Stacks v. State, 3-1175A263

Citation175 Ind.App. 525, 372 N.E.2d 1201
Case DateFebruary 22, 1978
CourtCourt of Appeals of Indiana

William F. Carroll, Carroll, Barber & Sorbello, Crown Point, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., James N. Shumacker, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.


The appellant Larry W. Stacks (Stacks) entered a plea of not guilty by reason of insanity to the charge of robbery. 1 He was convicted of robbery after a trial by jury and judgment was entered thereon by the trial court. Following the denial of his motion to correct errors, appellant perfected this appeal raising the following issues for review:

I. Did the trial court err in denying the motion to suppress the line-up identification?

II. Did the trial court err in refusing to recognize the plea negotiations between the State of Indiana and Stacks?

III. Did the trial court err in summarily denying the motion for change of venue from the Judge?

IV. Did the trial court err in admitting the testimony of Don Willis Stran with regard to Stacks' other criminal involvement?

V. Did the trial court err in failing to declare a mistrial after Dr. Peter Gutierrez referred to his psychiatric examinations of Stacks in other cases?

VI. Did the trial court err in refusing to admit into evidence Stacks' army medical records, hospital records from his treatment of hepatitis in February, 1974, and the testimony of an expert witness concerning narcotic addiction?

On October 11, 1974, Donald Eugene Vitoux was employed at the Clark Service Station located at Main and Porter Streets in Crown Point, Indiana. While working alone between 1:00 and 1:30 A.M., Vitoux was robbed by a man driving a 1973 or 1974 silver-blue Thunderbird. The lighting at the station was "like daylight." The robbery lasted approximately five to seven minutes. For a minute and a half, Vitoux observed the man exit his automobile, approach the station, produce a handgun and ask for the money. During the remainder of the robbery Vitoux faced a wall in the backroom of the building. Vitoux described the robber as a man about six feet tall, weighing 150 pounds, with red hair and a red beard and wearing a blue jean jacket and blue jeans.

Patrolman Gerald Baldwin of the Crown Point Police Department, while on patrol at 1:15 A.M. on October 11, 1974, observed a silver-blue Thunderbird and a man with the attendant at the Clark Service Station. Baldwin testified that the lighting at the station was "like daylight." Baldwin observed the man from a distance of fifty feet, and described him as "five foot nine", slender, with reddish-brown hair and a full beard, and wearing a faded blue jean jacket and blue jeans.

About an hour after the robbery, Patrolman Baldwin transported Vitoux to a line-up at the Indiana State Police Post in Schererville. During the trip Vitoux was told that police had a suspect and that, if he could, he should select the person who robbed him. Baldwin did not, however, instruct Vitoux which man to select.

At the line-up both Vitoux and Baldwin immediately identified Stacks as the robber. At trial, Vitoux and Baldwin again identified Stacks as the robber, and as the man whom they identified at the State Police Post.

At trial Don Willis Stran who worked at a Clark Service Station in St. John, Indiana, testified, over objection, about an armed robbery allegedly committed by Stacks at 1:45 A.M. on October 7, 1974. Stran identified Stacks as the man who robbed him.

Stacks, relying upon the defense of insanity caused by the physical compulsion of heroin withdrawal, offered into evidence his army medical records, hospital records from his treatment for hepatitis in February, 1974, and expert testimony about narcotics addiction and withdrawal. The trial court ruled all such evidence inadmissible. Dr. Peter Gutierrez testified that he was appointed to examine the sanity of Stacks in Cause Nos. 174-799; 174-735; and 474-669. Pursuant to defense counsel's objection, the court admonished the jury to disregard the reference to the two cause numbers which were then not before the trial court and denied counsel's motion for a mistrial. Dr. Gutierrez testified that in his opinion Stacks was sane because he was not suffering from heroin withdrawal at the time of the offense.


Did the trial court err in denying the motion to suppress

the line-up identification?

In Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Supreme Court held, when judged by the totality of the circumstances, the manner of conducting pretrial identification procedures may be "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to constitute a denial of due process of law. Id., 388 U.S. at 302, 87 S.Ct. at 1972. Due process of law requires suppression of testimony concerning an out-of-court identification when the procedure employed was unnecessarily suggestive. Stovall v. Denno, supra; Norris v. State (1976) Ind., 356 N.E.2d 204.

An examination of the totality of the circumstances reveals the following facts regarding the line-up identification procedure: During the trip to the line-up at the State Police Post, Donald Vitoux, the victim of the robbery in this case, was told by police officers that they had a suspect, that he was going to view a line-up, and that he should select the person who robbed him, if he could. The line-up, which occurred one hour after the robbery, contained four participants. Stacks was the only man with red hair and a red beard. The other three men had black hair. One man, who was considerably shorter than Stacks, also had a beard. Stacks and the bearded man stood beside each other, and both wore blue jeans and blue jackets. The other two men were "clean-cut." One of them was 5'9 , weighed 220 pounds and wore a plaid shirt. Vitoux testified that none of the other men in the line-up resembled Stacks in height, weight, complexion or color of hair. Vitoux had described the robber as a man six feet tall with red hair and red beard, weighing 150 pounds, and wearing a blue jean jacket and blue jeans. All four participants were asked to state their names and a certain phrase. Both Vitoux and Patrolman Baldwin, another eyewitness, selected Stacks from the line-up immediately.

Several recent Indiana cases discuss unnecessarily suggestive line-ups. Line-ups of four participants are not generally considered adequate. Tewell v. State (1976), Ind., 339, N.E.2d 792, 799. A line-up procedure is impermissibly suggestive where the police specifically tell a witness that a suspect is in the line-up. Sawyer v. State (1973), 260 Ind. 597, 298 N.E.2d 440; Hopkins v. State (1975), Ind.App., 323 N.E.2d 232, 236. Such advice from the police needlessly decreases the fairness of the identification process.

"A witness may thus be lead to feel that he has an obligation to choose one of the participants in the display since the police evidently are satisfied that they have apprehended the criminal. The result may be that the witness strains to pick someone with familiar characteristics or someone who most resembles the actual criminal or the result may be that the witness will choose the one least dissimilar by the process of elimination." Sawyer v. State, supra, 260 Ind. at 602, 298 N.E.2d at 443.

Moreover, a line-up in which the accused stood beside a noticeably taller man may be overly suggestive. Griffin v. State (1976), Ind.App., 357 N.E.2d 917, 922. Finally, a marked difference in the color of an accused's hair or complexion as compared to other participants, which difference gives rise to a substantial likelihood of irreparable misidentification, renders a pretrial identification procedure impermissibly suggestive. See, Caywood v. State (1974), Ind.App., 311 N.E.2d 845, 848; Johnson v. State (1972), 257 Ind. 634, 277 N.E.2d 791. 2

However, the Supreme Court of Indiana has held that a pretrial confrontation occurring shortly after the commission of an offense and upon the apprehension of an accused is not per se unduly suggestive even though the accused is the only one exhibited. Wright v. State (1972), 259 Ind. 197, 285 N.E.2d 650.

The freshness of the event offsets the probability for misidentification presented by the fact of one person in apparent custody. Thus whether the confrontation is overly suggestive must be determined from the total circumstances. Hampton v. State (1977), Ind.App., 359 N.E.2d 276 (transfer denied). Here the line-up occurred one hour after the robbery. Vitoux had ample opportunity for recognition. He accurately described Stacks' appearance and attire. He exhibited no uncertainty in his identification. There was sufficient basis for his testimony. Moreover, an in-court identification may be reliable even though the pretrial identification was unnecessarily suggestive. Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. The witness' in-court identification is admissible, regardless of the improper pretrial identification, if the State presented clear and convincing evidence of a substantial independent basis for the in-court identification. Swope v. State (1975), Ind., 325 N.E.2d 193, 197; Bowen v. State (1975), Ind., 334 N.E.2d 691, 694. Evidence of such an independent basis for the identification includes:

"(T)he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation."

Neil v. Biggers, supra, 409 U.S. at 199, 93 S.Ct. at 382.

In Dillard v. State (1971), 257 Ind. 282, at 286-87, 274 N.E.2d 387, at 389, our Supreme Court noted additional factors bearing directly on the opportunity of the witness to observe the...

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