Thurman v. State, 270S36
| Decision Date | 14 October 1970 |
| Docket Number | No. 270S36,270S36 |
| Citation | 255 Ind. 102,262 N.E.2d 635 |
| Parties | Robert Thomas THURMAN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Malcolm G. Montgomery, Jr., Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., Walter E. Bravard, Jr., Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was charged by affidavit filed in the Vanderburgh Circuit Court with the crime or robbery. Trial before a jury resulted in a verdict of guilty to the offense of theft and sentence to the Indiana Reformatory for a period of one (1) to ten (10) years.
On this appeal, appellant assigns as error the overruling of his motion for new trial. In that motion appellant alleges that the verdict is contrary to law and not substained by sufficient evidence.
Briefly, the facts as viewed most favorably to the state are as follows: on the morning of August 9, 1969 at approximately 3:00 A.M. a Negro male, later identified to be appellant, entered the lobby of the Hotel Vendome in Evansville, Indiana ostensibly for the purpose of procuring change for a five dollar bill. When Sandra Thompson, the desk clerk, opened the cash drawer to get the change, appellant reached over the registration desk and began taking money from the drawer. Teresa Adkins, the hotel operator, observed the foregoing and protested, whereupon appellant told the girls to keep quiet or he would shoot them both. Appellant then went around the registration desk and pulled the cash drawer out of the register thus dumping the rest of the money on the floor. After picking up the bills lying on the floor, appellant ordered Sandra to leave with him, pulling her by the arm; when she resisted, appellant struck her in the mouth, knocking her to the floor. Immediately following this altercation appellant left the premises, returning briefly to retrieve a top coat which he had laid on the desk.
The police were informed of the robbery and a description obtained from those present at the time of the robbery was broadcast over the police radio. Within minutes appellant was taken into police custody and held until the afternoon of the same day at which time he was identified in a police line-up as the perpetrator of the crime.
Appellant's first contention is that the evidence is insufficient to sustain a verdict of guilty in that appellant was not sufficiently identified as the person who committed the theft. It is contended that the line-up at which appellant was identified was basically unfair and implanted in the minds of the state's witnesses that the defendant was the same person as the suspect who entered the Hotel Vendome. To support his allegation that the line-up procedures were inherently suggestive, appellant points to the fact that he was the only individual in the line-up with an 'Afro' haircut. All three witnesses to the crime had stated that the offender had worn his hair in the 'Afro' style.
We note parenthetically that the line-up was in other respects conducted in such a manner as to preserve the rights of the appellant. Counsel was appointed and present at the time of the line-up; all suspects were dressed similarly and were of the same color and approximate hight and weight; the witnesses brought to the police station were separated prior to identification and were not told anything concerning the suspects in the line-up or even that the police had reason to suspect that one of those appearing was the guilty party; all suspects were asked the same or similar questions for purposes of voice identification; and finally, the line-up was conducted within a day of the alleged offense.
Since counsel was present at the pre-trial line-up the problem before the court is not one of appellant's sixth amendment right to counsel but rather is a question of whether his right to due process in the criminal proceeding against him has been infringed upon. As was recognized by the United States Supreme Court, this ground of attack upon a conviction is independent of a right to counsel claim and must be dealt with accordingly. Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. As was stated by the court in Stovall, '* * * a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.'
Although such a statement affords this court little guidance as a practical matter in the resolution of the precise question before us, it would nevertheless seem readily apparent that the United...
To continue reading
Request your trial
-
Stacks v. State
...such as similarity of dress, complexion, hair color, age, approximate height and weight, and the presence of counsel. Thurman v. State (1970), 255 Ind. 102, 262 N.E.2d 635; Fields v. State (1975), Ind., 333 N.E.2d 742.3 Although Stacks adequately preserved the question of the denial of his ......
-
Edmisten v. People, 24244
...of suggestibility under the totality of circumstances was so extreme as to taint the in-court identification.' See also Thurman v. State, 262 N.E.2d 635 (Ind.). Counsel for defendant leans heavily on People v. Caruso, 68 Cal.2d 183, 65 Cal.Rptr. 336, 436 P.2d 336, where a line-up was declar......
-
Ward v. State, 44142
...impermissibly suggestive as to deny appellant due process of law. Simmons v. United States, supra; Glover v. State, supra; Thurman v. State, 262 N.E.2d 635 (Ind.1970). With regard to the line-up, there is some confusion in the record as to whether appellant participated therein without the ......
-
Griffin v. State
...taller man and the prosecutor's display of photos both showing Ledbetter may have been overly suggestive. See Thurman v. State (1970), 255 Ind. 102, 262 N.E.2d 635; Simmons v. U.S. (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. However, the trial court correctly admitted Geneva's in-c......