Hatcher v. State

verdict, A proper guilty manner. because to be drawn and reasonable inferences all provide does not assurance generality, of is substantial evidence its If there therefrom. Such assur- that the issue was resolved. support the conclusion probative of value to jury situations from ance must come fact, will not be the verdict the trier given State, Ind., jury The instructions instructions. overturned. Wofford provide not instance do 100; (1978) by court in this 394 N.E.2d Poindexter would, therefore, assurance, not case, I In this 374 N.E.2d 509. Ind. Here, jury to stand. permit the verdict ample there was substantive bur- the State had the instructed that was jury’s verdict that defendant support guilty the defendant proving den of estranged intentionally shot and killed defining the ele- given was instruction wife. In the absence of self-defense. ments reasons, there was foregoing For fairly informing fully an instruction judgment no and the trial court error is inappropri- verdict guilty that a jury trial court should be affirmed. that the defendant ate it is convinced unless Judgment affirmed. infer killing, one cannot justified was carried it a guilty with the verdict GIVAN, J., and PIVAR- C. PRENTICE jury that the defend- determination NIK, JJ., concur. If, act. justified in that ant was not DeBRULER, J., opinion. dissents concludes, precedent is no there majority instruction, I would cre- such an requiring Justice, DeBRULER, dissenting. ate in this case. one that he shot The accused testified A witness wife in self-defense. defense gun carried a always

testified that the wife pulled it on purse

in her and had twice A witness testi-

appellant. second defense gun

fied mother had victim’s proof

the scene. This self-defense was weakness, but

not without nevertheless prosecution it sufficient homicide HATCHER, Appellant Carlton raise the defense of self-defense. Below), (Defendant agree that judge parties and the the de- fense was When the defense of raised. Indiana, Appellee STATE is is on self-defense raised burden Below). (Plaintiff it. Williams prosecution negate 981; (1978) 269 Ind. 379 N.E.2d White No. 179S21. 156; Supreme Court of Indiana. Johnson v. Ind. burden This is added to the 8, 1981. Jan. burden existing prosecution requires elements the offense.

prosecution to convince the trier fact to a doubt,

certainty beyond a reasonable purposely the accused or inten- killed

tionally being, another human but justified doing

addition that he was not very

so. The essence of a trial in which issue,

self-defense is the resolution of issue the trier of fact. that,

has appellate and as an

judge it, I want to got know that he

ceedings subsequent to arrest conducted of his in the absence offense and At overruled. The motion was counsel. timely objection, trial, Sey- over permitted to identify bert were the Defend- them who robbed persons ant as one of the Neel, Indianapolis, appel- A. for James previously they had testify and also to lant. the afore- so defendant identified the Gen., Sendak, Atty. Wesley T. Theo. L. “lineups.” mentioned . Gen., for Wilson, Deputy Atty. Indianapolis, appellee. right The Sixth Amendment counsel attached at or after the time

PRENTICE, Justice. had ini proceedings been adversary judicial Kirby Illi accused. v. against was convicted tiated the (Appellant) Defendant 1877, nois, 92 (1972) of rob- jury, of two counts armed by 411, (plurality opinion). bery imprisonment and sentenced Wade, (1967) (10) v. years two consecutive terms of ten In United States find the necessary each. We it to reverse Illinois,

judgment sugges- Kirby of the United States impermissibly because v. right to coun procedures employed by Supreme tive Court held the identification attor right to have an encompasses the sel the State. “lineup” identifi ney present pre-trial at a Two black males entered restaurant at or after the procedure cation conducted during guns early By the afternoon. use of In proceedings. initiation of such criminal threats, money belonging to they took or State, information filing the of an this the from Miss entity employee, business one begins proc criminal indictment the formal personal Seybert, and funds from another (1975) v. 263 Ind. ess. Winston Doyle. employees Mr. Both saw employee, Therefore 323 N.E.2d during episode. the bandits present at is entitled to counsel Gillespie con- Indianapolis Police Officer “lineup” subsequent which is conducted oc- photographic displays ducted several or filing of an information indictment. Following Seybert and Doyle. casions for Illinois, v. supra; Kirby v. United occasion, Doyle photo- one such selected a supra. v. supra; Winston graph portraying Defendant as one Defendant had a clear that Sixth it is The rec- robberies. right to have counsel Amendment ord this was the occasion reveals that “lineup” conducted in case. picture displayed was on which Defendant’s one week Approximately to the victims. Moreover, conduct police when later, Doyle each selected Seybert and when the “lineup” at a time uncounseled Johnny separate defendant and Jones counsel, the sanc is entitled identi- by police “lineups” arranged of a witness’ tions are clear. Evidence fied them robbers. Defendant “lineup” at the identification the accused with crimes at the charged had been v. per inadmissible trial. se Gilbert He “lineups.” time in the displayed he California, (1967) pro- for the provided was not specifi L.Ed.2d 1178. Defendant and the record not disclose ceedings, does evi cally challenges only admission ad- previously whether or he been How “lineup” identification. dence of right vised of his to such counsel. calls ever, illegal “lineup” conduct of an wit admissibility sup- into pre-trial filed a motion Defendant press testimony from ness’ in-court identification. identification Thus, a in-court they Wade, supra. witness’ v. Seybert upon grounds sup- testimony also be pro- must police “lineup” had identified him at pressed, unless the can establish Waiver to counsel prosecution convincing clear and other has received extensive exam contexts in-court identification has an shown to ination. a waiver must be Such and is not origin product voluntarily and intel knowingly, “lineup.” supra; Gilbert v. Zerbst, ligently made. Johnson Wade, supra; Morgan United States v. 1019, 82 L.Ed. 113; Ind., 400 N.E.2d appear showing 357. This must 146 A.L.R. Love v. 266 Ind. Id.; on the record. Russell determine, 773. We must first 309; -, 383 N.E.2d Owen then, whether the facts of this case reveal a State, (1978) 269 Ind. denial Defendant’s Further, indulge every will courts reasona- right to counsel. a waiver. Johnson presumption against ble argues The State that Defendant waived Zerbst, addition, right his to have an Offi- attorney present. request. depend counsel on a does him, Gillespie days cer informed six in ad- Cochran, 506, 513, Carnley v. vance, that he would in a “line- placed 70, 8 L.Ed.2d 76. him, time, up.” Gillespie also told at that subsequent Cases decided United he had right attorney a to have an Johnson v. clear- States v. Wade and Zerbst Defendant, however, present. The made no that these strict ly establish standards information, response Gillespie to this and right a waiver of apply to invocation of did not discuss Hatcher’s with him present at pre-trial to have counsel certain Gillespie further. did at that not know Williams, (1977) In Brewer v. proceedings. time whether or not the defendant had 387, 1232, 424, 430 97 51 L.Ed.2d counsel. U.S. S.Ct. Apparently, he did have counsel in matter, City Supreme an unrelated Court but discussed United States Court attorney record does not an disclose that right of waiver of have entered appearance had an in this case. present during counsel interrogation. an “ * * * did, Neither does it disclose that Defendant explained proper Court fact, have counsel in this case. The be applied determining standard to however, argues, that Defendant’s States question of waiver as a matter of federal * * * * * * knowledge impending “lineup” (is whether) constitutional law right attorney present, of his to have an ‘an intentional relin- State [can] together with an his failure to have attor- quishment or a known abandonment of ” ney present right. effected a waiver of 404, right 97 privilege.’ or 430 U.S. at Wade, The Court in v. su- 1242, (quoting S.Ct. at 51 L.Ed.2d at 439 pra, may did indicate that a Defendant Zerbst, supra). Johnson Court right waive to have counsel at pointed Brewer Williams then out “lineup.” discussing After need for standard to an applies equally strict “[t]his purpose and the having in at- alleged right waiver of the to counsel tendance, the Court both said: “Thus Wade trial or at a stage whether at critical and his counsel should notified of have been pre-trial proceedings. Bus- Schneckloth v. impending lineup, pres- and counsel’s tamonte, 218, 238-40, (1973) 412 93 U.S. should ence to con- requisite 869-70; 2041, 2053-54, 854, 36 S.Ct. L.Ed.2d duct the lineup, ‘intelligent absent an Wade, United States Cochran, (1962) waiver.’ See Carnley v. 369 237, 87 S.Ct. 82 U.S. S.Ct. 8 70.” 388 L.Ed.2d Id., 97 1163.” S.Ct. at 51 L.Ed.2d at U.S. at 87 at L.Ed.2d 18 at 440. However, 1163. neither the United States Bustamonte, supra, In Schneckloth Supreme Court nor this ever been Court has that a argued “consent” to a search required to determine to be the standards applied in under the Fourth Amendment should resolving whether or to in- voke such a waiver. the same standards evaluated used at at Amend- for Sixth

determine a “waiver” 238-39, John- Id. at ment under the doctrine of at 1163.” purposes, L.Ed.2d Zerbst, of this disposing 869. son at 93 S.Ct. at explained that argument, the Court Ind.App., Shelton v. See Zerbst, Johnson v. waiver standards of light oí 1051. United “ * ** ... were enunciated the context pronouncements Court 235, 93 fair criminal trial.” waiver, we must general question 36 L.Ed.2d at The Court S.Ct. at us in evaluate case before terms further stated: knowingly, whether or not the defendant requirement ‘knowing’ of a “The intelligently waived voluntarily ‘intelligent’ waiver was articulated attorney present at the right an have involving validity a defend- case forego constitu- ant’s decision is clear from record tionally guaranteed protect a fair waive his to coun Defendant did not -the reliability and the truth-determin- in Although, Gillespie orally sel. Officer ing process.” Id. at formed him that he was entitled response. he no attorney present, made exception, the re- “Almost without Gillespie ask he did not whether wanted quirement knowing intelligent of a present, attorney have an whether he applied only has been to those waiver con or he wished to attorney, whether guarantees which the Constitution attorney. emphasizes tact an The State pre- to a criminal defendant order counsel that Defendant did not ask 237, 92 at serve a fair trial.” Id. at S.Ct. above, However, we present. as noted 2053, 36 L.Ed.2d at 868. “where assistance of counsel a consti guarantees a criminal “The afforded to be requisite, right tutional furnished protect at him at defendant trial depend request.” on a counsel does trial, and stages certain before the actual 513, Cochran, 506, (1962) 369 U.S. Carnley v. the strict alleged waiver must meet 70, 884, 889, 8 L.Ed.2d 76. See 82 S.Ct. relinquishment of an standard intentional 387, Williams, (1977) 430 Brewer U.S. right. guar- of a ‘known’ But ‘trial’ 51 L.Ed.2d ‘pre- applied antees that have been Likewise, knowing, voluntary intelli a process are stage trial’ of the criminal a be inferred from gent may waiver designed protect the fairness similarly Fitzgerald v. silent record. of the trial itself. 39, 47, 257 N.E.2d 311. See “Hence, Cochran, Therefore, we Carnley v. (1967) 388 S.Ct. did not waive hold and Gilbert to have an attor Amendment proceedings. “lineup” at ney post- held a ‘that the Court which the pretrial at indictment trial court erred It follows that the wit- identifying is exhibited to disclosing testimony when it admitted stage a of the criminal nesses is critical Gilbert v. Cali “lineup” identifications. prosecution; police conduct of such fornia, per evidence is supra, held that such ab- to and in the lineup without notice inadmissible, saying: se of his denies the accused sence counsel testimony “That is the direct result Sixth [and Fourteenth] ’ exploitation illegal lineup by ‘come at .. . Id. (Citations omit- primary] illegality.’ Accordingly, 18 L.Ed.2d at [the ted) is therefore not entitled The State that the standard of a Court indicated that that testi- opportunity to an to show knowing intelligent waiver must independent Only source. mony had an applied to test the waiver of counsel at exclusionary as to such testi- per se rule such a See United States We do not given that under cir- mony can be an effective sanction to as- cumstances, might sure authorities such error be deemed law enforcement criteria. Chapman will the accused’s constitutional harmless under respect However, appear do not presence of his counsel at the such circumstances right to the 272-73, hinged lineup.” critical 87 from this record. The conviction 1956-57, testimony upon L.Ed.2d at 1186. the identification S.Ct. at in-court iden- Seybert. Although their urged It has been that the error in permissible, not- may tifications admitting “lineup” the evidence of the iden to the taint of withstanding exposure their harmless, beyond tification was a reasona illegal proceedings, it cannot “lineup” doubt, also' ble inasmuch as the witnesses be said that the additional evidence of their court, defendant, identified the as one of the defendant having previously identified of the crime and had suffi their in- “lineups” at the did not buttress indepen cient bases for such identifications court identifications of him. dent of Ac “lineup” identifications. past We have been liberal in the in deter- knowledging, arguendo, the in-court mining that in-court identifications bas- were not tainted the im identifications improper pre-trial identi- es propriety of “lineup” procedures, potential to procedures fication that had a regarded being error cannot be harmless. However, “independent taint. to use the Illinois, (1977) In Moore v. basis” test in indiscriminate manner rape victim finding error in every case as a criteria for permitted testify had been at the trial of admitting evidence of identifications previously the accused that she had identi- harmless, permit to be would be to preliminary hearing fied him at a at which “exploitation primary illegality” counsel, represented by he had not been requirement would obviate the that identi- having counsel not been offered. The procedures kept fication free of state judge testimony, notwith- permitted the simply induced cannot be suggestivity. standing pre-trial iden- illegality “lineup” said that the iden- tification, existed an “inde- because there tifications did not buttress the witnesses’ pendent source” for the identification at the in-court identifications in this case. Obvi- uncounseled confrontation. The ously, the evidence was offered for that Appeals Court reversed the Court of very purpose. say impact To that it did not remanded for a of whether determination speculation. upon jury the would be sheer evidence was harm- the admission of such Chapman challenged less error under constitutional The State has also the charged 87 S.Ct. entitlement of a to have counsel, “lineup” right, 24 A.L.R.3d 1065. The as a matter of proceedings argues proceed court said: that conducted, ings properly saying: were “But held the prosecution Gilbert by cannot buttress its case-in-chief intro- “What would be the function of counsel ducing pretrial line-up? evidence of a confronta- at a A defendant’s to tion made in violation of the accused’s counsel is not a mere academic companionship, even if it can but such counsel is ex pected perform pretrial that the identification had a beneficial function. independent testimony present an source. ‘That If counsel had been at the line illegal lineup up, is the direct result of the he could not have interfered in the (come any way. He by exploitation primary] proceedings in could not [the illegality.)’ (citing Gilbert), pros- objected display and the have of Defendant police ecution ‘therefore to an have advised is not entitled nor could he get Defendant that he opportunity testimony to show that did not ” independent line-up had an source.’ 434 U.S. at the line. The evidence of the properly 54 L.Ed.2d at 435-36. shows that it was held and that “independent origin” and the questions was identified without Defendant by police.” relation issue suggestion or coercion of that majority has harmless error. for has is noted the State necessary complete properly failed “record,” “evidence,” not said that resolving ques- this analysis to be made lineup impropriety. no of the shows tion, and, result, as fails to elucidate reassuring We do not find it Court trial courts and this guidelines which no impropriety record before us discloses A type. cases of this must follow future weight To “lineup” procedures. give and the proper analysis of the law full and an inference from a this would to draw of this me to conclude facts case leads counsel at presence record. The silent the error was harmless nature. vital serves two proceedings identification of the determining After that evidence First, in United purposes. pointed out should not witnesses’ if present counsel is admitted, we must examine interest and serve both his client's he can identifica- of the witnesses’ in-court nature prosecution by of the prevention analy- conducting this purpose tion. The suggestiveness. clear: witnesses also should sis is occurs, if not- Secondly, impropriety such iden- make an in-court have been allowed to withstanding presence, he can see that unless those identifica- tification of Hatcher no appropriate record is made. We take independent origins of the tions comfort that the record before us discloses Wade, (1967) 388 lineup. United States suggestiveness no when that record is en- 1926, 1939-40, 226, 241-42, dependent upon the tirely correctness 1165-66; Morgan v. urge acceptance memories those who 111, 113; Ind., Love 400 N.E.2d evidence, and there no one Ind. record, or even to remember 771, 773. its might from observe matters that detract in determin The factors to be considered credibility. basis ing the existence of an issue, holding upon Because of our dealing two sets: those may divided into challenges we do not meet the defendant’s observe opportunity witness’ of the evidence and sufficiency offender, relating to the reliabili and those of his motion for a mistrial for denial original observa of his recollection of ty alleged failure of the State to disclose Morgan su tion offender. witnesses. factors supra. Specific pra; Love v. reversed, cause judgment and the duration group in the first include: the is remanded new trial. for a perpe can observe which observer them; trator; separating the distance JJ., HUNTER, concur. DeBRULER and conditions; af and circumstances lighting the witness fecting the amount of attention J., PIVARNIK, opinion dissents with observing guilty party. can devote to GIVAN, J., which C. concurs. 595, 599, 358 (1976) 265 Ind. Parker Justice, PIVARNIK, dissenting. set in the second 112. Factors to prior opportunity I dissent from the conclusion include: witness’ majority’s act; concerning the exist alleged criminal that the admission of evidence observe pre- discrepancy any between lineup harmless the uncounseled ence actu the defendant’s agree lineup description I error. that Hatcher was entitled pre-lineup identification description; any he not waive lineup, counsel at the that did al counsel," and, therefore, person; another the identification lineup; prior pretrial lineup picture evidence of that identifica- prior identify trial. the defendant on a should not have been admitted at failure tion occasion; however, majority, soft-pedals lapse of time between The 568 Thus,

alleged Swope apart. Doyle greater act and had an lineup. even 193,197, 263 Ind. than opportunity Seybert to observe the quoting Therefore, United during robbery. 388 perpetrator U.S. at L.Ed.2d at I think the trial court did not err in allow- 1165. “It is also relevant to consider ing Doyle those to make an in-court identification which, counsel, despite facts the absence of of Hatcher. Johnson v. See are concerning disclosed the conduct of the 278 N.E.2d 577.

lineup.” Morgan supra; Id. See opinion apparently accepts majority Love v. proposition limited sense the Concerning Seybert witness by Sey- Sherrie in-court identifications of Hatcher us, the case before the record reveals independent origin bert and had an pick appellant’s picture she was unable to product and were not the of the uncoun- photographic However, from the display lineup. majority conducted seled then prior However, lineup. descrip- attempts compare this case Moore v. tion gave shortly Illinois, she after the crime

Officer Gillespie closely matched Hatcher’s L.Ed.2d 424. The Moore case has no bear- actual description. At no time ing independent did she mis- on the issue of the basis of (cid:127) identify Moreover, another person. identifications. witnesses’ in-court about six elapsed weeks between the com- United States Court stated in mission of the crime and her identification Moore: appellant in the prosecution cannot buttress its “[T]he by introducing case-in-chief evidence of a addition, Seybert good had a opportu- pretrial made confrontation in violation nity to observe the at the time of the accused’s this crime was robbery committed. This pretrial even if it can afternoon,

occurred in the middle of the had independent appellant and his cohort were inside the source.” restaurant for approximately five minutes. Seybert testified she had a clear view of Id. at 98 S.Ct. at 54 L.Ed.2d at appellant’s 435-36, California, citing face as he left the restaurant. Gilbert v. Further, engaged she in a brief conversa- added).

tion with they pulled (emphasis the two men before guns their and announced the robbery. Thus, question, without per se exclu- facts, in light of these I believe there sionary rule of ap- Gilbert v. was sufficient evidence from which the trial Illinois, plied by operates Moore in this Seybert’s court could determine that identi- case to render inadmissible evidence of the appellant indepen- had a basis fication pretrial lineup witnesses’ identification. Therefore, illegal lineup. dent of the in my However, stage analysis, we view, admitting the court did not err in her past point; accepting are that conclu- in-court identification. sion, focusing we should whether the in-court identification had an George Doyle Witness indepen- and, so, origin, if whether the trial court’s grounds making dent an in-court identi- admitting error in evidence of fication Seybert, Doyle of Hatcher. Like beyond identification was harmless a rea- was able give description of the perpe- Therefore, sonable Moore v. doubt. Illinois trators which descrip- matched Hatcher’s issue, addresses an entirely different Moreover, tion. Doyle identify did Hatcher should not be used to confuse or suspend from the photographic display conducted analysis our of the in-court identification prior lineup, to the and also he never failed evidence. identify prior Hatcher on a occasion. He testified approached case, that Hatcher him in My assessment of the facts of this part and, the back above, of the restaurant at one as set out leads me to conclude —and point, their faces were about one foot the majority appears agree the —that addition, bery. Doyle picked In Hatchers had ori- witnesses’ in-court identifications which lineup. photographic of the uncounseled gins picture from a display Therefore, view, trial court did my in the the was conducted before admitting victims’ not err the in-court was Doyle’s selection Evidence We must next testimony. identification on Also, noted presented jury. to the the determine whether admission the above, surrounding the circumstances improper beyond was a evidence harmless crime, witnesses’ close visual including the the United Clearly, reasonable doubt. Hatcher, made unquestionably contact with contemplated Court has very of him their in-court identifications required application and even the Moreover, no evi convincing. there was ex- harmless error doctrine to cases this jury Sey- presented dence either Illinois, (1977) type. act Moore v. 434 bert or misidentified another Doyle ever 463, 54 L.Ed.2d 98 S.Ct. person Doyle as the nor that perpetrator, 436; California, (1967) Gilbert v. prior Hatcher a identify ever failed to 87 S.Ct. addition, ini In both witnesses’ occasion. 1187; United States description perpetrators tial of one of 87 S.Ct. descrip actual closely matched Hatcher’s facts, fully tion. of these which were All majority seems to ill at ease consideration, lead jury’s available for the positive the idea that the victims’ in-court evi me the admission of to conclude that help could identifications render error lineup could dence of the uneounseled view, question my In harmless. testi jury’s verdict. The affected strength of these identifications —and the pretrial identi mony regarding victims’ clearly independent bases for them —are positive identi added little to their fications crucial to proper solution of harmless ex rel. at trial. fications See question. illogical error It is and unfair to Illinois, (7th 1978) F.2d Moore v. Cir. recognize admissibility of the witness’ (on 98 S.Ct. remand from 434 U.S. identifications, hence, and, in-court their in- denied, (1979) 440 424), cert. 54 L.Ed.2d dependent origins, but then to refuse to deciding consider those identifications to re- has chosen Finally, majority whether the error as testimo- At that mand this case for a new trial. ny majority was harmless. The asserts trial, line- new of the uncounseled that, permit an analysis such “would be clearly be admissi- up identification will permit ‘exploitation primary remains, however, toas ble. The illegality’ the require- and would obviate permitted to will be kept ment that whether the victims procedures identification ques- How- in-court That suggestivity.” free state-induced make an identification. ever, tion, course, iden- refuse in cases consider turns on whether their applying in-court independent origins. tifications have would, purposes harmless error rule majority, points, two assumes for review, completely finding our undercut the argument origins sake of that such exist. that the in-court identification admissi- However, in fact direct- majority, never I do exclusionary ble. not believe the rule ly guidelines applies appropriate the harmless of Gilbert v. California and question. decides this Court I think this require rule or this logically legally error parties give guidance should some fact, would, approach. approach In such an concerning impor- and the trial court cases, many probably frustrate and twist because, question, judging tant from application completely proper the otherwise us, finding in-court record before that the error harmless rule. improper might, as identifications were also matter, practical prose- here, determine for the Seybert, The two victims fur- pursue cutor whether he will this case Hatcher at unequivocally both identified addition, majori- believe trial as one of the of the rob ther. I also ty should address the issue of the State’s

alleged failure to disclose witnesses. now,

Whatever merit this issue has it will upon

also have retrial and on subse-

quent appeal.

I would hold that the admission of evi- was,

dence of the uncounseled in this

case, error, and harmless would therefore

proceed to consider other issues raised appeal.

GIVAN, J.,C. concurs. HARDIN, (Defendant Appellant

David

Below), Indiana, Appellee

STATE of Below).

(Plaintiff

No. 879S218.

Supreme Court of Indiana.

Jan.

Case Details

Case Name: Hatcher v. State

Court Name: Indiana Supreme Court

Date Published: Jan 8, 1981

Citation: 414 N.E.2d 561

Docket Number: 179S21

Court Abbreviation: Ind.