Pierce v. State

• Decision Date: 28 November 1977
• Docket Number: No. 1076S341,1076S341
• Citation: 369 N.E.2d 617,267 Ind. 240
• Parties: James A. PIERCE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 617

369 N.E.2d 617

267 Ind. 240

James A. PIERCE, Appellant, v. STATE of Indiana, Appellee.

No. 1076S341.

Supreme Court of Indiana.

Nov. 28, 1977.

John S. Capper, IV, James R. Earnshaw, Crawfordsville, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Pierce was convicted on March 11, 1976, by a jury in the Montgomery Circuit Court of the crime of commission of a felony while armed. He was sentenced to imprisonment for ten to thirty years.

On May 2, 1975, Mrs. Mary Beth Harmon and her children went to a shopping mall in Montgomery County. After finishing shopping she returned to her car and found that it would not start. She observed appellant in another car watching her. She went back to the mall and called her husband at work, who told her to leave the car and walk home. When she started to lock the car pursuant to her husband's suggestion, appellant came up and asked her if she was having trouble. He then began working under the hood and asked her to try to start the car. After several attempts failed, he told her he would try the coil and thereupon the car started. Appellant then told Mrs. Harmon that his car would not run and asked for a ride to a different location to buy automobile parts. She stated that although she was somewhat frightened, she agreed to take him there. She drove the car and appellant sat on the passenger's side while the children sat in the back seat. As she pulled out, appellant pulled a gun from his trousers and said, "Keep driving lady, or I'll kill the kids." She proceeded down the road for a short distance and then stopped the car, stepped out, and yelled for help to a passing truck. Appellant jumped from the car and ran.

Appellant presents five issues for review in this appeal: (1) failure to give him an arraignment; (2) admission of evidence obtained following an illegal arrest; (3) admission of identification testimony based upon an allegedly suggestive line-up; (4) admission of testimony of similar acts, and; (5) giving an instruction which allegedly misled the jury about possible verdicts.

I.

The first error alleged by appellant is that the trial court failed to give him an arraignment. After appellant's arrest, the court appointed two attorneys to represent and defend him. His appointed counsel filed a motion questioning appellant's competency to stand trial, and the court appointed a psychiatrist to examine appellant and to make a report to the court. A competency hearing was held, and the court after hearing all of the evidence found that appellant was competent to stand trial. By agreement of the parties, arraignment was held on September 11, 1975. Appellant refused to make any plea and stood mute on the given day, and the court accordingly entered pleas of not guilty on all charges.

The only question raised as to this arraignment is that the court did not give appellant either an advisement of rights or a reading of the charging affidavits or informations. Statutory law governing the procedure, Ind.Code § 35-4.1-1-1 (Burns 1975), provides:

"(a) Before any person is tried for the commission of an offense he shall be called into open court, informed of the charge against him, and called upon to plead thereto. If the defendant so requests, the indictment or information shall be read to him before he is required to plead. A plea shall be entered unless the court grants further time.

"(d) If the defendant stand mute or refuses to plead to the indictment or information . . . a plea of not guilty shall be entered by the court. A judgment of conviction shall not be invalidated because of the failure of the record to show that the indictment or information was read to the defendant at arraignment or that the defendant entered a plea, unless the record shows that the defendant objected to entering upon the trial for lack of such arraignment."

The record shows that the above procedure was complied with. Appellant made no request to have the information read to him at the arraignment, nor did he at any time before trial object to the procedures in and during the arraignment. No objection was raised concerning the procedure followed in the arraignment until appellant's motion to correct errors was filed following his trial and conviction. Furthermore, the record shows that appellant was represented at all times by two competent attorneys, that he was in fact given a trial by jury, and that no irregularities occurred that would prejudice his rights by a lack of knowledge on his part. Appellant's first contention is thus without merit.

II.

Appellant next argues that he was illegally arrested and that evidence obtained therefrom was improperly admitted at trial. Appellant was arrested by Officer Swenke on May 29, 1975, on a warrant issued by the Crawfordsville city court on September 27, 1969, for failure to appear in traffic court on that date. Officer Swenke recognized that both the description of the person and the automobile involved in the traffic court case matched the description of the assailant and the automobile he drove in the present case, as given him by Mrs. Harmon. The officer was also aware that appellant had been convicted of a similar offense in the past. He became aware that an outstanding warrant was in the files that had not been served to that date. It is this warrant he took to appellant's home and made the arrest described above. Appellant was identified from a line-up by Mrs. Harmon on the night of this arrest. The charging affidavits in the present case were filed in the Montgomery Circuit Court on June 3, 1975, together with affidavits of probable cause signed by Louis S. Swenke of the Crawfordsville city police and Mary Beth Harmon, the alleged victim. On that same day the trial court issued a warrant for the appellant's arrest, and this warrant was served upon him on June 5, 1975.

The only question raised with reference to the allegedly illegal arrest is that evidence was obtained from it which taints such evidence and renders it inadmissible at trial. Such evidence, it is claimed, was the line-up at the police station on that night, May 29, at which Mrs. Harmon identified appellant. Officer Swenke testified at the suppression hearing that when he arrived at the police station with appellant, he immediately gave him the Miranda rights and warnings, and testified in detail as to what they consisted of. These warnings were admitted into evidence along with a waiver form which the defendant signed. Officer Swenke testified that appellant signed the waiver form, but he told the police that he was not going to make a statement and would tell them nothing about anything. They, therefore, asked him nothing further and no statements or confessions of appellant were admitted into evidence. Officer Swenke further testified that he asked appellant if he would appear in a line-up, and appellant replied he was willing to stand in a line-up but that he did not want to stand up there by himself: "If you get other people I will stand up there with them." There was some conflict in this evidence in that appellant testified at the suppression hearing that Officer Swenke advised him he was not waiving his rights, but was only acknowledging that these rights were given to him. He further testified that he told Officer Swenke he wanted an attorney before he appeared in a line-up. We need not resolve this conflict since the determination of the facts was within the jurisdiction of the trial court. The question of alleged illegality of the city court warrant is of no significance to settle this issue, since the officer had a right to arrest and detain appellant for investigatory reasons on suspicion that he had committed a felony. No evidence was obtained, offered, or admitted at trial as a result of this arrest. There is thus no error presented on this claim.

III.

The appellant next urges that the trial court should have excluded the in-court identification testimony of Mrs. Harmon, since it was based upon an allegedly suggestive lineup. Mrs. Harmon's report to the police was that the person who assailed her on May 2 had short red hair. There were five persons in the line-up in addition to appellant Pierce, and none of them had red hair. Two of them had sandy light colored hair, one was bald, and one had long dark hair. The last had a moustache, and on the day in question Mrs. Harmon said the assailant was clean shaven. Officer Swenke said that he attempted to get people who were of the same age and generally of the same physical build and characteristics as the suspect. Furthermore, when Officer Swenke called Mrs. Harmon to come to the police station on May 29, he made a statement to the effect that, "I think we may have either a suspect or the man dealing with your episode . . . ." Neither the officer nor Mrs. Harmon were sure exactly what the wording was. Mrs. Harmon looked at the line-up and immediately picked out appellant, stating to Officer Swenke that she was positive that he was the man.

In open court during the trial, Mrs. Harmon again stated that she was positive that Pierce was the man. It is significant that at the trial, Mrs. Harmon stated she was not sure at that time what color of hair the other participants in the line-up had or any of their general features. She stated that when she looked at appellant, she immediately recognized him as the person who committed the act on May 2. She stated that she was sure he was the man regardless of the features or characteristics of any of the other persons in the line-up.

Whether or not an in-court identification of a defendant is tainted by an allegedly suggestive line-up depends on all the facts and circumstances of the particular case. This issue has been discussed at length by this court in several cases. See, e. g., Love v. State (1977) Ind., 365 N.E.2d 771. The basic concern is that a line-up be...