Pinkins v. State

• Decision Date: 08 December 2003
• Docket Number: No. 45A03-0301-PC-30.,45A03-0301-PC-30.
• Citation: 799 N.E.2d 1079
• Parties: Darryl Keith PINKINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

799 N.E.2d 1079

Darryl Keith PINKINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A03-0301-PC-30.

Court of Appeals of Indiana.

December 8, 2003.

Transfer Denied March 5, 2004.

Charles E. Stewart, Jr., Crown Point, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Darryl Keith Pinkins appeals his convictions for Rape,¹ a class A felony, Criminal Deviate Conduct,² a class A felony, and Robbery,³ a class B felony, claiming that certain expert testimony was improperly offered, that an instruction given on accessory liability amounted to fundamental error and that evidence was improperly admitted regarding Pinkins's propensity to visit strip bars.

In this consolidated appeal, Pinkins also challenges the denial of his petition for post-conviction relief, contending that subsequent DNA testing constituted newly discovered evidence that entitled him to a new trial. Pinkins additionally claims that he received the ineffective assistance of trial counsel because his lawyer momentarily "dozed off" at the trial during the State's direct examination of a witness, that he failed to object to the victim's pretrial and in-court identification of him as one of the assailants, and that counsel was ineffective for failing to object to evidence regarding his propensity to patronize strip clubs. Concluding that no reversible error occurred, we affirm the judgments of the trial court and the post-conviction court.

FACTS

Oftentimes, some might think that our opinions are viewed from a Monday morning quarterback's standpoint on those occasions where we determine that inadequate police work was performed in a certain circumstance. As the facts set forth below will demonstrate, we think this case is reflective of exemplary police work.

On December 7, 1989, at approximately 1:30 a.m., M.W. was on her way home from a friend's house when she stopped for a red light at an intersection in Hammond. Another vehicle rear-ended her, and M.W. exited her automobile to assess the damage.

The driver of the other vehicle, who M.W. later identified as Pinkins, got out of his car, approached M.W., and asked if "she was all right." Tr. p. 435. Before M.W. could respond, Pinkins grabbed her arm and began pushing her toward her car. Pinkins also reached for M.W.'s purse that was lodged between the front seats. Eventually, two other men approached and grabbed M.W. from behind. They dragged M.W. back to their car and shoved her into the backseat. M.W. described the vehicle as a dirty, light green full-sized four-door hardtop. M.W. then saw Pinkins and another man enter her car. Her purse, containing approximately twenty dollars, as well as a handgun belonging to her husband, were removed and never recovered.

When Pinkins and the other individual returned to the other vehicle, M.W. was asked questions about her husband and whether she had any children. M.W. observed that five men were at the scene. As the group traveled through Gary, the vehicle became stuck at some point. The driver then directed one of the men in the backseat with M.W. to get out and push the car. Another individual had M.W. cover her eyes and then told her, "Don't look at us, bitch, or we'll kill you." Tr. p. 468. A conversation then ensued among four or five of the individuals about what to do. When the vehicle was eventually dislodged, the driver told the man in the backseat to start removing M.W.'s clothes. At some point, one of the individuals gave M.W. a green one-piece worker's coverall and was told to cover her face. M.W. was then stripped naked, and the man in the backseat engaged in sexual intercourse with M.W. After ejaculating, the man used M.W.'s coat to wipe his genitals. M.W. described this individual as having a round face with inch-long hair. He was wearing an army jacket and black jeans, and was 5'" to 5'7" in height. Thereafter, one of the other men forced M.W. to perform fellatio on him, while another had sexual intercourse with her. This man also wiped his genitals with M.W.'s jacket after the attack. M.W. also provided a description of this assailant that matched an individual by the name of William Durden.

Following this attack, the car stopped and one of the other suspects climbed into the back seat. He told the driver to proceed to a Phillips 66 gas station, where he began having sexual intercourse with M.W. and also attempted to penetrate M.W.'s anus. The suspect then continued raping M.W. and, like the others, used her jacket to wipe himself off after ejaculating.

M.W. was then raped by Pinkins and the fifth man. Both used the jacket after the incident. The fifth suspect then removed M.W.'s rings, and all of the suspects ordered her to get dressed. Shortly thereafter, at about 3:30 a.m., M.W. was pushed into her car and was permitted to drive away. After determining that she was near the Gary airport, M.W. was able to find her way home. When M.W. arrived, she told her husband about the attacks, and they contacted the police. Thereafter, M.W. was taken to the hospital in an ambulance. Upon her arrival, a thorough rape examination was performed and samples were collected. The attending physicians determined that M.W. was pregnant at the time of the assault, but she suffered a miscarriage twenty days later. Moreover, M.W. was bedridden for nearly twenty days as a result of the attack.

During the course of the investigation, the coveralls that the men had given M.W. to cover her face were analyzed. It was determined that "burners"—employees who work at scrap steel companies that use torches to slice steel into smaller pieces—are issued these coveralls or "greens" which are made of fire retardant material. Tr. p. 764, 766-67. The greens that were given to M.W. bore the imprint "WESTEX Lot 311." Tr. p. 812. Police traced all the coveralls that had been manufactured from the 34,659 yards of material marked WESTEX Lot 311, and the only coveralls unaccounted for that matched this identification were those that were purchased by Luria Brothers. Tr. p. 831. At the time of the incident, the Luria Brothers Company was a professional scrap management company for Bethlehem Steel. Tr. p. 759. A police detective subsequently determined after speaking with a Luria Brothers's plant manager, that Pinkins, William Durden and Roosevelt Glenn had each been issued two pairs of greens by the company on May 30, 1989. While Glenn had been employed as a "burner," he actually worked as a payload operator. The position of the soil stains, the lack of burn holes and the lack of staining to the back were consistent with the coveralls of a payloader. Thus, it was determined that the condition of the greens that M.W. had in her possession was consistent with Glenn's ownership.

It was further established that Durden, Glenn and Pinkins were each issued a new pair of greens on December 11, 1989—four days after the assault. Moreover, these three men drove to work together and associated with another individual by the name of Barry Jackson. Durden, Glenn and Pinkins all worked on December 6 on the three-to-eleven shift. When the men asked for the new greens, they explained to an assistant manager at Luria Brothers that they lost their original clothing because Glenn's vehicle had been stolen and the greens had been in the back of the car. However, no reports had been made of the alleged theft.

It was also learned that at approximately 11:30 p.m. on December 6, an Indiana State Police Officer observed Durden's vehicle on the side of the interstate and three men walking on an exit ramp. Although the trooper offered them a ride, they refused. When the three arrived at a gas station, Glenn stated that he telephoned his girlfriend at 11:46 p.m. She picked them up, and they took her home, explaining that they were going to cash their checks from work. It was discovered that the checks had been cashed at a Gary liquor store around 12:30 a.m. on December 7.

Pinkins then alleged that the men drove to an Amoco station, purchased two quarts of oil, and then returned to Durden's car. Pinkins stated that the passenger window had been shattered and someone had taken all their work clothes, including their greens. Pinkins stated that after adding the oil, he and Glenn followed Durden and Glenn drove him home. Contrary to Pinkins's version of the events, it was established that the only quart of oil purchased from the Amoco station occurred at 6:12 a.m. on December 7.

Three witnesses testified that when a vehicle's side window is broken, glass falls both inside and outside the vehicle, but no glass was found on the interstate in the area where Pinkins testified that the car broke down. Testimony also revealed that automobile glass was not swept from that area during December of 1989 or January, 1990.

It was also revealed that Pinkins and Glenn frequented two adult entertainment clubs that were in close proximity to each other. Durden would also accompany Pinkins to the clubs, but he did not patronize them as often as did Glenn. Employees of the Caddy Shack and Interlude Motel described Pinkins's appearance in December 1989 and also provided a description of his apparel. It was determined that Antoinette Washington and her husband checked into the Interlude Motel after midnight on the night of December 5-6, 1989. When they awoke in the morning, they discovered that their 1988 brown Oldsmobile Delta 88, which bore license plate number 96W2376, had been stolen.

The police investigation also revealed that on December 6, 1989, Jill Martin, a flight attendant, arrived at Chicago's O'Hare airport around 11:30 p.m., and she began to drive her father's tan Ford Escort to her parents' house in Valparaiso. At approximately 1:00 a.m., when she was near Merrillville, another car rear-ended her. The driver of the other car pulled off...