Lyons v. State

• Decision Date: 20 April 1987
• Docket Number: No. 285S55,285S55
• Citation: 506 N.E.2d 813
• Parties: Hugh Ray LYONS, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 813

506 N.E.2d 813

Hugh Ray LYONS, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 285S55.

Supreme Court of Indiana.

April 20, 1987.

Richard D. Gilroy, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Marguerite M. Sweeney, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Hugh Ray Lyons, Jr., was convicted by jury of robbery, a class C felony, in the Marion Superior Court, Division Six, and was found to be an habitual offender. He was sentenced on September 21, 1984, to 35 years imprisonment. He now directly appeals, raising the following issues:

1. the victim's identification testimony;

2. allowing testimony regarding Appellant's out of court statement;

3. admission of State's Exhibits 10, 14, and 18 and expert testimony regarding those exhibits; and

4. sufficiency of the evidence.

The facts most favorable to the State are as follows. On February 10, 1984, at approximately 4:50 a.m., William Knelanger, the victim, was attacked while walking in downtown Indianapolis. Appellant hit the victim in the side and threw him to the ground. Appellant fell on top of the victim and demanded his money. Appellant took the victim's wallet from his hip pocket and then both stood up. Appellant then left.

The victim walked to the Greyhound bus station where he saw Appellant enter a white taxi cab. He reported the robbery to a bus station security officer and told the officer that Appellant left in a taxi. The officer notified the police.

The taxi took Appellant to a restaurant at 16th and Illinois streets. Appellant went into the restaurant, then returned and paid the taxi driver. The police arrived shortly thereafter. The taxi driver told the police that Appellant was walking toward Meridian Street.

Police stopped Appellant one block away. Shortly thereafter, the victim arrived in a police car. He identified Appellant while seated in a police car approximately 30 feet from where Appellant stood on the street. A police officer then placed Appellant under arrest and read Appellant his rights. Appellant stated he was really in trouble this time.

The next day, a police investigator attempted to interview Appellant. He advised Appellant of his rights but Appellant refused to sign a waiver form. Appellant then voluntarily stated that an old drunk white man had cut Appellant's jacket with a knife. Appellant said he had taken the knife away from the man and thrown it in the bushes at Illinois and Maryland Street near the Hyatt Regency. The investigator later searched the area but found no knife. Lab tests performed on Appellant's jacket revealed the sleeve was cut by a sharp instrument from the inside.

Prior to trial, Appellant filed motions alleging the arrest, search and show-up identification were conducted improperly. Following a hearing, the court ruled that the wallet and money obtained during the search of Appellant would be suppressed, as they were taken before Appellant was lawfully arrested. However, the show-up identification was found to have been conducted properly and was allowed.

I

Appellant asks us to review the trial court's denial of his Motion to Suppress Identification Evidence. He first claims the pre-trial identification was unnecessarily suggestive, resulting in the substantial likelihood of misidentification. Appellant argues secondly that the subsequent in-court identification was tainted by the unlawfully suggestive show-up identification procedure.

Unnecessary suggestiveness alone does not require exclusion of the evidence. Hamlet v. State (1986), Ind., 490 N.E.2d 715, 720. If, under the totality of the circumstances, the identification was reliable, it may be admitted even though the confrontation procedure may have been suggestive. Id. Five factors to be considered in evaluating the likelihood of misidentification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Id.

The record here reveals that police detained Appellant at a location different from where the robbery occurred. Further, the victim identified Appellant from the back seat of a police squad car 30 feet away from where Appellant stood. Appellant was the only black male at the location. However, at the time of the robbery, the victim had an opportunity to view Appellant at close range under adequate lighting for two to three minutes. The victim was able to describe Appellant and his clothes. The show-up identification occurred within 15 to 30 minutes of the robbery, at which time the victim unequivocally identified Appellant as his assailant.

We have consistently found that the merit of having a witness observe a suspect while the offender's image is still fresh in that witness' mind can properly justify a show-up identification occurring shortly after the commission of an offense. Hamlet, 490 N.E.2d at 720; Grossenbacher v. State (1984), Ind., 468 N.E.2d 1053, 1055. Accordingly, the fact that Appellant may have been singled out as a suspect here is outweighed by the necessity of permitting the witness to view the suspect while the incident is still fresh in the victim's mind.

Appellant further contends the victim's in-court identification was impermissible. However, an in-court identification is permissible, in spite of a suspect pretrial identification, if an independent basis for the in-court statement exists. Kusley v. State (1982), Ind., 432 N.E.2d 1337, 1338. The independent basis for the in-court identification must not be a product of unnecessarily suggestive confrontation and must not lead to an irreparable likelihood that the identification will be erroneous, denying due process. Kusley, 432 N.E.2d at 1338-1339. On review, the court will look to the totality of circumstances presented to determine if such an independent basis exists. Kusley, 432 N.E.2d at 1339. In Peterson v. State (1985), Ind., 485 N.E.2d 69, 70, there was a sufficient basis for an independent identification where the victim observed the defendant while he attacked her and as he fled, could give a detailed description of him and his clothes, and testified she would always remember the face. In the present case, we find a sufficient independent basis for identification exists. The victim observed Appellant during the robbery and as Appellant entered the taxi cab. The victim was able to give a description of Appellant and his clothes. Under all the facts and circumstances here it does not appear the trial court erred in permitting the testimony.

II

Appellant next argues that the trial court erred in allowing testimony regarding an out of court statement made by Appellant. Appellant maintains that because he was not advised of his Miranda rights, his post-arrest statement that "this time he was really in trouble" was inadmissible. The officer testified that he did advise Appellant of his rights after the victim identified Appellant as his assailant.

The admissibility of a statement is controlled by determining, from the totality of the circumstances, whether or not it was made voluntarily. The same test determines whether a waiver of Miranda rights has occurred. Smith v. State (1986), Ind., 491 N.E.2d 193, 196. We review these questions on appeal as we do other sufficiency matters. We do not weigh the evidence or judge the witnesses' credibility, but rather, determine whether there is substantial...