Madden v. State, 49S00-8805-CR-453

• Citation: 549 N.E.2d 1030
• Decision Date: 12 February 1990
• Docket Number: No. 49S00-8805-CR-453,49S00-8805-CR-453
• Parties: Darrin A. MADDEN, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 1030

549 N.E.2d 1030

Darrin A. MADDEN, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8805-CR-453.

Supreme Court of Indiana.

Feb. 12, 1990.

William L. Soards, Soards, Carroll & Fruechtenicht, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. and Jane A. Morrison, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A trial by jury resulted in the conviction of appellant of Attempted Rape and Burglary, Class A felonies, for which he received sentences of fifty (50) years each, Confinement and Robbery, Class B felonies, for which he received sentences of twenty (20) years each, the sentences for Rape and Burglary to run consecutively and the other sentences to run concurrently, giving a total executed time of one hundred (100) years.

The facts are: The victim resided in Indianapolis. On August 22, 1986, a young man came to her house asking if he could cut the grass. The victim told him that her husband would do that, and the young man rode away on a bicycle. Approximately forty-five minutes later, the victim's dog began growling, and when she went to investigate, she discovered a man in the catchall room of her house with a woman's nylon stocking over his head. He was otherwise dressed identically and of the same size as the young man who had asked to cut her grass.

The man grabbed the victim, and during the struggle, he drew a knife and beat the victim on the head with the handle of the knife and also struck her dog. He asked her for money and she directed him to her purse. He told her that was not all he wanted and took her into the bedroom, tore off her clothing, including her underwear, and threw her on the bed. In the ensuing struggle, the victim kicked the man in the groin; then he left the house. She ran to a neighbor's house and the police and an ambulance were called to the scene.

At the hospital, it was necessary for doctors to suture lacerations on her fingers and her lip. When the victim returned home, she noticed that her purse had been moved and that her billfold was missing from the purse. Her billfold and credit cards later were found in a neighbor's yard; approximately $17 in cash was missing.

At police headquarters, a pictorial composite was made up of several interchangeable plastic foils, which under the victim's direction were manipulated by the technician in order to come up with an approximate likeness of the perpetrator. When this was accomplished, photographs were taken of the composite picture. Following appellant's arrest, the victim picked his photograph from a photographic array. After selecting appellant's photograph, she asked to see another photograph of the same person, which was provided by the police.

Appellant claims the trial court erred in overruling his pretrial motion to suppress the victim's identification evidence on the ground that her testimony was tainted by an unduly suggestive pretrial photographic identification procedure. However, at the time the victim's evidence was offered at trial, appellant made no objection. Failure to object at that time constituted a waiver of the issue. Lee v. State (1988), Ind., 519 N.E.2d 146.

Notwithstanding the waiver, when we examine the evidence in this case, it indicates that the victim was shown six photographs of black males who were all of similar age and appearance. She was told that the person who had attacked her might or might not be included in the array. Appellant claims that his photograph was the only one in the array which showed a partial profile with the eyebrows raised, thus making it unique from the other photographs. We see nothing about this difference in the pose that would suggest to the victim that the subject pictured was her attacker. Appellant further argues that the displaying of a second photograph identified as that of appellant to the victim, at her request, tainted the entire identification. However, because the victim already had picked appellant's photograph from the array, we see no harm to appellant in the victim's confirmation of her identification by asking to see another photograph of appellant.

We further would point out that in-court identification is permissible if there is sufficient independent basis for the witness's identification. Lyons v. State (1987), Ind., 506 N.E.2d 813. Although appellant had a woman's stocking pulled over his head at the time of the attack, the victim testified that she could identify him by his clothing, his build, and the general facial features that she could discern through the stocking. She based this identification on the fact that she had observed appellant some thirty-five minutes prior to the attack. Such evidence provided a sufficient independent basis for her identification testimony at trial. Id. at 816. We see no error in the admission of the victim's identification testimony.

Appellant claims the trial court erred in admitting State's Exhibit No. 18, which was a photograph of the composite picture which had been produced by the manipulation of the interchangeable plastic foils. Appellant claims it was error to admit a copy of the composite picture, taking the position that only the original should have been placed in evidence. However, the State correctly points out that the "original" in fact was the composite produced by the plastic foils and that the only permanent picture produced thereby was the photograph of such foils. The foils themselves of course were immediately disassembled for use in future cases. Although the best evidence rule requires production of the original writing when its terms are material, Howard v. State (1976), 264 Ind. 275, 342 N.E.2d 604, this Court has held that photocopies are admissible into evidence to the same extent as an original. Leavell v. State (1983), Ind., 455 N.E.2d 1110.

In a case of this type, where plastic foils are used to generate a temporary likeness, the nearest thing to an original which the State can produce is a photograph of the likeness so produced. It would be totally unrealistic for us to require that those plastic foils be retained in their arranged position and introduced in evidence. The photograph in such a case is entirely adequate.

Appellant claims the trial court erred in overruling his objections to jury Instructions Nos. 39 and 40. Instruction No. 39 stated:

"It is not essential in this cause that the testimony of the prosecuting witness be corroborated by other evidence. It is sufficient if, from all the evidence, you believe beyond a reasonable doubt that the crimes were committed by the Defendant as alleged."

Instruction No. 40 stated:

"The flight of a person after he is accused or charged with a crime, though not proof of guilt, is evidence of consciousness of guilt and ... is a circumstance which may be considered by you in the connection with all the other evidence to aid you in determining the question of guilt or innocence."

Appellant takes the position that Instruction No. 39 is erroneous in that it overemphasizes the testimony of the victim. It is true that when more than one witness has testified in a case, and especially when their testimony is not consistent one with the other, it is improper for the trial court to comment on or overly emphasize a particular witness's testimony. Phillips v. State (1986), Ind., 496 N.E.2d 87. However, in the case at bar, the victim was the only witness to testify concerning the identification of appellant and the acts her perpetrated upon her.

It is totally unrealistic to take the position that it was necessary for the prosecuting witness's testimony to be corroborated by other evidence. The instruction was a proper instruction. See Washburn v. State (1986), Ind., 499 N.E.2d 264. Inasmuch as the instruction was not repeated in other instructions, we cannot say that it was repetitious or unduly emphasized a particular aspect of the case. See Starks v. State (1987), Ind., 517 N.E.2d 46.

As to Instruction No. 40, the evidence shows appellant first was approached in his home by the police during their investigation of the crime. He was told that he was a suspect in the burglary. However, he was not arrested at that time. Shortly thereafter, appellant fled to the state of Georgia and the state of Indiana was required to extradite him from Georgia in order to return him for the instant trial.

Appellant takes the position that this is not sufficient evidence of flight to justify the giving of a flight instruction. We cannot agree with appellant's position in this regard. The evidence in the case clearly demonstrates that he in fact did flee to Georgia and did not voluntarily return therefrom. Such evidence is sufficient for the giving of the flight instruction. King v. State (1988), Ind., 531 N.E.2d 1154.

Appellant claims the trial court erred in overruling his objection to the testimony of Karen Clapper during the sentencing hearing. At the sentencing hearing, Karen Clapper testified that she had been the victim of a similar assault, including the use of a bicycle by the person who attacked her. However, she was unable to identify appellant as that person. There can be little doubt that Karen Clapper's testimony would not have been proper during the case-in-chief. However, her testimony was received at the sentencing hearing.

At sentencing, a trial court is not confined to evidence which would be admissible at trial. In fact, it is required to receive a presentence report, which by its very nature concerns, among other things, appellant's criminal history, including many hearsay items. Mrs. Clapper's testimony was not heard by the jury and had no influence upon the conviction. The reasons given by the trial court for the enhancement of appellant's sentence, although including the many things in appellant's criminal background, were not based upon Clapper's testimony. As to those matters that are decided by the trial judge, this Court will presume that the trial judge considered only...