Pack v. State, 1--474A77

• Decision Date: 31 October 1974
• Docket Number: No. 1--474A77,1--474A77
• Citation: 317 N.E.2d 903,162 Ind.App. 107
• Parties: Danny Lamar PACK et al., Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 903

317 N.E.2d 903

162 Ind.App. 107

Danny Lamar PACK et al., Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--474A77.

Court of Appeals of Indiana, First District.

Oct. 31, 1974.

Rehearing Denied Dec. 11, 1974.

Thomas J. Lantz, Roger L. Pardieck, Montgomery, Elsner & Pardieck, Seymour, for defendants-appellants.

Theodore L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Judge.

Defendants-appellants were charged by affidavit with committing a felony while armed with a dangerous weapon. Trial was had before a jury, with each of the appellants being found guilty of the lesser included offense of robbery. The appellants were sentenced pursuant to statute for a term of not less than ten nor more than twenty-five years. Appellants timely filed a motion to correct errors which was by the court overruled.

The evidence most favorable to the State is that on the evening of July 5, 1973, appellants Grantham and Danny Pack approached the ticket window at the Jerry Lewis Cinema in Seymour, Indiana, and demanded money at gunpoint from the cashier, Holly Hill. They took a cash box containing loose change, bills, and a roll of quarters, and fled around the building on foot. Grantham, Danny Pack and a third person fled the area at a high rate of speed in a red Maverick automobile. Shortly thereafter all three appellants were apprehended in the red Maverick in Columbus, Indiana. A roll of currency, a roll of quarters, and four .22 caliber live shells were recovered from the automobile, along with two .22 caliber live shells which were taken from the person of Eddie Pack.

Appellants were taken to the Columbus, Indiana, police station and a line up was staged approximately two hours after the robbery. Holly Hill identified Grantham and Danny Pack. No counsel for the appellants was present at the line up.

The first issue raised in this appeal is whether the trial court erred by admitting evidence concerning the line up. At trial Holly Hill and a policeman were permitted to testify concerning the line up held in Columbus and this evidence was admitted over the objection of the appellants. Holly Hill also made an in court identification of Grantham and Danny Pack as being the men who had robbed the Jerry Lewis Cinema. Appellants contend that the admission of evidence concerning the line up was improper and constituted reversible error due to the fact that no counsel was present at the line up.

The basis for this issue is the landmark case of United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, wherein the United States Supreme Court held that the Sixth Amendment guarantees of the right to counsel included any confrontation in a post-indictment line up situation. It was held that a post-indictment line up was a critical stage of the proceedings at which the accused was entitled to the aid of counsel. The evidentiary aspect of this rule was established in the case of Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, where the United States Supreme Court established a per se exclusionary rule as to evidence relating to any identification made at a post-indictment line up where the accused was not represented by counsel.

The United States Supreme Court was confronted with a situation similar to the one at bar in Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, where it was held that a line up held after the arrest but before the initiation of any adversary criminal proceedings did not entitle the accused as a matter of absolute right to counsel. This reasoning has been followed in Indiana in the cases of Auer v. State (1972), Ind.App., 289 N.E.2d 321 and Snipes v. State (1973), Ind.App., 298 N.E.2d 503. (Reversed on other grounds, 307 N.E.2d 470.)

The weight of authority in Indiana is that an accused has no absolute right to counsel at a post-arrest but pre-indictment line up. Judge Robertson of this court stated, in the case of Smith v. State (1974), Ind.App., 312 N.E.2d 896, 899, as follows:

'We are of the opinion that Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), disposes of Smith's argument insofar as it pertains to the right to counsel during a confrontation with the victim prior to being formally charged with the crime. It does not presently exist under Federal or Indiana law. See Kirby, supra; Snipes v. State (1973), Ind.App., 298 N.E.2d 503.'

In the case of Daniels v. State (1973), Ind.App., 312 N.E.2d 890, 893, it was stated:

'We first note that the pre-trial identification procedure complained of took place the morning after Daniels' arrest and before formal charges had been made against him. Daniels asserts that he requested that counsel be present. It is clear that the lineup took place before the formal criminal process had begun and that therefore the right to counsel had not yet attached. . . .' (Cases cited omitted.)

Thus, under the authorities set out above, we hold that the evidence relating to the line up in the case at bar was admissible in the trial and no error was committed in its admission.

The second issue raised in this appeal concerns whether the trial court committed error when it admitted into evidence a roll of quarters, a roll of bills, and four .22 caliber shells which were found in the automobile occupied by the appellants and two .22 caliber shells found on the person of appellant Eddie Pack. The principal objection raised by appellants to these exhibits concerns their relevancy to the issues at trial. Appellants point out that the description of the roll of quarters found in the car is not the same as the description given by witnesses of the roll of quarters taken from the Jerry Lewis Cinema. The major discrepancy concerns the color of the rolls. Appellants contend that the roll of bills amounted only to sixteen or eighteen dollars, while over one hundred dollars in bills was taken in the robbery. It is appellants' position that the roll of quarters and the roll of bills were not relevant to prove that said money was that taken in the robbery.

Appellants argue that the .22 caliber shells were referred to at one point as rifle shells and thus were not relevant in this trial since the evidence showed that a pistol was used in the robbery.

The question of the admission of evidence is generally within the sound discretion of the trial court. In the case of State v. Lee (1949), 227 Ind. 25, 29, 30, 83 N.E.2d 778, 780, our Supreme Court discussed the admissibility of evidence when the relevancy of the same had been questioned as follows:

'. . . While offered evidence may be logically relevant, its admission must be subject to the primary test of its value in the particular case. Practical conditions do not permit the court to hear every matter that may be in any degree logically relevant to the issue, but require that matters received as evidence shall have a higher degree of probative force which may be termed legal relevancy or materiality. Offered evidence which does not measure up to this requirement may be properly rejected. The exclusion of evidence as not material either because too remote, too uncertain or too conjectural is a matter largely within the discretion of the trial court. . . .'

See, also, Automobile Underwriters, Inc. v. Smith (1960), 131 Ind.App. 454, 166 N.E.2d 341.

It is our opinion that the trial court did not abuse its discretion when it admitted into evidence the roll of quarters and the roll of bills. Although there was a discrepancy in the description of the roll of quarters and the roll of bills, such discrepancy as to the description would go to the weight to be given to the evidence by the trier of fact rather than to its admissibility. A roll of quarters and a roll of bills were taken during the robbery and the evidence introduced was logically relevant to that issue and was thereby admissible.

The testimony of one police officer was that the shells found in the car were .22 caliber short rifle shells. However, other testimony referred to these shells as '4 rifle shells, live' and '.22 caliber shells, live'. A weapon was used in the robbery and said weapon was identified as being a pistol. Thus, one of the facts in dispute in this case was the existence of a pistol and live ammunition, while it would not be positive proof of the existence of a firearm, would be relevant to that issue. It was for the jury to decide the...