Riley v. State

• Decision Date: 13 November 1981
• Docket Number: No. 1080S390,1080S390
• Citation: 427 N.E.2d 1074
• Parties: Louis Edward "Buddy" RILEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1074

427 N.E.2d 1074

Louis Edward "Buddy" RILEY, Appellant, v. STATE of Indiana, Appellee.

No. 1080S390.

Supreme Court of Indiana.

Nov. 13, 1981.

Mark W. Hunter, Brazil, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with rape and criminal confinement. A jury trial resulted in a finding of guilty on both counts. He was sentenced to a term of imprisonment of fifty (50) years on the count of rape, and a term of four (4) years on the count of criminal confinement, the terms to run consecutively.

The record reveals the following facts. On the night of September 9, 1979, one C.F. was forced into a truck by a young man who then drove her to a secluded spot in Clay County and raped and beat her. She described her assailant to a Clay County deputy sheriff immediately after the incident. On September 24, the victim offered a description to state police while she was under hypnosis. At that time a composite sketch of the assailant was drawn. Though there were inconsistencies in these descriptions, C.F. described her assailant as clean-shaven in all of them.

Two attempts to have the victim identify her assailant from police mug shots were unsuccessful. On January 21, 1980, C.F. identified appellant as her assailant, working from a specially prepared photographic display. She also identified appellant later as he stood trial in Vigo County on a rape charge.

Prior to trial, appellant filed a Motion to Suppress Photographic Evidence in regard to C.F.'s identification from the display. Said motion was granted due to the suggestive nature of the display, however, at trial appellant himself introduced the display as a defense exhibit. Appellant filed a Motion in Limine to prohibit all in-court identification, arguing C.F. had no basis for identifying him independent of allegedly suggestive pretrial confrontations. The trial court denied the Motion in Limine.

Appellant submitted testimony to the effect he had a beard in September of 1979. A photograph taken for booking purposes in the Vigo County jail on unrelated charges on September 14, five days after the rape, showed him with at least some facial hair. The photograph used in the display, shown to C.F. on January 21, showed appellant clean-shaven but the date on which the photograph was taken could not be established. The appellant was arrested on January 22. A photograph taken at that time shows he had a beard.

Appellant claims the trial court erred in not granting his Motion in Limine to suppress all in-court identification of appellant by the victim. However, to preserve error in this question it was also necessary for the appellant to object to the evidence of identification at the time it was offered. It is not sufficient to stand on the denying of his Motion in Limine. Waters v. State, (1981) Ind., 415 N.E.2d 711; Pavone v. State, (1980) Ind., 402 N.E.2d 976. At the time the victim made the in-court identification of the appellant there was no objection. We hold this failure to object to the in-court identification was a waiver of the objection. There is no error involved, therefore, in the in-court identification of the appellant.

Appellant claims error concerning alleged improprieties committed by the State in final argument to the jury. Final arguments to the jury in this case were not recorded by the court reporter. Appellant attached an affidavit to his Motion to Correct errors, setting forth his recollection of the State's final argument. The State did not submit counter affidavits. The trial judge examined the affidavit and certified that, along with the other objections, motions and evidence taken in the cause, all were "approved and found to be correct," and were ordered made a part of the record in the case. This procedure was in compliance with Rule 7.2(A)(3)(c). We accept the averments of appellant's counsel as true.

During final argument, the State made reference to the photograph of appellant taken in the Vigo County jail when he was arrested on an unrelated charge on September 14, 1979. The State claimed there was no evidence the photograph had been attached to the booking record; however, the record shows there was clear evidence of the photograph attached to the record. The other misstatement was in reference to the picture of appellant in the display shown to C.F. on January 21, and the picture of him taken when he was arrested the next day. The State's final argument "contained dates not testified to and ... made references and certain insinuations to said dates to the effect of when the photographs were taken ...." The record shows no date was ever established for the taking of the first photograph.

In cases of alleged prosecutorial misconduct in making final argument to the jury, this Court will consider "whether the misconduct, under all the circumstances, 'placed the defendant in a position of grave peril' (cites omitted) .... Whether the misconduct results in subjecting the defendant to 'grave peril' is determined by the probable persuasive effect of the misconduct on the jury's decision ...." Maldonado v. State, (1976) 265 Ind. 492, 498-499, 355 N.E.2d 843, 848. See also, Stanley v. State, (1980) Ind., 401 N.E.2d 689; Marsh v. State, (1979) Ind., 396 N.E.2d 883.

Although the conduct of the...