Rowe v. State, 573S81

• Citation: 262 Ind. 250,314 N.E.2d 745
• Decision Date: 26 July 1974
• Docket Number: No. 573S81,573S81
• Parties: William A. ROWE, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 745

314 N.E.2d 745

262 Ind. 250

William A. ROWE, Appellant, v. STATE of Indiana, Appellee.

No. 573S81.

Supreme Court of Indiana.

July 26, 1974.

Joseph A. Williams, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant was convicted of Committing a Felony (robbery) while Armed with a Deadly Weapon (I.C.1971, 35--13--4--6, being Burns § 10--4101, and I.C.1971, 35--12--1--1, being Burns § 10--4709) after a trial without a jury in the Allen Superior Court, Honorable Robert L. Hines presiding. He was sentenced to a determinate sentence of twenty years imprisonment. The following grounds are raised in his appeal: (1) The evidence submitted below was insufficient as a matter of law to sustain his conviction; (2) The trial court erroneously refused to grant appellant's in-trial motion for the production of a picture display used by the police in an out-of-court identification procedure; (3) The trial court erroneously admitted a police constructed composite drawing; (4) The sentence imposed by the trial court is disproportionate to the nature of the crime in contravention of Art. 1, § 16, of the Indiana Constitution and the Eighth Amendment to the United States Constitution.

The evidence most favorable to the State discloses that Cyril Laycoff was the owner and bartender of a tavern located in Fort Wayne, Indiana. Shortly before 2:00 a.m. on March 28, 1972, Laycoff began cleaning up the tavern in preparation for closing for the night. At that time there were three other people remaining in the bar: his wife barbara, Dean Prugh and a man identified by Laycoff as the appellant. Laycoff testified that the appellant had been drinking at the bar for approximately two hours and that he had served him several beers over the course of the night.

While Laycoff was placing some empty bottles in a create the appellant left his barstool, walked to the end of the bar where Laycoff was working and pulled a .45 calibre automatic pistol from underneath his coat. He tossed a bag at Laycoff and ordered him to fill it with money. The appellant also told Prugh to keep his hands on top of the bar. Laycoff testified that he filled the bag with approximately $1600.00 and the appellant left by the back door of the tavern. He further testified that the appellant appeared to be twenty-seven or twenty-eight years of age at the time of the incident. Both Prugh and Laycoff's wife substantiated Laycoff's testimony concerning the holdup and identified the appellant as the perpetrator. Three other witnesses testified that they were in Laycoff's tavern that night. All three left prior to the robbery, but they all identified appellant as being present in the bar that night.

Before turning to the appellant's contention regarding the insufficiency of the evidence in his case, we should again point out that when called upon to decide this issue it is not our function as an appellate court to weigh the evidence introduced at the trial or to decide questions concerning the credibility of witnesses testifying at the trial. Priola v. State (1973), Ind., 292 N.E.2d 604. Our proper role is to look to the evidence most supportive of the verdict and determine whether that evidence, along with the reasonable inferences which a trier of fact might draw from it, has established all the necessary elements of the offense charged. Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558. With these general principles in mind we now turn to the facts raised by this particular appeal.

The statutes and affidavit under which appellant was convicted requires the establishment of three elements: 1. The taking of an article of value from another by a person over sixteen years of age, 2. by placing that person in fear and 3. While armed with a dangerous weapon. The State in this case produced direct eye-witness testimony that appellant, who was approximately twenty-seven years old at the time of the incident, took $1600.00 of Cyril Laycoff's money by pointing a .45 calibre automatic pistol at him and thereby placing him in fear. Such testimony is clearly sufficient to establish the necessary elements of this offense. Schuster v. State (1973), Ind., 302 N.E.2d 496; Cottingham v. State (1973), Ind., 303 N.E.2d 268.

Appellant's next contention concerns his motion to produce made during the trial. A portion of Cyril Laycoff's testimony concerned the investigatory period following the robbery, but prior to the arrest of a suspect. Laycoff testified that he had been shown several albums of photographs shortly after the incident but had not been able to pick anyone as the robber. About three weeks later the police brought approximately four photographs to his home and asked if he could identify any of them. At this point in Laycoff's testimony appellant interposed a request for the production of this photographic display on the grounds that, 'unless we have the pictures in court we can't show the relevancy that they have, any weight or competency, unless we have the actual pictures from which he picked them out.' The trial court denied his request and Laycoff testified that he identified one of the photographs as that of the man who robbed him.

A series of recent cases decided by this Court has recognized the ability of the defendant under certain conditions to discover various exhibits, statements and documents used in the preparation of the prosecution's case against him. Dillard v. State (1971), 257 Ind. 282, 274 N.E.2d 387; Antrobus v. State (1970), 253 Ind. 420, 254 N.E.2d 873; Nuckles v. State (1968), 250 Ind. 399, 236 N.E.2d 818; Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536.

'The purpose of the Bernard doctrine is to insure justice and fairness in criminal proceedings, and it is axiomatic that an accused is not justly and fairly tried when his counsel is compelled to maneuver in a factual vacuum.' Johns v. State (1968), 251 Ind. 172, 179, 240 N.E.2d 60, 64.

In our opinion in Sexton v. State (1972), 257 Ind. 556, 276 N.E.2d 836, we set out three major criteria to be considered by a trial court when it is called upon to decide questions concerning the discovery capabilities of a criminal defendant: 1. There must be a sufficient designation of the items sought to be discovered. 2. The item sought to be discovered must be material to the defense. 3. If these first two factors are satisfied the trial court must grant the discovery motion unless the State makes a showing of paramount interest in non-disclosure.

In this case the items sought to be produced were clearly designated as the photographs used by the police in the display they presented to Cyril Laycoff at which he identified the appellant. The display used at that particular time would certainly be material to appellant both as a tool to impeach the credibility of the witness, and as a possible method of establishing the suggestive nature of the display, which under certain conditions might require the total exclusion of the witness' identification testimony. Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Sawyer v. State (1973), Ind., 298 N.E.2d 440. Upon appellant's motion, therefore, the trial court should have ordered the prosecution to produce the photographic...