Popplewell v. State, Nos. 1077S761

Docket Nº1277S823
Citation381 N.E.2d 79, 269 Ind. 323
Case DateOctober 03, 1978

Page 79

381 N.E.2d 79
269 Ind. 323
Doyle POPPLEWELL, Jr., Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
Bennie MAYNARD, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
Nos. 1077S761, 1277S823.
Supreme Court of Indiana.
Oct. 3, 1978.

[269 Ind. 324]

Page 80

Kenneth T. Roberts, Wilson, Coleman & Roberts, Indianapolis, for Doyle Popplewell, Jr.

John F. Ittenbach, Indianapolis, for Bennie Maynard.

Theodore L. Sendak, Atty. Gen., Joseph R. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendants (Appellants) were jointly tried on charges stemming from the same incident. In the trial by jury, Maynard was convicted of the commission of a felony while armed, to-wit: robbery, Ind. Code § 35-12-1-1 (Burns 1975) and sentenced to thirty (30) years imprisonment. Popplewell was convicted of the infliction of a physical injury while in the commission of a robbery, Ind. Code § 35-13-4-6 (Burns 1975) and sentenced to life imprisonment. Although their appeals had been separately filed and briefed, they have been consolidated by this Court pursuant to Appellate Rule 5(B) and present the following issues:

(1) The admissibility of identification testimony over objection premised upon an allegedly impermissibly suggestive pre-trial photographic identification procedure.

(2) Denial of a defendant's motion for a continuance premised upon the presentation of a witness who was not listed as a State's witness in response to a discovery order.

[269 Ind. 325] (3) The admission into evidence of certain of State's exhibits over the objection that a proper foundation therefor had not been laid.

Only issue number 1 is relevant to Popplewell's appeal.

ISSUE I

A pre-trial motion was filed to suppress evidence of a prior photographic identification of the defendants which had been made by the victim. Grounds for the motion were that the procedure therefor had been impermissibly suggestive, in that the identifying witness, who was the victim of the crime, was aware that two suspects had been arrested and that their photographs were among those displayed to him. A hearing was had thereon, and the motion was overruled. At trial, the same objection was made and overruled; and a further objection to the victim's being permitted to make an in-trial identification of the defendants was also overruled.

During the early morning hours of February 22, 1977, the victim became acquainted with the defendants while drinking at a tavern. The three talked for approximately thirty minutes and then left to go to a house where the defendants were to procure a prostitute for the victim. Popplewell rode with the victim in his truck, while Maynard led the way in his automobile. When they reached the house, all three went inside. The victim was then beaten, robbed and taken to his truck and driven to an isolated area where the defendants indicated that they intended to kill him. The

Page 81

victim escaped, however, when the defendants became frightened by an approaching vehicle.

Altogether, the victim spent approximately three and one-half to four hours in the company of the defendants. He admitted to having felt the effects of the alcohol that he had consumed but denied being "drunk" and maintained that he had his wits about him and knew what was going on.

On the day following the beating and robbery, the victim was taken to police headquarters, where he looked through [269 Ind. 326] several "mug" books. No identification was made at that time. Two or three weeks later, the victim learned from a newspaper article that two suspects had been arrested. His wife made inquiry of the police as to the correctness of such information, and it was verified. A day or two later, a police officer telephoned the victim's wife, told her that they had arrested two suspects and that her husband should come to headquarters to...

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22 practice notes
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...procedures were suggestive are therefore not applicable. Furthermore, our Supreme Court in Popplewell v. State (1978), Ind., 381 N.E.2d 79 stated that where an officer presenting pretrial photographic identification displays indicates that the suspect's photograph is included the rule is ".......
  • Wooten v. State, No. 1-1180A322
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 1981
    ...note that rather than its being impermissibly suggestive, it suggests nothing whatever. The case of Popplewell; Maynard v. State, (1978) 269 Ind. 323, 381 N.E.2d 79, is dispositive of this issue. There, the claim of impermissible suggestivity was made because police officers had informed th......
  • Vanway v. State, No. 82S00-8606-CR-598
    • United States
    • Indiana Supreme Court of Indiana
    • July 26, 1989
    ...the suspect is included among those in the line-up or photo display prior to the witness identification. See Popplewell v. State (1978), 269 Ind. 323, 381 N.E.2d 79, and Stacks v. State (1978), 175 Ind.App. 525, 372 N.E.2d 1201. Reliability is the linchpin in determining the admissibility o......
  • Spears v. State, No. 179S13
    • United States
    • Indiana Supreme Court of Indiana
    • February 27, 1980
    ...order. "The sanctions for failure to comply with discovery orders are discretionary, not mandatory." Popplewell v. State, (1978) Ind., 381 N.E.2d 79, Defendant suggests that it was improper for the trial court to hold the state to something less than strict compliance with the discovery ord......
  • Request a trial to view additional results
22 cases
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...procedures were suggestive are therefore not applicable. Furthermore, our Supreme Court in Popplewell v. State (1978), Ind., 381 N.E.2d 79 stated that where an officer presenting pretrial photographic identification displays indicates that the suspect's photograph is included the rule is ".......
  • Wooten v. State, No. 1-1180A322
    • United States
    • Indiana Court of Appeals of Indiana
    • March 31, 1981
    ...note that rather than its being impermissibly suggestive, it suggests nothing whatever. The case of Popplewell; Maynard v. State, (1978) 269 Ind. 323, 381 N.E.2d 79, is dispositive of this issue. There, the claim of impermissible suggestivity was made because police officers had informed th......
  • Vanway v. State, No. 82S00-8606-CR-598
    • United States
    • Indiana Supreme Court of Indiana
    • July 26, 1989
    ...the suspect is included among those in the line-up or photo display prior to the witness identification. See Popplewell v. State (1978), 269 Ind. 323, 381 N.E.2d 79, and Stacks v. State (1978), 175 Ind.App. 525, 372 N.E.2d 1201. Reliability is the linchpin in determining the admissibility o......
  • Spears v. State, No. 179S13
    • United States
    • Indiana Supreme Court of Indiana
    • February 27, 1980
    ...order. "The sanctions for failure to comply with discovery orders are discretionary, not mandatory." Popplewell v. State, (1978) Ind., 381 N.E.2d 79, Defendant suggests that it was improper for the trial court to hold the state to something less than strict compliance with the discovery ord......
  • Request a trial to view additional results

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