Sims v. State, No. 879S229

Docket NºNo. 879S229
Citation413 N.E.2d 556, 274 Ind. 495
Case DateDecember 02, 1980
CourtSupreme Court of Indiana

Page 556

413 N.E.2d 556
274 Ind. 495
Willie SIMS, Appellant,
v.
STATE of Indiana, Appellee.
No. 879S229.
Supreme Court of Indiana.
Dec. 2, 1980.

[274 Ind. 496] James L. Wieser, Highland, for appellant.

Theo. L. Sendak, Atty. Gen., Joel Schiff, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Willie Sims, was charged along with Paul Smith and Albert Larkin by way of an information with two counts of kidnapping, Ind.Code § 35-42-3-2, and two counts of robbery, Ind.Code § 35-42-5-1. Appellant was granted a severance and tried separately by jury. He was convicted on all four counts.

In this case Pioch and Mann were steered to appellant's apartment by a man on the street for the purpose of finding some girls and having a good time. There, appellant struck Pioch on the head with a ball bat, and put a knife to his neck, and Larkin

Page 557

mistreated Mann in a like manner. Their money was taken. This occurred at about midnight on February 1, 1978, in Gary, Indiana.

Mann was then tied up with a cord and kept at the apartment while appellant and Smith drove Pioch to his apartment to get more money. Pioch escaped from them at about 4:30 a. m., and procured the assistance of the police. Pioch and the police then went to appellant's apartment building where they effectuated the rescue of Mann. Appellant was arrested on a landing in the apartment building and his two accomplices were also arrested in the building. Pioch pointed out appellant as his attacker on the scene at the time of arrest, two days later through a photographic display at the police department, and at trial. Mann identified appellant as one of the attackers at the trial.

Appellant presents two issues on appeal which we deem necessary to address, namely, (1) whether the in-court testimony of Pioch serving to identify appellant was correctly admitted, and (2) whether it was error to admit certain items taken from his apartment pursuant to his consent to search.

I.

Appellant made a motion to suppress any in-court identification by [274 Ind. 497] the victim Pioch on due process grounds. Prior to trial Pioch had twice identified appellant to the police as his assailant. He contends that these occurrences stemmed from confrontations which were staged by the police in a manner which was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny him due process of law. Stovall v. Denno, (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Dillard v. State, (1971) 257 Ind. 282, 274 N.E.2d 387.

The first such identification occurred at appellant's apartment building at about 6:00 a. m., when Pioch returned with the police to aid Mann. The police observed appellant hiding on a landing of the stairs and ordered him out. The police then took him in custody and then at the request of the officers Pioch identified appellant as one of the assailants. Appellant observes that at the time the officers had their guns drawn and were in uniform and concludes that the circumstances were such as to force the positive identification. Confrontations such as this occurring at the scene shortly after a crime were first considered by this Court in McPhearson v. State, (1969) 253 Ind. 254, 253 N.E.2d 226. There McPhearson was arrested minutes after a gas station robbery and taken back to the station where he was identified by the attendant. The Court concluded that the procedure was not unduly suggestive. The procedure at appellant's apartment was no different than that approved in McPhearson.

The second identification made by Pioch occurred several days after the offense when he was handed about twelve photographs of black male persons and selected a photograph of appellant from them. The law regards the photographic display as well as the live lineup to be an identification procedure which can be employed in a manner which can be so impermissibly suggestive as to violate the right to due process of law and require suppression. Simmons v. United States, (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Sawyer v. State, (1975) 260 Ind. 597, 298 N.E.2d 440. Appellant observes that Pioch was white, while appellant and all those portrayed in the photographs were black. The only other evidence descriptive of the persons portrayed in the photographs was that some were light complected and others were darker. Pioch himself was unable to recall other characteristics which may have varied among [274 Ind. 498] the photographs. From the totality of the circumstances the photographic identification procedure was not unduly or unnecessarily suggestive and could not have given rise to a substantial likelihood of the misidentification of appellant. On the basis of these two pre-trial identification procedures it was not error to admit the in-court identification of appellant by Pioch at trial.

Page 558

II.

Appellant by a motion to suppress and later in-trial objections challenged the admissibility of three baseball bats, an electric wire cord, a knife, and a rag seized by the police in a search of his basement apartment at 568 Adams Street. After...

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34 practice notes
  • State v. Washington, No. 02S03-0804-CR-191.
    • United States
    • Indiana Supreme Court of Indiana
    • December 31, 2008
    ...to counsel, required under the Indiana Constitution before obtaining consent to a search from a person in custody. See Sims v. State, 274 Ind. 495, 500, 413 N.E.2d 556, 559 (1980); Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975). Unlike Jones v. State, 655 N.E.2d 49 (Ind. 1995)......
  • Garcia–torres v. State , No. 64S03–0912–CR–550.
    • United States
    • Indiana Supreme Court of Indiana
    • June 30, 2011
    ...in court of demonstrating an explicit waiver of such right as a condition to introducing the fruits of such searches.” Sims v. State, 274 Ind. 495, 413 N.E.2d 556, 559 (1980), overruled on other grounds by Wright v. State, 658 N.E.2d 563 (Ind.1995). Pirtle and Sims have long been understood......
  • Com. v. Barnes
    • United States
    • Massachusetts Court of Appeals
    • September 11, 1985
    ...Arizona v. King, 140 Ariz. 602, 604, 684 P.2d 174 (Ariz.App.1984); Pirtle v. State, 263 Ind. 16, 25, 323 N.E.2d 634 (1975); Sims v. State, 274 Ind. 495, 413 N.E.2d 556 (1980); People v. Johnson, 48 N.Y.2d 565, 568-569, 423 N.Y.S.2d 905, 399 N.E.2d 936 (1979); Schorr v. State, 499 P.2d 450, ......
  • Ward v. State, No. 74S00-0707-DP-263.
    • United States
    • Indiana Supreme Court of Indiana
    • April 7, 2009
    ...to the presence and advice of counsel prior to making the decision whether to give such consent." Id. at 640; see also Sims v. State, 274 Ind. 495, 413 N.E.2d 556, 558-59 (1980), overruled in part on unrelated grounds by Wright v. State, 658 N.E.2d 563, 570 In the present case, unlike Pirtl......
  • Request a trial to view additional results
34 cases
  • State v. Washington, No. 02S03-0804-CR-191.
    • United States
    • Indiana Supreme Court of Indiana
    • December 31, 2008
    ...to counsel, required under the Indiana Constitution before obtaining consent to a search from a person in custody. See Sims v. State, 274 Ind. 495, 500, 413 N.E.2d 556, 559 (1980); Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975). Unlike Jones v. State, 655 N.E.2d 49 (Ind. 1995)......
  • Garcia–torres v. State , No. 64S03–0912–CR–550.
    • United States
    • Indiana Supreme Court of Indiana
    • June 30, 2011
    ...in court of demonstrating an explicit waiver of such right as a condition to introducing the fruits of such searches.” Sims v. State, 274 Ind. 495, 413 N.E.2d 556, 559 (1980), overruled on other grounds by Wright v. State, 658 N.E.2d 563 (Ind.1995). Pirtle and Sims have long been understood......
  • Com. v. Barnes
    • United States
    • Massachusetts Court of Appeals
    • September 11, 1985
    ...Arizona v. King, 140 Ariz. 602, 604, 684 P.2d 174 (Ariz.App.1984); Pirtle v. State, 263 Ind. 16, 25, 323 N.E.2d 634 (1975); Sims v. State, 274 Ind. 495, 413 N.E.2d 556 (1980); People v. Johnson, 48 N.Y.2d 565, 568-569, 423 N.Y.S.2d 905, 399 N.E.2d 936 (1979); Schorr v. State, 499 P.2d 450, ......
  • Ward v. State, No. 74S00-0707-DP-263.
    • United States
    • Indiana Supreme Court of Indiana
    • April 7, 2009
    ...to the presence and advice of counsel prior to making the decision whether to give such consent." Id. at 640; see also Sims v. State, 274 Ind. 495, 413 N.E.2d 556, 558-59 (1980), overruled in part on unrelated grounds by Wright v. State, 658 N.E.2d 563, 570 In the present case, unlike Pirtl......
  • Request a trial to view additional results

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