Stone v. State, 45S00-8909-PC-729

• Decision Date: 06 March 1992
• Docket Number: No. 45S00-8909-PC-729,45S00-8909-PC-729
• Parties: Lorenzo STONE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 672

587 N.E.2d 672

Lorenzo STONE, Appellant, v. STATE of Indiana, Appellee.

No. 45S00-8909-PC-729.

Supreme Court of Indiana.

March 6, 1992.

Rehearing Denied May 7, 1992.

Susan K. Carpenter, Public Defender, Richard C. Clarke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

In October of 1976, appellant was convicted of Felony Murder and was sentenced to prison for life. This Court affirmed that conviction. Stone v. State (1978), 268 Ind. 672, 377 N.E.2d 1372.

In April of 1986, Stone filed a pro se petition for post-conviction relief. At the hearing on that petition, he was represented by the State Public Defender's Office. Following a hearing, the trial court denied relief. The Public Defender's Office appealed from that denial.

The evidence shows that appellant, together with four other men, James, Barber, Rogers, and Williams, went to Mona's Lounge in Gary, Indiana at approximately 10:00 p.m. and announced a holdup. However, one of the patrons, David Clay, who was armed at the time, shot at the robbers wounding Rogers but sustaining fatal wounds himself. Because of Rogers' injuries, he sought treatment in a local hospital following which police were able to track him down. They discovered he had a criminal record and were able to determine who his associates were. Armed with this information, they picked up his associates for questioning. Following questioning, both James and Stone admitted their part in the robbery. The case then was submitted to the grand jury and an indictment was returned against the men.

At the time he was arrested, Stone told the police officers he was nineteen years of age. The officers made a cursory examination of his prior arrests and found that he had made statements concerning his age consistent with his claim that he was nineteen years of age. He therefore was treated as an adult, and his parents were not called to be present at the time he was questioned. He was permitted to sign a Miranda waiver on his own. Later, and before the grand jury hearing, the officers discovered that appellant in fact was seventeen years of age and had lied about his age in order to be placed in the adult section of the jail where he would be permitted to smoke.

One of the witnesses to the attempted robbery, John Means, stated that he particularly noticed appellant at the scene of the robbery because he was the one with the gun. When police first talked to Means, they showed him a photographic lineup which included appellant's picture. However, he failed to identify anyone. Later, in a lineup including appellant, he identified him. He also positively identified appellant at his trial. Other witnesses identified other participants in the attempted holdup.

Appellant now claims that his original trial counsel, his original appellate counsel, and his counsel at the post-conviction relief hearing were all ineffective; therefore, he should be granted a new trial or at the very least afforded a new hearing on his post-conviction relief petition.

To support his claim that his trial counsel was ineffective, he claims that proper investigation and questioning by his trial counsel would have disclosed that police officers knew appellant's true age to be seventeen at the time he was picked up for questioning and that they deliberately permitted him to claim he was nineteen in order to obtain a statement from him without the presence of a parent.

Appellant contends this fact is established by the testimony of police officer Komenich because he testified before the grand jury that he knew appellant was seventeen years of age. However, an examination of the record fails to support appellant's contention. The statements he made to the police at the time he was claiming to be nineteen years of age were made on February 25, 1976. The grand jury testimony by Officer Komenich was March 29, 1976.

It is obvious from the testimony of the officer that at the time appellant made his statement the officer honestly believed him to be nineteen years of age. It also is obvious that between that time and the grand jury testimony the officer had learned that the appellant was only seventeen years of age at the time he made his statement.

In fact, in questioning the officer, the prosecuting attorney referred to appellant as being nineteen years of age. He was corrected by the police officer who had since learned that appellant's true age was seventeen years. This matter was discussed thoroughly in appellant's original appeal wherein the case of Lewis v. State (1972), 259 Ind. 431, 288 N.E.2d 138 was discussed concerning the validity of juvenile waiver of constitutional rights.

There this Court stated that it was in no way overruling the holding in Lewis where, as in the case at bar, a good faith and diligent effort is made to determine the age of a suspect and they are frustrated in their effort by misstatements of the suspect as to age, the law will be deemed satisfied. This of course is the law of the case and is not subject to relitigation here. We cannot agree with appellant that this in any way demonstrated ineffective assistance of trial counsel.

Appellant also claims trial counsel failed to raise the illegality of his arrest. He contends the officers had no probable cause to bring him in for the questioning which resulted in his inculpatory statement. However, there is ample evidence in this record that because of the wounding of Rogers, police officers were able to determine that he in fact had participated in the robbery and that they were justified in questioning his known associates. We see no ineffectiveness of trial counsel in failing to raise such an issue.

Appellant also contends his lineup identification was tainted because one of the robbers was alleged to be wearing a fur-trimmed, orange jacket and in the lineup he was the only person wearing such a jacket. Appellant cites the case of Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, for the proposition that when identification procedures are so unnecessarily suggestive that they are likely to cause misidentification, they must not be permitted. However, in Stovall, the...