Mayes v. State
| Decision Date | 11 September 1984 |
| Docket Number | No. 1282S463,1282S463 |
| Citation | 467 N.E.2d 1189 |
| Parties | Larry MAYES, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Charles E. Enslen, Highland, for appellant.
Linley E. Pearson, Atty. Gen., G. Douglas Seidman, Deputy Atty. Gen., Indianapolis, for appellee.
Following a trial by jury, Defendant (Appellant) was convicted of Rape, a class A felony, Ind.Code Sec. 35-42-4-1 (Burns 1979), Unlawful Deviate Conduct, a class A felony, Ind.Code Sec. 35-42-4-2 (Burns 1979), Robbery, a class B felony, Ind.Code Sec. 35-42-5-1 (Burns 1979), and was found to be an Habitual Offender, Ind.Code Sec. 35-50-2-8 (Burns Supp.1983). He was sentenced to a total of 110 years imprisonment. His direct appeal raises thirteen (13) issues which we have consolidated herein as eight (8) issues as follows:
1. Whether the evidence is sufficient to sustain the convictions;
2. Whether the trial court erred in denying Defendant's motion to exclude the testimony of the Prosecutrix inasmuch as 3. Whether the trial court erred in admitting the testimony of Mark Watson and Miriam Gates over the objection that the testimony was irrelevant and served only to prejudice the Defendant;
the State did not file an answer to Defendant's notice of alibi;
4. Whether the trial court erred in denying Defendant's motion for mistrial made following the testimony of Miriam Gates and renewed following the testimony of Mark Watson, said motion having been predicated upon the fact that Gates' testimony included hearsay evidence.
5. Whether the trial court erred in admitting State's Exhibit No. 13, a lineup information sheet, over Defendant's objection that it was hearsay;
6. Whether the trial court erred in admitting into evidence State's Exhibits Nos. 1-5 during the habitual offender phase of the proceedings;
7. Whether the trial court erred in denying Defendant's motion for mistrial predicated upon a comment made by the Prosecutor during his final argument in the habitual offender phase of the trial;
8. Whether the trial court erred in enhancing Defendant's sentence.
The record disclosed that on October 5, 1980, the Prosecutrix was employed as a cashier at a service station in Hammond, Indiana. While she was alone on duty at approximately 8:30 p.m., two young black males entered the station. The larger of the two men, subsequently identified as James Hill, drew a gun and demanded money. She complied with his demand and placed approximately $120.00 of her employer's money in a blue denim bag. Hill then walked around the counter and took an additional $10.00 or $20.00 from the change drawer. Meanwhile, the smaller man, identified as the Defendant, took items from the various display racks.
Stating that the money was not enough, the two men then forced her into the back seat of a large blue four-door luxury automobile. Hill sat in the back seat with her while the Defendant drove the vehicle. After striking her with his gun, Hill forced her to perform fellatio and then raped her. The two men then exchanged places, and Defendant forced her to perform fellatio and raped her. When the two men released her, she went to a nearby house and telephoned her parents and the police.
At the outset we note our standard of review upon a claim of insufficient evidence:
(citations omitted).
Loyd v. State, (1980) 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
Defendant claims that inasmuch as the Prosecutrix first identified another man as the smaller of her assailants at a lineup on February 3, 1981, the evidence was not sufficient to prove that he committed the offenses. His argument is without merit.
On October 6, 1980, one day following the crime, the Prosecutrix was shown two arrays of eight to twelve (8 to 12) photographs each from which she chose two different photographs, both of which were pictures of the Defendant, whom she identified as the smaller of her two assailants. About one month later, after viewing several hundred photographs, she chose a photo of the larger assailant, James Hill. In December, 1980, she viewed a lineup from which she chose Hill as the larger of the two men.
In February, 1981, she viewed a second lineup. She looked only at the first man in line, number 5, and said "[n]umber five" and asked the police to let her out. An officer, however, asked her to study all of When asked at trial to explain her error, the Prosecutrix testified that immediately prior to the lineup she had been told to concentrate on the point in time when she had best seen the faces of her assailants. She stated that she had seen Defendant's face the best during the actual rape and that, while recalling that occurrence, she became so upset that she wanted only to leave the room. When she became more calm, however, and studied the men in the lineup, she was positive that number 4, the Defendant, was her assailant. Furthermore, without objection, she identified Defendant at trial. The uncorroborated testimony of the victim is sufficient to sustain the convictions. Ives v. State, (1981) Ind., 418 N.E.2d 220, 223. Moreover, identification testimony need not necessarily be unequivocal in order to sustain a conviction. Johnson v. State, (1982) Ind., 432 N.E.2d 1358, 1361.
the men in the lineup and to take her time in so doing. After hearing the man speak and taking several minutes to concentrate, she altered her prior statement and identified number 4, the Defendant, as the smaller assailant.
Defendant was charged with having committed the instant offenses on October 5, 1980, in Lake County, Indiana. Subsequently, he filed and served upon the prosecuting attorney a notice that he planned to offer in his defense evidence of an alibi, that on October 5, 1980, he was attending a party at a particular residence, and that three persons would so testify. By presenting such notice, Defendant would be permitted, at trial, to offer evidence in support of his alibi, which, but for the giving of the notice, he would not be permitted to do. The State made no response to the notice of alibi because none was required. Ind.Code Sec. 35-5-1-2 (Burns 1979) [] requires the prosecuting attorney to serve upon a defendant, if he so requests, a statement of the exact date and place the defendant is charged with having committed the crime. In addition, the prosecuting attorney is required to provide an answer, if he is going to present, at trial, evidence that the crime occurred on a date other than the date specified in the defendant's notice. Defendant concedes that his notice of alibi did not specifically request an answer and that the prosecuting attorney did not present evidence at a variance from the notice. Nonetheless, he assigns as reversible error the trial court's overruling of his objection to the admission into evidence of any testimony by the Prosecutrix contradicting the declaration of his alibi notice. The objection, however, was properly overruled.
Defendant's reliance on Quillen v. State, (1979) 271 Ind. 251, 253, 391 N.E.2d 817, 819 and Dew v. State, (1981) Ind., 416 N.E.2d 1245, is misplaced. In Quillen, an answer to the alibi notice was filed specifying a date different from the one in the information, and this Court there held that the date critical to Quillen's defense was the one fixed by the State in its response to the notice. Quillen does not, however, hold that simply because a defendant files a notice of alibi the State is required to provide an answer to the notice or, ipso facto, be precluded from proving the charges of the information. In Dew, an answer to the notice of alibi was required inasmuch as the appellant requested a specific statement from the State regarding the date, time and place it planned to present as the date, time and place he was alleged to have committed the offenses.
An alibi notice serves a dual purpose: (1) It permits a defendant to give notice of his claim of having been at a place different from that specifically charged in the information at the time the crime was committed; and (2) It allows an accused to seek information that is more specific than that revealed by the information, to enable him to determine whether or not he has an alibi.
In the case at bar, there is no substantial variation between the time and place charged in the information and that declared in the Defendant's notice. Moreover,
Defendant did not request a more specific statement as to the time and place of the commission of the crimes. Neither was there any variation in the time and place declared in the information and the evidence presented at trial. The trial court did not err in overruling Defendant's objection to the admission of the testimony of the Prosecutrix.
Defendant's next two (2) assignments of error stem from the admission of testimony from State's witnesses, Mark Watson and Miriam Gates, by which it was disclosed that an earlier attempt to try the Defendant for the instant offenses had ended in a mistrial declared by reason of Defendant's attempt, through Watson, to enlist the aid of one of the jurors, Gates. Defendant made an in-trial motion in limine to prohibit the introduction of their testimony claiming that the evidence was not relevant and was highly prejudicial and inflammatory. The trial court heard their testimony outside the presence of the jury,...
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