Vicory v. State, No. 973S185

Docket NºNo. 973S185
Citation315 N.E.2d 715, 262 Ind. 376
Case DateSeptember 13, 1974
CourtSupreme Court of Indiana

Page 715

315 N.E.2d 715
262 Ind. 376
Robert L. VICORY, Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 973S185.
Supreme Court of Indiana.
Sept. 13, 1974.

[262 Ind. 377]

Page 716

Robert Howard Brown, William G. Smock, Terre Haute, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

The appellant was charged by affidavit in two counts: Count One, kidnapping; Count two, rape. Trial by jury resulted in a verdict of guilty on both counts. Appellant was sentenced to life imprisonment for kidnapping and for imprisonment from two to twenty-one years for rape.

[262 Ind. 378] The issues in this case are: 1) Did the trial court commit reversible error in allowing the prosecuting witness to identify the appellant as her attacker over appellant's objection that her in-court identification was tainted by improper pre-trial identification procedures. 2) Was the verdict of the jury supported by sufficient evidence. 3) Did the trial court commit error in amending one of appellant's instructions over appellant's objection.

We affirm the trial court.

The record in this case discloses the following facts:

On September 29, 1972, the prosecuting witness, who was a fourteen-year old high school girl, was forced into a car at gunpoint in Clinton, Indiana, at about twenty minutes 'til twelve noon. The kidnapper drove with the girl through the town of Clinton and out onto a county road. While driving on a blacktop rural highway at approximately sixty miles an hour, the kidnapper fired the pistol which he was holding, after which he remarked, 'Look what I did to my brother's car.'

The victim stated that she then observed a bullet hole in the dash of the automobile.

The kidnapper then drove to an unpaved country lane where he forcibly disrobed the victim and raped her. He then permitted her to dress, drove her back to Clinton and released her from the automobile.

She was taken almost immediately by her father to the police station where she gave a detailed description of her assailant and the automobile which he used. She also stated that the gun which her assailant was using was gold-plated.

On November 9, 1972, police officers had occasion to question the appellant as a result of a domestic quarrel and in the course of their questioning discovered that he was the owner of a gold-plated gun. Further investigation led them to believe that he had committed the kidnapping and the rape.

The police showed the victim the gold-plated gun and took [262 Ind. 379] her to view an automobile which was registered in appellant's wife's name. The car fit the description by the victim of her assailant's car. She identified the vehicle as the one in which she had been raped and pointed out the bullet hole in the dash board, which she had mentioned previously. In the trunk of the car, which was opened by appellant's wife for police officers, there was a two foot square box containing various colored wires protruding from it, which was identified by the victim as a box which she had seen in the back seat of her assailant's car at the time of the attack and which she had mentioned to police at the time of her initial statement to them.

The victim was then taken to the jail where she was first shown a picture of the appellant, which she identified as a picture of her assailant. She was then taken to see the appellant in a jail cell and again identified him as her assailant.

Appellant first claims the trial court committed reversible error in permitting the victim to give in-court identification of the appellant, claiming that such in-court identification was tainted by the

Page 717

improper pre-trial identification procedures.

Appellant is correct in his observation that the pre-trial identification was improper. The United States Supreme Court has stated in several cases, including United States v. Wade, (1967) 388 U.S. 218, 87 S.Ct. 1926, 18...

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9 practice notes
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...made to any of the witnesses that he was the person who committed the crime. The cases cited by the Defendant, Vicory v. State (1974), 262 Ind. 376, 315 N.E.2d 715; Bowen v. State (1975), 263 Ind. 558, 334 N.E.2d 691 and Sawyer v. State (1973), 260 Ind. 597, 298 N.E.2d 440, where the identi......
  • Bowen v. State, No. 1274S249
    • United States
    • Indiana Supreme Court of Indiana
    • October 2, 1975
    ...Ind. 562] between the crime and the confrontation.' See also Swope v. State (1975), Ind., 325 N.E.2d 193; Vicory v. State (1974), Ind., 315 N.E.2d 715. The events under review in this case transpired on a Saturday morning, and Rebecca Westcott first observed the appellant at a distance of n......
  • Lewis v. State, No. 475S93
    • United States
    • Indiana Supreme Court of Indiana
    • March 10, 1976
    ...hypothetical issue. The doubts that are to be resolved in favor of accuseds are the 'reasonable' doubts. Vicory v. State, (1974) Ind., 315 N.E.2d 715. Even with the word 'reasonable' inserted in such an instruction, it is generally not left standing alone but is Not only was the tendered in......
  • Cooper v. State, No. 576S133
    • United States
    • February 9, 1977
    ...suggestive pre-trial procedure. Carmon v. State supra; Swope v. State, (1975) Ind., 325 N.E.2d 193; Victory v. State, (1974) 262 Ind. 376, 315 N.E.2d 715. Rather than to rely upon the witness' subjective memory, which appears to be the source of the problem rather than the solution, the ind......
  • Request a trial to view additional results
9 cases
  • Decker v. State, No. 2-877-A-331
    • United States
    • Indiana Court of Appeals of Indiana
    • March 5, 1979
    ...made to any of the witnesses that he was the person who committed the crime. The cases cited by the Defendant, Vicory v. State (1974), 262 Ind. 376, 315 N.E.2d 715; Bowen v. State (1975), 263 Ind. 558, 334 N.E.2d 691 and Sawyer v. State (1973), 260 Ind. 597, 298 N.E.2d 440, where the identi......
  • Bowen v. State, No. 1274S249
    • United States
    • Indiana Supreme Court of Indiana
    • October 2, 1975
    ...Ind. 562] between the crime and the confrontation.' See also Swope v. State (1975), Ind., 325 N.E.2d 193; Vicory v. State (1974), Ind., 315 N.E.2d 715. The events under review in this case transpired on a Saturday morning, and Rebecca Westcott first observed the appellant at a distance of n......
  • Lewis v. State, No. 475S93
    • United States
    • Indiana Supreme Court of Indiana
    • March 10, 1976
    ...hypothetical issue. The doubts that are to be resolved in favor of accuseds are the 'reasonable' doubts. Vicory v. State, (1974) Ind., 315 N.E.2d 715. Even with the word 'reasonable' inserted in such an instruction, it is generally not left standing alone but is Not only was the tendered in......
  • Cooper v. State, No. 576S133
    • United States
    • February 9, 1977
    ...suggestive pre-trial procedure. Carmon v. State supra; Swope v. State, (1975) Ind., 325 N.E.2d 193; Victory v. State, (1974) 262 Ind. 376, 315 N.E.2d 715. Rather than to rely upon the witness' subjective memory, which appears to be the source of the problem rather than the solution, the ind......
  • Request a trial to view additional results

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