Parker v. State

• Decision Date: 14 December 1976
• Docket Number: No. 476S110,476S110
• Citation: 265 Ind. 595,358 N.E.2d 110
• Parties: Aubrey Dale PARKER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 110

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.

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 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 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 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 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 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 opportunity of the witness to view the offender at the time of the offense; the duration for which the witness can observe the perpetrator; the distance separating them; the lighting conditions; and circumstances affecting the amount of attention the witness can devote to observing the guilty party.

In this case the victim was in the same automobile with appellant for two hours. Part of that time appellant sat beside her in the back seat, and on two separate occasions she was forced to submit to sexual relations with him. These events occurred in the middle of the night, but at least three times the vehicle's interior lights came on, and three times it was stopped in lighted service station lots. Moreover the first rape by each assailant took place off a lighted highway ramp. We have held that an in-court identification was proper in spite of a suggestive photographic display in Manns v. State, (1973) 260 Ind. 680, 299 N.E.2d 824 (DeBruler, J., dissenting). In Manns the witness was also a rape victim seized at night; in spite of the fact that she was with her assailants no more than one and one-half hours, and had her head covered with a coat during the trip to and from the scene of the rape, this Court found that there was an independent basis for the incourt identification.

In Neil v. Biggers, supra, the victim was seized at night in the doorway of her unlit kitchen, thrown to the floor, and forced to accompany her assailant about two city blocks to a place in some woods, where she was raped. The incident lasted from fifteen minutes to half an hour, on a night with a full moon. The Supreme Court found no substantial likelihood of misidentification.

Other factors enumerated in Swope include witness' ability to give an accurate description of the accused to the police before the suggestive confrontation. This factor played a major role in our decision in Bowen v. State, (1975) Ind., 334 N.E.2d 691, in which a young sodomy victim was allowed to identify the defendant in trial as her assailant, despite an earlier suggestive photographic display. Appellant urges that since the record here is silent as to any description given by the victim, we should draw an inference adverse to the reliability of her in-court identification. We see no logic in this position. A silent record does not show whether the victim gave any sort of description, whether she was ever asked to, or whether she could have done so. Appellant was free to elicit such information in the suppression hearing.

We believe that the totality of the circumstances surrounding the victim's identification of appellant show that her trial identification was not the product of 'irreparable misidentification' caused by the suggestive photographic display, and that the trial court did not err in overruling appellant's motion to suppress.

II

At the close of the State's evidence appellant moved the court for a directed verdict of acquittal. The trial court denied his motion and appellant called his mother, Mrs. Grace Gardner, as a witness. He assigns error to the overruling of his directed verdict motion.

The introduction of evidence by a defendant after the overruling of his motion for a directed verdict waives any error in the overruling of the motion. Ward v. State, (1965) 246 Ind. 374, 205 N.E.2d 148.

Appellant also argues that there was insufficient evidence to support the jury's verdict, and that the verdict was contrary to law, both with regard to the finding of guilty of kidnapping. Appellant concedes at the outset that in determining this issue on appeal, we do not re-weigh the evidence or judge the credibility of witnesses, but look to the evidence supporting the verdict, and reasonable...