Winston v. State

Decision Date25 February 1975
Docket NumberNo. 674S118,674S118
Citation323 N.E.2d 228,45 Ind.Dec. 733,263 Ind. 8
PartiesBilly Ray WINSTON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Supreme Court

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 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 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. 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), 388 U.S. 293, 87 S.Ct 1967, 18 L.Ed.2d 1199. Kirby at 406 U.S. 690--91, 92 S.Ct. 1883, 32 L.Ed.2d 418, states:

'What has been said is not to suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures. Such abuses are not beyond the reach of the Constitution. As the Court pointed out in Wade itself, it is always necessary to 'scrutinize any pretrial confrontation . . .' 388 U.S. at 227, 87 S.Ct. at 1932 (, 18 L.Ed.2d at 1157). The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402. When a person has not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.'

Stovall, supra, sets forth the test and shows its application to identification procedures occurring prior to the initiation of formal proceedings:

'We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and donducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (C.A. 4th Cir. 1966). The practice of showing suspects singly to persons for the purpose of identification, and not as a part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and that record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative. The Court of Appeals, en banc, stated, 355 F.2d (731), at 735, 'Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, 'He is not the man' could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question."

388 U.S. 301--02, 87 S.Ct. 1972, 18 L.Ed.2d 1206.

We therefore overrule Martin v. State (1972), Ind., 279 N.E.2d 189, 29 Ind.Dec. 427, supra.

We now proceed to examine Appellant's contention that the confrontation at the time of the identification was so suggestive as to violate due process. We see no merit in this contention. For as above pointed out, in the case at bar Miss Rogers knew the Appellant from previous observations of him and own. She was the identification on her own. She was the only person who could determine if the...

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    ...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 ......
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