Auer v. State

• Decision Date: 21 November 1972
• Docket Number: No. 3--672A10,3--672A10
• Parties: Tommy AUER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 321

289 N.E.2d 321

154 Ind.App. 164

Tommy AUER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3--672A10.

Court of Appeals of Indiana, Third District.

Nov. 21, 1972.

Rehearing Denied Dec. 21, 1972.

Howard S. Grimm, Jr., Grimm & Grimm, Auburn, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

STATON, Judge.

STATEMENT ON THE APPEAL: The jury found Tommy Auer guilty of assault and battery with intent to gratify sexual desires upon a twelve year old girl. ¹ The trial court entered a judgment sentencing him to '. . . the Department of Corrections, Indiana Diagnostic Center, for a period of not less than one year nor more than five years. . . .' He filed his 'Motion to Correct Errors' which raises these issues upon appeal:

Issue One: Is the in-court identification of Tommy Auer tainted? Does the per se exclusionary rule announced in United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 apply to the identification complained of by Tommy Auer?

Issue Two: Should the trial court have stricken the testimony of the victim's mother which related to the identification of Tommy Auer?

Issue Three: Should the trial court have granted the motion of Tommy Auer to produce photographs used by the police before his arrest to establish his identification?

We hold that the per se exclusionary rule announced in Wade and Gilbert, supra, is not applicable and that the trial court did not commit reversible error by failing to strike the testimony of the victim's mother and that the trial court did not commit error when it failed to grant Tommy Auer's motion to produce. The judgment of the trial court is affirmed in our opinion that follows:

STATEMENT OF THE FACTS: Mrs. Collins received a telephone call from a man who identified himself as Ted Brooks on May 11, 1971. He stated that he was new in town and would like to hire one of her daughters as a baby-sitter. Mrs. Collins' twelve year old daughter Tami agreed to baby-sit for the caller. Mrs. Collins testified as follows:

'Q. Will you tell the Court the circumstances which surrounded this person's coming to your door?

'A. You mean leading up to the--

'Q. Right.

'A. I got a phone call about twenty minutes of five. And this man said his name was Ted Brooks, and that he needed a babysitter immediately.

He was new in the area and didn't know anyone. And a Mrs. Church had recommended I had two daughters that babysit, and could one of them babysit? And I said, yes, the oldest girl was in a concert that night, but the younger girl could if she wanted to.

'MR. HEARN: All right. Was there a time then that this somebody came to your door?

'A. Uh-huh.

'Q. All right. For how long a time did you observe this person?

'A. When he came to the door--I don't know--a matter of maybe five minutes.

'Q. Did you talk with him?

'A. Yes.'

The man who identified himself as Ted Brooks over the telephone at 5:00 o'clock P.M. arrived at the home of Mrs. Collins approximately twenty minutes later. He took the twelve year old baby-sitter in his car to a woods near Milford, Indiana and told her to undress. She testified:

'Q. What did he do then?

'A. Then he took down his pants, and he came over, and he started kissing me, and I started screaming, and he put his fingers in my mouth and he--then he told me to get my clothes back on. And then he said to tell my--not to tell my Mom and Dad what happened but just to tell them that his wife had a headache and didn't want to go, and so he was driving--and he gave me two dollars.'

She further testified that she noted that he had a gold tooth in the upper right side of his mouth. She testified:

'Q. O.K. When you got home, what was the first thing you did?

'A. Told my Mom.

'Q. Now, since that day on May 11, 1971, have you ever seen that car again?

'A. Yeah. I saw it at the golf course.

'Q. At the golf course?

'A. Yeah.

'Q. And who was with you on that day?

'A. Mr. Holderman and my Mom and Dad.'

Mrs. Collins was shown a photograph and identified Tommy Auer but requested to see him in person. She and Tami were taken to a trailer factory in Syracuse, Indiana by Officer Holderman and placed in a darkened office which was located over the factory working area. There she viewed Tommy Auer with approximately six other men and made an identification of him immediately. Tami Collins testified on this identification as follows:

'Q. Did you ever go any place to identify Ted Brooks?

'A. Yes.

'Q. Where was this?

'A. At Cambridge Trailer Factory.

'Q. Cambridge Trailer Factory?

'A. Yes.

'Q. Who did you go with?

'A. Mr. Holderman and my Mom and Dad.

'Q. Where did you go?

'Q. Where did you go at the trailer factory?

'A. It was like an office building, but it was up higher, and I looked down through the window.

'Q. You looked down through the window?

'A. Yeah.

'Q. O.K. Did you see some people down there?

'A. Yes. There were about six.

'Q. About six persons? Did you see--did you identify anybody?

'A. Yes. As soon as they started walking, I noticed him from the back.

'Q. You noticed him from the back?

'A. Yes.

'Q. How could you identify him from the back, Tami?

'A. Because I noticed his hair.

'Q. Anything else that you recognized when you first observed him? Other than his hair?

'A. No. I just knew it was him.

'Q. Just knew it was him. Did there come a time when you got a look at his face?

'A. Yes.

'Q. When would that have been?

'A. Somebody tapped him on the back, and he turned around.

'Q. Somebody tapped him on the back, and he turned around, you said?

'A. Yeah.

'Q. Did you recognize his face?

'A. Yes.

'Q. And who was that person you saw in the trailer factory?

'A. That guy.

'Q. Sitting over here in the--at counsel table?

'A. Yes.'

There was further identification by Doris Montague, who was the next door neighbor of Mrs. Collins. She came over to Mrs. Collins' home to borrow some aluminum foil for baked potatoes. She was standing at the door when the alleged Ted Brooks came to pick up Tami. She testified:

'Q. And after you got over to the Collins residence, describe what happened.

'A. This man came to pick up Tami to babysit.

'Q. Did you see this man come?

'A. Yes.

'Q. Where were you standing?

'A. I was standing at her front door.

'Q. How did you happen to be there?

'A. I got up to look.

'Q. All right. And did a man come to the front of the Collins residence?

'A. Yes.

'Q. How did he arrive?

'A. Drove up in front of the house, got out of his car.

'Q. Can you describe that car?

'A. Oh, it was a lime green Chevy. A small car.

'Q. All right. What happened then?

'A. He got out of his car, went around the back of it and came up to the porch and Tami came down the steps, and he went to open the door for her, and it was locked. He went around the back and went through and unlocked the car. And then he got out and stood and talked over the car to Tami's mother and told her that he would have her back by nine or 9:30.

'Q. Do you have any idea how long you observed this person?

'A. Well, it wasn't very long. It didn't take very long to-- 'Q. How far away from you was he?

'A. Oh, I imagine ten feet.

'Q. Now, there were a bunch of people around that door, were there not?

'A. Mrs. Collins was on the front porch. She had come out to meet him, ask him if he was Mr. Brooks, and Tami was going off the front porch.

'Q. Who else was standing in the doorway?

'A. I don't remember anyone except Tereasa. Tami's Sister.

'Q. Where exactly in the doorway were you standing--inside the door or outside?

'A. I was standing right inside the door, right smack in front of it.

'Q. Have you ever seen that person again?

'A. I haven't since yesterday. Yesterday I saw him.

'Q. Do you see him here in the Court today?

'A. Yes, I do. Right over there.

'Q. Let the record show the witness identified the Defendant.

'A. Yes.

'Q. Are you sure that's the same person?

'A. Yes.

'Q. How are you so sure?

'A. Because I noticed his face when he came after her that night. I looked at his face, and I can remember it.'

STATEMENT OF THE ISSUES: The issues presented by this appeal are:

Issue One: Were the in-court identifications of Tommy Auer so tainted by the pre-trial lineup at the factory that they should be stricken by the per se exclusionary rule announced in Wade and Gilbert, supra?

Issue Two: The second issue is expressed by Tommy Auer in his brief at page 2:

'Did the Court commit error of law in allowing the witness, Mrs. Basil Collins, to testify concerning her view of the Defendant at a secret lineup, done without his knowledge, prior to his arrest? Further, did the Court commit error in not striking the testimony of the witness, Mrs. Basil Collins, and admonishing the jury not to regard it in determining the guilt or innocence of the Defendant?'

Issue Three: Tommy Auer has expressed the third issue in his brief at page 2 as follows:

'Does the Court commit error of law in not sustaining the Defendant's renewed Motion to Suppress based upon the inability or the failure of the State of Indiana to produce pictures given to the Prosecuting witness for examination for purposes of identifying the perpetrator of the act upon her?'

Tommy Auer is not questioning the identification of Doris Montague who was the neighbor of Mrs. Collins.

STATEMENT ON THE LAW: Issue One. A proper perspective of the present case is needed before discussing the application of 'lineup' standards. Tommy Auer was identified by Mrs. Collins and her daughter before any arrest or charge. Both Wade and Gilbert, supra, are post-indictment lineup cases where appointed legal counsel was not present. ² Dillard v State (1971), Ind., 274 N.E.2d 387 was an in-custody confrontation case which involved the identification of a handcuffed, bleeding suspect twenty minutes after the Standard Grocery had been robbed. ³ Tommy Auer was not in custody nor was he under arrest or...