Wright v. State, 771S214
| Decision Date | 08 August 1972 |
| Docket Number | No. 771S214,771S214 |
| Citation | 259 Ind. 197,285 N.E.2d 650 |
| Parties | William WRIGHT, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Charles T. Bate, of Soshnick & Bate, Shelbyville, for appellant.
Theo L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., Noble R. Pearcy, Pros. Atty., Indianapolis, for appellee.
This is an appeal by William Wright, appellant (defendant below), from a conviction for armed robbery and kidnapping. Appellant was indicted by the Marion County Grand Jury and entered a plea of not guilty. After the cause was venued to Hancock Superior Court, the case was tried to a jury which returned a verdict of guilty to both charges. Appellant filed a Motion to Correct Errors which was overruled and this appeal followed.
Appellant sets forth five allegations of error.
(1) He claims the on-the-scene confrontation between appellant and the victim shortly after the crime was committed was so suggestive as to render the victim's in-court identification of appellant inadmissible.
(2) Appellant claims the attempted introduction of certain items of evidence was done only to prejudice the jury against appellant and that the judge's instruction on the matter was inadequate to remedy the damage done.
(3) Appellant claims prejudicial error arose from a discussion between two witnesses after a motion for the separation of witnesses had been granted. (4) Appellant claims it was erroneous to give an instruction concerning 'flight'.
(5) Appellant claims the evidence was not sufficient to sustain the conviction.
The facts of the case are as follows. At around noon on February 21, 1969, James Woodsmall, a diamond salesman, completed a call on a customer at 56th and Keystone in Indianapolis and returned to his automobile. He placed a briefcase containing jewelry into the trunk and then went to unlock his car door. As he was unlocking the door, a man stuck a revolver in Woodsmall's ribs and ordered him to get in the car. The man holding the revolver was wearing a red hooded sweatshirt and dark glasses. He slid in behind the wheel beside Woodsmall and ordered him to unlock the other door to allow another man to climb in. This man who later was identified by Woodsmall as being appellant was described as wearing a dark coat, dark slacks, and glasses with silver side frames. He was described as being in his forties, about 190 pounds, with gray hair. The car then sped away east on 56th Street. As they were speeding down the street, Woodsmall noticed a policeman at the side of the road where some repairs were being made. In order to attract the officer's attention Woodsmall grabbed the steering wheel causing the car to weave back and forth across the road. The man on the passenger side then grabbed Woodsmall's hands and held them. While his hands were being held the driver reached in and removed Woodsmall's billfold containing $475.00. After a few miles, the men turned onto an unimproved road and came into the back of an apartment complex. The car stopped and both men leaped from the car and fled. A tenant from the apartment complex heard the car stop and saw the two men running from the car. Her only description of the men was that one was of medium build and one had a red hat on. She walked down to the car and saw Woodsmall who she described as being 'very very white' and 'very very shot.' The police arrived a few minutes later and received a description of the men from Woodsmall. About one half hour later, appellant was seen by a police officer walking through the apartment complex. Although the temperature was 35 to 45 degrees, appellant wore no coat. He was wearing a dark short sleeved banlon shirt, dark trousers, and glasses with silver side frames. His hair was graying in front. Appellant was taken into custody by the officer, and, a short time later, Woodsmall was taken to look at appellant. Woodsmall stated that he could not be sure that this was one of the men. At trial, Woodsmall stated the reason for his indecision:
He stated that he was then sure that appellant was one of the culprits. Woodsmall was able to get a full front view of appellant when appellant initially climbed into the car and had a side view of him for the course of the ride which lasted about five minutes. Later that day a red hooded sweatshirt and a revolver were found in a trash can at the rear of one of the apartment buildings. Woodsmall's billfold was found on the grounds of the apartment complex but it contained no money. No money was every found nor was the dark sport coat which Woodsmall said appellant was wearing. Woodsmall testified that he was extremely frightened by the ordeal.
The first issue is whether the on-the-scene confrontation between appellant and Woodsmall was so suggestive as to render the in-court identification of the appellant inadmissible. We do not believe it was. This Court has previously stated that the Wade-Gilbert rules concerning the right to counsel at a line-up to not apply to on-the scene confrontations occurring a short time after the crime was committed. See, Martin v. State (1972), Ind., 279 N.E.2d 189; Dillard v. State (1971), Ind., 274 N.E.2d 387; Parker v. State (1970), 254 Ind. 593, 261 N.E.2d 562; McPhearson v. State (1969), 253 Ind. 254, 253 N.E.2d 226.
The question then becomes whether the procedures were so suggestive as to violate due process. See, Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967; Dillard v. State, supra; Parker v. State, supra. The test is when looking at the totality of the circumstances, whether the on-the scene confrontation was conducted in a manner so unnecessarily suggestive and conducive to irreparable mistaken identification that it denied the defendant due process of law. Stovall v. Denno, supra; Dillard v. State, supra; Parker v. State, supra. It must be noted that any one-on-one confrontation is somewhat suggestive and we again urge our law enforcement officers to attempt to minimize the suggestive influences as much as possible. However, the suggestive influences here were not so great as to lead to irreparable mistaken identification. It is not clear from the record whether appellant was handcuffed but the procedure used must have indicated to Woodsmall that they considered appellant a possible suspect. However, Woodsmall was left free to view appellant and was not pressured by the police for an answer one way or the other. Woodsmall had ample opportunity to observe his robber-kidnappers during the course of their ride and the confrontation occurred a short time after the crime. It is also clear that Woodsmall did not allow himself to become influenced by any suggestive pressures which might have been present, for he refused to make any positive identification until he had calmed down and his mind was clear. He testified at trial that he was sure that appellant was one of the men and indicated he would not be testifying in court were he not absolutely sure. After looking at the totality of the circumstances we simply cannot say that the influences were so impellingly suggestive or conducive to misidentification as to result in a denial of due process of law.
The next issue is whether the prosecutor's conduct in attempting to introduce certain items into evidence which the judge ruled inadmissible was so prejudicial as to require a reversal, and, additionally, whether the trial judge's instruction on this matter was sufficient to cure any alleged prejudice which may have been done. The items with which we are concerned are the red hooded sweatshirt and revolver which were found in a trash can the evening of the crime. There can be no doubt that the items were relevant since Woodsmall testified that appellant's companion had such a pistol and was wearing such a sweatshirt. The fact that the judge later ruled the evidence inadmissible because...
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