Swope v. State, 174S15

Citation263 Ind. 148, 325 N.E.2d 193
Case DateApril 04, 1975
CourtSupreme Court of Indiana

John G. Bunner, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Henry O. Sitler, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

In a trial by jury, appellant, Leon Swope, was convicted of assault and battery with intent to kill, I.C.1971, 35--13--2--1, being Burns § 10--401a, and Infliction of a physical injury with a deadly weapon in the course of a robbery, I.C.1971, 35--13--4--6, being Burns § 10--4101. He was sentenced to two to fourteen years on Count I and ot life imprisonment on Count II. Appellant raises eight issues on appeal, all of which he presented in his motion to correct errors.

The facts most favorable to the State show that four or five men drove in appellant's car to the Radio Shack in Evanville about 10:00 to 10:30 a.m., November 20, 1972. Two of the men went in the store, and their actions alerted the manager to their probable intent to shoplift. He called the police and asked them to come to the store. He reported that their car was a white, 1966 or 1967 Plymouth Barracuda, license number 82 G 653. (Appellant's white, 1965 Plymouth Barracuda had license number 82 G 6653.) Between 10:00 and 11:00 a.m., two men came into the television and electronics department of Sears. The sales manager was concerned and reported their presence to the security guards. He identified appellant at trial as having been one of the two men in the store that morning.

At 12:05 p.m., appellant and two other men entered Tops and Bottoms, a clothing store located at Weinbach and Lincoln Avenues and managed by Charles Smith. All three went to different areas of the small store and looked around for five or ten minutes. Appellant left to get his billfold, and, after two or three minutes, the other two decided to leave. As they were leaving, appellant came back, and the three left together. At this point, Smith noticed that one of three expensive belts was missing, so he went outside and tried to stop a policeman, but the policeman did not see him.

In ten minutes, the three returned and again went to various parts of the store. Appellant tried on a jacket and a couple pairs of pants, and all three looked around some more. Eventually, appellant brought two pairs of pants to the counter and asked Smith if he had a pair of bellbottom pants in size 32 extra long. Smith went to the back of the store to check, and appellant went with him. Smith knelt down to look on a bottom shelf. When he had satisfied himself that he did not have that size, he started to stand up but was pushed down. He got a glimpse of a knife, and then appellant stabbed him several times. Smith tried to get up and said, 'Okay, that's enough,' but appellant continued to stab him, so he lay still on the floor with his eyes closed. Appellant stabbed him fourteen times.

When the store became quiet, Smith got up and went to the window. He saw two of the men getting into a white Plymouth Barracuda, and appellant walking across the street toward the car. Smith telephoned the police, described the men and the car, and then fell down. He called for help. The woman who managed the dry cleaners next door came into the store and called the ambulance.

Police officers located a white Plymouth Barracuda at the corner of Gum and Evans, parked in front of appellant's parents' house. The officers were waiting in the police car for a further bulletin, when appellant came walking down Evans Street toward his car. They questioned appellant and took him into custody. He was dressed in blue denim pants, a pink shirt, and a white and red knitted hat.

At trial, Smith identified appellant as his assailant. Rick Fulmer, a costomer of the dry cleaners next door to Smith's store, also identified appellant at trial, as the man whom he saw leaving Smith's store at about the time of the crime.


Appellant objected to the prosecutor's expressing his personal opinion of appellant's guilt. The prosecutor remarked:

'We trust that you will do what is right. We, of course, are close to the situation and we're just so convinced this defendant is guilty. The evidence presented here is so convincing.'

No lawyer should 'assert his personal opinion . . . as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.' Code of Professional Responsibility, DR 7--106(C)(4). In otherwords, it is not improper for a lawyer to state his conclusion, as long as he does not imply that he has personal knowledge of an accused's guilt or innocence. Forbidden expressions of personal belief are 'easily avoided by insisting that laywers restrict themselves to statements which take the form, 'The evidence shows . . .' or some similar form.' ABA Project on Standards for Criminal Justice, Standards relating to the Prosecution Function and the Defense Function, The Prosecution Functions § 5.8(b), at 128 (1971).

The prosecutor's statement of opinion must be considered in the context of the argument as a whole. In this instance, the prosecutor had presented his version of all the evidence and immediately explained the reason that he was convinced appellant was guilty: 'The evidence presented here is so convincing.' This statement adequately explained the source of the prosecutor's opinion and dispelled the possibility of the juryhs assuming superior knowledge from the statement, 'We are close to the situation,' which otherwise would have been fatally improper. See also, Garrett v. State (1973), Ind.App., 300 N.E.2d 696; Annot., 50 A.L.R.2d 766 (1956).


Appellant asserts a denial of his right to a trial by a jury of his peers. Sixty-five prospective jurors were called by the court, five of whom were Negroes. The State exercised nine of its peremptory challenges and challenged all five of the Negroes. In consequence, no Negro served on the jury.

In Swain v. Alabama (1965), 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the United States Supreme Court held that the peremptory system, which permits challenges exercised 'without a reason stated, without inquiry and without being subject to the court's control,' might be used to excuse a person on the basis of his race, religion, nationality, occupation, or affiliations. 380 U.S. at 220, 85 S.Ct. 824. 'The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise.' 380 U.S. at 219, 85 S.Ct. at 835. Although Alabama had a system of struck juries, the Swain holding specifically included the peremptory challenge system also.


Appellant objected to Charles Smith's in-court identification of appellant as his assailant. In a hearing outside the presence of the jury, appellant argued that the in-court identification was tainted by an out-of-court show-up of appellant in the hospital twenty-four hours after the crime and before appellant had been taken before a magistrate for appointment of counsel. The State did not contend that this out-of-court identification was proper, but only that the in-court identification was based on Smith's observation at the time of the crime. The court overruled appellant's objection. (At a point later in the trial, without objection from appellant, Officer Overby testified to Smith's out-of-court identification.)

Smith's in-court identification was admissible if the State presented 'clear and convincing' evidence of a basis for that identification independent of the hospital show-up. United States v. Wade (1967), 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Such evidence is required to assure the court that a witness' in-court identification of a defendant is not a product of a confrontation 'so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.' Stovall v. Denno (1967), 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199. In presenting 'clear and convincing' evidence, the State should include information concerning:

'the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.' United States v. Wade, 388 U.S. at 241, 87 S.Ct. at 1940.

This Court has noted further tests bearing directly on the opportunity of the witness to observe the person who committed the crime:

'the length of time the witness was in the presence of the perpetrator, the distance of the witness from him, the lighting conditions at the time, capacity for observation by the witness, opportunity to observe particular characteristics of the criminal.' Dillard v. State (1971), 257 Ind. 282, 289, 274 N.E.2d 387, 389.

In the present case, the trial court could have found that Smith's in-court identification was based on observations independent of the show-up. Smith testified that appellant was in his store on two separate occasions ten minutes apart, that he had helped appellant with two or three items of clothing in the half four before the stabbing, that he had been two to three feet from appellant several times, that he had watched all three men more closely after he discovered that a belt was missing, and that he had been able to see well because the store's lighting was excellent. When Smith telephoned the police about...

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    • United States
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    ...to the case law and the disciplinary rules of the Code of Professional Responsibility as adopted in this State. See Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193. 2. The Court then considers whether the misconduct, under all the circumstances, "placed [the defendant] in a position of ......
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