Glover v. StateGlover v. State
- Reporters:
- ,
- Before:
- DeBruler
Defendant-appellant, John T. Glover, was convicted of criminal confinement, a class B felony,
1. Whether the jury’s verdict, finding defendant guilty of confinement with a deadly weapon, was contrary to the law and the evidence because there was no proof that defendant was armed with a deadly weаpon.
2. Whether the trial court erroneously admitted the testimony of two of the State’s witnesses after they failed to appear for scheduled depositions.
3. Whether the triаl court committed reversible error by admitting certain identification testimony.
4. Whether the trial court erred in not granting defendant’s request for a lineup.
The facts most favorable to the verdict show that at around 8:00 p.m. on August 13, 1980, Sharon Bunton and Denise Webster were walking from their apartment
Defendant was stopped in the van several minutes later by police for questioning. A Crossman .177 caliber pellet gun was found under the front seat. Defendant was released when Denise Webster was brought to the scene and, after initially identifying defendant as the man who abducted Bun-ton, recanted that identification. At approximаtely 10:00 p.m., defendant was stopped again on the other side of town. Bunton positively identified him there as the man who had abducted her, and Webster concurred in that identification. Defendant was placed under arrest.
I.
Defendant first contends that the verdict of the jury is contrary to the law and the evidence. Criminal confinement is prohibited by
“However, the offense is a ... class B felony if it is committed while armed with a deadly weapon.”
Defendant argues that therе was no proof adduced at trial that he was “armed with a deadly weapon.”
A Crossman .177- caliber pellet pistol was found under the seat of appellant’s van. It was desсribed as being similar in size to a .45 caliber automatic, but with a longer barrel, and of blue steel. In ordinary operation it is held in the hand and when fired expels a .177 caliber metal prоjectile by compressed gas. By statutory definition, a deadly weapon includes a weapon which in ordinary use is readily capable of causing serious bodily injury which includes “serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protacted loss or impairment of a bodily member or organ.”
Where different conclusions can be reached as to whether or not the weapon is deadly, it is a question of fact for the jury to determine from a description of the weapon, the manner of its use and the circumstances of the case. McFarland v. State, (1979) Ind.App., 384 N.E.2d 1104. Here, the verdict of the jury was not contrary to the law or the evidence.
. II.
Defendant next urges that the trial court committed reversible error by admitting, over objection, the testimony of Sharon Bunton and Denise Webster. He claims that their testimony should have been excluded because they failed to appear for several scheduled deрositions. Indiana Rules of Trial Procedure 30 and 31 provide for the taking of depositions of witnesses upon oral examination. Both provide that the “attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45.”
III.
Defendant next assigns as error the admission of the testimony of Bunton and Webster concerning their pre-trial identification of defendant and their in-court identification of him. He contends that the identification procedures emplоyed by the law enforcement officers here were imper-missibly suggestive, resulting in irreparable misidentification. Defendant was positively identified by the victim of the crime less than two hours after its commission in a one-on-one “show-up” confrontation conducted on the street where defendant had been stopped.
We have held, as has the United States Supreme Court, that identification procedures which are so suggestive as to give rise to a substantial likelihood of misidentification violate a defendant’s due procеss rights. Simmons v. United States, (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Sawyer v. State, (1973) 260 Ind. 597, 298 N.E.2d 440. It is, however, permissible for a law enforcement officer to present a suspect for identification within a few hours of the commission of the crime. Coffee v. State, (1981) Ind., 426 N.E.2d 1318.
Identifications similar to the one at issue here of a freshly apprehended suspect have been held to be not unnecessarily suggestive despite the suggestive factors unavoidably involved in suсh confrontations, because of the value of the witness’s observation of the suspect while the image of the offender is fresh in his mind. Zion v. State, (1977) 266 Ind. 563, 365 N.E.2d 766, reh. denied (1977); McPhearson v. State, (1970) 253 Ind. 254, 253 N.E.2d 226, reh. denied (1970); Lewis v. State, (1969) 252 Ind. 454, 250 N.E.2d 358, reh. denied (1969). In the instant case, the pretrial identificatiоns were not unnecessarily suggestive, and thus testimony about them was correctly admitted and the in-court identifications of the defendant were proper.
IV.
Denial of his pre-trial mоtion for a lineup is defendant’s final assignment of error. Defendant filed a “Motion for Lineup and Request for Guidelines Concerning Same” which was denied. He later filed a “Renewed Motion for Lineup and Memorandum in Support of Same” which was also denied. Before trial, a judge pro tern ordered the State to make arrangements for the defendant to appear in a lineup but this was later cancelled after the State’s “Motion for Reconsideration of Court’s Ruling” was filed and a hearing was held on that motion. The State’s motion was based on the fact that on the evening prior to the scheduled lineup, the defendant had shaved off all of his facial hair and all of the hair on his head in an apрarent attempt to disguise his appearance.
While no authority exists in Indiana for the granting of a pre-trial lineup upon a defendant’s request,
Kusley v. State,
(1982) Ind., 432 N.E.2d 1337, discovery in criminal cases is largely a matter within the discretion of the trial court.
Ross v. State,
(1980) Ind., 413 N.E.2d 252;
Gutierrez v. State,
The conviction is affirmed.
GIVAN, C.J., and HUNTER, PRENTICE and PIVARNIK, JJ., concur.