Stewart v. State

Decision Date06 March 1985
Docket NumberNo. 983S337,983S337
PartiesRaymond STEWART, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Kenneth T. Roberts, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Raymond Stewart, was convicted by a jury of robbery, a Class A felony, Ind.Code Sec. 35-42-5-1 (Burns 1984 Supp.), confinement, a Class B felony, Ind.Code Sec. 35-42-3-3 (Burns 1984 Supp.), and attempted murder, a Class A felony, Ind.Code Secs. 35-42-1-1 and 35-41-5-1 (Burns 1979 Repl.), and was sentenced to three consecutive terms of imprisonment of fifty, twenty, and fifty years. He raises the following issues in this direct appeal:

1. Whether the evidence was sufficient to sustain his convictions;

2. Whether the trial court erred in denying the defendant's motion to suppress the victim's identification on the basis that the pretrial identification procedure was unduly suggestive; and

3. Whether the prosecutor engaged in misconduct and thereby denied the defendant a fair trial.


The defendant claims the evidence is not sufficient to sustain his convictions for robbery, attempted murder, and confinement. We will neither reweigh the evidence nor judge the credibility of witnesses. Oatts v. State, (1982) Ind., 437 N.E.2d 463. We will look only to that evidence most favorable to the state together with reasonable inferences to be drawn therefrom. If, from that viewpoint, there is substantial evidence to support the conclusion that the defendant is guilty beyond a reasonable doubt, the verdict will not be disturbed.

A brief summary of the facts from the record most favorable to the state shows that the victim, a truck driver for a vending machine supply company, was driving his route when he was stopped by the defendant. After threatening the victim with his gun and taking his money, the defendant entered the truck and pointed a gun in the victim's eye. He then ordered the victim to show him the items carried in the back of the truck. The victim removed money boxes from the truck and set them on the ground for the defendant. The defendant struck the victim twice on the head with the gun. The victim attempted to flee from the defendant but was shot twice in the back. The defendant forced the victim to sit on a curb, shot him in the arm, and took his jacket. Next, he dragged the victim down an alley, pushed him into a crawl space, and ordered him to stay there if he wanted to live. The defendant left and the victim crawled in the street and was spotted by a policeman.

Robbery is the knowing and intentional taking of property from another by using or threatening force or by putting that person in fear. Ind.Code Sec. 35-42-5-1 (Burns 1984 Supp.). The evidence clearly supports the robbery conviction.

The evidence that the defendant shot the victim twice in the back supports his conviction for attempted murder. Ind.Code Secs. 35-42-1-1 and 35-41-5-1 (Burns 1984 Supp.); Williams v. State, (1979) 271 Ind. 656, 395 N.E.2d 239. And, the evidence that the defendant shot the victim as he attempted escape, dragged him down the alley, and forced him to remain in the crawl space just as clearly supports the confinement conviction. Ind.Code Sec. 35-42-3-3 (Burns 1984 Supp.). We find no error here.


While the victim was hospitalized, a detective showed him a photographic array of six photographs, one of which was of the defendant. However, at that time the victim was too heavily sedated to study the array. Later during the hospital stay, the victim was shown another array which included a four-year old photograph of the defendant. The victim was unable to make an identification. Finally, after the victim was home, he was shown a third array which was comprised of five new photographs and a current photograph of the defendant. The victim chose the defendant's photograph and identified it as depicting the man who robbed and shot him.

The defendant claims that the pretrial identification procedure was so suggestive that the testimony of it and of the in-court identification should have been excluded. We disagree.

First, we do not believe that the arrays shown were so suggestive of the defendant's picture to give rise to a substantial likelihood of misidentification. See Simmons v. United States, (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; see also Head v. State, (1982) Ind., 443 N.E.2d 44. The photographic arrays shown to the victim were composed of six black males reasonably close in age and size. We disagree with the defendant's assertion that his photograph "obviously stuck out as being different from the others."

The defendant points to the fact that the two arrays considered by the victim each had only one picture in common--that of the defendant. While we could not say that in another case the repetitive display of one individual's visage would not constitute undue suggestiveness, we believe differently about the circumstances of this case. The victim viewed only two arrays. The first array contained a photograph of the defendant which was four years old. The second array, from which the defendant's photograph was chosen was quite dissimilar from the first (the defendant having gained eighty pounds), and had been taken just two weeks after the crime. As stated, in neither case did the defendant's photograph stand out from the others.

Second, regardless of any possible suggestiveness in the pretrial lineup, the in-court identification was based on observations by the victim independent of the pretrial procedure. See Harding v. State, (1984) Ind., 457 N.E.2d 1098. The victim testified that he observed the defendant at close range under street lights for...

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5 cases
  • Stewart v. State, 49A02-8904-PC-154
    • United States
    • Indiana Appellate Court
    • 7 d4 Março d4 1991
    ...A belated motion to correct errors was filed and denied. Stewart's convictions were affirmed by our supreme court in Stewart v. State (1985), Ind., 474 N.E.2d 1010. In 1986 Stewart filed a petition for post conviction relief pursuant to Indiana Rules of Procedure, Post Conviction Remedy Rul......
  • Stewart v. Duckworth
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 2 d5 Agosto d5 1996
    ...the evidence was insufficient to support the verdict and that prosecutorial misconduct had denied Stewart a fair trial. Stewart v. State, 474 N.E.2d 1010 (Ind.1985). Following state postconviction proceedings, the Indiana Appellate Court rejected claims of ineffective assistance of trial an......
  • Smith v. State
    • United States
    • Indiana Supreme Court
    • 1 d2 Abril d2 1986
    ...trier of fact could infer guilt beyond a reasonable doubt. Broadus v. State (1986), Ind., 487 N.E.2d 1298, 1307; Stewart v. State (1985), Ind., 474 N.E.2d 1010, 1011. Appellant bases his argument on the hypothesis that the photographic array from which Smith was identified was impermissibly......
  • Wells v. State
    • United States
    • Indiana Appellate Court
    • 18 d1 Março d1 1991
    ...Wells's assertion, the fact that the two arrays both contained pictures of him does not constitute undue suggestiveness. Stewart v. State (1985), Ind., 474 N.E.2d 1010. This is particularly true since photographs of three people other than Wells were also included in both arrays. Similarly,......
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