Williams v. State

• Citation: 395 N.E.2d 239,271 Ind. 656
• Decision Date: 02 October 1979
• Docket Number: No. 1278S281,1278S281
• Parties: Andre WILLIAMS and Romain Odessa Carter, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Supreme Court of Indiana

Page 239

395 N.E.2d 239

271 Ind. 656

Andre WILLIAMS and Romain Odessa Carter, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1278S281.

Supreme Court of Indiana.

Oct. 2, 1979.

John D. Clouse and Michael C. Keating, Evansville, for appellants.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Defendant Andre Williams, was convicted by a jury of four counts of armed robbery, a class B felony, Ind.Code § 35-42-5-1 (Burns 1979), and one count of attempted involuntary manslaughter, Ind.Code § 35-42-1-4 (Burns 1979), and sentenced to fifteen years on each armed robbery count and five years for attempt, all sentences to run concurrently. Defendant, Romain Odessa Carter, was convicted by the same jury of four counts of theft, a class D felony, Ind.Code § 35-43-4-2 (Burns 1979), and sentenced to four years on each count, those sentences to run concurrently. They now appeal raising the following issues:

1. Whether the warrantless search of defendants' car constituted an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution; 2. Whether the in-court identifications of defendant Williams were constitutionally tainted by a pretrial show-up or the products of an unlawful search;

3. Whether the trial court erred in overruling defendant Williams's motion for judgment on the evidence with respect to the attempted murder charge, and whether defendant Williams's conviction of attempted involuntary manslaughter is supported by the evidence;

4. Whether the trial court erred in instructing the jury as to its duty and in giving the jury verdict forms which did not give the jury the right to choose the sentence;

5. Whether the trial court erred in giving the state's tendered instruction and refusing defendants' instruction on the issue of flight;

6. Whether the evidence is sufficient to sustain the theft conviction of defendant Carter;

7. Whether the trial court erred in overruling defendants' motion to dismiss; and

8. Whether the trial court erred in sentencing defendant Carter.

The facts most favorable to the state follow.

On March 21, 1978, defendant Williams, wearing a dark ski mask, entered the Old National Bank in Evansville, Indiana. He clicked a short barreled revolver twice in an attempt to fire shots signalling a robbery. When the gun failed to fire, he announced that a robbery was in progress. Williams approached the bank manager and warned her not to sound the alarm, which, unbeknownst to Williams, she had already done.

Williams then ordered everyone to lie on the floor. He then approached each of four tellers and ordered them at gunpoint to fill a white pillow case with money. The tellers did as Williams ordered, including marked "bait money" in the pillow case. The evidence showed that Williams discharged his weapon once in the bank, although no one was injured. Williams then fled the bank.

Assistant bank manager, Ronald McConnell, chased Williams down an alley and a street. When Williams noticed his pursuer, he turned and fired his gun a second time. McConnell ducked safely behind a tree. A passing motorist observed Williams fire the gun, run to a silver-blue Camaro, driven by defendant Carter, and jump into the trunk. The motorist recorded the license number and relayed the information to McConnell who hailed a police vehicle and gave the police officer the information. A general police broadcast alerted several police officers to this information and a chase ensued on United States Highway 41 involving the Camaro, Evansville police, state police and the FBI.

Defendant Carter did not pull over until police boxed in her vehicle. She was immediately arrested and handcuffed. Police were then informed, over the radio, that the suspect had jumped in the trunk. One officer tapped the trunk of the vehicle and received acknowledgment from Williams. Carter did not have the key to the trunk so police pried it open. Inside they found Williams, a ski cap, a revolver, two spent cartridges, one unused cartridge and a white pillow case with money in it, all of which were later admitted into evidence at trial.

Two officers were driving Williams to the police station when they received a radio call telling them to take Williams back to the bank and secure witness identification. Williams, handcuffed and shackled, was removed from the squad car and stood up in front of bank personnel. Williams was then taken to the police station and booked. His clothes were removed for purposes of placing them into evidence.

I.

Defendants first allege that the warrantless search of their getaway car constituted an illegal search and the seizure of items in the trunk constituted an illegal seizure under the Fourth Amendment to the United States Constitution. We do not agree.

This Court has held that where police have probable cause to believe that an automobile contains instrumentalities and evidence of a crime, they may search that automobile without a warrant. Montague v. State, (1977) 266 Ind. 51, 360 N.E.2d 181; Brown v. State, (1976) 264 Ind. 484, 346 N.E.2d 559. In Brown we held:

"(W)e conclude that the officers had probable cause to believe that seizable items would be found inside the car. They knew that a holdup had taken place, and that a shot had been fired. Yet no gun had been found with the suspect. It was reasonable, under such circumstances, for the officers to search the vehicle for instrumentalities and evidence of the crime." 264 Ind. at 489, 346 N.E.2d at 561.

Courts have consistently sustained police intrusions into automobiles in lawful police custody. The United States Supreme Court in South Dakota v. Opperman, (1977) 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, ruled that:

"the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible." 428 U.S. at 367, 96 S.Ct. at 3096, 49 L.Ed.2d at 1004.

The United States Supreme Court also noted the low expectation of privacy associated with automobiles because of the public nature of auto travel. Ibid.

Furthermore, the police may search a vehicle in order to protect themselves and others from danger. South Dakota v. Opperman, supra; Cooper v. California, (1967) 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730. Here, the police had probable cause to believe that defendant Williams was in trunk of the Camaro and the knock on the trunk confirmed this fact. Williams was known to be armed and was known to have used his weapon. The police acted prudently, lawfully and efficiently in seizing defendant and his effects from the trunk. Besides, it would seem ludicrous to tow the car to the police station and obtain a warrant with Williams bouncing around in the back. Had they failed to extricate Williams from the close confines of the trunk, we would likely be deciding a police brutality issue for such failure.

II.

Defendant Williams next argues that the in-court identifications of him by three witnesses were unconstitutionally tainted by a pretrial show-up and that the in-court identifications by two witnesses were the products of an illegal search. We have already found that the search of which defendant complains was legal and, therefore, we will only address the question of the pretrial show-up.

Both the United States Supreme Court and this Court have held that identification procedures which are so suggestive as to give rise to a substantial likelihood of misidentification violate a defendant's due process rights. Simmons v. U. S., (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Sawyer v. State, (1973) 260 Ind. 597, 298 N.E.2d 440. We have found that the identification procedures are unduly suggestive if police inform witnesses that arrested suspects are among those included in a photographic display, Sawyer v. State, supra, or a lineup, Whitt v. State, (1977) 266 Ind. 211, 361 N.E.2d 913. This rule holds, A fortiori, when a witness is shown only one photograph, Parker v. State, (1976) 265 Ind. 595, 358 N.E.2d 110, or when only one person is shown in a show-up one and one-half days after the crime, Zion v. State, (1977) 266 Ind. 563, 365 N.E.2d 766. However, while it is clear that a one-on-one confrontation between suspect and victim is as a general proposition very suggestive, Cooper v. State, (1977) 265 Ind. 700, 359 N.E.2d 532, it is not always unnecessarily suggestive, Zion v. State, supra; Dewey v. State, (1976) 264 Ind. 403, 345 N.E.2d 842. The value of the witness's observing the suspect while the image of the offender is fresh in his mind has been held to make some immediate identifications not unnecessarily suggestive. Poindexter v. State, (1978) Ind., 374 N.E.2d 509; Dillard v. State, (1971) 257 Ind. 282, 274 N.E.2d 387; McPhearson v. State, (1969) 253 Ind. 254, 253 N.E.2d 226; Lewis v. State, (1969) 252 Ind. 454, 250 N.E.2d 358. While there were some suggestive factors unavoidably involved in the instant confrontation, it was not unnecessarily suggestive.

Furthermore, this Court has adopted the "independent basis" test when dealing with an in-court identification which is potentially tainted by an unconstitutionally suggestive pretrial show-up. Identifications which are subsequent to the suggestive procedure need be excluded only if the original impropriety is likely to result in later misidentification. Poindexter v. State, supra. In the case at bar witnesses Hahn and Bohnert had seen defendant sans ski mask before and during the commission of the crime and, therefore, had adequate independent bases for their identification of defendant. Witness Geiss identified defendant only as the man police brought back in the bank and not as the man who held up the bank. We do not find the in-court identifications of defendant to be unconstitutionally tainted or otherwise legally defective.

III.

Defendant...