McPhearson v. State

• Citation: 253 Ind. 254,19 Ind.Dec. 561,253 N.E.2d 226
• Decision Date: 08 December 1969
• Docket Number: No. 768,768
• Parties: McCray McPHEARSON, Appellant, v. STATE of Indiana, Appellee. S 112.
• Court: Indiana Supreme Court

Page 226

253 N.E.2d 226

253 Ind. 254

McCray McPHEARSON, Appellant, v. STATE of Indiana, Appellee.

No. 768 S 112.

Supreme Court of Indiana.

Dec. 8, 1969.

Rehearing Denied Jan. 28, 1970.

G. Stanley Hood, Stanley A. Levine, Fort Wayne, for appellant.

Theodore Sendak, Atty. Gen., Richard V. Bennett, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

Appellant was charged with the offense of robbery while armed and following trial by jury, he was found guilty and sentenced to ten (10) years in the Indiana State Prison. This appeal follows the overruling of appellant's motion for new trial.

The evidence most favorable to the state, pertinent to this appeal, discloses that on August 7, 1967, one Douglas Murry Hodgin was employed at the Knox Service Center located at 2702 South Clinton Street in Fort Wayne, Indiana. Hodgin was assisted by another attendant named James Biehl. Shortly after midnight on August 8, 1967, Hodgin was alone in the station when two Negro males, one of whom was identified as appellant, came into the station on foot and purchased a gallon of gasoline in a can. When the two returned, they asked if they could get their deposit on the gasoline can back. Hodgin opened the cash register to get their money, at which time the man with appellant stated that he wanted all the money in the cash register. The evidence indicates that the man with appellant had a gun in his hand when he asked for the money. Hodgin complied with the request, after which appellant seized him by the nape of the neck and said, 'Let's go to the back room.' Hodgin further testified that in addition to appellant's hand on the back of his neck, he also felt a pointed object in the small of his back. Once in the back room, appellant took Hodgin's wallet and stamp book.

After taking the money from the cash register, Hodgin's billfold and the stamp book, the two men left the station. Hodgin called the police. As the two men were leaving the premises, the other attendant, Biehl, who had been road testing a car, returned in time to see the men leaving and gave chase upon being told by Hodgin that they had robbed the station. Appellant and the other man were apprehended by the police within minutes and brought back to the station where they were positively identified by Hodgin as the robbers.

Appellant asserts as error the fact that the trial court allowed the state to introduce a pistol into the evidence which was found a few feet from the spot where he was apprehended. He also contends that his constitutional right to counsel at every critical stage of the proceedings against him was violated since he was not so represented when identified by Hodgin at the service station.

We shall first discuss the alleged error relating to the admission of the pistol into evidence. Appellant contends that the admission was error and prejudicial, the pistol being immaterial and irrelevant to the charge of robbery while armed, since the affidavit charges that appellant was armed with a knife. He further contends that such evidence did not tend to throw any light on his guilt or innocence of that charge, but merely served to mislead or prejudice the minds of the jurors.

There appears to be very little authority bearing directly on the point in issue in this case. As a general proposition, Wharton in his treatise on criminal evidence states:

'Since the introduction into evidence of a physical object is governed by the rules relating to the relevancy and the materiality of evidence, it must in some manner be connected with the perpetrator or victim of the crime.' 2 Wharton, Criminal Evidence, § 762.

Early it was held that evidence which tends to prove a matter in issue by a logical relationship between the evidence and the facts to be established is both relevant and material. Lovell v. State (1859), 12 Ind. 18. Evidence is relevant which throws or tends to throw light on the guilt or innocence of the defendant. Wilson v. State (1966), 247 Ind. 680, 221 N.E.2d 347. Anderson v. State (1933), 205 Ind. 607, 186 N.E.2d 316. Evidence will not be excluded where it tends to prove material facts even though such tendency is slight. Thomas v. State (1968), Ind., 238 N.E.2d 20. Smith et al. v. State (1937), 212 Ind. 605, 10 N.E.2d 899

Looking to the case at bar, we are not inclined to hold that the trial judge committed reversible error by admitting the pistol into evidence. There was evidence in the record that there had been two participants in the robbery,- appellant and the second man who had had a pistol. Although the pistol had no direct bearing on the specific charge brought against appellant to-wit, robbery while armed with a knife, it was certainly relevant evidence tending to add credence to the story of the state's principal prosecuting witness, Hodgin, that the robbery actually happened in the manner in which he testified that it did. Any evidence which substantiates the credibility of a prosecuting witness on the question of guilt is material and relevant, and may be properly admitted. Hodgin's testimony relating to the actual hold-up was crucial to the state's case and any evidence which would tend to substantiate his version of the events as they took place would definitely tend to throw light on appellant's guilt. Hence the mere fact that the gun being offered into evidence was in no way directly tied to the particular offense charged, would not solely determine its admissibility.

We next turn to the issue of whether or not appellant's right to counsel at every critical stage of the proceedings against him was violated by virtue of the fact that he was taken back to the service station immediately after apprehension to be identified without benefit of counsel.

Appellant cites three cases recently decided by the Supreme Court of the United States, 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; Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, which are principally concerned with a defendant's right to counsel at a pre-trial identification. This court, in Lewis v. State (1969), Ind., 250 N.E.2d 358, discussed the application of those cases to a situation similar to the case at bar where the defendant is returned to the scene of the crime within a reasonably short time after the commission of said crime and identified by an eye witness, and indicated an unwillingness to apply the Wade-Gilbert-Stovall rationale in such a situation. Now that the question is squarely before us we will re-affirm that position.

This court is mindful of the compelling reasons which prompted the United States Supreme Court to look with exceeding caution on a pre-trial confrontation situation. It would seem that the accused has a right to counsel at any confrontation where the accused's right to a fair trial might be prejudiced:

'It is central to that principal that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.' United States v. Wade, supra, 388 U.S. p. 266, 87 S.Ct. p. 1932.

As a general proposition, we would agree with the above statement. However, as with most generalities it may easily be stretched to meet situations which are beyond the bounds of the fact setting which prompted the statement initially. Both Wade and Gilbert involved post indictment line-ups which took place several days after arrest. Counsel had already been appointed. Certainly that is quite different than the facts here where the suspect was returned immediately to the scene of the crime. Stovall involved an encounter between just the suspect and the victim. Since Wade and Gilbert were not retroactive, the question there was whether petitioner had been deprived of due process. In holding that he had not been thus deprived the court stated that the totality of the circumstances must govern the making of that determination.

In light of the foregoing we therefore take the position that a criminal suspect is entitled to be represented by counsel at a pre-trial confrontation unless the facts and circumstances indicate that other interests of the suspect as well as those of society (as represented by law enforcement officials) outweigh the interest of the suspect in being represented by counsel at that time. One such situation that we are recognizing today is where the suspect is returned to the scene of the crime immediately upon apprehension and where such apprehension occurs within a reasonably short time after the commission of the alleged offense. Commonwealth v. Bumpus (1968), 354 Mass. 494, 238 N.E.2d 343. Russell v. United States (1969), 408 F.2d 1280, certiorari denied 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245. The facts in the instant case obviously fall within this category. Appellant was apprehended by police within minutes after the commission of the crime and taken directly to the service station to be identified by Hodgin.

In appraising these circumstances, it would seem to this court, as we said in Lewis, that the best interests of the suspect as well as that of efficient law enforcement are served when the identification takes place immediately, though it be without counsel for the suspected party. At this stage of the police's investigation an obvious need is apparent for making a speedy determination as to the suspect's identity. If the wrong man is apprehended, certainly the police must continue their search for the criminal. On the other hand, if the suspect is identified as the person who committed the alleged crime, the police might then see fit to curtail their activities as to that particular offense.

For this court to hold otherwise in situations such as that presented here would be to...