Wells v. State
| Decision Date | 18 March 1991 |
| Docket Number | No. 79A02-8907-CR-346,79A02-8907-CR-346 |
| Citation | 568 N.E.2d 558 |
| Parties | Eugene E. WELLS, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. 1 . |
| Court | Indiana Appellate Court |
Eugene C. Hollander, Indianapolis, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant-appellant, Eugene E. Wells, Jr. (Wells), appeals the denial of his motion to correct error following his convictions and 70-year sentence for armed robbery, a Class B felony, 2 confinement, a Class B felony, 3 intimidation, a Class C felony, 4 attempted rape, a Class A felony, 5 and sexual battery, a Class C felony. 6 On appeal, he asks this court to determine whether:
I. The trial court properly excluded one of his witness's testimony.
II. The photo identification procedure used was proper.
III. The trial court properly instructed the jury.
IV. He received a manifestly unreasonable sentence.
We affirm in part and reverse in part.
At 11:00 p.m. on July 6, 1988, the victim in this case, a staff resident for a Purdue University dormitory, was in her room. A man whom the victim later identified as Wells, knocked on her door and asked if she could help him locate someone he claimed lived in the same dormitory. While the victim made phone calls in an effort to locate the person, Wells entered the victim's room and pointed a gun at her. He took some money from the victim's purse, handed her some handcuffs, and told her to put them on. The victim fumbled with the handcuffs and pretended not to know how to operate them. Wells then ordered her to remove the robe she was wearing. When she failed to comply, Wells undid her robe and pushed it off her shoulders. He then grabbed the victim by the throat and pushed her onto the bed. After laying the gun down, Wells started to unfasten his pants. At this point, the victim grabbed for the gun and struggled with Wells. Wells was able to regain control of the gun and then fled the scene.
Later that evening, the victim went to the police station where she was shown a photographic lineup. The victim viewed seven photographs and selected Wells's picture as that of her attacker. She stated, however, that she was not absolutely certain of her selection. Two days later, the victim returned to the police station where she was shown a second photographic lineup that contained 15 photos. The pictures of Wells in the second lineup were more recent than the ones in the first lineup. Again, the victim identified Wells as her attacker, but stated there was something different about his appearance in the picture. She was then shown two additional photographs of Wells that were taken from a different angle. The victim pointed to one of the photographs of Wells and stated she was absolutely certain that the person depicted was her attacker.
An initial hearing was held on July 14, 1988, at which the trial court set the omnibus hearing date for September 12, 1988. On January 9, 1989, Wells filed a notice of his intent to offer an alibi defense. Having determined that Wells's alibi notice was not timely filed, the trial court granted the State's motion to exclude the testimony of the alibi witnesses. On Wells's motion to reconsider, the trial court allowed the testimony of three alibi witnesses whom the State had an opportunity to depose.
A jury convicted Wells of the five felonies listed above and acquitted him of attempted criminal deviate conduct. The trial court subsequently sentenced Wells to consecutive terms of 20 years for armed robbery, 20 years for confinement, and 30 years for attempted rape, for a total executed sentence of 70 years. The intimidation and sexual battery convictions were merged with the attempted rape conviction. Wells appeals.
Wells first argues the trial court erred in excluding the testimony of D'Angelo Goings, one of his alibi witnesses. IND.CODE 35-36-4-1 requires an alibi notice be filed no later than 20 days prior to the omnibus date. Wells's filing of his notice nearly four months following the omnibus date was untimely. He nonetheless argues that Goings's testimony should have been allowed because the tardiness of the notice was solely his attorney's fault, he maintained he had an alibi from the time he was arrested, and the State was not prejudiced by the untimely filing. To support his position, Wells cites Baxter v. State (1988), Ind., 522 N.E.2d 362. He points to language in Baxter that deals with the effect of the alibi statute on an accused's right to testify. Since the excluded alibi testimony in the present case was not from the accused, the language Wells cites does not apply to this case.
Wells's argument fails on other grounds as well. IND.CODE 35-36-4-3 provides that an untimely filing of an alibi notice shall result in exclusion of the alibi evidence unless the defendant can show good cause for his failure to comply with the filing limitations. James v. State (1980), 274 Ind. 304, 411 N.E.2d 618; Denney v. State (1988), Ind.App., 524 N.E.2d 1301, trans. denied. Accordingly, the trial court would have been justified in excluding all of the alibi evidence Wells presented. James, supra. The trial court, however, allowed Wells to present three of his alibi witnesses despite his failure to comply with the statutory notice requirements. As with the defendant in James, supra, the trial court's actions conferred a consideration on Wells not contemplated by the statute, and we will not find error in the trial court's exclusion of an additional witness's testimony.
Wells next contends the photographic lineup used to assist the victim in identifying him was unduly suggestive. Wells neither filed a pretrial motion to suppress nor did he object at trial to the victim's testimony relating to her identification of Wells. To avoid waiver of the issue on appeal, Wells invites us to review the issue under the fundamental error doctrine. A similar invitation was declined by our supreme court in Outlaw v. State (1985), Ind., 484 N.E.2d 10. Despite Wells's waiver of the issue, we can find no basis for reversal.
Contrary to Wells's assertion, the fact that the two arrays both contained pictures of him does not constitute undue suggestiveness. Stewart v. State (1985), Ind., 474 N.E.2d 1010. This is particularly true since photographs of three people other than Wells were also included in both arrays. Similarly, the fact that the detective handed the victim two additional photographs of Wells does not taint the identification. The victim independently selected Wells's photograph and, according to her testimony, was 80 to 90 percent certain he was her attacker. The victim told the detective that her hesitation was because the angle in the photograph was different than the angle at which she observed Wells in her room. In response to her hesitation, the detective without comment gave the victim two additional photographs of Wells at different angles than in the array. Apparently, one of these angles matched the victim's observation of Wells during the attack and removed her hesitation connected with the other photographs. In a similar situation, our supreme court found no taint in the pretrial photographic identification. Madden v. State (1990), Ind., 549 N.E.2d 1030. The court stated in Madden that "because the victim already had picked appellant's photograph from the array, we see no harm to appellant in the victim's confirmation of her identification by asking to see another photograph of appellant." Id. at 1032.
As a final matter, we note there was an independent basis apart from the photo array to support the victim's in-court identification of Wells. She had an opportunity to observe Wells for five to ten minutes in her lighted dormitory room and was as close as an arm's reach from his face. Although Wells was wearing sunglasses during the incident, the victim stated she was able to see through them because they were only lightly tinted and she was very close to his face. She was able to describe distinctive characteristics such as his light skin, his thin lips, and his long eyelashes. When such a factual basis for the in-court identification exists independent of the pretrial identification, the in-court identification will be allowed. Rondon v. State (1989), Ind., 534 N.E.2d 719, cert. denied, --- U.S. ----, 110 S.Ct. 418, 107 L.Ed.2d 383. In fact, an adequate independent basis for an attempted rape victim's identification of her attacker has been found to exist when the victim spoke face to face with him, was two feet away from him, and was at close quarters with him during the attack. Dukes v. State (1986), Ind., 501 N.E.2d 420. We find no error in the admission of the victim's in-court identification testimony.
Wells next claims error in the following jury instruction:
In proving that the defendant committed a substantial step toward the commission of the crime of Rape, and Criminal Deviate Conduct, it is sufficient that the State prove any one of the acts alleged as a substantial step if in light of all of the evidence, the proof convinces the jury beyond a reasonable doubt that the act is a substantial step towards the commission of the crime of rape.
Record at 143. Wells argues that the instruction incorrectly stated the law because it gave the jury the impression that it could convict for both attempt crimes even if the State only proved one substantial step. Assuming for the sake of argument that Wells is correct in his assertion, any error is harmless because he was acquitted of the attempted criminal deviate conduct charge. See Parrish v. State (1984), Ind.App., 459 N.E.2d 391, trans. denied (any error in failing to instruct the jury on a parent's right to confine a dependent was harmless due to directed verdict on confinement charge).
Wells also claims that the instruction was not supported by the evidence....
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