Little v. State

475 N.E.2d 677, 1985 Ind. LEXIS 783
CourtIndiana Supreme Court
DecidedMarch 25, 1985
Docket1282S489
StatusPublished
Cited by23 cases

This text of 475 N.E.2d 677 (Little v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Little v. State, 475 N.E.2d 677, 1985 Ind. LEXIS 783 (Ind. 1985).

Opinions

[680]*680HUNTER, Justice.

The defendant, Floyd Little, was convict ed by a jury of two rapes, one a Class B felony, Ind.Code § 85-42-4-~l(a) (Burns 1984 Supp.), and the second rape, a Class A felony, Ind.Code § 85-42-4-l(a) (Burns 1984 Supp.), robbery, a Class C felony, Ind.Code § 35-42-51 (Burns 1984 Supp.), and attempted robbery, a Class C felony, Ind.Code § 35-41-5-1 (Burns 1979 Repl.) and Ind.Code § 85-42-51 (Burns 1984 Supp.). He was sentenced to the Indiana Department of Correction for a term of ten years for Class B rape, five years for robbery, thirty years for Class A rape, and five years for attempted robbery. The Class A rape and attempted robbery terms are to be served concurrently and the Class B rape and robbery terms are to be served concurrently. The sentences imposed upon the rape and robbery are to be served consecutively with the sentences imposed upon the second rape and attempted robbery convictions.

Defendant's direct appeal to this Court raises the following issues:

1. Whether there was sufficient evidence to support the verdicts; and

2. Whether the trial court abused its discretion by imposing consecutive sentences in the absence of any finding of aggravating circumstances.

A brief summary of the facts most favorable to the state reveals that on October 6, 1981, the first victim was watching television alone in her home at around 11:00 pm. A black man knocked at her front door to inquire about a man named Tom. The victim testified that the porch light was on which enabled her to see the man well, and she identified defendant both pri- or to and during the trial as this man.

Defendant left and the victim continued to watch television for another one-half hour and then went to bed. The victim was awakened at approximately 12:15 a.m. by defendant who placed his hand over her mouth and nose and a pillow over her head. After a struggle with defendant, the victim was asked whether she was going to cooperate. Defendant then pushed her down onto the bed and covered her head with a blanket. Defendant asked whether she had any money and then took approximately $180 from her. Defendant then stated he had a knife and that he knew her husband kept more money at home. At this point the victim recognized his voice as that of a black man who had been at her door earlier that evening, and whom she subsequently identified as Floyd Little. Defendant raped the victim, told her not to look and then left. The entire criminal incident took approximately ten minutes from the time the victim was awakened by defendant.

On October 7, 1981, the day after the first victim was raped, she identified defendant's picture in a mug book at the police station. The police did not inform the victim as to the name of the man she chose. The following day, October 8, 1981, completely on her own initiative, she found a picture of defendant in her high school year book and identified him as the man who raped her. Beginning at the front of the yearbook, she looked at approximately thirty photographs of black men before she identified defendant. On October 27, 1981, the victim viewed and identified defendant-both by voice and in person-from a police station lineup composed of six black men. The victim testified that she was positive that the man whom she identified (Floyd Little) was the same man who was on her porch October 6, 1981, and who had raped her on October 7, 1981.

The record also shows that on October 24, 1981, the second victim was awakened shortly after midnight when she felt something over her mouth. Defendant warned her that he was armed and threatened to shoot or kill her if she screamed. When defendant requested money, this victim emptied the contents of her purse to show that she did not have any money. While defendant was holding onto the neck of the victim, she looked up and saw defendant's face and Afro hair style. After defendant raped the victim, he threw an afghan over her head. While he was attempting to [681]*681steal her stereo, she watched defendant through the holes in the afghan.

On October 26, 1981, two days after the rape, this victim looked at approximately one hundred photographs of black men in a police mug book. She identified defendant as the man who raped her, but requested a lineup and voice identification. The next day, October 27, 1981, this victim viewed a police station lineup of six black men wherein each lineup participant asked the same innocuous question. The victim identified defendant both by voice and appearance. She testified that she was positive that the man in the courtroom, where she again identified defendant, was the man who raped her. She also testified that she had not been told the name of defendant when participating in pretrial identification procedures and only learned defendant's name later from a newspaper account.

To summarize, the first victim identified defendant on four different occasions: in the police mug book, in her high school yearbook, at the police station lineup, and in court. The second victim also identified defendant on three different occasions: in the police mug book, at the police station lineup, and in court. No suggestion or encouragement was provided by the police before, during, or after any of the pretrial identification procedures.

I.

Defendant first argues there was insufficient evidence to support the verdict. In considering the sufficiency of the evidence, it is well settled that as a court of review, we will neither reweigh the evidence nor judge the credibility of the witnesses. Rather, we will only look to that evidence most favorable to the state and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the judgment will not be overturned. Borom v. State, (1984) Ind., 470 N.E.2d 712; Johnson v. State, (1983) Ind., 455 N.E.2d 897; Duffy v. State, (1981) 275 Ind. 191, 415 N.E.2d 715.

Citing Neil v. Biggers, (1972) 409 U.S. 188, 93 S.Ct. 375, 84 L.Ed.2d 401, defendant argues that the pretrial identification procedures were impermissibly suggestive, thereby tainting the in-court identifications made by both victims. He maintains that the victims did not have sufficient time to view their attacker and thus there was not an independent basis for their identification at trial. Defendant's insufficiency argument is predicated on three theories: suggestive pretrial identification procedures, the absence of counsel at the pretrial lineup and the absence of lice infestation on either rape victim. We will address each of these arguments individually and then consider the totality of the pretrial identification procedures.

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Little v. State
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Bluebook (online)
475 N.E.2d 677, 1985 Ind. LEXIS 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/little-v-state-ind-1985.