Winston v. State, No. 674S118

Docket NºNo. 674S118
Citation323 N.E.2d 228, 45 Ind.Dec. 733, 263 Ind. 8
Case DateFebruary 25, 1975
CourtSupreme Court of Indiana

Page 228

323 N.E.2d 228
263 Ind. 8
Billy Ray WINSTON, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 674S118.
Supreme Court of Indiana.
Feb. 25, 1975.

Page 229

[263 Ind. 10] Stephen .johnson, Deputy Public Defender, Biddinger & Johnson, Marion, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GIVAN, Chief Justice.

Appellant was charged with the crime of armed robbery. Trial by jury resulted in a verdict of guilty as charged. Appellant was sentenced to the Department of Corrections for a period of fifteen (15) years.

The record reveals the following: On October 7, 1973, at about 10:00 p.m., Appellant, wearing a loose stocking over his face, entered the Handy Andy Supermarket in Marion, Indiana. He approached Vicki Pogers, an employee who was in the process of closing out the cash register. Appellant produced a pistol and demanded money. Miss Rogers complied with Appellant's demands placing the store's money in a brown paper bag carried by Winston. Miss Rogers recognized the Appellant as a man named 'Billy.' He had been in the store on four (4) or five (5) prior occasions. Because of the manner in which the mask fit the Appellant, his facial features and characteristics were discernible by Miss Rogers.

Following the robbery, Miss Rogers called the police and gave a description of the Appellant including his first name. Acting upon this description, the police arrested the Appellant and took him to the police station for questioning. While at the police station, Miss Rogers viewed the Appellant through a window in the detective's room and by this observation, made a positive identification of the Appellant.

Appellant consented to a search of his apartment. During the search a brown paper bag containing Eighty-Six Dollars and Fifteen Cents ($86.15) was found in a toilet tank in [263 Ind. 11] the bathroom. A store audit revealed that Ninety-Six Dollars and Three Cents ($96.03) was missing from the cash register of the store robbed.

Appellant first argues that the evidence was insufficient to support the verdict in that it was entirely circumstantial and revealed merely the opportunity to commit the crime. This Court will not weigh the evidence nor determine the credibility of a witness's testimony. Black v. State (1973), Ind., 304 N.E.2d 781, 40 Ind.Dec. 200. Miss Rogers made a positive identification to the Appellant. She had ample opportunity to view him in adequate light and had seen him previously on several occasions. The testimony of Miss Rogers standing alone is sufficient to sustain the conviction of Appellant. Grimm v. State (1970), 254 Ind. 150, 285 N.E.2d 407, 21 Ind.Dec. 349.

Appellant's next contention is in two parts: (1) that the trial court erred in overruling his motion to suppress the State's identification evidence; (2) the trial court erred in overruling his motion to suppress evience recovered in the search of his apartment. To support his argument on the first point, Appellant cites United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct.

Page 230

1951, 18 L.Ed.2d 1178. Appellant claims that the identification made by Miss Rogers at the police station was improper in that it was suggestive and that at that time he had not waived the right to counsel. The record shows that within an hour after the commission of the robbery, Miss Rogers viewed the Appellant at the police station, at which time he was not represented by counsel. The Supreme Court of the United States had decided the question based upon an almost identical factual situation. The Court held that the Sixth and Fourteenth Amendment right to counsel did not attach until 'judicial adversary proceedings' (in Indiana this is a filing of an affidavit or indictment) had been initiated. [263 Ind. 12] Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

In Martin v. State (1972), Ind., 279 N.E.2d 189, 29 Ind.Dec. 427, we held that any 'post arrest' lineup was a critical stage in a criminal prosecution and, hence, the right to counsel attached. This result was reached by application of the vague 'critical stage' analysis set forth in Wade and Gilbert.

Four months after our decision in Martin, the U.S. Supreme Court handed down Kirby v. Illinois, supra. Specifically, Kirby identified the point at which adversary proceedings begin, and thus the right to counsel attaches as:

'. . . the defendant had been indicted or otherwise formally charged with any criminal offense.' 406 U.S. 684, 92 S.Ct. 1879, 32 L.Ed.2d 414.

and further:

'. . . at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'

Once this point (and/or points) is defined by reference to the laws of the state, Kirby makes clear that any lineup preceding such initiation may be challenged only upon general due process grounds set out in Stovall v. Denno (1967), ...

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32 practice notes
  • State v. Packard
    • United States
    • Supreme Court of Connecticut
    • 26 Mayo 1981
    ...759, 763-65, 106 Cal.Rptr. 106, 505 P.2d 530 [184 Conn. 269] (1973); State v. Bragg, 371 So.2d 1080 (Fla.App.1979); Winston v. State, 263 Ind. 8, 11-13, 323 N.E.2d 228 (1975); State v. Rudolph, 332 So.2d 806, 811 (La.), cert. denied, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976); State ......
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Abril 1978
    ...of counsel at a line-up attaches at the initiation of adversary judicial proceedings against the accused. In Winston v. State, (1975) 263 Ind. 8, 323 N.E.2d 228, this Court held that formal judicial proceedings against the accused commence with the filing of the indictment or information; t......
  • State ex rel. Pollard v. Criminal Court of Marion County, Division One, No. 375S70
    • United States
    • Indiana Supreme Court of Indiana
    • 11 Junio 1975
    ...already been charged by affidavit, and who are therefore defendants in pending criminal prosecutions, see Winston v. State (1975), Ind., 323 N.E.2d 228. When the grand jury summons such an individual before it, and seeks to investigate the specific offense or offenses with which that indivi......
  • Skolnick v. State, No. PS
    • United States
    • Indiana Court of Appeals of Indiana
    • 25 Abril 1979
    ...since no charges of any sort were pending against him. Pirtle v. State (1975), 263 Ind. 16, 323 N.E.2d 634; Winston v. State (1975), 263 Ind. 8, 323 N.E.2d 228. His subsequent conduct in open court manifested [180 Ind.App. 265] a disrespect for the court and impeded progress in the ongoing ......
  • Request a trial to view additional results
32 cases
  • State v. Packard
    • United States
    • Supreme Court of Connecticut
    • 26 Mayo 1981
    ...759, 763-65, 106 Cal.Rptr. 106, 505 P.2d 530 [184 Conn. 269] (1973); State v. Bragg, 371 So.2d 1080 (Fla.App.1979); Winston v. State, 263 Ind. 8, 11-13, 323 N.E.2d 228 (1975); State v. Rudolph, 332 So.2d 806, 811 (La.), cert. denied, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976); State ......
  • Bruce v. State, Nos. 1075
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Abril 1978
    ...of counsel at a line-up attaches at the initiation of adversary judicial proceedings against the accused. In Winston v. State, (1975) 263 Ind. 8, 323 N.E.2d 228, this Court held that formal judicial proceedings against the accused commence with the filing of the indictment or information; t......
  • State ex rel. Pollard v. Criminal Court of Marion County, Division One, No. 375S70
    • United States
    • Indiana Supreme Court of Indiana
    • 11 Junio 1975
    ...already been charged by affidavit, and who are therefore defendants in pending criminal prosecutions, see Winston v. State (1975), Ind., 323 N.E.2d 228. When the grand jury summons such an individual before it, and seeks to investigate the specific offense or offenses with which that indivi......
  • Skolnick v. State, No. PS
    • United States
    • Indiana Court of Appeals of Indiana
    • 25 Abril 1979
    ...since no charges of any sort were pending against him. Pirtle v. State (1975), 263 Ind. 16, 323 N.E.2d 634; Winston v. State (1975), 263 Ind. 8, 323 N.E.2d 228. His subsequent conduct in open court manifested [180 Ind.App. 265] a disrespect for the court and impeded progress in the ongoing ......
  • Request a trial to view additional results

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