Warriner v. State

• Decision Date: 01 June 1982
• Docket Number: No. 1280S466,1280S466
• Citation: 435 N.E.2d 562
• Parties: Floyd WARRINER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 562

435 N.E.2d 562

Floyd WARRINER, Appellant, v. STATE of Indiana, Appellee.

No. 1280S466.

Supreme Court of Indiana.

June 1, 1982.

Walter E. Bravard, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Defendant-appellant, Floyd Warriner, appeals from a conviction on two counts of armed robbery, Ind.Code § 35-42-5-1 (Burns 1970) and two counts of criminal confinement, Ind.Code § 35-42-3-3. He was sentenced to twelve years' imprisonment on each of the four counts, the terms to be served concurrently.

The appeal presents three issues for review:

1. Whether the verdict was based on evidence tainted by improper pre-trial identification procedures and whether the trial court's reception of such evidence amounted to fundamental error.

2. Whether the trial court erred in admitting certain evidence.

3. Whether there was sufficient evidence to convict; and whether the verdict denied defendant's lawful presumption of innocence.

The facts favorable to the State's case show that in February, 1980, defendant Warriner and an accomplice, armed with a shotgun, robbed two men by threatening to kill them unless they lay on the ground and surrender their wallets. After the assailants fled with the victims' wallets, defendant was arrested within two hours in a car matching a description provided by one of the victims.

I.

Defendant Warriner made no objection at trial to what he now claims was an impermissibly suggestive pre-trial identification in violation of his right to due process. He claims that the issue is nevertheless reviewable as fundamental error. Fundamental error is error that, if not rectified, would deny a defendant fundamental due process. Johnson v. State, (1979) Ind. 390 N.E.2d 1005. It is not enough, in order to invoke this doctrine, to urge that a constitutional right is implicated. Only when the record reveals clearly blatant violations of basic and elementary principles, and the harm or potential for harm could not be denied, will this Court review an issue not properly raised and preserved. Nelson v. State, (1980) Ind. 409 N.E.2d 637.

Without reviewing the merits of the claim of an impermissibly suggestive pre-trial identification, we hold that even if it is demonstrated by the record, it does not rise to the level of fundamental error because the two victims of the armed robbery made in-court identifications of the defendant and they were subject to cross-examination on the questions of their credibility as witnesses, and their opportunity to observe the defendant. Since they were subject to a full inquiry into the circumstances of their identification, including any suggestive procedures, any impingement on the defendant's due process rights cannot be said to have precluded a fair trial. The failure to object to the testimony assertedly tainted therefore operates as a bar to review.

II.

The trial court, over defendant's objection, admitted State's Exhibit No. 1, a jacket, into evidence. The claim on appeal is that the jacket was never sufficiently identified by witnesses to establish its relevancy, and that a foundation showing a proper chain of custody was never established. Defendant argues that the evidence was prejudicial because the jacket was the only piece of physical evidence introduced by the State.

One of the victims testified that one of the robbers wore a light beige coat with a hood. When shown Exhibit No. 1 in court, this witness said that it was similar to the coat worn by the robber who held the shotgun. The victim also testified that the jacket was the one worn by the defendant when the victim was called to the police station to identify one of the robbers. The other victim testified that the robber with the gun wore a light-colored suede jacket with a hood and that Exhibit No. 1 was similar to the jacket worn by the robber. He also stated that he observed the robber driving away from the scene, wearing State's Exhibit 1. Two police officers testified that State's Exhibit 1 was the jacket worn by defendant when he was arrested within two hours after the robbery. Defendant argues that this evidence did no more than establish a possibility that the jacket was worn by one of the robbers because no positive identification was ever made by those who were capable of connecting the jacket to the crime, thereby establishing the exhibit's relevance. As defendant himself concedes, positive proof or positive authentication of evidence is not required by admission. Johnson v. State, (1980) Ind. 400 N.E.2d 132; Elliott v. State, (1972) 258 Ind. 92, 279 N.E.2d 207. Defendant's challenge to this exhibit merely goes to the weight of the evidence, not its admissibility. We do not weigh the evidence on appeal.

Defendant also asserts that the State did not establish a chain of custody for the jacket. He argues that there was a forty-nine-day period during which the jacket was unaccounted for, and for which the State did not negate any substantial likelihood of substitution or alteration.

The record reveals that a police officer took the jacket from defendant on February 26, 1980, following his arrest the night before. He marked it and placed it in the police property room to be held as evidence. It was taken from the property room on May 29, 1981, by police and brought to the court for proceedings in this case.

The court reporter took custody of the coat on May 29, 1980, and locked it in the court's exhibit cabinet. She believed that she had the only key to the cabinet, although she testified that the judge may have had a duplicate, and she stated that the coat was not removed from the cabinet until the trial in July. The police officer who originally took the jacket from defendant testified at trial that Exhibit No. 1 was the same jacket he had...