Smith v. State

• Decision Date: 27 June 1974
• Docket Number: No. 1--873A141,1--873A141
• Citation: 160 Ind.App. 622,312 N.E.2d 896
• Parties: Rosa Lee SMITH, Alias Donna Rowie, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appelle.
• Court: Indiana Appellate Court

Page 896

312 N.E.2d 896

160 Ind.App. 622

Rosa Lee SMITH, Alias Donna Rowie, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appelle.

No. 1--873A141.

Court of Appeals of Indiana, First District.

June 27, 1974.

Rehearing Denied Aug. 6, 1974.

Parr, Richey, Obremskey, Pedersen & Morton, Lebanon, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., David A. Miller, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Presiding Judge.

The defendant-appellant (Smith) is appealing her conviction by a jury of the offense of robbery. Her overruled motion to correct errors raises eleven issues. We affirm.

Prior to a discussion of the various issues it should be noted that this court will not weigh the evidence but will look to the evidence most favorable to the State and the reasonable inferences therefrom which support the verdict. Washington v. State (1971), Ind., 271 N.E.2d 888.

A summary of the facts giving rise to the appeal are: Theis, a truck driver, stopped at a rest park off the southbound lanes of I--65 in Boone County, Indiana, early one morning to check the cause of a vibration in his truck. While looking in the engine compartment a woman nudged Theis and asked him if he wanted a date. Theis said no. Theis saw a metal object in the woman's hand which he thought to be a knife. The woman inquired how much money Theis had. Theis said about $20. The woman said she wanted the money. Theis tossed his billfold to her from which she removed a twenty, two tens, a five and a one dollar bill. She threw the billfold back to Theis and walked towards a light over dark Mustang. The Mustang was parked behind Theis's truck and had a patched right front fender. It was dark with the only light being the twenty some clearance lights on the truck. Because of these lights Theis testified he had no difficulty seeing the woman. He described her as black, shorter than he, and wearing a shiny black leather jacket with dark slacks. Theis identified Smith at trial as this woman. Theis also testified he was frightened during the experience. Theis then drove to a truck stop further south on I--65 and called the State Police.

State Police Trooper Allen, while patrolling on I--65, drove through the southbound rest park. He observed a white over blue Mustang leaving the rest park. He stopped the car and asked the driver, Johnson, to get in the police car. Two men, Gibson and Moore, remained in the Mustang while Smith, dressed in dark slacks and dark leather coat, walked between the Mustang and the police car during the time Trooper Allen was talking to Johnson. Trooper Allen received a radio report of a robbery committed at the rest park by a woman who got into a car matching the Mustang. Trooper Garland then arrived on the scene and assisted in searching Gibson and Moore. The police found $57, a twenty, three tens, a five and two ones, on Moore when he was searched. The four were taken to the Boone County Jail where Theis identified Smith as the woman who robbed him.

ISSUE 1

Smith filed a motion to suppress the identification testimony of Theis. It is the overruling of that motion that raises the initial issue.

Approximately 30 minutes to an hour after Theis was robbed the two troopers arrived at the jail with the four occupants of the Mustang. Theis arrived at the jail a few minutes later. Theis identified Smith, the only black woman present, as the robber. Smith was under arrest when brought to the jail. An affidavit charging Smith with the crime was filed after a probable cause hearing, later the same morning. Smith did not have counsel at the time Theis identified her.

Smith contends that the pretrial confrontation was impermissibly suggestive and that she had not waived the right to counsel at this time.

We are of the opinion that Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), disposes of Smith's argument insofar as it pertains to the right to counsel during a confrontation with the victim prior to being formally charged with the crime. It does not presently exist under Federal or Indiana law. See Kirby, supra; Snipes v. State (1973), Ind.App., 298 N.E.2d 503.

The other aspect of this issue, the allegedly impermissably suggestive identification of the defendant, is argued by Smith as being contrary to the holding in Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967 (1967). Justice DeBruler speaking for our Supreme Court in Dillard, supra, stated:

'The test in Stovall is, looking at the totality of the circumstances, whether 'the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification' that he was denied due process of law under the Fourteenth Amendment. 388 U.S. at 302, 87 S.Ct. at 1972.

We believe the Stovall test focuses attention on two different sets of facts: (1) The facts bearing on whether the confrontation was conducted in such a fashion as to lead the witness to make a mistaken identification, e.g., how the police asked the witness to attempt the identification, what the witness thought he was doing, the displayed attitude of the police towards the suspect, etc. (2) The facts bearing on how good a chance the witness had to observe the perpetrator of the crime such that any suggestiveness in the conduct of the confrontation could be resisted by the witness and he could make an accurate decision as to whether the man presented was the man who committed the crime. These would include the length of time the witness was in presence of the perpetrator, the distance of the witness from him, the lighting conditions at the time, capacity for observation by the witness, opportunity to observe particular characteristics of the criminal, etc. See Parker v. State ((1970), Ind., 261 N.E.2d 562).' 274 N.E.2d at 389.

The facts which Smith argues as being in her favor under the first part of the foregoing test are that the confrontation took place in the early morning hours at the jail, that she was the only black woman present, and that Theis had been told prior to his arrival at the jail that the police had a suspect.

It is the State's position, inter alia, that Theis's in-court identification of Smith had a sufficient independent origin from the alleged prejudicial pre-trial confrontation under the holding in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In support thereof the State points to facts such as Theis had ample time to observe Smith under sufficient light at a distance of five feet or less. He also observed her from the front and side and watched her walk away. It is our opinion that these facts have the dual value of supporting the in-court identification by clear and convincing evidence and fulfilling the second portion of the Stovall test quoted from Dillard, supra.

It is our conclusion that under 'totality of the circumstances' the identification was reliable and it was not error to overrule the motion to suppress.

ISSUE 2

Smith next argues that the evidence was insufficient to show that Theis's money was taken by an act of violence or that Theis was put in fear by the incident. Either an act of violence or (our emphasis) putting a person in fear is an essential element of the crime of robbery as defined by IC 1971, 35--13--4--6, Ind.Ann.Stat. § 10--4101 (Burns 1956).

The essence of Smith's position in this regard is Theis had no reason to be in fear of a woman, shorter and smaller than he, who was plying her trade as a prostitute at the highway rest park.

The evidence revealed that it appeared to Theis that Smith had a knife and that he was frightened. We deem this sufficient. Jackson v. State (1971), Ind., 275 N.E.2d 538; Lauer v. State (1973), Ind.App., 296 N.E.2d 446.

ISSUE 3

Smith's next assertion is that her sentence of 10 to 25 years is cruel and unusual punishment prohibited by Ind.Const., art. 1, § 16 and its federal counterpart. Smith posits that the length of the sentence is greater than other unrelated, but more serious, crimes.

The State correctly points out that it is the type of punishment, not the length, that may be cruel and unusual. Kistler v. State (1920), 190 Ind. 149, 129 N.E. 625.

Smith's arguments relating to this issue are of a similar vein as those advanced in Hollars v. State (1972), Ind., 286 N.E.2d 166, where Justice Prentice summarized our Supreme Court's position as:

'These are primarily legislative considerations, and we are not at liberty to set aside a conviction and sentence because, on the record, they seem severe. Blue v. State (1946), 224 Ind. 394, 67 N.E.2d 377; Mellot v. State (1942), 219 Ind. 646, 40 N.E.2d 655.

It is only when a criminal penalty is not graduated and proportioned to the nature of an offense, or where it is grossly and unquestionably excessive that this provision of the Constitution is intended to apply. Weems v. United States, 217 U.S 349, 30 S.Ct. 544, 54 L.Ed. 793. Such is not the case here.

The law imposes upon us duties that are often painful of execution. There are areas wherein we have great powers and discretion, others where we have none, and we have not been invested with the authority to reverse judgments of the lower court out of considerations urged in this appeal.' 286 N.E.2d at 170.

See also McHaney v. State (1972), Ind.App., 288 N.E.2d 284.

ISSUE 4

Smith urges error in the admission, over her objection, of testimony relating to the activities of Moore and Gibson in the evening prior to the early morning incident at the rest park. Johnson testified that he drove to a department store on the south side of Indianapolis. Moore and Gibson went into the store and returned a few minutes later carrying two radios in boxes. The four then drove to a furniture store on the west side. Moore and Gibson carried the two boxes inside the store and returned without them.

Smith says that this testimony was to infer a theft on the part of Moore and Gibson and the subsequent fencing...