Albee v. State
| Decision Date | 28 February 2017 |
| Docket Number | Court of Appeals Case No. 79A02-1606-CR-1266 |
| Citation | 71 N.E.3d 856 |
| Parties | Neil C. ALBEE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant : Christopher P. Phillips, Phillips Law Office, P.C., Monticello, Indiana
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
[1] Neil Albee appeals his convictions for Level 6 felony voyeurism and Class B misdemeanor residential entry. We reverse.
[2] Albee raises two issues, which we restate as:
[3] On October 31, 2015, Margaret Schuerger was at home in her sorority house on Purdue University's campus in Tippecanoe County. At approximately 10:30 p.m., she took a shower. While she was in the shower, Schuerger noticed someone standing outside the obscure- glass shower door. Although Schuerger could not see the person in detail, she could tell the figure was tall and dressed in dark clothing. Schuerger waited for a minute, and the shower door, which stays fastened with a magnetic closure, opened approximately one inch. Schuerger pulled the door closed again, and the figure moved away.
[4] Schuerger finished her shower and returned to her bedroom. She was sitting on her bed texting a friend when she heard her bedroom door open. Schuerger looked up and saw the reflection of a man in the full-length mirror that connects the two rooms of her suite. Schuerger and the man "made eye contact" in the mirror for a few seconds. Tr. p. 216. The man left, and, after summoning a housemate, Schuerger called the police. Schuerger described the man she saw in the mirror as approximately forty years old and wearing a hooded navy blue sweatshirt and jeans. She also said he had dark, curly hair that was "very distinctly matted down on his forehead." Id. at 217. The man was not wearing a hat.
[5] Officers from the Purdue University Police Department ("PUPD") arrived and searched the area around the sorority house. At 12:19 a.m. on November 1, 2015, the PUPD observed Albee in the parking lot adjacent to Schuerger's sorority house and detained him. Officers then accompanied Schuerger to the parking lot and asked her if she could identify "the suspect," Albee, as the man she saw in her house. Id . at 73.
[6] Schuerger observed Albee from approximately thirty yards away. Albee was wearing a hat. He was handcuffed, and there were at least six police officers around him. Schuerger could see three police cars. Albee was illuminated by the spotlight from one of the police cruisers. In addition to Schuerger viewing Albee from a distance, a police officer also took a picture of him with a digital camera and took it to Schuerger to view. Schuerger was not completely sure Albee was the man she saw in her house, though she testified, Id. at 238. In order to help facilitate a more certain identification, the officers asked Schuerger to go to the police station to view Albee in better lighting.
[7] When Albee arrived—in custody—at the police station, an officer escorted him to an interview room. The officer then took Schuerger into another area of the police station where she was able to watch Albee via a closed-circuit television. The officers took photographs of Albee—with and without his hat—with a digital camera and asked Schuerger to identify him from the digital image on the camera's screen. The officers did not compile a photo array or organize a lineup. Schuerger identified the image of Albee on the camera as the man she saw in her house.
[8] The State charged Albee with voyeurism, a Class B misdemeanor; voyeurism, a Level 6 felony; residential entry, a Level 6 felony; and with an habitual offender enhancement. Albee filed a motion to suppress Schuerger's identification of him, and the trial court denied that motion. In March 2016, Albee was tried by a jury, but that jury was unable to reach a verdict. On April 28, 2016, a second jury found Albee guilty of Class B misdemeanor voyeurism and Level 6 felony residential entry. During the trial, Albee objected when the State offered evidence related to Schuerger's pretrial viewings and identification of Albee and her in-court identification. Albee waived his right to a jury trial with regard to the Level 6 felony enhancement to his voyeurism conviction, and the trial court found him guilty of the enhanced charge. On May 19, 2016, the trial court sentenced Albee to an aggregate sentence of two years in the Department of Correction. Albee now appeals.
[9] Albee contends the trial court abused its discretion by admitting testimony regarding Schuerger's pretrial and in-court identifications of him. "The admission or exclusion of evidence falls within the sound discretion of the trial court, and its determination regarding the admissibility of evidence is reviewed on appeal only for an abuse of discretion." Gordon v. State , 981 N.E.2d 1215, 1217 (Ind. Ct. App. 2013). A trial court abuses its discretion when its decision is clearly against the logic and effect of the facts and circumstances before the court. Id.
[10] The Fourteenth Amendment's guarantee of due process of law requires the suppression of evidence when the procedure used during a pretrial identification is impermissibly suggestive. In some circumstances, a show-up identification may be so unnecessarily suggestive and so conducive to irreparable mistake as to constitute a violation of due process.
Rasnick v. State , 2 N.E.3d 17, 23 (Ind. Ct. App. 2013) (citations omitted), trans. denied . "The practice of conducting a one-on-one show-up between a suspect and a victim has been widely condemned as being inherently suggestive both by the United States Supreme Court and by this Court." Wethington v. State , 560 N.E.2d 496, 501 (Ind. 1990) (). "Even when the police use such a procedure ... suppression of the resulting identification is not the inevitable consequence." Perry v. New Hampshire , 565 U.S. 228, 239, 132 S.Ct. 716, 725, 181 L.Ed.2d 694 (2012).
[11] Instead of mandating a per se exclusionary rule, th[is] Court held [in Neil v. Biggers , 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) ] that the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a substantial likelihood of misidentification. [R]eliability [of the eyewitness identification] is the linchpin of that evaluation.... Where the indicators of [a witness'] ability to make an accurate identification are outweighed by the corrupting effect of law enforcement suggestion, the identification should be suppressed.
Id. at 239, 132 S. Ct. at 724-25 (quotations omitted) (citations omitted) (third, fourth, and fifth alterations in original).
[12] Albee's claim involves a two-step analysis. See Hubbell v. State , 754 N.E.2d 884, 892 (Ind. 2001). Id. "Although not an exhaustive list," when examining the totality of the circumstances surrounding the identification, Indiana courts have considered:
The amount of time the witness was in the presence of the perpetrator and the amount of attention the witness had focused on him, the distance between the two and the lighting conditions at the time, the witness's capacity for observation and opportunity to perceive particular characteristics of the perpetrator, the lapse of time between the crime and the subsequent identification....
Flowers v. State , 738 N.E.2d 1051, 1056 (Ind. 2000) (ellipses in original). Courts have also considered additional factors relevant in this case: "any identifications of another person," Olson v. State , 563 N.E.2d 565, 570 (Ind. 1990), and "the level of certainty demonstrated by the witness." Gordon , 981 N.E.2d at 1218. "[O]ne-on-one confrontations have been found proper where circumstances rendered an alternative approach such as a lineup impossible." Hubbell , 754 N.E.2d at 892.
[13] Here, Schuerger, who was texting at the time, heard a noise in her bedroom and briefly observed the reflection of a man in her mirror.1 An hour and forty-five minutes later, police asked her to identify Albee in a parking lot under the illumination of a police vehicle's spot light. Officers referred to Albee as the "suspect," and Schuerger observed him in handcuffs and surrounded by at least six officers from the PUPD. Tr. p. 73. There were several police cars on the scene and visible to Schuerger during the show-up as well.
[14] Due at least in large part to the poor lighting in the parking lot, Schuerger was unable to identify Albee with certainty, and the officers offered her another chance to identify Albee under better lighting conditions at the police station. Although Schuerger was not certain Albee was the man she saw in her bedroom, she testified, in essence, that he was the only person in the area who matched the description of the man she saw in her bedroom. See Tr. p. 238.
[15] At the police station, Schuerger had two more opportunities to view Albee. The first was through a closed-circuit camera, and Schuerger was able...
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