Pemberton v. State

• Decision Date: 09 October 1990
• Docket Number: No. 06S00-8806-CR-523,06S00-8806-CR-523
• Parties: David PEMBERTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 524

560 N.E.2d 524

David PEMBERTON, Appellant, v. STATE of Indiana, Appellee.

No. 06S00-8806-CR-523.

Supreme Court of Indiana.

Oct. 9, 1990.

Robert W. Hammerle, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant and William Wethington were arrested in connection with a robbery and associated crimes which occurred on October 2, 1986. The two were tried in separate jury trials. Appellant was found guilty on Count I, robbery, a Class B felony, I.C. 35-42-5-1, Count II, theft, a Class D felony, I.C. 35-43-4-2, Count III, criminal confinement, a Class B felony, I.C. 35-42-3-3, and Count IV, intimidation, a Class C felony, I.C. 35-45-2-1. The trial court sentenced appellant to eighteen years on Count I and four years on Count II, these sentences to run concurrently, and to eighteen years on Count III and six years on Count IV, these sentences to run consecutively to those imposed on Counts I and II and to each other. Appellant therefore received an executed sentence of forty-two years, and he now brings this direct appeal, raising several allegations of error. Because we find that appellant was denied the effective assistance of counsel such that a reversal of his convictions and a remand for a new trial are warranted, we do not reach his other claims.

At about 6:00 a.m. on October 2, 1986, two men entered the home of Pat Adair and forced Pat and her two grown children, Danny and Dianne, to lie on their living room floor. One of the men, who was armed with an automatic handgun, searched Pat's bedroom for marijuana while the second man, who was armed with a shotgun or a rifle, stood over the Adairs. After taking $120 from a purse in the bedroom, the first man came back into the living room and demanded to know where the marijuana was hidden. Pat told him it was in the freezer. The first man then tied the Adairs' hands with lengths of rope he cut from a clothesline and gagged them with torn sheets from Danny's bed. A blanket was then put over the Adairs, and gasoline was poured onto it from a container the intruders had brought with them. The two men left, taking the money and the marijuana with them, when a woman's voice called out from the porch that she had seen something. After Dianne checked on her baby, who had been upstairs, Danny took her next door to summon the police.

Appellant and Wethington were stopped about three miles from the Adair house by a Boone County deputy sheriff between 7:30 and 8:00 a.m. that morning as they walked south along State Road 39 just outside of New Brunswick. Deputy Sheriff Dennis Brannon had been part of the investigation at the Adair house and was on his way back to the station when he heard a police radio broadcast that "two scruffy looking hitchhikers" had been seen walking along State Road 39. After asking the two men where they had been and where they were going, Brannon patted them down because he had noticed something protruding from above appellant's belt. The protrusion proved to be a large freezer bag with six smaller plastic bags of marijuana in it. An automatic handgun, a knife, some gloves, and a billfold containing $210 and some change were taken from Wethington.

Upon orders he received, Brannon took appellant and Wethington to a nearby intersection. The two men stood in handcuffs beside Brannon behind his car, and the items produced by the search were placed on the hood of the car. Danny and Dianne Adair viewed appellant and Wethington from separate police cars parked across the road. Both identified Wethington as the man with the handgun, but were less sure that appellant was the man with the shotgun. Upon Danny's request, he was driven by the two men so that he could get a closer look at appellant. At one point, Brannon picked up the handgun and the knife and handed them to Sheriff Ern Hudson in full view of both the Adairs, and Dianne told Officer Myers that those were the weapons she had seen the first intruder using that morning.

Appellant and Wethington were then taken to the Center Fire Station. Pat, Danny, and Dianne Adair were brought in individually and seated at the table with a police officer. The gun, knife, and marijuana taken from the two men were placed on a chest freezer in the meeting room of the station and were clearly visible from where the victims were seated. Before each of the victims, appellant and Wethington, in turn, were brought into the room by a policeman. They emerged from a side door, walked across the room in front of the table, then turned and walked back out the door. All three of the Adairs identified appellant and Wethington as the men who had been in their house that morning and, as had been the case at the roadside confrontation, the victims were more sure of their identification of Wethington than of appellant. Sheriff Hudson also displayed the weapons to Pat, and she positively identified them.

In a pre-trial hearing, counsel for appellant argued vigorously that these two out-of-court confrontations were impermissibly suggestive and that testimony concerning identification which resulted from these procedures should be suppressed. ¹ Appellant's motion to suppress was denied. At trial, all three Adairs made an in-court identification of appellant as the man with the shotgun who was in their home on October 2. The trial court also admitted testimony from Danny and Dianne regarding their roadside identifications of appellant and testimony from Danny, Dianne and Pat regarding their identifications of appellant at the fire station. Appellant's counsel made no objection to the in-court identification nor to the testimony concerning the two sets of out-of-court identifications at trial. Appellant argues that he was denied the effective assistance of counsel because his attorney failed to preserve the issue of the admissibility of this crucial testimony for appeal by failing to make a contemporaneous trial objection.

The United States Supreme Court has established a two-part standard by which claims of ineffective assistance of counsel are evaluated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An appellant must make a preliminary showing that the performance of his trial counsel was deficient; he must then show that he suffered prejudice as a result. Id. Co...