on four different occasions: in the police mug book, in her high school yearbook, at the police station lineup, and in court. The second victim also identified defendant on three different occasions: in the police mug book, at the police station lineup, and in court. No suggestion or encouragement was provided by the police before, during, or after any of the pretrial identification procedures.

I.

Defendant first argues there was insufficient evidence to support the verdict. In considering the sufficiency of the evidence, it is well settled that as a court of review, we will neither reweigh the evidence nor judge the credibility of the witnesses. Rather, we will only look to that evidence most favorable to the state and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support 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 715.

Citing Neil v. Biggers, (1972) 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, defendant argues that the pretrial identification procedures were impermissibly suggestive, thereby tainting the in-court identifications made by both victims. He maintains that the victims did not have sufficient time to view their attacker and thus there was not an independent basis for their identification at trial. Defendant's insufficiency argument is predicated on three theories: suggestive pretrial identification procedures, the absence of counsel at the pretrial lineup and the absence of lice infestation on either rape victim. We will address each of these arguments individually and then consider the totality of the pretrial identification procedures.

Defendant's first insufficiency argument is predicated on suggestive pretrial identification procedures based upon pretrial photographic arrays and lineup identifications.

Defendant first contends that the photographic identification made by the first victim was impermissibly suggestive because she identified defendant in her high school yearbook wherein captions accompanied the student photos and thus she learned the name of defendant. In Haun v. State, (1983) Ind., 451 N.E.2d 1072, this Court held that a pretrial yearbook photographic identification was not so suggestive as to give rise to a substantial likelihood of misidentification when the victim had not heard defendant's name before selecting defendant's photograph as the man who raped her. Similarly, in this case, the victim did not learn the name of defendant until she chose his photo in the high school yearbook. The police did not tell the victim defendant's name when she previously identified defendant at the police station photographic identification.

Defendant next contends that the mug book photograph from which the second victim identified defendant was "much sharper and more distinct than the other photographs on the page." The practice of exhibiting a number of photographs to crime victims for the purpose of identifying the perpetrator is not an impermissible investigative method. The procedure becomes violative of due process when the display is accompanied by verbal communications or includes graphic characteristics which distinguish and emphasize a defendant's photograph in an unduly suggestive manner. Head v. State, (1982) Ind., 443 N.E.2d 44.

While defendant's picture in the mug book may appear more distinct than the other photographs on that page, this Court notes that the entire mug book is comprised of pictures whose size and photographic quality vary. We therefore conclude that the high school yearbook and the mug book photographic identifications were not the product of unduly suggestive procedures likely to result in misidentifications where the victims viewed between thirty to one hundred photographs of black men who were relatively similar in age, complexion and hairstyles and where neither victim was encouraged to select any individual nor informed that the photographic array included defendant.

Next, defendant maintains that the composition of the police station lineup was calculated to draw attention to him because he was the only person in the lineup with disheveled hair, a characteristic noted by the second victim regarding the man who raped her. Distinctiveness of hairstyle has been held to be not necessarily unconstitutionally suggestive. Fields v. State, (1975) 263 Ind. 550, 333 N.E.2d 742. In such cases, distinctiveness of hairstyle is only one of a number of factors to be considered regarding the identification. Aker v. State, (1980) Ind.App., 403 N.E.2d...