Stinson v. State

• Decision Date: 22 July 1974
• Docket Number: No. 1073S199,1073S199
• Citation: 262 Ind. 189,42 Ind.Dec. 687,313 N.E.2d 699
• Parties: Chester STINSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 699

313 N.E.2d 699

262 Ind. 189

Chester STINSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1073S199.

Supreme Court of Indiana.

July 22, 1974.

John G. Bunner, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., David A. Miller, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

The appellant was charged by affidavit together with Richard Oxford, London Davis and Charles Tyler with the crime of armed robbery. Subsequently, the charges against Oxford and Davis were dismissed by the State for lack of sufficient evidence. Tyler and the Appellant Stinson were granted separate trials. A jury trial of the appellant resulted in a finding of guilty of armed robbery, and that he be sentenced for a period of twenty years. The trial court entered judgment on the verdict, and appellant was sentenced accordingly.

The record in this case reveals the following facts:

On June 25, 1972, one William Butherus, a traveling diamond salesman, had checked into the Holiday Inn in Evansville, Indiana. He had made arrangements to meet one Roland Brinker, a local jewelry dealer, in his room at the motel. The purpose of the meeting was for Mr. Brinker to examine merchandise in the possession of Mr. Butherus. While Butherus was awaiting the arrival of Brinker, two negro men knocked on the door of Butherus' motel room. When he answered the knock, they produced guns and proceeded to rob Butherus of his merchandise.

While the robbery was in progress, Brinker arrived at the motel room and was admitted by one of the robbers, later identified as the Appellant Stinson. Both men were then placed in the bathroom of the motel room and told if either of them made any noise they would be killed.

The robbers took merchandise of a value in excess of $40,000 and left in Butherus' car.

The leaving of the car was witnessed by Jerry Hortsketter, a bellman employed at the motel.

Some two weeks after the robbery, Butherus and Brinker observed a police lineup, from which Butherus identified the Appellant Stinson as one of the robbers. However, Brinker testified that although he thought Stinson looked like one of the robbers, he could not be certain and stated during the trial that he could not be sure beyond a reasonable doubt that Stinson was one of the robbers.

Hortsketter did not view the lineup, but at the trial testified that the negro man he saw driving Butherus' car away from the motel was of the same general description as the appellant, however, he could not be certain it was the same man.

At the trial Butherus was firm in his testimony that the appellant was one of the robbers; that he got a good look at him in a face to face confrontation in a well lighted motel room; that he was certain of his identification at the lineup, and that he was equally certain of his in-court identification of the appellant based upon his observation of him in the motel room.

Appellant first claims the trial court erred in permitting State's witness Brinker to make an in-court identification of the appellant when he was unable to make such an identification at the time of the lineup. An examination of the testimony on direct examination and cross-examination of the Witness Brinker discloses that he never varied in his position as to the identification of the appellant. At the lineup he indicated to police authorities that he was not sure of the identification of the appellant. When he testified at appellant's trial, he stated that the appellant looked like one of the men who committed the robbery and that he believed he was one of the robbers, but that he was not sure. It has often been observed by this Court and courts in other jurisdictions that personal identification evidence is doubtful at best and should be subject to close scrutiny. It would be naive to say that any person could be absolutely certain of the identification of another person whom they had never known previously and had observed only in a brief period of excitement and great tension. All testimony of such a nature must certainly be subject to extensive cross-examination in order that the jury may properly evaluate its content. The trial judge in this case ruled correctly in this regard. He observed that Brinker's lack of certainty was a matter for cross-examination. Trial counsel for the appellant was quite competent and thorough in his cross-examination of Brinker and very skillfully and thoroughly brought out the doubts in Brinker's mind concerning the identification of the appellant.

Appellant makes the same objection as to the Witness Hortsketter. Hortsketter was even more doubtful than Brinker as to the identification of the appellant. In fact, he stated at the trial that he did not get a good enough look at the driver of the automobile as it left the motel to identify him later. That all he could testify to was the driver of the car had on the same type of shirt as described by Butherus as being worn by the appellant, and that he was a thin negro. Again this witness was skillfully cross-examined and his lack of certainty clearly demonstrated to the jury. There is little doubt that had the jury only heard the testimony of Brinker and Hortsketter that the appellant would not have been convicted. Appellant correctly observes that this evidence identifying the appellant does not raise a Sixth Amendment right to counsel situation which was held to be involved in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. He claims that it does, however, involve the defendant's right to a fair trial under the due process clause of the Fourteenth Amendment and cites Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. He also cites Emerson v. State (1972), Ind., 287 N.E.2d 867, 33 Ind.Dec. 115 and Sawyer v. State (1973), Ind., 298 N.E.2d 440, 37 Ind.Dec. 405. In all of the above cases, the Courts, while observing that defendants are certainly entitled to a fair trial under the due process clause of the Fourteenth Amendment, and further observing the hazards of personal identifying evidence, nevertheless hold that when certain standards are followed, the due process clause has been satisfied.

In Simmons, the United States Supreme Court, after first observing that the FBI had resorted to photographic identification, stated that in spite of the hazards of such types of identification, under the circumstances where a serious felony had been committed and the perpetrators were still at large, it was essential for the FBI agents to act swiftly to determine whether or not they were on the right track and that under these circumstances the use of photographs was acceptable.

In both Emerson and Sawyer the Supreme Court of Indiana affirmed convictions, after first observing that the methods of identification although subject to close scrutiny, did, in the final analysis, withstand assault on the ground that they had deprived the appellants of due process.

In the case at bar, unlike the situations in Wade and Gilbert, we have witnesses whose testimony was of enough value to be submitted to the jury, but there was never any misleading of the jury that the witnesses were making positive identification, when they were not in fact qualified to do so. The witnesses in this case were quite candid in their doubts. Due process was afforded the appellant in every respect. We, therefore, hold the trial court did not err in permitting their testimonies especially in view of the proper and skillful cross-examination which was afforded the appellant.

The appellant next claims the trial court erred in denying his motion to produce a tape recording made by the police and the prosecutor of conversations of Tyler, which appellant claims contained evidence which he could have used in the impeachment of the State's witness Oxford. (Tyler and Oxford were both named as defendants in the affidavit under which appellant was charged.) In support of his argument appellant cites Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and Giglio v. United States (1972), 405 U.S. 150, 92 S.Ct 763, 31 L.Ed.2d 104.

In both Brady and Giglio, the Court held that suppression by the prosecutor of evidence favorable to an accused violates due process, provided that evidence is material either to guilt or to punishment.

In the case at bar, the court held a hearing for the purpose of determining whether or not the tape recordings were of such a nature as to require their production at the request of the appellant. The record in this case discloses that these tapes were submitted for examination by the trial judge, who did in fact listen to the tapes. The State introduced testimony of two police officers, who were present at the time the tapes were made, who testified that there was nothing on the tapes that would exonerate the appellant. In addition, evidence was submitted that the tapes contained certain matters of a 'delicate nature' concerning other crimes then under investigation, and that the disclosure of these extraneous facts to the appellant and his attorney could possibly be extremely detrimental to the investigations in progress in Vanderburgh County.

It was further established that Tyler would not be called as a witness for the State in appellant's trial, and it was conceded by the State that Tyler had made statements on the tapes to the effect that Oxford was on the scene at the time of the commission of the crime for which appellant was charged, and that Oxford had a machine gun in his possession at that time. It thus appears that the trial court had every reason to deny the appellant's motion to produce the tapes of Tyler's statement for a number of reasons: First, the State demonstrated ample reason to refrain from disclosing matters contained in the tapes; second, the State was quite open concerning the...