Wethington v. State

mony phone join majority, the content of the call. To as to one must assume in- appellant suspended The trial court cannot be said to have his molestation of the early victim from March of 1981 until after fringed upon appellant's right present to a required comply defense when it him to August assumption 1981. Such is with the rules of evidence. totally testimony unrealistic in view of the of the victim who stated the mo-

Appellant's corresponding conviction and a lested her at least once month from 1979 One, twelve-year under sentence Count years a until she was thirteen and half old 85-42-4-8(a), molesting, child 1.C. Class early which would have been in 1982. felony, B is reversed due to insufficient alleged criminal evidence that the conduct I would affirm the trial court. place period a time took within not barred Appellant's the statute of limitations. J., PIVARNIK, concurs. six-year conviction and sentence under molesting, Count Two for child 1.0. 85-42-

4-8(c), however, felony, is af- Class C

firmed.

SHEPARD, C.J., concurs.

GIVAN, separate J. dissents with PIVARNIK, J.,

opinion in concurs. J., DICKSON, concurs in result. WETHINGTON, Appellant, L. William GIVAN, Justice, dissenting. respectfully I dissent. The evidence felony

shows that the Class B was commit- Indiana, Appellee. STATE of years the victim was twelve ted before No. 06S00-8805-CR-488. age. majority claims the evidence is insuf- Supreme of Indiana. Court support ficient the verdict as to I Count 4, 1990. Oct. evidence there was insufficient establish that the crime was committed period not

within a barred statute of limitations, charged in which for the crime years.

this case is five Ind.Code was born on Au- 35-41-4-2. victim

§ 14, 1969;

gust years was eleven thus she spring

old in the of 1981. charging that she had

The information when was under twelve

been molested she

alleges place took the molestation of several spring of 1981 and consisted during period.

incidents The informa- filed on March 1986. We

tion was judicial spring take notice that be-

should gan ample on March 20 in 1981. There is jury

evidence case from which the this

could determine that the molestations of when she under twelve

the victim age five-year

years of occurred within the applicable

statute of limitations to the in- which had been filed on March

formation 19, 1986.

Sheriff Dennis stopped Brannon his car near the two men and asked them they where had been and they where going. They responded had been girlfriend's at a house and were on their way Indianapolis. back to Brannon testi- appellants fied that he told that there had been a "situation that morning and that would like to take them back so that [he] deputies just could talk to them to see were, fact, if maybe involved situation...." The "situation" to which Brannon was Wharry, Wharry, Allen F. Martin & Leb- referring had occurred about two hours anon, appellant. for Adair, previously at the home of Pat Pearson, Gen., Linley Atty. Joseph E. N. approximately was away three miles from Gen., Stephenson, Deputy Atty. Indianapo- stopped. where the men were At about lis, appellee. for a.m., 6:00 two men had forced Pat and her children, Danny Dianne, two adult and to DeBRULER, Justice. living lie on their room floor. The first Appellant Wethington William L and man was armed with an automatic hand- David Pemberton were arrested connec- gun, and the other was armed with a shot- robbery tion with a and associated crimes gun or a Pat's rifle. was ran- bedroom 2, which occurred on October 1986. Their man, sacked looking first who was trial, initially joined causes were for but marijuana, for while the one with the shot- granted after was a motion Pemberton for gun stood over the Adairs. The first man severance, separate each tried in a was purse found in a and $120 demanded to jury Appellant trial. guilty was found on marijuana know where the was hidden. I, robbery, felony, Count a B Class LC. freezer, Pat told him it was in the and he 35-42-5-1; II, theft, Count a Class D felo- package took out a rope, of clothesline cut 85-48-4-2; III, ny, 1.0. criminal Count con- knife, a it with and bound the hands of the finement, 85-42-3-8; felony, a B Class 1.C. up gagged Adairs. He tore a sheet and IV, intimidation, and a Count Class C felo- them, put them. A blanket was then over ny, .C. 85-45-2-1. The trial court sen- gasoline poured it and was onto from a appellant twenty years tenced to on Count brought container the intruders had with II, years I and four on Count these sen- point, At one Dianne stuck her them. head concurrently, twenty tences to run and to keep out and was told to under the blanket years eight years III on Count and on her head would be blown off. Both Pat or IV, these sentences to run Count consecu- they Dianne and testified told tively imposed to the sentences on Counts I would be burned if. did not Appellant II each and and to other. there- eooperate. shotgun The man with the fore received an executed sentence of for- go upstairs to look for others in about to ty-eight brings He years. now this direct when a woman's voice called out the house appeal, claiming that errors commit- porch that she had seen some- from 1) seizure, ted in the contexts of search and thing, men left the house. The and two 2) 3) pre-trial procedures, pre- identification money, in denominations of a hundred dol- 4) 5) publicity, custody, chain trial admis- bill, twenty large lar and a dollar and a bill 6) photographs, sentencing. sion of and bag containing plastic smaller freezer six bags marijuana Between 7:80 and 8:00 a.m. on were taken. David October 1986, appellant Presley, boyfriend, and Pemberton were walk- who is Dianne's their child, Presley's up- had cousin been ing along just Road 39 south outside incident, County Deputy throughout of New Brunswick. Boone and after stairs left, table, the men Dianne freed herself and ran in front room then turned and baby. Presley up to check ex- walked back out door. changed departing shots with the intrud- I Search and Seizure Danny

ers. then took Dianne next door to Appellant police. summon the gun claims that the by Deputy knife taken him from Brannon Deputy Brannon was one of the officers products were the of a warrantless search residence, called to the Adair and on his probable conducted without cause station, way police he back to the heard a suppressed have should been at trial. Un scruffy looking radio broadcast that "two Ohio, Terry der 392 U.S. 88 S.Ct. walking along hitchhikers" had been seen police 20 L.Ed.2d 889 officer stopping appellants State Road 89. After may investigatory make an and limit stop above, patted as noted he them down be- individual, ed search of an without a even something he protruding cause had noticed probable warrant the absence of from above Pemberton's belt. It was a arrest, to if the cause officer is "able large bag plastic freezer six smaller point specific and articulable facts bags marijuana patdown in it. His which, together taken with rational infer handgun, revealed an automatic facts, reasonably from ences those warrant knife, gloves, some and a billfold contain- right that intrusion" on the individual's ing change following some and the bills: 20-21, privacy. 1879-80, Id. at 88 S.Ct. hundred, twenties, fifty, one six one one 906; 20 L.Ed.2d at see also Coates v. State five, and four ones. (1989), Ind., 1087; 584 N.BE.2d Owens dispatch State 497 N.E.2d 2830. Brannon then received a radio that he was to take the two men to a Deputy responded Brannon to the call to arrival, nearby Upon intersection. their investigate against the crimes committed appellant got and Pemberton out of the Adairs, the but was released from the that, police car and it stood behind so from by shortly scene Sheriff Hudson after his road, they the were the across visible from jail, arrival. While en route back to up. waist The items taken from them were police dispatch Brannon a heard radio re- placed Danny on the hood of the car. and garding two hitchhikers in the area. At separate po- in Dianne Adair were seated time, Brannon knew that one of the road, lice cars across the from which shotgun intruders had armed with a been Upon Danny's request, viewed the men. suspects and that two male white were police by escort them his drove so he to have through believed fled on foot a get point, a closer look. At one could plowed field south of the house. The wom- picked up handgun Brannon and the an was believed to have driven in north a Ern knife and handed them to Sheriff Hud- Camaro, Presley blue had seen in full view of the Adairs. son both parked in driveway. Brannon testified stated, that he located the hitchhikers and car, got police in The men then back got As I I closer could tell that one of County en route to the Boone and while a, something sticking[,] pro- them had a jail, got dispatch Brannon another radio sticking tusion out the front of [sic] was to take them instead to the that he uh, pants in the belt buckle area and There, pro- Fire Center Station. items I, jeans then their were wet from about by patdown placed on a duced down, uh, muddy, the knees wet and meeting freezer in the room of the chest just putting things which I started to- station, clearly visible from a table and gether.... turn, Pat, up chairs set the room. Danny, and Dianne Adair were seated at Given these circumstances facts time, along the table with a officer. The men known to Brannon at that victim, brought each before one at the reasonable inferences to be drawn from them, justified stopping Brannon was accompanied by policeman. a a time and door, appellant investigate Each walked from a side across the and Pemberton to fur-

501 unnecessarily suggestive so and conducive ther, set forth in and under the standards irreparable to mistaken identification" that seizure at here Terry, the search and issue process was denied due of law police dispatch alert- was reasonable. under the Fourteenth Amendment. Dil- presence ed Brannon to the of two men (1971), walking opposite 282, 286, direction of a crime lard v. 257 Ind. State perpetrators Denno, (quoting scene from which armed had N.E.2d Stovall v. 801-02, 1967, 1972, 388 U.S. 87 S.Ct. escaped pulled on foot. As he his car to (1967)). road, 18 LEd.2d the side of the Brannon noticed that wearing jeans, flannel shirts and both were practice conducting a one-on-one description of which matched the the cloth- up suspect show- between a and a victim intruders, ing worn and that their widely being has inher- been condemned as muddy jeans were wet and from the knees ently suggestive both the United States down, consistent with which would be hav- Court, Stovall, Supreme supra, see ing through plowed come field. He also Court, this see Slaton v. State something protruding noticed from the belt 1348, 1348, 510 N.E.2d and cases cited policeman may of one of the men. A gained therein. Identification evidence person prior questioning search a to show-ups, however, from such is not sub- weapons might any remove be used to ject per rule se of exclusion. Id. escape. harm the officer or to effect an Rather, admissibility of the evidence Ind., Jones v. whether, turns on evaluation under 1255. circumstances, totality the con- procedure "in frontation was conducted put When Brannon the two men in transport his car to them to the location of such a fashion as to lead the witness to identification, identification," Dillard, he effectuated a full first make a mistaken supported custodial arrest which had to be 257 Ind. at 274 N.E.2d at 889. by probable determination, At the Brannon making cause. time this this Court con- siders the factual details of how the con- Terry stop, probable made the cause to Any exigencies However, frontation was conducted. if arrest did not exist. even probable cause to arrest does not exist at police associated with the decision to utilize legitimate investigation opposed the time a com show-up procedure a as to other mences, may develop probable cause dur are alternatives also relevant because show-up identification evi- admission ing investigation. Fyock of that the course 486 NE.2d 1089. State procedure occurred short- dence where handgun ly When Brannon discovered the and of the crime has after commission during patdown appellant marijuana his Court, approved by recognizing this been permitting a to Pemberton, probable "the value of witness view and cause to arrest perpetra- suspect image a while the of the Jones, 472 N.E.2d 1255. was established. mind," in the or tor is fresh witness's physical were not The items of evidence circumstances rendered alterna- where the product an unlawful search and sei- lineup photo corporeal such as a or tives zure, in the trial court did not err and Sletor, impossible. 510 N.E.2d at 1848 denying appellant's suppress to motion (quoting Head v. their admission into evidence. 44, 55). N.E.2d II Procedures Identification surrounding the The circumstances two Shortly af- the con confrontations were as follows:

Appellant contends police at the frontations conducted police, ter Dianne called the numerous law imper- fire station were roadside and the arrived at the Adair enforcement officials investigate to the incident. missibly suggestive and that evidence of residence policemen resulting some of the searched and from these confron While identification grounds, suppressed. the house and other should have been This examined tations Adairs, whether "the con Court must determine questioned the and a collec- officers intruders description tive of each of the conducted this case [were] frontation[s] compiled. was Two brought hours after the com- were in. Pat testified Hud- crime, Danny mission of the and brought Dianne son these items over to her to transported separate Adair were police identify. Each of the victims viewed Bran- appel- cars to intersection near where brought non as he in one of the men and a stopped by Deputy lants had been Bran- , captain Depart- from the Lebanon Police route, Danny non. testified that while en brought ment as he in the other. As noted Campbell they Officer told him that had previously, Brannon was not in uniform. "picked up couple a of hitchhikers and The record does not disclose whether they if wanted us to come and see was the policeman Lebanon was in uniform. As at right ones that had to our been house." roadside, positively the victims identi- Myers Dianne testified Officer "told appellant fied as the man with the hand- they way] picked up me had [on gun, identifying but more tentative in two hitchhikers on State Road 389and Pemberton. didn't if know for sure was the men police The manner in which the conduct- they just that was at our wanted us house, pre-trial ed both of these confrontations go look at them to make sure." There egregious was deserving and is police were three cars and at least seven strongest judicial Display- condemnation. officials, law enforcement most of whom ing suspects Danny and Dianne uniform, were in the intersection. At Adair at the parading roadside and them crime, the scene of the the three Adairs station, before all three Adairs at the fire collectively had described both of the in- physical with the items of evidence so being truders as 58" to 54" tall and prominently many featured and with so law wearing jeans plaid flannel shirts. At enforcement officials in attendance each intersection, appellant Pemberton, instance, highly suggestive guilt " tall, both of whom are about 5 7 stood totally unnecessary. exigent No cir- handcuffs behind a car and beside precluded cumstances existed which setting Brannon, Deputy who is 66" tall. Bran- up properly lineup constituted for the non wearing was not uniform and was view, intervening Adairs to and the time solid gun colored cotton shirt. The and events between the incident and the knife taken from were on the negated confrontations the freshness of hood of Brannon's car. Both Danny and image in the minds of the victims as a appellant Dianne identified immediately as justification show-up. for a one-on-one The man handgun the with the who had tied testimony regarding the identification of up, they them but were less sure that Pem- appellant pre-trial at both of the confronta- berton was the man with shotgun. the suppressed. tions should have been Danny past was then driven the men for a closer At point, look. some Where it is established that evi Brannon picked up gun the and handed it to Sheriff of an dence out-of-court identification has He then handed Hudson the Hudson. erroneously been admitted based on a find knife. When Dianne these saw transac- ing procedure that the confrontation tions, Myers she told Officer those impermissibly suggestive, may such error weapons were the she had seen earlier that be harmless constitutional error under morning. 18, Chapman v. California, 886 U.S. 87 824, (1967),

Three hours after the commission of the 17 LEd.2d 705 S.Ct. see also Illinois, 220, crime, Pat, v. Danny, Moore 484 U.S. 98 S.Ct. and Dianne Adair were 458, (1977), 54 LEd.2d 424 and further taken to the Center Fire Station. Each in more, turn was seated at a in table the station's subsequent in-court identification may be if still admissible the State estab meeting police room. Numerous and fire clear convincing lishes evidence that officials, uniform, some milled about the knife, gun, gloves, package room. independent an basis for that iden in-court marijuana displayed of on a chest tification exists. Biggers, Neil v. 409 U.S. 188, (1972); 98 S.Ct. 84 LEd.2d 401 freezer such that all three victims testified they noticed the items before the men Heiman v. State (1987), Ind., 458; tied their hands in front put (1987), Ind., of them and Lyons v. State N.E.2d A 818. determination that an in- gags in their mouths. None of the Adairs prop- court identification a witness was Appellant's appearance, was blindfolded. will, instances, erly many admitted ren- age, complexion, terms of hair color and der the pre-trial erroneous admission of a length, and facial hair and excep- with the identification the same witness harm- tion of the the estimate of the intruder's less. United ex rel. Moore States v. Illi- height, corresponded roughly with the col- nois, (7th Cir.1978). 577 F.2d 411 description lective of the man with the handgun given which the victims had at the inquiry with reference to the description they gave scene. The of the whether, in-court identification is under the clothing appel- intruder's matched with totality surrounding of the circumstances very closely, lant's attire down to the kind the witness's initial observation of the of wearing. shoes he was All three Adairs crime, perpetrator at the scene of the testified that when saw at any suggestiveness witness could resist in confrontations, pre-trial each of improper herent in the confrontation immediately certain that he was the staged by and make an accurate handgun, one with the but were less sure decision, based that earlier contact with perpetrator, person presented that the identity Pemberton's as the man with shotgun. totality to him at trial one Given the was the who committed these circumstances, Ind., the crime. find Brooks v. State we there was a 1; Dillard, 560 N.E.2d 49 n. 257 Ind. independent improp- sufficient basis of the 274 N.E.2d 887. Factors relevant to the support er confrontations to the admissibili- independent determination of whether ty appel- of the in-court identifications of support basis exists to the admission of the perpetrator lant as the of these crimes. in-court identification are the amount of Then, given the additional inferences of presence time the witness was in the of the sources, stemming identification other such perpetrator and the amount of attention discovery physical as items taken him, the witness had focused on the dis during patdown, from him the initial it is lighting tance between the two and the admitting clear as well that error time, at capaci conditions the witness's pre-trial evidence of the confrontations was ty opportunity per for observation and beyond harmless a reasonable doubt. particular ceive characteristics of perpetrator, lapse of time between the Appellant pre also claims that these identification, subsequent crime and the trial confrontations were conducted der accuracy any prior descriptions, the wit ogation rights in of his constitutional certainty pre-trial level ness's he was not afforded the assistance of coun length identification and of time be Illinois, Kirby sel. In 406 U.S. tween the crime and the identification. 1877, (1972), S.Ct. 82 L.Ed.2d 411 the Unit Brooks, (citing 1 560 N.E.2d at 55 n. Hei Supreme rejected ed States Court a claim man, 460; Dillard, 511 N.E.2d at 257 Ind. right that the defendant's to counsel under 286-87, 389). at 274 N.E.2d at Wade, 218, United States 888 U.S. 87 (1967), 18 LEd.2d 1149 S.Ct. had regarding The evidence the vic been violated the defendant because was tims' initial observation of the intruders at by pre-trial not assisted counsel at a one- the scene of the crime showed follow show-up. The long on-one Court cited a crime, ing: the time of the At it was dark addressing right line of cases to coun outside, living but the room was illuminat sel and noted that "all of those cases have by ceiling light ed which was on at all points involved of time at or after the initi during times the fifteen-minute incident. adversary judicial proceed ation of criminal handgun, identi The man with the who was appel fied at trial all three Adairs as ings-whether by way charge, of formal indictment, hearing, preliminary informa lant, wearing was not a mask and was tion, arraignment." inches of each face as at 92 within victim's he or Id. S.Ct. 504 (emphasis

at 32 LEd.2d at 417 omitt IIL Publicity Pre-Trial ed).* The stated: Court day jury selection, On the first appellant change filed a motion for of ven person's right to counsel attaches [A] ue, asserting that

only at or after the time that adversary opportunity his to re ceive a fair precluded by trial was informa judicial proceedings have been initiated tion contained in three articles about the against him. trial of his one-time co-defendant Pember- ton, appeared had the Lebanon judicial proceed- initiation of criminal Reporter. The motion was taken under ings.... starting point is the of our advisement pending court voir dire. system adversary jus- whole criminal An evening's paper reported article only govern- tice. For it is then that the outcome of Pemberton's trial and the prosecute, ment has committed itself to appellant's status of trial and stated that appellant only positions then that plea agree had "twice refused the adverse jury Before government ments." selection resumed the and defendant have solidi- fied. It is morning, appellant then that a defendant finds next filed another mo change During tion for a of venue. prosecutorial himself faced with the motion, hearing on that the trial court stat organized society, forces of im- ed that plea it believed the reference mersed the intricacies of substantive agreements prejudicial appellant. procedural criminal law. It is this appellant's objection, Over the court then therefore, point, that marks the com- conducted its own voir dire of the eleven prosecu- mencement "criminal venire tentatively members who had been explicit guaran- tions" to which alone jurors day seated as before and the applica- tees of the Sixth Amendment are remaining prospective jurors to determine ble. any whether of them had read the article 688-90, 1881-82, Id. at S.Ct. Reporter or a similar article in that (citations LEd.2d at 417-18 and footnote day's Indianapolis any Stor or if of them omitted). Here, Kirby, as in the confronta- had heard a broadcast of the information tions between and the victims morning. on local radio station that At were conducted before the initiation of ad- dire, the close of the appel court's voir versary proceedings, and therefore his denied, lant's motion was assigns and he ~ right to counsel was not violated because it this as error. Id.; yet Bussey had not attached. see also In showing addition to the exist (1989), Ind., (pho- v. State 586 N.E.2d 1027 prejudicial publicity, ence of in order to tographic array); Peterson v. State prevail appeal, appellant must show that Ind., (corporeal lineup); 514 N.E.2d 265 jurors were unable to set aside their Woodard v. State preconceived guilt notions of and render a (one-on-one show-up). upon verdict based the evidence. Burdine summary, pre-trial confrontations v. State 515 N.E.2d 1085. A conducted in this case were transcript review of the of the voir dire impermissively suggestive, testimony proceedings reveals that the in trial court regarding resulting identifications from dividually questioned person each who had procedures sup- these should have been tentatively been day. seated on the first pressed. The in-court identifications the they Nine answered that had seen neither victims, however, were admissible because newspaper article nor heard the radio broadcast. they they supported by indepen- Two indicated that had a basis exposed only dent of the tainted confrontations. been the headline in the * Illinois, distinguished right against The Court also v. Escobedo that case's focus on the self-incrim- 478, 1758, 378 U.S. (1964), 84 S.Ct. 12 LEd.2d 977 holding. Kirby, and ination on its limited "only seeming as the 689, deviation from this U.S. at 92 S.Ct. at 32 L.Ed.2d at 417. long line of constitutional decisions" based on article, Deputy handgun, did not read the be- Brannon turned over a Reporter, but lieving inappropri- that to do so would be initialled, which Charters and that Shrock remaining prospective ju- spent casing. He ate. Two the turned over a shell canister, placed casing rors stated that had read the article the in a film closed sealing tape, it with evidence and initialled Reporter entirety, in its and immediately tape. excused the court. The Charters testified further that he jurors bags two who had seen the headline were delivered to the State Police lab two ultimately peremptory excused on chal- clipped together, containing spent one lenges. juror appellant's No who heard casing in the film canister and the other containing gun, for a test to determine any exposure prejudicial case had to the reports. casing gun. information contained the media if the had fired from that been clip kept mo- and live rounds were appellant's The trial court's denial of property post room at the Police State change tion for of venue was not error. Indianapolis during testing. Morris Custody IV. Chain Cooper that he exam- testified is a firearms Laboratory iner with the Police and State Testimony was adduced at trial gun that he received the and the sealed exchanged shots were between the containing casing along canister the shell retreating Presley, intruders and David request comparison with a for a examina- upstairs during robbery. who had been Cooper gun tion. marked the and the cas- trial, entered into evidence a At the State initials, number, ing with his own the case casing shell which had been found outside item and conducted the test. numbers casing that the Adair house and a shell had He testified that he reached the conclusion appellant's gun. from A been test-fired casing from the submitted was fired markings expert ballistics testified that the gun by comparing casing it with the casings Appellant on the two matched. gun. replaced test-fired from the He then objected casings to the admission of both casing the submitted to the canister and ground adequate on the that an chain of placed casing in the resealed it and test custody had not been established for either He red box and sealed and initialled it. exhibit. put then both containers the evidence plastic bag The State's Exhibit 8 was a bag bag bag returned that containing handgun a .45 marked caliber gun storage with the to the locked area. with the initials 4 was a "H.C." Exhibit Cooper identified the red box State's plastic bag containing clip an unmarked Exhibit 4 and testified that the seal he had film gun, and live rounds taken from the placed it not had been disturbed. canister which was closed evidence custo, purpose of the chain of sealing tape bearing the initials "E.C." and provide dy requirement is to reasonable spent caliber shell which contained a .45 that exhibits have not been sub assurance containing casing, and a sealed red box tampered stituted or with. spent casing that had been from Brafford test-fired (1987), Ind., 516 N.E.2d 45. The argues gun. Appellant that the State required every possi to exelude State is not adequate establish an chain of failed to bility tampering, but the chain of custo custody casings them- because shell dy give must reasonable assurance that the marked. selves were not property passed through the hands of the Detective State Police Francis Shrock parties in an undisturbed Id. condition. he turned testified that over to a crime custody as recited The chain of above empty casing scene technician shell sufficient. steps found on the which had been Appellant cites v. State Guthrie given by Kyle him porch front Sow- Ind. for the cousin, ers, Presley's living who was David degree proof re proposition Charters, time. Ed with the Adairs at the technician, quired a sufficient chain of Police testified that to establish the State depends the of the evi- custody on nature crime, at the scene of the while he was 506 aid jury the in understanding his testimo-

dence and how essential the evidence is to ny. proof crime, an of element of the and argues he that the contested evidence was (citations omitted). Id. Likewise, essential for the State to establish that he here, photograph of the house and the had been at the scene of the crime. While close-ups of the bullet depict hole the scene casings the shell and the ballistic evidence about which testifying Charters was as he certainly strengthened proof appel- of described investigation the course of the presence residence, lant's at the Adair this observations made at the evidence cannot be considered essential Further, time. they tend to corroborate testimony that the of the three victims was the testimony by the Adairs that shots sufficient to establish that fact. were fired at the house as the intruders made escape. their photographs The V. Admission Photographs of admissible, relevant and and the trial court appellant's objection, Over the trial did not in admitting err them. court photographs admitted four which de Sentencing VI picted the Adair home and close-ups from angles various of a bullet hole in one of the Appellant allegations raises numerous of appeal, walls. On argues concerning error imposed the sentences on the State did not connect the bullet hole him the trial court which we have con- gun with his and that the photographs 1) solidated into the following two: that the were therefore irrelevant and inadmissible. imposed sentences prohibition violate the against jeopardy by double inflicting photographs The multi- issue here were ad- ple punishments acts, 2) for the same mitted during testimony of State Po- that the trial court imposing erred in en- Charters, liceman the crime scene techni- hanced and consecutive sentences. cian, who testified that the bullet hole was during discovered investigation A. Double Jeopardy surrounding house and property. He also testified that the decision was made not to Appellant argues the trial attempt slug retrieve the from the wall court erred in imposing sentences on both robbery theft and due to the extensive convictions because damage structural the theft was a lesser included offense of removal would entail. robbery. The charging instruments (1987), Ind., Hubbard v. State charges show that both predicated N.E.2d this upheld Court the admis- the taking of "$120 dollars ... in cash and sion of certain photographs, stating: quantity small marijuana." The State The photographs admission of is within correctly concedes the validity appel the sound discretion of the trial court argument, lant's and therefore the theft photographs are admissible if conviction and sentence must be reversed. they depict object or seene which a Bevill v. State witness permitted would be to describe 1247. through testimony. Photographs of a crime scene generally are admissible be- Appellant argues also the im competent cause are position relevant separate sentences for the rob aids which jury can orient itself to bery and confinement convictions violated best understand the presented. evidence jeopardy. double He is correct. Two of photographs depicted here ... fenses are the purpose same for scene of the crime and the condition of jeopardy double when the same act consti the residence immediately afterwards. tutes a violation of statutory two distinct provisions They tended to corroborate require proof do not of an the victim's version that her home had been broken additional fact. Hall v. State (citing N.E.2d 483 into from the outside. Blockburger v. photographs depicted certain observations of in- States, United 284 U.S. 52 S.Ct. vestigative officer and were relevant to (1982). However, 76 L.Ed. 306 "[dlouble jeopardy analysis does not end with by using Pat or from the home of Adair comparison statutory of the evaluation and threatening any per- the use of force on provisions. [Rather,] the factual bases al- sons, Adair, towit: Pat Dianne Adair and leged by the in the information or State Adair, Danny in that bound [he] charges upon indictment and which the are individuals, gagged above-named at predicated must also be examined." Id. floor, covered forced them to on the [lie] 485. blanket, poured gasoline them with a [lay]. around the area where the victims Hall, couple In married a was convicted All done of the above acts were while on counts of reckless homi- and sentenced [Wethington deadly armed with a was] neglect dependent cide and of a in connec- weapon, thereby committing Robbery, a tion with the death of their son. The ne- felony, B 85-42-5-1. Class 1.C. glect alleged parents that indictment knowingly deprive "did ... of [the child] charging Count III of the instrument stat- necessary support by refusal or failure to ed: provide with medical care." The [him] Wethington knowingly L. [William did] alleged reckless homicide indictment person, intentionally or confine another parents recklessly "did kill ... [the Adair, Dianne Dan- towit: Pat Adair and supply by refusing provide to or child] rope, ny by binding Adair them with necessary with medical care." This [him] them, gagging forcing them lie on the to the convictions on Court held that both floor, covering a them with blanket and counts could not be sustained because "it is pouring gasoline around the area where of these apparent from an examination they lay, within which events occurred charges parents' pattern of ne- the residence of Pat Adair without the neglect glect" gravamen was the Adair, Dianne Adair consent of said Pat charge and that same act resulted "[the Adair, Danny all while said William son," the death of their for which or caused Wethington L. armed a ... [was] charged with reckless homicide. deadly weapon, gun, thereby a towit: state, at went on to Id. 486. Court Confinement, committing Criminal pattern the Halls' continuous of ne- "Since Felony, pursuant Class B 1.C. 85-42- neglect glect was the factual basis for the 8-8. convictions, homicide and the reckless language the instruments under of punished twice for the same acts. charged it evi- which was makes essence, pattern neglect of was the underlying the dent that the factual basis reckless homicide was means which the charge was the same criminal confinement Id. committed." alleged by conduct the State to establish proof, To sustain its burden of "by necessary sup- force" element every material prove must the existence words, port charge robbery, its in other charged beyond crime element of the confinement was the force reasonable doubt. v. State Stewart robbery. appellant effectuated Ind., (citing N.E.2d 121 Burris v. State Appeals recently addressed The Court of 171)). In order to (1990),Ind.App., Ryle this issue in v. State robbery, a conviction for the State obtain There, a restaurant em- 549 N.E.2d 81. allege prove taking of must manager's office ployee was forced to "(1) using or property was effectuated accomplice. gunpoint by the defendant's any or threatening person; to use force on gun manager at the Ryle pointed then his (2) any person in I.C. by putting fear." open him to the safe. The two and ordered charging I of the instru- 35-42-5-1. Count safe, but were follows: ment read as money men took from the they got out of the apprehended before Wethington knowingly L. did] [William convicted of two intentionally property parking Ryle take from an- lot. or of confinement and one count counts presence of person or from the other Appeals affirmed robbery. The Court of person, towit ... $120.00 another marijuana Ryle's convictions for the quantity small cash and a confinement of 508 robbery employee Today's

the and the of the man- body decision does not affect the of case law from this Court which makes it ager, reversed conviction but his for explained manager, confinement of the that, given single clear a criminal transac- tion, juxtaposition criminal may appropriately a defendant between confine- be robbery ment and as follows: with, of, charged convicted and sentenced for both confinement and a distinct crime robbery The ... are know- elements which entails some sort of confinement as ingly intentionally taking property or (1) presence person from the of another crime, necessary to effectuate such as by using threatening or the use of force robbery See, rape. eg., or v. Jones State (2) by any person, putting any or (1988), Ind., 479; N.E.2d 518 Purter (1988). person in fear. (1987),Ind., 858; IC 85-42-5-1 N.E.2d State 515 Gillie v. Necessarily inherently or included of- (1987),Ind., 145; State Brim v. fenses are those which must first be (1984), Ind., 471 State N.E.2d 676. See greater committed in order to commit the also McDonald v. State property offense. If is taken from a (separate N.E.2d 1066 convictions on crimi- person person's presence by or from a attempted battery nal up- confinement and force, force, by placing threat of or held). holding of this case is limited to fear-i.e., person robbery where is es- instances such as one this where criminal force, tablished-the element of whether charged along confinement is with another actual, threatened, constructive, or con- crime, inherently commission the crime of stitutes confinement defined liberty, involves a restraint on the victim's per- as a interference with a substantial language charging and where the liberty. son's instruments makes no distinction between words, equals force other confine- the factual basis for the confinement ment, However, any albeit brief. con- charge necessary proof and the facts to the beyond finement of the vietim that inher- of an element of the other crime. ent in the force used to effectuate Finally, appellant argues in robbery constitutes a violation of the con- timidation is a lesser included offense of apart finement statute from the violation robbery both and confinement and that robbery. inherent the offense of prohibition against trial court violated (citations Id. at 84-85 and footnote omit- jeopardy by imposing double sentence on ted). Here, Ryle, as in there is no doubt argument that count. This is without mer Adairs, confined the but be- previously, jeopar it. As discussed double alleged by cause the acts the State to sub- dy analysis entails an examination of the necessary stantiate a element of the rob- provisions of the relevant statutes and of i.e., bery charge, the force that was used to allegations the factual bases of the as set taking, precisely effectuate are coex- Hall, charging forth in the instruments. alleged tensive with the acts as constitut- Although 493 N.E.2d 488. the factual bas ing a of the criminal violation confinement alleged by support es the State of both statute, the convictions on both counts can- robbery charge and the confinement not stand. conviction sentence on charge were identical such that the viola charge the confinement are reversed. statute, charged, tion of the confinement as In Flowers v. "by subsumed force" element of 100, 106, N.E.2d this Court stated statute, robbery such is not the case jeopardy is no violation where [there respect charge. to the intimidation two offenses share an identical element I.C. 85-45-2-1 states: overlap and there is substantial (a) person A who communicates a threat proof.... may] defendant [A select[ ] person to another with the intent that: accomplish the same means to his differ- (1) person engage in conduct purposes, doing criminal and in ent so against his will intimi- ... commits [may more than one criminal violate] dation.... may statute. He convicted and sen- be

tenced for each. (c) expression, robbery, means an felony, "Threat" tences for a Class B action, intimidation, or intention to: felony.

words B a Class C Class carry presumptive felonies sentence (1) unlawfully injure person threat- years, may ten up which be enhanced person.... another ened or years aggravating ten for cireumstances. under which appellant The instrument was carry 1C. 85-50-2-5. Class C felonies charged with intimidation read as follows: sentence, five-year presumptive may which Wethington L. communi- [William did} by up years ag- enhanced to three for be person, cate a threat to another towit: gravating circumstances. 1.0. 35-50-2-6. Pat Adair and Dianne Adair with the aggravating The trial court found circum- person engage intent that the other in case, stances to exist in this enhanced both against will, conduct her towit: force the law, sentences to the maximum allowed aforementioned individuals to remain on they and ordered that be served consecu- floor, gagged bound and under tively. they they threat that would be burned it did not do as instructed and that Dianne aggrava in The trial court found if Adair would be killed she raised her appellant "knowingly tion that and reck head from the floor. threats were Said lessly endangered the lives" of the victims [Wethington coummunicated while [sic] and, finding, of this set substantiation deadly weapon, armed with a there- was] concerning out those details the commis Intimidation, by committing a Class C sion of the which indicated crimes Felony, pursuant to 1.0. 85-45-2-1. "[appellant] possessed court that is of a charge robbery and the and confine- This disregard potential calloused for the conse charges allega- ment do share some factual quences Appellant argues of his actions." tions; however, an element of the intimi- finding improper that this it is because unique allega- factual dation statute and aggravating not an circumstance enumerat charge in this render the crimes dis- tions 85-88-1-7(b) felony ed 1.C. sen Therefore, appellant's tinct. conviction and tencing gravamen statute and because the charge sentence on the intimidation do not aggravator of the constituted the elements Flowers, jeopardy. violate double already of the offenses and had been taken 100. The element of intimidation N.E.2d charging him into account the State robbery distinguishes it from both with B and felonies. C and confinement is the communication of a compliance to induce with the com- threat argument This is without merit. will, allega- the factual municator's and 35-88-1-7(d) expressly states 1.C. robbery tions in the and confinement (b) aggravators listed in subsection of that charges do not include the verbal threats statute "do not limit the matters against the victims that would made may determining the sen court consider comply if did not be burned or killed tence," repeatedly and has held this Court with instructions. The trial court did not sentencing courts are free to consider jeopardy by imposing sen- violate double relating spe factors to the other relevant appellant's for intimi- tence on conviction cific facts of the crime and the defendant's dation. See, eg., character. Ballard v. State Appropriateness B. Sentences 196; Miles v. State Ind., Further, 468 N.E.2d 1040. Appellant's appeal final claim on is that may the factual details of court find that imposing trial court erred enhanced the manner in which the crimes were com on his four convictions and in sentences aggravating cireum- mitted constitute ordering the four to be served three of long finding particular is a stance as as its consecutively. have found Because we aspects of the crime ized account of the appellant's convictions and sentences which illustrated to the court the defen III, II theft and criminal on Counts of an enhanced sen dant's deservedness reversed, confinement, the remain- must be are the sen- tence rather than a bare recitation ing sentences to be reviewed charges. elements of the Bustamante should have made discrete statements iden- 557 N.E.2d 1813. tifying underlying the reasons both the de- cision to enhance the sentences and to or- The trial court also cited the following der However, their consecutive service. support valid factors in of its decision to we will not remand for a correction of the impose appellant's an enhanced sentence: sentencing amply order because the record history criminal and his need of correction demonstrates appropriateness. its treatment, al or rehabilitative its belief that imposition of a reduced sentence would de The convictions and sentences on Counts preciate crime, IV, seriousness of the I robbery intimidation, are the fact that the evidence showed that the affirmed. The convictions and sentences carefully planned. crime was See McCaw III, on Counts II and theft and criminal (1980), ley v. State 274 Ind. 409 N.E.2d confinement, reversed, are and we there- 594; 85-88-1-T(b)(2) (3). 1.0. and fore remand to the trial court with instruc- tions to vacate them. sentencing

When a court exer cises its discretion to presump enhance a SHEPARD, C.J., DICKSON, J., sentence, tive order sentences be concur. both, consecutively, served or the record identify must the relevant factors which GIVAN, J., concurs result and underlie this Shippen decision. v. State separate dissents opinion, in which (1985), Ind., 477 Appellant N.E.2d 908. PIVARNIK, J., concurs. correctly points out the trial court PIVARNIK, J., specific separate failed dissents with to make a statement of the opinion, GIVAN, J., in which aggravating concurs. supporting circumstances its order that the sentences be served consecu GIVAN, Justice, concurring in result and However, tively. aggravators the same dissenting. may by sentencing be used justi court to I agree cannot with the statement made fy both the increase presumptive of the majority opinion in the pre-trial that "the sentences and an order that be served by confrontations police conducted the consecutively. Ind., Smith v. State this case impermissibly were suggestive, sentencing and the order and testimony regarding identifications re- this case shows that the by factors cited sulting procedures from these should have support the court in of the enhancement of suppressed." been appellant's sentences properly could have The majority holds pretrial that the been considered aggravating con- as circum justifying imposition stances of consec frontations were display- conducted while utive sentences In present ing goods as well. a case taken from the victims and found ing circumstances, similar persons this Court stat on the appellant and Pemberton. ed: While under some circumstances such dis- record, upon play might

Based suggestive, this a remand be considered accomplish trial court purpose would no facts the case at bar logically do not lead to that conclusion. At the time of other than judge to have the state that confrontations, only a short time had aggravating support- circumstances elapsed since the crime had been commit- ing support consecutive sentences also ted. Thus, the enhanced sentences. we find error; however, no we stress Evidence appellant shows that and Pem- preferable practice better is for the berton had robbed the same victims on a unequivocally trial court to state that the previous occasion. When victims aggravating justify cireumstances both suspects, viewed the immediately the enhanced sentences consecutive was identified the victim and Pemberton sentences. was identified one victim and after clos- serutiny er was identified a victim who Forrester v. State N.E.2d upon had viewing. Likewise, here, doubts his initial In 488-89. the trial court egregious deserving and is opportunity view of the excellent victims to view their strongest judicial assailants and the condemnation. identification, nature of their it is ludicrous contrary, good On the I view this as presence to believe that the of the stolen police ap- work that would meet with the objects any impact upon had initial proval of the citizens of this State and identification. judicial opinions jurisdic- of courts of all agree I majority opinion with the including Supreme tions the United States robbery charge theft was included in the accomplice Court. This defendant and his However, merged disagree therein. I apprehended by three about majority ruling with the in its that criminal miles from the scene of the crime two confinement was an included offense with hours or less from the time of its commis- robbery. holding, majority so They persons sion. had on their the items recognizes long-standing rule of law weap- taken from the victims as well as the stated Flowers v. surprising they ons used. It not is may N.E.2d 100 that a criminal in accom- guilty by found in view of the over- juries plishing purposes his criminal commit more whelming evidence available. may than one criminal act and be convicted I imposing believe the trial court erred in and sentenced for each. robbery on sentences both the theft and However, majority holds that convictions. I would affirm the Otherwise charged appel- manner in which the State trial court. lant, confinement was included within the robbery. charging It is obvious from the GIVAN, J., concurs. affidavit and from the facts stated that the robbery accomplished by the use of

weapons forcing the victims to lie on

the floor. The recitation of the additional perpetrators

fact bound and victims,

gagged their covered them with a

blanket, gasoline and threw on them consti- separate allegation

tuted a and distinct HOUGH, Appellant, Kevin Lee proof separate of a confinement committed conjunction robbery. with the Indiana, Appellee. STATE I would affirm the conviction of confine- No. 02S00-8712-CR-1179. ment. Supreme Court Indiana.

PIVARNIK, J., concurs. Oct. 1990. PIVARNIK, Justice, dissenting. Opinion Rehearing Dec. 1990. majority opinion. I must dissent from the agree majority I cannot pretrial

"'the confrontations conducted police impermissibly in this case were

suggestive, testimony regarding identi- resulting procedures

fications from these suppressed." join I

should have been opinion concurring in result

Justice Givan's ' dissenting. majority's I at the state- am astounded issue,

ment in its second entitled "Identifi-

cation Procedures": conduct-

The manner pre-trial these confrontations

ed both of

Case Details

Case Name: Wethington v. State

Court Name: Indiana Supreme Court

Date Published: Oct 4, 1990

Citation: 560 N.E.2d 496

Docket Number: 06S00-8805-CR-438

Court Abbreviation: Ind.