Sawyer v. State, No. 771S204

Docket NºNo. 771S204
Citation37 Ind.Dec. 405, 298 N.E.2d 440, 260 Ind. 597
Case DateJuly 11, 1973
CourtSupreme Court of Indiana

Page 440

298 N.E.2d 440
260 Ind. 597
Cleotha SAWYER, Appellant,
v.
STATE of Indiana, Appellee.
No. 771S204.
Supreme Court of Indiana.
July 11, 1973.

[260 Ind. 598]

Page 441

A. Martin Katz, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This case comes to us on appeal from the Lake Criminal Court, Honorable Vernon Sigler, Commissioner. Appellant was convicted of the offense of robbery (I.C. 1971, 35--13--5--6, being Burns § 10--4101) and sentenced to the Indiana Reformatory for not less than ten nor more than twenty-five years. He appeals on two grounds: (1) That the trial court erred in not sustaining his motion to strike witness Clifford Fry's in-court identification of appellant because Fry had been present at a photographic display which was both suggestive in nature and conducted without

Page 442

the presence of appellant's counsel even though appellant had already been arrested and charged with the crime; (2) Ineffective representation by his trial counsel.

[260 Ind. 599] On January 26, 1970, at about 6:00 p.m. two men entered the Butternut Bakery in Calumet Township. They walked to a display rack, picked up a cake and approached the checkout counter. At that time they announced they were holding up the store. One of the men pulled a shotgun from underneath his coat and came around to the back of the counter. Two workers behind the counter were ordered to take the money from the cash register and put it in a paper-bag. The other man ordered two customers in the store against the wall. He kept his hand in his right jacket pocket and told the men to hand over their wallets or he would blow their heads off. The holdup men left the bakery with about $150.00.

There were five State witnesses at the trial, four of whom were the workers and customers at the bakery the night of the incident. All four of these witnesses described the holdup men as Black and in their early twenties. The man with the shotgun was described as somewhat taller than the other man. One of the employees could not say whether or not the appellant was one of the men at the store because she testified that she had deliberately kept her head down during the robbery so as not to arouse the men's suspicions that she was studying their features. The other employee testified that appellant 'looked like' the shorter of the two men but she could not be sure.

Both of the customers stated that it was the shorter man who told them to stand against the wall. He kept his hand in his jacket pocket the entire time they were in the shop. Both witnesses testified that the shorter man took their wallets and identified appellant as that man. The fifth State witness was a police officer who took a statement from appellant concerning the holdup. The statement was introduced and received in evidence over the objections of appellant but he does not urge the trial court's ruling on that point as error. He does, however, appeal on the court's ruling concerning his objection to the testimony of one of the customer-witnesses, Clifford Fry.

[260 Ind. 600] During the testimony of Clifford Fry appellant asked for and was granted permission to voir dire the witness out of the presence of the jury. On the voir dire appellant established that the police had come to Fry's house about two weeks after the robbery. They told Fry that they had arrested someone for the robbery and they wanted Fry to pick him out of some photographs they had. They showed him about twenty different photographs of Black males of various descriptions, out of which Fry picked three or four that resembled the men at the store. Fry went over these carefully and indicated who he thought were the holdup men.

After this voir dire appellant made a motion to strike witness Fry's identification testimony on the grounds that his in-court identification was tainted by a suggestive out-of-court photographic procedure, and further because appellant was deprived of his right to counsel at this post-arrest photographic display. The trial court denied appellant's motion and he now appeals that decision.

The Sixth Amendment to the Federal Constitution guarantees that the accused in a criminal prosecution shall have the assistance of counsel. In two related cases handed down in 1967, the United States Supreme Court interpreted this provision to provide for the right to counsel at a post indictment corporeal lineup. United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926...

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66 practice notes
  • State v. Williams, No. 13023
    • United States
    • Supreme Court of Connecticut
    • April 14, 1987
    ...that the police expressly informed the victim that a suspect's photograph was included in a particular display. Cf. Sawyer v. State, 260 Ind. 597, 298 N.E.2d 440 (1973); see also State v. Austin, supra, 195 Conn. at 500, 488 A.2d 1250. Even assuming, however, that remarks by the police caus......
  • Ballard v. State, No. 1174S224
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1974
    ...by a factual basis which is independent of allegedly erroneous pre-trial identification procedures. Sawyer v. State, (1973) Ind., 298 N.E.2d 440; Lindsey v. State, (1973) Ind., 295 N.E.2d 819; Hendrickson v. State, (1973) Ind., 295 N.E.2d 810; Stephens v. State, (1973) Ind., 295 N.E.2d 622;......
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1982
    ...whether the identification was the product of unduly suggestive procedures. Simmons v. United States, supra; Sawyer v. State, (1973) 260 Ind. 597, 298 N.E.2d 440. The question is one which, on a case-by-case basis, is resolved by an examination of the totality of circumstances surrounding t......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...Vicory v. State (1974), 262 Ind. 376, 315 N.E.2d 715; Bowen v. State (1975), 263 Ind. 558, 334 N.E.2d 691 and Sawyer v. State (1973), 260 Ind. 597, 298 N.E.2d 440, where the identification procedures were suggestive are therefore not Furthermore, our Supreme Court in Popplewell v. State (19......
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66 cases
  • State v. Williams, No. 13023
    • United States
    • Supreme Court of Connecticut
    • April 14, 1987
    ...that the police expressly informed the victim that a suspect's photograph was included in a particular display. Cf. Sawyer v. State, 260 Ind. 597, 298 N.E.2d 440 (1973); see also State v. Austin, supra, 195 Conn. at 500, 488 A.2d 1250. Even assuming, however, that remarks by the police caus......
  • Ballard v. State, No. 1174S224
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1974
    ...by a factual basis which is independent of allegedly erroneous pre-trial identification procedures. Sawyer v. State, (1973) Ind., 298 N.E.2d 440; Lindsey v. State, (1973) Ind., 295 N.E.2d 819; Hendrickson v. State, (1973) Ind., 295 N.E.2d 810; Stephens v. State, (1973) Ind., 295 N.E.2d 622;......
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1982
    ...whether the identification was the product of unduly suggestive procedures. Simmons v. United States, supra; Sawyer v. State, (1973) 260 Ind. 597, 298 N.E.2d 440. The question is one which, on a case-by-case basis, is resolved by an examination of the totality of circumstances surrounding t......
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...Vicory v. State (1974), 262 Ind. 376, 315 N.E.2d 715; Bowen v. State (1975), 263 Ind. 558, 334 N.E.2d 691 and Sawyer v. State (1973), 260 Ind. 597, 298 N.E.2d 440, where the identification procedures were suggestive are therefore not Furthermore, our Supreme Court in Popplewell v. State (19......
  • Request a trial to view additional results

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