Zion v. State, No. 1176S402

Docket NºNo. 1176S402
Citation266 Ind. 563, 365 N.E.2d 766
Case DateJuly 28, 1977

Page 766

365 N.E.2d 766
266 Ind. 563
Samuel John ZION, Appellant,
v.
STATE of Indiana, Appellee.
No. 1176S402.
Supreme Court of Indiana.
July 28, 1977.

[266 Ind. 564]

Page 767

Robert S. Bechert, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Lesly A. Bowers, Deputy Atty. Gen., Indianapolis, for appellee.

DE BRULER, Justice.

Appellant was charged by information with the offenses of rape, Ind.Code § 35-13-4-3 (Burns 1975) and commission of a felony (rape) while armed, Ind.Code § 35-12-1-1 (Burns 1975). He was convicted after trial by jury and received consecutive determinate sentences of fifteen years imprisonment and seventeen years imprisonment respectively for the rape and armed rape convictions. On appeal he raises three issues:

(1) whether the in-court identification of appellant by the prosecuting witness and evidence of a pre-trial identification should have been suppressed because the pre-trial confrontation was conducted in an unnecessarily suggestive manner;

(2) whether the verdicts were supported by sufficient evidence; and

(3) whether the trial court erred in imposing consecutive sentences on the verdicts.

Page 768

I.

The victim testified at trial that she was taken to a McDonald's restaurant by a detective a day and a half after the crime, and that there she pointed out appellant as her assailant. Appellant contends that this pre-trial confrontation was arranged by the police, that the manner of staging it was both impermissibly and unnecessarily suggestive, and hence evidence of it was inadmissible. Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Norris v. State, Ind., 356 N.E.2d 204; Swope v. State (1975), 263 Ind. 148, 325 N.E.2d 193.

[266 Ind. 565] At the outset we address the State's argument that the issue was waived and is therefore not before us for a merit determination because no objection was made at trial to the testimony of the victim or the officer describing such confrontation and identification. Appellant made a motion to suppress evidence of the out-of-court identification which was fully heard and overruled on the first morning of trial. As the issue was fully litigated on the motion, the failure to object at trial to the same evidence was not a waiver. The contemporaneous objection rule requires a proper and timely objection to be lodged in the trial court. Sams v. State (1969), 251 Ind. 571, 243 N.E.2d 879. This pre-trial motion satisfied the purposes of that rule. It alerted the trial court and counsel to the alleged error, allowed full litigation, and permitted immediate prevention or correction of error. Candler v. State (1977), Ind., 363 N.E.2d 1233; Horton v. State (1976), Ind., 354 N.E.2d 242; Hammer v. State (1976), Ind., 354 N.E.2d 170. This situation is unlike that addressed recently in Stowers v. State (1977), Ind., 363 N.E.2d 978. In that case no hearing was held on the pre-trial motion to suppress. Here a full hearing on the motion was held, and immediately after the hearing the trial was commenced. See Lockridge v. State (1975), 263 Ind. 678, 338 N.E.2d 275.

Turning to the merits of the issue, we find the evidence showed that on the morning after the crime the victim described her assailant to an investigating officer as a white man, approximately 20 or 21 years old, 125 pounds, very slim build and wearing his black hair medium to short. She did not know his name, but believed she had recognized him at the time of the attack. A week before, he had approached her as she was leaving the Village Inn Tavern and had asked her to come back into the tavern to have a drink with him. She had declined the offer.

She was taken to the police station where she viewed 100 to 150 photographs of possible suspects and picked none from [266 Ind. 566] among them. Appellant's photograph had not been among them. Following up on a clue supplied by a customer of the tavern, the police were led to suspect appellant. They learned his name and address, that he was employed as manager of a McDonald's Restaurant where he worked in an office in the back portion of the restaurant and that he went to work at 4:00 p. m. A day and a half after the crime, the detective phoned the victim and told her that there was a suspect that they wanted her to view and that he worked at a McDonald's Restaurant. At no time during this entire episode did the officer use words in a manner or form calculated to encourage or induce the making of a positive identification of appellant. She accompanied the detective to the restaurant where they parked outside in the lot at about 3:40 p. m. and waited in the car for the suspect to arrive. The suspect did not show up for work as expected and shortly after 4:00 p. m., the detective got out of the car, went into the restaurant and emerged in a few minutes accompanied by appellant who was then dressed in a McDonald's uniform.

The detective and appellant spoke for about two minutes while standing outside the restaurant about the fact that appellant was a suspect in a rape and burglary case and that the police would like to arrange a meeting with him at the police station. The victim remained in the car at a distance of about fifteen...

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40 practice notes
  • Williams v. State, No. 1278S281
    • United States
    • October 2, 1979
    ...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 sugge......
  • Chambers v. State, No. 1179S302
    • United States
    • Indiana Supreme Court of Indiana
    • July 8, 1981
    ...used was overly suggestive. The procedure used in the instant case was similar to that which this Court approved in Zion v. State, (1977) 266 Ind. 563, 365 N.E.2d 766. In Zion, the day after the crime the victim gave a description to the police. Police took the victim to the place of a susp......
  • Owens v. State, No. 1180S418
    • United States
    • Indiana Supreme Court of Indiana
    • November 5, 1981
    ...we have upheld pre-trial identification procedures where the defendant was not aware that a witness observed him, Zion v. State, (1977) 266 Ind. 563, 365 N.E.2d 766, and where the suspect was apprehended shortly after the incident and was returned to the scene. Edwards v. State, (1976) 265 ......
  • Poindexter v. State, No. 177S24
    • United States
    • Indiana Supreme Court of Indiana
    • April 17, 1978
    ...very suggestive, Cooper v. State, (1977) Ind., 359 N.E.2d 532, but it is not always unnecessarily suggestive, Zion v. State, (1977) Ind., 365 N.E.2d 766; Dewey v. State, (1976), Ind., 345 N.E.2d 842. The value of the witness' observing the suspect while the image of the offender is fresh in......
  • Request a trial to view additional results
40 cases
  • Williams v. State, No. 1278S281
    • United States
    • October 2, 1979
    ...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 sugge......
  • Chambers v. State, No. 1179S302
    • United States
    • Indiana Supreme Court of Indiana
    • July 8, 1981
    ...used was overly suggestive. The procedure used in the instant case was similar to that which this Court approved in Zion v. State, (1977) 266 Ind. 563, 365 N.E.2d 766. In Zion, the day after the crime the victim gave a description to the police. Police took the victim to the place of a susp......
  • Owens v. State, No. 1180S418
    • United States
    • Indiana Supreme Court of Indiana
    • November 5, 1981
    ...we have upheld pre-trial identification procedures where the defendant was not aware that a witness observed him, Zion v. State, (1977) 266 Ind. 563, 365 N.E.2d 766, and where the suspect was apprehended shortly after the incident and was returned to the scene. Edwards v. State, (1976) 265 ......
  • Poindexter v. State, No. 177S24
    • United States
    • Indiana Supreme Court of Indiana
    • April 17, 1978
    ...very suggestive, Cooper v. State, (1977) Ind., 359 N.E.2d 532, but it is not always unnecessarily suggestive, Zion v. State, (1977) Ind., 365 N.E.2d 766; Dewey v. State, (1976), Ind., 345 N.E.2d 842. The value of the witness' observing the suspect while the image of the offender is fresh in......
  • Request a trial to view additional results

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