Lead Opinion
The recоrd reveals the following: On October 7, 1973, at about 10:00 p.m., Appellant, wearing a loose stocking over his face, entered the Handy Andy Supermarket in Marion, Indiana. He approached Vicki Rogers, an employee who was in the process of closing out the cash register. Appellant produced a pistol and demanded money. Miss Rogers complied with Appellant’s demands placing the store’s money in a brown paper bag carried by Winston. Miss Rogers recognized the Appellant as a man named “Billy.” He had been in the store on four (4) or five (5) prior occasions. Because of the manner in which the mask fit the Appellant, his facial features and characteristics were discernible by Miss Rogers.
Following the robbery, Miss Rogers called the police and gave a description of the Appellant including his first name. Acting upon this description, the police arrеsted the Appellant and took him to the police station for questioning. While at the police station, Miss Rogers viewed the Appellant through a window in the detective’s room and by this observation, made a positive identification of the Appellant.
Appellant consented to a search of his apartment. During the search a brown paper bag containing Eighty-Six Dollars and Fifteen Cents ($86.15) was found in a toilet tank in the bathroom. A store audit revealed that Ninety-Six Dollars and Three Cents ($96.03) was missing from the cash register of the store robbed.
Appellant first argues that the evidence was insufficient to support the verdict in that it was entirely circumstantial and revealеd merely the opportunity to commit the crime. This Court will not weigh the evidence nor determine the credibility of a witness’ testimony. Black v. State, (1973)
Appellant’s next contention is in two parts: (1) that thе trial court erred in overruling his motion to suppress the State’s identification evidence; (2) the trial court erred in overruling his motion to suppress evidence recovered in the search of his apartment. To support his argument on the first point, Appellant cites United States v. Wade, (1967)
In Martin v. State, (1972)
Four months after our decision in Martin, the U.S. Supreme Court handed down Kirby v. Illinois, supra. Specifically, Kirby identified the point at which adversary proceedings begin, and thus the right to counsel attaches as:
“. . . the defendant had been indicted or otherwise formally charged with any criminal offense.”406 U.S. 684 ,32 L. Ed. 2d 414 .
and further:
“. . . at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information or arraignment.”
Once this point (and/or points) is defined by reference to the laws оf the state, Kirby makes clear that any lineup preceding such initiation may be challenged only upon general due process grounds set out in Stovall v. Denno, (1967)
“What has been said is not to suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures. Such abuses are not beyond the reach of the Constitution. As the Court pointed out in Wade itself, it is always necessary to ‘sсrutinize any pre-trial confrontation. . . .’388 U.S. at 227 ,18 L. Ed. 2d at 1157 . The Due Process Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification. Stovall v. Denno,388 U.S. 293 ,18 L. Ed. 2d 1199 ,87 S. Ct. 1967 ; Foster v. California,394 U.S. 440 ,22 L. Ed. 2d 402 ,89 S. Ct. 1127 . When a person has not been formally сharged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of soсiety in the prompt and purposeful investigation of an unsolved crime.”
Stovall, supra, sets forth the test and shows its application to identification procedures occurring prior to the initiation of formal proceedings:
“We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnеcessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to cоunsel claim. Palmer v. Peyton,359 F. 2d 199 (CA 4th Cir. 1966). The practice of showing suspects singly to persons forthe purpose of identification, and not as a part of a lineup, has been widely condemned. However, a claimed violаtion of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative. The Court of Appeals, en banc, stated, 355 F. 2d, at 735 , ‘Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, “He is not the man” could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate aсtion and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police statiоn line-up, which Stovall now argues he should have had, was out of the question.’ ”388 U.S. 301 -02,18 L. Ed. 2d 1206 .
We therefore overrule Martin v. State, (1972)
We now proceed to examine Appellant’s contention that the confrontation at the time of the identification was so suggestive as tо violate due process. We see no merit in this contention. For as above pointed out, in the case at bar Miss Rogers knew the Appellant from previous observations of him and made a positive identification on her own. She was the only-person who could determine if the person arrested by the police was in fact the person she knew to have committed the crime. There is no evidence in this record of any suggestivе action on the part of any police officer. In Dillard v. State, (1971)
. . (1) The facts bearing on whether the confrontation was conducted in such a fashion as to lead the witness to make a mistaken identification, e.g., how the pоlice asked the witness to attempt the identification, what the witness thought he was doing, the displayed attitude of the police towards the suspect, etc. (2) The facts bearing on how good a chance the witness had to observe the perpetrator of the crime such that any suggestiveness in the conduct of the confrontation could be resisted by the witness and he could make an accurate decision as to whether the man presented was the man who committed the crime. These would include the length of time the witness was in the presence of the perpetrator, the distance of the witness from him, the lighting conditions at the time, capacity fоr observation by the witness, opportunity to observe particular characteristics of the criminal, etc. See Parker v. State, supra.”257 Ind. at 286 ,274 N.E.2d at 389 ,27 Ind. Dec. at 348 .
We hold that under the facts in this case, the Appellant was not denied due prоcess under the requirements set forth in Stovall, supra. Therefore, the trial court did not err in allowing Miss Rogers to identify the Appellant.
As to Appellant’s contention that the trial court erred in overruling his motion to suppress evidence recovered during the search of his apartment, we observe the record discloses the Appellant signed a document which gave police permission to search his apartment. This document was signed after the Appellant had been fully advised of his constitutional rights. However, at the trial, Appellant contended that he did not know what he was doing when the instrument was signed. The evidence is conflicting on this issue, the State having produced sevеral witnesses who testified
We find no reversible error in this record. The judgment of the trial court is, therefore, affirmed.
Arterburn and Hunter, JJ., concur; Prentice, J., concurs in result with opinion in which DeBruler, J., concurs.
Concurrence Opinion
Concurring and Dissenting Opinion
I concur in the result reached by the majority. I would not, however, retreat from our pronouncement in Martin v. State, (1972)
In the case at bar, the idеntification by Miss Rogers occurred so close in point of time to the robbery that it did not constitute a critical stage requiring the presence of an attorney. As set out in Martin, supra, this Court has held
“ ‘ [T] his Court has held that an on-the-scene confrontаtion between a witness and a suspect conducted within a reasonably short time after the commission of the crime for the purpose of determining whether the witness can identify the suspect is not within the scope of the Wade-Gilbert rule. Parker v. State, (1970) [254] Ind. [593],261 N.E.2d 562 ; McPhearson v. State, (1970)253 Ind. 254 ,253 N.E.2d 226 ; Lewis v. State, (1969)252 Ind. 454 ,250 N.E.2d 358 .’ Dillard v. State, (1971) [257] Ind. [282],274 N.E.2d 387 , 389.”279 N.E.2d at 190 .
I, therefore, would affirm the decision of the trial court upon the right to counsel issue upon this basis.
DeBruler, J., concurs.
Note. — Reported at