Ross v. State

• Decision Date: 13 January 1982
• Docket Number: No. 481S100,481S100
• Parties: John Edward ROSS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 942

429 N.E.2d 942

John Edward ROSS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 481S100.

Supreme Court of Indiana.

Jan. 13, 1982.

David L. Abel, Spangler, Jennings, Spangler & Dougherty, P. C., Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant), following a trial by jury was convicted of rape by deadly force, Ind.Code § 35-42-4-1 (Burns 1979), and sentenced to forty (40) years imprisonment. This direct appeal presents the following issues:

(1) Whether the verdict is supported by sufficient evidence?

(2) Whether the trial court erred in denying Defendant's motion that he be subjected to extensive medical examinations incidental to his plea of insanity.

(3) Whether the trial court erred in enhancing Defendant's sentence?

The evidence, when viewed in a light most favorable to the State, discloses that the prosecutrix was assaulted on a public street and forced to proceed to a vacant lot, where she was raped by her assailant.

ISSUE I

Defendant's dual claim of insufficient evidence is addressed to the identification of the assailant and to the issue of deadly force.

It is Defendant's claim that the in-court identification of him by the prosecutrix was tainted by an impermissibly suggestive pre-trial "line-up" identification, and that the identification of him by the witness, Black, was inherently unreliable.

Defendant made no objection when the defendant was identified at trial by the prosecutrix. The issue, therefore, is not available for review. Stubblefield v. State, (1979) Ind., 386 N.E.2d 665.

Defendant's claim with reference to Black's identification is one of credibility only, which is the exclusive province of the trier of fact. Loyd v. State, (1980) Ind., 398 N.E.2d 1260, 1264, cert. denied, (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. It is immaterial, on appellate review, that his description of the defendant given to police, as being light complexioned, was at a variance with his in-court testimony that he regarded him as being of a medium brown complexion. It is likewise immaterial, on review, that Defendant was wearing a black coat when arrested approximately one hour following the attack, although Black had told the police earlier that the assailant was wearing a three-quarter length jacket. These observations are so patent as to require no authority in their support.

Defendant's claim of insufficient evidence that the rape was accomplished by the use or threat of deadly force, is also without merit. The jury was not precluded from finding that a weapon was employed merely because none was seen. Prosecutrix testified that she saw a knife or similar object beneath Defendant's sweater, and that as he covered her mouth with his hand, he said that he would cut her throat. The witness, Black, also testified that during the criminal episode he heard the defendant say Defendant's claim that the only evidence of the threat of deadly force was that it occurred after the rape had been completed belies the record. The prosecutrix testified in no uncertain terms that it occurred prior to the penetration. (Tr. pp. 246, 247).

that he would cut the prosecutrix's throat. "A weapon need not be displayed in order to establish the threat of deadly force." Zollatz v. State, (1980) Ind., 412 N.E.2d 1200, 1202.

ISSUE II

The rape occurred on April 15, 1980. Defendant was arraigned and pauper counsel for him was appointed on April 25th. On July 28, 1980, Defendant filed a motion for an early trial, and the matter was set for trial on September 29th.

On September 3, 1980, Defendant filed a special plea of insanity, and on September 18th, he filed a verified motion to be "transported to an appropriate medical facility to undergo a brain scan, skull and head X-rays, at the expense of the State * * *." He supported his motion with a statement that he had sustained a serious head injury fourteen (14) years earlier. The motion was denied.

Defendant contends that the denial of the motion was an abuse of discretion, given his burden of proof as placed by statute, Ind.Code § 35-41-4-2(a) (Burns 1979). He cites no authority for this position, and we are aware of no reason why one's entitlement to assistance from the state should be controlled by the nature of his plea. In Himes v. State, (1980) Ind., 403 N.E.2d 1377, 1378, we said:

"Defendant has cited cases from other jurisdictions holding that an indigent defendant has a right to expert witnesses, at State's expense, but he had not equated these cases to the case before us. The subject has been treated in considerable detail at 34 A.L.R.3d 1256, and it appears that, absent a statute, a rule or due process requirements of fundamental fairness, an indigent defendant is...