Stinson v. State, No. 1073S199

Docket NºNo. 1073S199
Citation262 Ind. 189, 42 Ind.Dec. 687, 313 N.E.2d 699
Case DateJuly 22, 1974

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.

[262 Ind. 190]

Page 700

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.

[262 Ind. 191] 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

Page 701

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 [262 Ind. 192] 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 [262 Ind. 193] 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...

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40 practice notes
  • Stauffer v. Lothamer, No. 3-1177A297
    • United States
    • Indiana Court of Appeals of Indiana
    • April 16, 1981
    ...415; Henry v. State, (1978) 269 Ind. 1, 379 N.E.2d 132; Grigsby v. State, (1978) 267 Ind. 465, 371 N.E.2d 384; Stinson v. State, (1974) 262 Ind. 189, 313 N.E.2d 699; Wilson v. State, (1970) 253 Ind. 585, 255 N.E.2d 817; Widup v. State, (1967) 250 Ind. 1, 230 N.E.2d 767; Taylor v. Garnett, (......
  • Matheney v. State, No. 45S00-9207-PD-584
    • United States
    • Indiana Supreme Court of Indiana
    • November 24, 1997
    ...and repose is ample reason to require some hint of a problem before granting a motion to disclose the jurors' names. Cf. Stinson v. State, 262 Ind. 189, 313 N.E.2d 699 (Ind.1974) (affirming denial of request to set aside the jury's verdict supported by juror affidavits claiming impermissibl......
  • Dean v. State, No. 580S122
    • United States
    • Indiana Supreme Court of Indiana
    • April 14, 1982
    ...jury so that it may properly evaluate its contents.' "The language of this instruction is taken from the case of Stinson v. State (1974), 262 Ind. 189, 313 N.E.2d 699. There were two victims to the armed robbery, one of whom testified that he did not get a clear look at the robber and was t......
  • Solomon v. State, No. 581S129
    • United States
    • Indiana Supreme Court of Indiana
    • September 1, 1982
    ...it is well settled that a defendant may not interrogate the jury for the purpose of impeaching their verdict. Stinson v. State, (1974) 262 Ind. 189, 313 N.E.2d 699. In Stinson, 262 Ind. at 198, 313 N.E.2d at 704, we "If this Court were to permit individual jurors to make affidavits or give ......
  • Request a trial to view additional results
40 cases
  • Stauffer v. Lothamer, No. 3-1177A297
    • United States
    • Indiana Court of Appeals of Indiana
    • April 16, 1981
    ...415; Henry v. State, (1978) 269 Ind. 1, 379 N.E.2d 132; Grigsby v. State, (1978) 267 Ind. 465, 371 N.E.2d 384; Stinson v. State, (1974) 262 Ind. 189, 313 N.E.2d 699; Wilson v. State, (1970) 253 Ind. 585, 255 N.E.2d 817; Widup v. State, (1967) 250 Ind. 1, 230 N.E.2d 767; Taylor v. Garnett, (......
  • Matheney v. State, No. 45S00-9207-PD-584
    • United States
    • Indiana Supreme Court of Indiana
    • November 24, 1997
    ...and repose is ample reason to require some hint of a problem before granting a motion to disclose the jurors' names. Cf. Stinson v. State, 262 Ind. 189, 313 N.E.2d 699 (Ind.1974) (affirming denial of request to set aside the jury's verdict supported by juror affidavits claiming impermissibl......
  • Dean v. State, No. 580S122
    • United States
    • Indiana Supreme Court of Indiana
    • April 14, 1982
    ...jury so that it may properly evaluate its contents.' "The language of this instruction is taken from the case of Stinson v. State (1974), 262 Ind. 189, 313 N.E.2d 699. There were two victims to the armed robbery, one of whom testified that he did not get a clear look at the robber and was t......
  • Solomon v. State, No. 581S129
    • United States
    • Indiana Supreme Court of Indiana
    • September 1, 1982
    ...it is well settled that a defendant may not interrogate the jury for the purpose of impeaching their verdict. Stinson v. State, (1974) 262 Ind. 189, 313 N.E.2d 699. In Stinson, 262 Ind. at 198, 313 N.E.2d at 704, we "If this Court were to permit individual jurors to make affidavits or give ......
  • Request a trial to view additional results

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