Martin v. State, No. 669S144

Docket NºNo. 669S144
Citation258 Ind. 83, 29 Ind.Dec. 427, 279 N.E.2d 189
Case DateMarch 01, 1972
CourtSupreme Court of Indiana

Page 189

279 N.E.2d 189
258 Ind. 83
Hugh MARTIN, Appellant,
v.
STATE of Indiana, Appellee.
No. 669S144.
Supreme Court of Indiana.
March 1, 1972.
Rehearing Denied April 5, 1972.

[258 Ind. 84] Michael Riley, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Schaefer, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Hugh Martin, appellant (defendant below), from a conviction for Infliction of Physical Injury While in Commission of Robbery. Appellant was initially charged by affidavit on November 17, 1967, and, after being tried to the Court, the trial Court granted appellant's Motion for New Trial. On March 5, 1969, appellant's second trial commenced and after trial to the Court, appellant was found guilty. On March 7, 1969, appellant was sentenced to the Indiana State Prison for life. On March 18, 1969, appellant filed a Motion for New Trial which was overruled. On January 4, 1971, appellant's Petition for a Belated Appeal was granted and this appeal followed.

Appellant has asserted two main contentions of error. First, he claims it was error for the trial court to overrule his motion to strike the testimony of the victim concerning the victim's in-court identification of appellant. Appellant contends the

Page 190

in-court identification was tainted by a pre-trial confrontation at which time appellant was not represented by counsel, in violation of his constitutional rights, and that the in-court identification did not have a sufficient independent source to be purged of the taint from the pre-trial confrontation. Appellant's second allegation is that there was a lack of sufficient evidence upon which to base a conviction.

We shall turn first to appellant's contention concerning the pretrial identification. It was an admitted fact that a pre-trial [258 Ind. 85] lineup was conducted during which appellant was not represented by counsel. Appellant also makes a claim, unrefuted by the State, that he requested the presence of an attorney and was refused. It is now well established that the Sixth Amendment right to counsel requires that, absent an intelligent waiver, the accused has the right to the presence of counsel during a lineup where the lineup is a critical stage of the prosecution. United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Clearly, a post-arrest lineup where the investigation has focused on the accused should be considered a critical stage of the prosecution. In fact, it is stated in Stovall v. Denno (1967), 388 U.S. 293, 298, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199:

'We have outlined in Wade the dangers and unfairness inherent in confrontations for identification. The possibility of unfairness at that point is great, both because of the manner in which confrontations are frequently conducted, and because of the likelihood that the accused will often be precluded from reconstructing what occurred and thereby from obtaining a full hearing on the identification issue at trial. The presence of counsel will significantly promote fairness at the confrontation and a full hearing at trial on the issue of identification. We have, therefore, concluded that the confrontation is a 'critical stage,' and that counsel is required at all confrontations.' (Our emphasis.)

We have grafted one exception upon this rule laid down in Stovall.

'(T)his Court has held that an on-the-scene confrontation between a witness and a suspect conducted within a reasonably short time after the commission of the crime for the purpose of determining whether the witness can identify the suspect is not within the scope of the Wade-Gilbert rule. Parker v. State (1970), Ind., 261 N.E.2d 562; McPhearson v. State (1970), 253 Ind. 254, 253 N.E.2d 226; Lewis v. State (1969), 252 Ind. 454, 250 N.E.2d 358.' Dillard v. State (1971), Ind., 274 N.E.2d 387, 389.

It is apparent in this case that appellant was denied his right to counsel guaranteed by the Sixth and Fourteenth Amendments[258 Ind. 86] of the Constitution of the United States and Article 1, Section 13 of the Constitution of Indiana as the lineup took place after his arrest for this offense. However, where admissibility of evidence as to the lineup itself is not involved, a per se exclusionary rule is not justified. Such is the case in this instance. The State asked no questions of the witness concerning the lineup on direct examination and no mention was made of the lineup until cross-examination of the witness by defense counsel. 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 that 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;

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(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.

How these factors apply to the case at bar is not self-evident as there was no hearing on this issue and the only evidence in the record is the cross-examination and redirect examination of the identifying witness and the examination of the appellant. However, the record does shed a certain amount of light on the issue. First, the witness did have an opportunity to observe the appellant in the course of the robbery. The witness was the attendant at a service station which was robbed, and in the course of the robbery the witness was shot. The robbery took between ten and twenty minutes and neither of the two robbers was wearing a mask. However, a [258 Ind. 87] large portion of this time was consumed...

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18 practice notes
  • Lindsey v. State, No. 172A29
    • United States
    • Indiana Court of Appeals of Indiana
    • May 23, 1972
    ...questioned under the Wade-Gilbert rule.' More recently our Supreme Court was confronted with a similar question in Martin v. State, Ind., 279 N.E.2d 189 (1972), wherein Justice Hunter speaking for the majority laid down the following 'It is apparent in this case that appellant was denied hi......
  • People v. Cona
    • United States
    • United States Court of Appeals (New York)
    • December 13, 1979
    ...(See, e. g., Reed v. People, 156 Colo. 450, 402 P.2d 68; People v. Wilson, 66 Ill.2d 346, 5 Ill.Dec. 820, 362 N.E.2d 291; Martin v. State, 258 Ind. 83, 279 N.E.2d 189; State v. Horton, 275 N.C. 651, 170 S.E.2d 466, cert. den. 398 U.S. 959, 90 S.Ct. 2175, 26 L.Ed.2d 545; Brown v. Commonwealt......
  • Mesarosh v. State, No. 4-683A182
    • United States
    • Indiana Court of Appeals of Indiana
    • February 9, 1984
    ...directed to them they were not of the kind which would lead reasonable men to believe violence or disorder might tend to result. Id., 258 Ind. at 83, 279 N.E.2d at This court previously has addressed similar issues in Cavazos v. State, (1983) Ind.App., 455 N.E.2d 618, and Stults v. State, (......
  • LeFlore v. State, No. 572A225
    • United States
    • August 9, 1973
    ...Lewis v. State (1969), 252 Ind. 454, 250 N.E.2d 358.' Dillard v. State (1971), Ind., 274 N.E.2d 387, 389.' Martin v. State (1972), Ind., 279 N.E.2d 189, 190, 29 Ind.Dec. 427, 429, To like effect is Hardin v. State (1972), Ind.App., 287 N.E.2d 359, 32 Ind.Dec. 579, transfer denied with an op......
  • Request a trial to view additional results
18 cases
  • Lindsey v. State, No. 172A29
    • United States
    • Indiana Court of Appeals of Indiana
    • May 23, 1972
    ...questioned under the Wade-Gilbert rule.' More recently our Supreme Court was confronted with a similar question in Martin v. State, Ind., 279 N.E.2d 189 (1972), wherein Justice Hunter speaking for the majority laid down the following 'It is apparent in this case that appellant was denied hi......
  • People v. Cona
    • United States
    • United States Court of Appeals (New York)
    • December 13, 1979
    ...(See, e. g., Reed v. People, 156 Colo. 450, 402 P.2d 68; People v. Wilson, 66 Ill.2d 346, 5 Ill.Dec. 820, 362 N.E.2d 291; Martin v. State, 258 Ind. 83, 279 N.E.2d 189; State v. Horton, 275 N.C. 651, 170 S.E.2d 466, cert. den. 398 U.S. 959, 90 S.Ct. 2175, 26 L.Ed.2d 545; Brown v. Commonwealt......
  • Mesarosh v. State, No. 4-683A182
    • United States
    • Indiana Court of Appeals of Indiana
    • February 9, 1984
    ...directed to them they were not of the kind which would lead reasonable men to believe violence or disorder might tend to result. Id., 258 Ind. at 83, 279 N.E.2d at This court previously has addressed similar issues in Cavazos v. State, (1983) Ind.App., 455 N.E.2d 618, and Stults v. State, (......
  • LeFlore v. State, No. 572A225
    • United States
    • August 9, 1973
    ...Lewis v. State (1969), 252 Ind. 454, 250 N.E.2d 358.' Dillard v. State (1971), Ind., 274 N.E.2d 387, 389.' Martin v. State (1972), Ind., 279 N.E.2d 189, 190, 29 Ind.Dec. 427, 429, To like effect is Hardin v. State (1972), Ind.App., 287 N.E.2d 359, 32 Ind.Dec. 579, transfer denied with an op......
  • Request a trial to view additional results

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