Williams v. State, No. 1281S365

Docket NºNo. 1281S365
Citation455 N.E.2d 299
Case DateOctober 21, 1983
CourtSupreme Court of Indiana

Page 299

455 N.E.2d 299
Kerry L. WILLIAMS, Appellant,
v.
STATE of Indiana, Appellee.
No. 1281S365.
Supreme Court of Indiana.
Oct. 21, 1983.

Page 300

Susan K. Carpenter, Public Defender, Jay Rodia, Deputy Public Defender, Indianapolis, for appellant.

Page 301

Linley E. Pearson, Atty. Gen., Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Kerry L. Williams was convicted by a jury in the Elkhart Circuit Court of the crime of robbery while armed resulting in bodily injury, a class A felony, and was sentenced to a term of fifty (50) years. Defendant Williams raises thirteen issues for our review in this direct appeal as follows:

1. sufficiency of the evidence;

2. denial of the defendant's motion to suppress the testimony of Patricia Kramer;

3. denial of the defendant's Motion in Limine regarding in-court identification of the defendant;

4. improper testimony from witness Pam Gentle;

5. denial of the defendant's motion for mistrial based upon testimony of Pam Gentle;

6. admission of State's Exhibits I and II;

7. improper display of State's Exhibit II to the jury;

8. denial of the defendant's motion directed to the plea agreement entered into by the State and witness Yuonniec Starr;

9. admission of hearsay testimony of Officer Cutler;

10. denial of the defendant's motion in limine regarding use of the defendant's prior convictions;

11. denial of the defendant's pro se motion for mistrial;

12. denial of the defendant's motion for continuance and for mistrial regarding the State's withholding of exculpatory evidence; and

13. denial of the defendant's motion for a separate number of peremptory challenges from that of his co-defendant.

The evidence revealed that on November 16, 1979, at about 11:00 p.m., the Kroger Company Store located at 1720 Fulton Street, Elkhart, Indiana, was robbed at gunpoint by three black men. Gerald Casselman, an employee of the Kroger Company, was working as a night cashier at the time. One of the robbers demanded that Casselman open the safe. When Casselman explained he did not have the combination, he was struck on the head several times with a pistol. The robbers took $94.00 currency belonging to Kroger when they left the store. Casselman sustained an injury to his head that caused a slight loss of hearing in one ear and necessitated a physician's care.

Defendant Kerry L. Williams was identified as one of the robbers by witnesses to the crime. Co-defendant Hunt was also convicted of robbery by the jury and has appealed his conviction in a separate appeal which will be reviewed in a separate opinion. Yuonniec Starr testified that he was the third man taking part in the robbery. Starr testified for the State pursuant to a plea agreement and stated that Kerry Williams and Robert Hunt were the other two perpetrators of the robbery.

On January 9, 1980, the defendant and one Eddie Curry were arrested in Williams' automobile. A .38 caliber pistol was found in Williams' car lying on the floor of the front seat in front of Eddie Curry. Police Detective Homer Schenk testified that in a conversation with Kerry Williams on January 10, 1980, at the Elkhart Police Department, Kerry told Schenk that the .38 caliber pistol in the automobile was his. Witnesses testified the .38 caliber pistol was similar to the one used in the robbery.

I

The defendant claims there was insufficient evidence for the jury to find him guilty beyond a reasonable doubt of robbery, a class A felony. He contends that the eyewitnesses did not make an identification that was of sufficient reliability to support findings of guilt beyond a reasonable doubt. Patricia Kramer identified Williams as one of the defendants and identified his gun as the one he used in the robbery. Pam Gentle was not absolutely able to identify Williams but said his physique

Page 302

and head size resembled the man who committed the robbery. The defendant further claims that testimony of Yuonniec Starr should be discounted entirely because it is inherently improbable and unworthy of belief due to Starr's prior criminal record. Starr testified that he, Hunt, and defendant Williams robbed the Kroger store.

On appeal, of course, we do not reweigh the evidence nor judge the credibility of witnesses. Our standard of review has been well stated in prior opinions and the defendant indicated his awareness of this. Raspberry v. State, (1981) Ind., 417 N.E.2d 913. The determination of the credibility of Starr's testimony was before the jury and we will not substitute our judgment for the jury's. Reynolds v. State, (1980) Ind., 409 N.E.2d 639; Haskett v. State, (1979) 271 Ind. 648, 395 N.E.2d 229. Patricia Kramer testified that Robert Hunt grabbed her and placed a gun within four inches of her head and demanded her money. When she told him she had no money he released her and told her to lie on the floor. She observed the defendant for a period of five to ten seconds from a distance of seven feet in the well lighted store before he pulled a mask over his face. She saw the defendant strike employee Casselman in the head with a gun before Casselman opened the register. The testimony of all of these witnesses presented evidence to the jury from which they could find or infer that the defendant was, in fact, guilty of robbery, a class A felony, beyond a reasonable doubt.

II & III

Issues II and III will be combined because they are similar in nature. Prior to trial, defendant Williams filed a motion to suppress the evidence with respect to his identification through the police lineup. Defendant claimed that the lineup was unnecessarily suggestive and conducive to irreparable mistaken identification. A hearing was held on March 12, 1981, and the trial court later denied the motion. In a related matter, prior to trial and outside the jury's presence, defendant Williams filed a motion in limine, requesting that in-court identifications be excluded in view of the prior identification procedures. He also requested that the identifications be excluded due to the length of time between the robbery and the trial, nineteen months. The trial court granted the motion in limine regarding in-court identification by Gerald Casselman, but not by eyewitnesses Patricia Kramer and Pam Gentle. The trial court specifically found that the two women had an independent recollection and that the "[S]tate has established by clear and convincing evidence that the in-court identification has an independent origin.... There's no showing of an illegal lineup as to Defendant Williams; ...."

The defendant now asks us to find that the trial court committed reversible error in denying the motion to suppress the testimony of Kramer and also in denying the motion in limine as to the identification testimony of Kramer and Gentle. We find, however, that the defendant has waived these issues. The in-court identification of the defendant by Patricia Kramer was done without objection by the defendant. When Pam Gentle testified that the defendant's physical body size was similar to that of the masked robber, identified as Williams by other witnesses, the only objection made by the defendant was that it should not be admitted because Gentle could not absolutely identify the defendant. There was no objection based on identification procedures which were impermissibly suggestive. Furthermore, as the State points out, nowhere in the defendant's argument does he challenge the admissibility of evidence of the out-of-court identifications, which he allowed to go into evidence without objection. He has therefore waived these issues. Riley v. State, (1981) Ind., 427 N.E.2d 1074, 1076; Morgan v. State, (1981) Ind.App., 427 N.E.2d 1131, 1133.

IV

Defendant claims the trial court committed reversible error in allowing witness Gentle to testify that the defendant looked similar to the masked robber. Gentle

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was not able to positively identify the defendant as the robber that put a mask over his face shortly after beginning the robbery but said that many of the defendant's features were the same as the robber's and the defendant looked similar to the robber. He claims this testimony was not admissible since Gentle could not positively identify him. As this Court said in Armstrong v. State, (1982) Ind., 429 N.E.2d 647, 651: "If the evidence only inconclusively connects the defendant with the crime, this goes to the weight, not the admissibility of the evidence." Again, the Court of Appeals stated in Rhodes v. State, (1972) 154 Ind.App. 594, 597, 290 N.E.2d 504, 506: "The identity of an accused is a question of fact and not a question of law. Therefore, the weight to be given identification evidence and any determination of whether it is satisfactory and trustworthy is a function of the trier of facts." The testimony of Pam Gentle was, accordingly, admissible and its weight was to be determined by the jury.
V

Defendant claims that the trial court erred in denying his motion for mistrial based upon the testimony of Pam Gentle. The testimony in question regards co-defendant Hunt and is as follows:

"Q Did you see Mr. Hunt one night before--

A (Interrupting) No.

Q (Continuing)--in person?

A I had never seen him before until that night.

Q I'm talking about before today?

A In pictures?

Q Yeah.

A Yeah, and I saw him in the lineup.

Q And you said you were almost sure?

A By his facial features I think it's him.

Q On that other occasion earlier you said you were almost sure it was him; right?

A Yes, I did say that.

Q So the only other time you saw him you said you were almost sure that was him, not for sure but almost; right, is that correct?

A Yes, I guess I said that."

Defendant raised no objection to this testimony at the time it was given. Gentle completed her testimony and left the stand. The State then called Yuonniec Starr as its witness and the State completed direct examination of Starr. After the State had passed...

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9 practice notes
  • Joy v. State, No. 1-783A228
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1984
    ...premised solely upon grounds of relevancy are too general to present any question for appellate review. Williams v. State, (1983) Ind., 455 N.E.2d 299, 305; Wallace v. State, (1983) Ind., 453 N.E.2d 245, 247; Daniels v. State, (1983) Ind., 453 N.E.2d 160, 170. The issue is thus Issue Five T......
  • Lowery v. State, No. 483S116
    • United States
    • Indiana Supreme Court of Indiana
    • June 4, 1985
    ...of these portions of Bennett's prior testimony were, therefore, properly overruled. Watkins, supra; Williams v. State, (1983) Ind., 455 N.E.2d 299-305; Lewis, Defendant claims the trial court erred in admitting numerous State exhibits into evidence. He first objects to the admission of Stat......
  • Johnson v. State, No. 48S00-9305-PD-00498
    • United States
    • Indiana Supreme Court of Indiana
    • March 9, 1998
    ...that he was denied access to exculpatory evidence, Johnson must first demonstrate that exculpatory evidence existed. Williams v. State, 455 N.E.2d 299, 307 (Ind.1983) (citing White v. State, 263 Ind. 302, 304, 330 N.E.2d 84, 85 (1975)). Johnson has failed in this Page 947 A-1 Before address......
  • Brooks v. State, No. 20S00-8801-CR-25
    • United States
    • Indiana Supreme Court of Indiana
    • September 25, 1990
    ...a fact, objections to its sufficiency go to the weight rather than the admissibility of the article. Williams v. State (1983), Ind., 455 N.E.2d 299; Crosson v. State (1978), 268 Ind. 511, 376 N.E.2d 1136. Here, the direct testimony of each boy identifying appellant's gun as at least looking......
  • Request a trial to view additional results
9 cases
  • Joy v. State, No. 1-783A228
    • United States
    • Indiana Court of Appeals of Indiana
    • March 8, 1984
    ...premised solely upon grounds of relevancy are too general to present any question for appellate review. Williams v. State, (1983) Ind., 455 N.E.2d 299, 305; Wallace v. State, (1983) Ind., 453 N.E.2d 245, 247; Daniels v. State, (1983) Ind., 453 N.E.2d 160, 170. The issue is thus Issue Five T......
  • Lowery v. State, No. 483S116
    • United States
    • Indiana Supreme Court of Indiana
    • June 4, 1985
    ...of these portions of Bennett's prior testimony were, therefore, properly overruled. Watkins, supra; Williams v. State, (1983) Ind., 455 N.E.2d 299-305; Lewis, Defendant claims the trial court erred in admitting numerous State exhibits into evidence. He first objects to the admission of Stat......
  • Johnson v. State, No. 48S00-9305-PD-00498
    • United States
    • Indiana Supreme Court of Indiana
    • March 9, 1998
    ...that he was denied access to exculpatory evidence, Johnson must first demonstrate that exculpatory evidence existed. Williams v. State, 455 N.E.2d 299, 307 (Ind.1983) (citing White v. State, 263 Ind. 302, 304, 330 N.E.2d 84, 85 (1975)). Johnson has failed in this Page 947 A-1 Before address......
  • Brooks v. State, No. 20S00-8801-CR-25
    • United States
    • Indiana Supreme Court of Indiana
    • September 25, 1990
    ...a fact, objections to its sufficiency go to the weight rather than the admissibility of the article. Williams v. State (1983), Ind., 455 N.E.2d 299; Crosson v. State (1978), 268 Ind. 511, 376 N.E.2d 1136. Here, the direct testimony of each boy identifying appellant's gun as at least looking......
  • Request a trial to view additional results

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