Wolfe v. State

• Decision Date: 13 November 1990
• Docket Number: No. 49S00-8612-CR-1017,49S00-8612-CR-1017
• Citation: 562 N.E.2d 414
• Parties: Kenneth WOLFE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 414

562 N.E.2d 414

Kenneth WOLFE, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8612-CR-1017.

Supreme Court of Indiana.

Nov. 13, 1990.

Richard D. Gilroy, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa Anne McCoy, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of five counts of Attempted Murder, a Class A felony, one count of Carrying a Handgun Without a License, a Class A misdemeanor, and a finding of habitual offender status. He received an aggravated sentence of fifty (50) years for each attempted murder count, one of which terms was enhanced by thirty (30) years by reason of his habitual offender status, and a sentence of one (1) year for the handgun violation, all sentences to be served consecutively.

The facts are: Shortly after 8:00 on the evening of December 10, 1985, Brian Robbins was playing cards at the west-side Indianapolis home of his cousin, Jeff Robbins. Also present at the time were Brian's girlfriend, Sherri Flory; her four-year-old son, Jason; Jeff's girlfriend, Sheri Weaver; and their nine-month-old daughter, Sheena. Feeling the effects of five or six beers and a Quaalude tablet, Jeff went into the back bedroom and lay down on the bed. The women decided to take the children and go Christmas shopping, so Sheri took her baby and went outside to warm up the car.

Jeff's mother had called earlier to say that appellant had stopped by her home around 2:00 p.m. that day looking for Jeff and had mentioned that he had something for him. When appellant arrived with another man at Jeff's house just after Sheri Weaver went outside, Brian, who recognized him from seeing him with Jeff on three or four prior occasions, admitted him and directed him to the back bedroom to see Jeff, while the other man remained by the door.

Appellant found Jeff on the bed, lying on his stomach, and fired one round from a chrome-plated .357 magnum revolver, striking Jeff in the back of his left shoulder. Jeff looked around at appellant and said, "No, don't shoot me again, man, what are you doing?" Appellant replied, "This ain't no nightmare, this is for real," and shot him through the jaw.

When Brian and Sherri Flory heard the first shot, they looked at appellant's companion, who lifted the flaps of his jacket pockets to reveal the butts of two pistols. After the second shot, appellant came back into the living room and walked toward Brian, who implored, "Kenny, oh Kenny, please don't shoot." Appellant looked at him, smiled, and shot him three times, once in the arm and twice in the chest. Brian collapsed to the floor, and appellant turned his attention to Sherri, who begged him not to shoot her little boy. Appellant laughed and shot her in the face; he then shot Jason in the neck. Upon leaving the house, appellant encountered Sheri Weaver and pistol-whipped her about the head, beating her face to a pulp in the process, and left her unconscious on the ground next to her screaming infant.

About 10:30 that same night, appellant went to the Beehive Tavern, where he was a regular customer, and after paying ten dollars for a three-dollar drink asked the bartender to say, should anyone ask, that appellant had been at the tavern all evening. The bartender also testified that three nights before, appellant had tried to sell him a chrome-plated .357 magnum revolver. Paul Ray, who had known appellant since 1972 or 1973, testified he had gone with appellant to the Beehive around 7:30 that evening, but that appellant left while he was in the restroom. He saw appellant at the Beehive again that evening around 10:30. Appellant then told Ray he would be reading about something in the headlines and asked him if he would say that appellant had been with him all evening; Ray said no.

All of the victims survived their wounds. Sherri Flory and Brian and Jeff Robbins individually were shown photographic arrays from which they identified appellant as their assailant. Gerald Vandever testified he was incarcerated with appellant in the lockup behind Marion County Municipal Courtroom VI on January 27, 1986, and after recognizing him asked why he had shot the boy. Appellant replied that such things happen when people get in the way and indicated that he had been "collecting" a debt owed him for drugs. Vandever also testified that appellant showed him a handcuff key concealed in his mouth and asked him for help in escaping because he needed to finish killing his victims so they could not testify against him in court.

Appellant contends the evidence was insufficient to support his attempted murder convictions. He argues the in-court identifications of him as the perpetrator by Brian and Jeff Robbins, Sherri Flory and the Beehive Tavern bartender, which he sought to exclude at trial, were tainted by the use of impermissibly suggestive pretrial photographic arrays. He contends they were defective because he was the only bald person depicted and because the bartender was shown only two photos to identify.

Appellant correctly cites cases holding that a reviewing court looks to the totality of the circumstances to determine whether the array was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification, e.g., Smith v. State (1986), Ind., 490 N.E.2d 748. Regardless of suggestiveness, however, an in-court identification need not be suppressed if the totality of the circumstances shows the witness had a basis for identification independent of the contested photographic array. Allen v. State (1982), Ind., 439 N.E.2d 615.

In the case at bar, each witness had a firm independent basis for identifying appellant as the perpetrator. Jeff Robbins had known him since early 1985 and they had gotten together about three times a week to drink and play cards. Brian Robbins had met appellant at least three times and had been to his home. Sherri Flory had met appellant at Jeff's mother's home a month or two before the crime. The Beehive Tavern bartender knew appellant as a regular customer named "Kenny" who usually ordered a Black Russian. There clearly was sufficient independent basis to admit the identification testimony of these witnesses.

Moreover, an examination of the record reveals that the use of the photographic arrays in question was not impermissibly suggestive. We held in Neal v. State (1988), Ind., 522 N.E.2d 912 that where the individuals depicted in the array varied in appearance (some were bald, some had moustaches, some had beards), the array was not unusual nor impermissibly suggestive. See also Henson v. State (1984), Ind., 467 N.E.2d 750. The six-photograph array shown to the victim/witnesses in the instant case similarly was not defective. The two-photograph "array" shown to the bartender was not a lineup used for purposes of identification; rather, police were trying to find out whether appellant had been at the Beehive Tavern in the process of tracing his whereabouts on the night of the crime. Because the two photographs were not used for eyewitness identification of appellant as the perpetrator, such use of only two photographs was entirely proper. Id. The evidence of appellant's identity as the perpetrator was properly admitted and was sufficient to prove he was the person who committed the crimes.

Appellant also maintains the jury's verdict is unsupported because it fails to take into consideration the pound or so of marijuana and the firearms found in the victim's home, that the physical injuries and drugs allegedly taken by the victims rendered their identification of appellant inherently unreliable, and that the testimony of appellant's fellow jail inmate, Gerald Vandever, was "obviously false" because he was hoping to benefit from his testimony, which was not corroborated by other inmates.

On sufficiency review, this Court will look only to the evidence supporting the jury's verdict and all reasonable inferences to be drawn therefrom; we will not weigh conflicting evidence nor judge the credibility of the witnesses. Collins v. State (1982), Ind., 431 N.E.2d 802. The foregoing claims by appellant involve matters which in fact were placed before the jury and which go to the weight of the evidence and the credibility of the witnesses, which lie within the exclusive province of the jury. Burton v. State (1986), Ind., 497 N.E.2d 535. There clearly exists sufficient evidence of probative value for the jury to find that appellant was the person who attempted to murder the five victims.

Appellant contends his total sentence of 281 years is manifestly unreasonable, arguing its excessive length renders it cruel and unusual punishment in violation of the United States Constitution's Eighth Amendment and art. I, Sec. 16 of the Indiana Constitution. He acknowledges the trial court has wide discretion in passing sentence and that as long as a sentence is authorized by statute, we will not revise it unless it is manifestly unreasonable in light of the nature of the offense and the character of the offender such that no reasonable person could find such sentence appropriate to the particular offense and offender. Ind.R.App.Rev.Sen. 2; see, now, Ind.Appellate Rule 17(B).

Appellant cites Fointno v. State (1986), Ind., 487 N.E.2d 140 where we reduced a sentence from 104 years to 80 years in light of the defendant's lack of prior criminal history, the fact he had not brutalized his victims, and the reduced significance of the confinement and robbery convictions which had been sentenced consecutively to the enhanced rape and criminal deviate conduct counts. He maintains his sentence similarly should be reduced in light of the fact that he was employed at the time of the offense, that he had been abused and neglected as a child, and that he had a drug problem and was intoxicated on the day of the instant crimes.

However, none of the factors held to be in mitigation in Fointno are present here. The execution...