Parker v. State, No. 476S110

• Docket Nº: No. 476S110
• Citation: 265 Ind. 595, 358 N.E.2d 110
• Case Date: December 14, 1976

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358 N.E.2d 110 265 Ind. 595 Aubrey Dale PARKER, Appellant,
v.
STATE of Indiana, Appellee. No. 476S110. Supreme Court of Indiana. Dec. 14, 1976.

[265 Ind. 596] John J. Halcarz, Jr., Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

DE BRULER, Justice.

Appellant appeals convictions of kidnapping, Ind.Code § 35--1--55--1 (Burns 1975), and rape, Ind.Code § 35--13--4--3 (Burns 1975). Appellant was charged jointly with one Osby Parker in an information filed August 13, 1975, after the Lake County Juvenile Court had waived jurisdiction over appellant. A jury found appellant guilty as

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charged on December 11, 1975. Appellant received sentences of life imprisonment for kidnapping and twenty years determinate imprisonment for rape.

On appeal appellant raises three ¹ issues:

(1) whether the trial court erred in overruling appellant's motion to suppress the in-court identification of appellant by the victim;

(2) whether the verdict of guilty of kidnapping was supported by insufficient evidence or contrary to law; and whether [265 Ind. 597] the trial court erred in overruling appellant's motion for a directed verdict as to that count;

(3) whether appellant has been subjected to cruel and unusual punishment in his conviction for kidnapping and sentence of life imprisonment therefor.

Shortly after midnight on June 15, 1975, the victim, and her boyfriend, were walking to the victim's home from a wedding reception in Gary. An automobile pulled up beside them and the driver offered them a ride. Since it was raining, the victim's boyfriend accepted. The victim entered the automobile, a two-door maroon and white Ford L.T.D. When her boyfriend attempted to follow, the driver pushed the door into him, closed it, and sped off.

Besides the driver there was one passenger in the front seat; the victim was in the back. The driver and passenger, both men, whispered together as the automobile drove away. The victim several times asked to be released, but neither man answered.

The car stopped at a Shell service station, and the driver got out. The passenger locked both doors and remained in the automobile with the victim. The driver returned and drove to another Shell station, where he again opened his door. The victim attempted to flee the car through the driver's door, but he wrestled her back inside.

The driver proceeded to the Tri-State Expressway, where he parked on an entrance ramp. The driver climbed into the back seat where he raped and sodomized ² the victim. During the rape he asked the passenger to hand him a gun, then told the victim that he was holding a gun to her neck.

When the driver was finished the passenger also raped and sodomized the victim. The passenger remained in the back seat after the rape, and the driver drove to a Clark service station. The victim, who had been disrobed by both men before the rapes, was given a jacket to cover herself. As [265 Ind. 598] they left this station the passenger told the victim 'that I was so pretty he wanted to keep me.' The car stopped on a side street; both men again raped and sodomized the victim. Then after making the victim promise not to tell anyone, they let her go. The entire episode lasted about two hours.

After appellant's arrest, the victim was shown photographs by the investigating detective for the purpose of making an identification. She viewed seven photographs, from which she identified Osby Parker as the driver. She was then shown a single photograph by the detective, who said, 'I now show you a photo of a party known as Aubrey Dale Parker. Have you ever seen this party before?' The victim identified appellant as the passenger.

At an in-trial suppression hearing the State conceded that this identification procedure was unduly suggestive, but introduced the following evidence regarding the victim's opportunity to observe appellant at the time of the offense.

The victim testified that when the car first pulled up to her, there was a street light nearby. The car's interior lights came on when the door was opened, and she saw both men's faces. When Osby Parker left the car at the first station, appellant turned

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the side of his face to the victim and she saw him from the distance of back seat to front seat. When Osby Parker opened the door at the second station, the light again came on, and the victim again saw appellant's face.

The entrance ramp scene of the first assault was lighted by street lamps, and headlights from other automobiles intermittently illuminated the L.T.D.'s interior. After the first assault, appellant remained in the back seat with the victim. During each rape, appellant faced the victim, his face six to ten inches from hers. Finally, she saw both men when she was released from the automobile.

I

The exhibition of a single photograph to the victim was impermissibly suggestive; the trial prosecutor so [265 Ind. 599] conceded and the State does not question this position on appeal.

Due process prohibits testimony of out-of-court identifications conducted in an unnecessarily suggestive manner. Stovall v. Denno, (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. A subsequent in-court identification by the same witness is permissible if under all the circumstances, the in-court identification is reliable. The prior identification must not have been made under circumstances so suggestive as to produce 'a very substantial likelihood of irreparable misidentification.' Neil v. Biggers, (1972) 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Swope v. State, (1975) Ind., 325 N.E.2d 193. In Swope we held that the witness would be allowed to identify the accused at trial if an 'independent basis' for the in-court identification could be shown. While 'independent basis' is the test applied in a separate but related doctrine relating to identifications conducted in the absence of counsel, ³ the test in Swope is in reality the same test as that in Neil v. Biggers.

In determining whether the in-court identification was the product of 'irreparable misidentification,' this Court looks to the factors enumerated in Swope, supra, at 325 N.E.2d 197, and in Neil v. Biggers, supra, at 409 U.S. 199, 93 S.Ct. 382.

The facts of paramount importance to this question relate to the...