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04/06/88 ROBERT LEE JACKSON v. STATE INDIANA

Filed: April 6, 1988.

ROBERT LEE JACKSON, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM THE MARION COUNTY SUPERIOR COURT, The Honorable John R. Barney, Jr., Judge

DeBRULER, J., Shepard, C.j., Pivarnik, Dickson, JJ., concur. Givan, J. concurs in result.

Author: Debruler

DeBRULER, J.-

This is a direct appeal following conviction for the crimes of robbery and confinement. Appellant was also determined to be an habitual offender. He was sentenced to 20 years for robbery, which was later enhanced by 30 years due to the habitual finding, and to 20 years for confinement, the sentences to run consecutively.

There are five issues presented for review: (1) whether the trial court erred in not suppressing identification testimony; (2) whether the trial court erred in not giving an instruction on theft as a lesser included offense of robbery; (3) whether the trial court erred in not giving a tendered instruction on the weight to be given appellant's testimony; (4) whether the trial court erred in not giving a tendered instruction on the weight to be given an accomplice's testimony; and (5) whether the trial court erred in resentencing appellant.

These are the facts from the record pertinent to this appeal On December 31, 1984, Carol Furnish was working in the office in the clubhouse of Bent Tree Apartments. At approximately 10:00 a.m., during daylight hours, appellant and another man entered the clubhouse and appellant asked Furnish for change. When she informed him there was no money on the premises, both men left. Appellant immediately returned with a knife and demanded Furnish's purse, which she produced. He then grabbed her wrist and forced her into the women's restroom where he ordered her to lie on the floor. She asked if she could kneel instead and he acquiesced. While she was kneeling, she saw appellant's hands come from behind her toward her face and jumped up and ran screaming from the clubhouse. Outside she told an apartment resident, Sam Speechly, what had happened. Both saw appellant run out of the clubhouse with Furnish's purse. Speechly followed him and saw him get in a car with another individual. Speechly then returned to the clubhouse, saw the car drive by, and wrote down the license number. He did not see appellant in the car at that time. Speechly and Furnish called police and gave them a description of the men and the license plate number of the car.

A short time later police located the car and arrested Gibson, the man with the car. They also arrested appellant, who was across the street, after Gibson indicated appellant was involved in the incident which occurred at the apartment clubhouse. Furnish and Speechly were then brought to the scene and both identified the men in a show-up procedure.

The jury found appellant guilty of robbery and confinement but was unable to reach a decision on the habitual offender count and the Judge declared a mistrial of that phase of the trial. Appellant was sentenced to twenty years each on the robbery and confinement convictions, sentences to run consecutively, on July 12, 1985. He was retried on the habitual offender allegation on Sept. 26, 1985, and the jury determined that he was an habitual offender. He was resentenced on Oct. 10, 1985, to fifty years for the robbery and twenty years for the confinement, sentences to run consecutively.

I

Carol Furnish and Sam Speechly identified appellant in a one-one one show-up approximately five minutes after the incident. Appellant contends that due to the impermissible nature of the show-up, the trial court erred when it denied his motion to suppress their identification testimony.

The display of a putative victim to a suspect in custody, without staging a line-up, does not always result in suppression of identification testimony. If there is a sufficient independent basis for the in-court identification, then it will be permitted notwithstanding the improper pre-trial procedure. Remsen v. State (1981), Ind., 428 N.E.2d 241. When considering whether there is an independent basis, the factors to be considered are the witnesses' opportunity to view the criminal when the crime was committed, the degree of attention at the time, the accuracy of the prior description, the level of certainty in the pre-trial identification and the length of time between the crime and the identification. Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.

In this case Furnish observed appellant once while she did not feel threatened and again later during the robbery and confinement. She gave a very detailed, accurate description of appellant and positively identified him in person approximately five minutes after the crime. Speechly was informed of what had just occurred and then saw appellant run from the building. He followed him, saw him enter a car, and subsequently saw the license plate on the car. The license plate number he gave police was accurate as was his description. This is adequate to support the trial court's determination that the witnesses had a sufficient independent basis for their in-court identification of appellant.

II

The trial court refused appellant's tendered final instruction defining the lesser included offense of theft. Appellant asserts that as the instruction was a correct statement of the law, evidence supported the giving of the instruction and no other instruction covered the offense of theft, the ...


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