Williams v. State

• Decision Date: 01 May 1985
• Docket Number: No. 1183S417,1183S417
• Citation: 477 N.E.2d 96
• Parties: Bennie Lee WILLIAMS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 96

477 N.E.2d 96

Bennie Lee WILLIAMS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1183S417.

Supreme Court of Indiana.

May 1, 1985.

Nile Stanton & Associates, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Ind., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Bennie Lee Williams, was convicted by a jury of criminal deviate conduct, a Class A felony, Ind.Code Sec. 35-42-4-2 (Burns 1985 Repl.), three counts of rape, Class A felonies, Ind.Code Sec. 35-42-4-1 (Burns 1985 Repl.) and three counts of robbery, Class B felonies, Ind.Code Sec. 35-42-5-1 (Burns 1985 Repl.) and was sentenced to four terms of imprisonment of thirty years and three terms of ten years, all to be served concurrently. He raises the following issues in this direct appeal:

1. Whether the court erred in admitting the victims' in-court identifications of the defendant and the testimony concerning their out-of-court identifications over the defendant's objection alleging unduly suggestive identification procedures; and

2. Whether the court erred in admitting evidence of the defendant's flight after an allegedly improper investigatory stop.

I.

The facts most favorable to the state are that the defendant and two companions approached the three victims as they were leaving an Indianapolis night spot. The defendant threatened them with a gun and the victims were forced into their car, which the defendant then drove away. He stopped near a wooded area and, at gunpoint, robbed the victims of their money. They were ordered to remove their clothes and the women were each raped by the defendant. He forced one victim to commit sodomy. The defendant and the other two men then permitted the victims to leave.

During the next year, two of the victims saw the defendant and reported that he was driving a green automobile with Illinois license plates. Later, officers spotted the defendant in a parking lot and detained him while one of the victims was brought to the scene to make an identification. The "lineup" which the victim observed from forty yards, consisted of a black out-of-uniform police officer, the defendant, and three other black men. The victim had been told that they had the man they had been looking for. She identified the defendant as the rapist.

The following month, the other two victims chose the defendant from photographic arrays. They, too, had been informed that the arrays contained a photograph of a suspect arrested for the crime.

The defendant claims these pretrial identification procedures were unduly suggestive and created a substantial likelihood of misidentification. Simmons v. U.S., (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. In each instance, the victim was told by the police they had arrested one of lineup members for the rape. Although a witness may logically assume that this is the case, the police should not so inform her; see, Coleman v. Alabama, (1970) 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387. That information could needlessly pressure the witness to make an identification. Haun v. State, (1983) Ind., 451 N.E.2d 1072; Sawyer v. State, (1973) 260 Ind. 597, 298 N.E.2d 440.

Regardless of the errors in the pretrial procedure raised by the defendant, however, the victims' identifications of the defendant were not improperly admitted. Each testified that during the crime she observed the defendant closely under adequate light over a period of several hours. See Harris v. State, (1980) 273 Ind. 60, 403 N.E.2d 327. Therefore, their testimony was based on observations independent of the pretrial procedure. Harding v. State, (1984) Ind., 457 N.E.2d 1098. The defendant's arguments pertaining to inconsistencies in the victims' descriptions of the defendant to the police raise issues only of credibility which we will not review. The trial court did not err.

II.

The defendant failed to appear for trial. A year later he was the subject of an investigatory stop in Missouri. The investigating officer discovered then that the defendant was wanted in Indiana and arrested him after the defendant tried to flee. The evidence of the defendant's flight was admitted at trial. The defendant argues the testimony should have been excluded because the investigatory stop violated his constitutional right against unreasonable intrusion.

The circumstances of the Missouri arrest are these: The defendant was walking on a well-lit sidewalk at 1:30 a.m. The officer who stopped and detained him testified that the area is a high-crime district which is partly residential and partly commercial. The defendant was the only person out in the area. He had something tucked under his arm which, as it turned out, was a coat. The officer said he stopped the defendant to find out who he was and what he was carrying under his arm. The officer testified to no other suspicious activity by the defendant. The defendant was not stopped in connection with any specific crime, and the officer did not indicate that the object folded under the defendant's arm appeared to be a concealed weapon or contraband.

We disagree with the state that this intrusion was justified pursuant to Terry v. Ohio, (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In Terry, a police officer observed two men repeatedly walking back and forth and conferring in front of store windows. Suspecting that the men were "casing" the area in preparation for a crime, the officer stopped and frisked the men. Terry argued that the police action violated his Fourth Amendment guarantee against search and seizure without probable cause. The Supreme Court held that the governmental interest in swift and effective law enforcement justifies an intrusion absent probable cause in the situation where a police officer observes specific and articulable facts which lead him to a reasonable suspicion that an individual is involved in criminal activity. Then, in Brown v. Texas, (1979) 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357, the Supreme Court reversed Brown's conviction under a Texas statute which provided that a person commits an offense when he refuses to identify himself to a police officer upon demand. In Brown, a police officer observed Brown and another man walking away...