Sims v. State

• Decision Date: 02 December 1980
• Docket Number: No. 879S229,879S229
• Citation: 413 N.E.2d 556,274 Ind. 495
• Parties: Willie SIMS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

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.

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 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 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 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.

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 having been arrested and taken in custody to the police station, appellant signed a written consent to the police to search his apartment. The challenge to admissibility was premised however, upon the claim that the State had failed to show an explicit waiver by appellant of his right to confer with counsel about whether he should consent to the search, as required by law. Pirtle v. State, (1975) 263 Ind. 16, 323 N.E.2d 634; Larkin v. State, (1979) --- Ind. ---, 393 N.E.2d 180. The challenge was turned down by the trial court in both instances when made, and the items identified as having been used to beat and to confine the two victims were admitted at trial and displayed to the jury.

At the hearings upon the challenges the evidence was all in harmony. Appellant was arrested outside his apartment at 6:00 a. m., and taken in custody to the police station. There at about 10:00 a. m., he was advised of his constitutional rights prior to being interrogated, as required by Miranda v. Arizona, (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, signed a written waiver form, and made a statement in which he claimed innocence. He was then asked to consent to a search of his apartment, and signed a written form authorizing the search. The form signed was the following:

The situation here is that there was no evidence that the police informed appellant that he had the right to confer with a lawyer prior to giving consent to search his home, and he did nothing to indicate his appreciation of such right. The place identified in the form was appellant's basement apartment. The police then went there, entered, and took the challenged items. There was no coercion or undue influence exercised by the police in obtaining this consent.

In resolving the issue presented, we do not engage in defining a new frontier of the law. Three years prior to the use by the police of this consent form we held in Pirtle v. State, supra :

"(A) person who is asked to give consent to search while in police custody is entitled to the presence and advice of counsel prior to making the decision whether to give such consent. This right, of course, may be waived, but the burden will be upon the State to show that such waiver was explicit, and as in Miranda, the State will be required to show that the waiver was not occasioned by the defendant's lack of funds." (Emphasis added.) 263 Ind. at 29, 323 N.E.2d 634.

In Larkin v. State, supra, an appeal by appellant's accomplice, following a separate trial on these same charges, we expressly reaffirmed the Pirtle requirement. However, there the challenge to the consent to search was different in that it was based upon the claim that Sims's consent to search had not been freely and voluntarily given, that is, that it had not been shown to be the product of the exercise of a free and unfettered will. Here the claim is different. It challenges the sufficiency of the showing by the State of an explicit waiver of the right to counsel. It is the explicitness or knowing quality of that waiver which is at stake here, and not the voluntary quality of the decision to permit the search.

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