Beacham v. State

• Decision Date: 28 October 1975
• Docket Number: No. 1--674A98,1--674A98
• Citation: 166 Ind.App. 341,336 N.E.2d 404
• Court: Indiana Appellate Court
• Parties: James J. BEACHAM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

Page 404

336 N.E.2d 404

166 Ind.App. 341

James J. BEACHAM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1--674A98.

Court of Appeals of Indiana, First District.

Oct. 28, 1975.

Harriette Bailey Conn, Public Defender, of Indiana, Stephen Brown, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert M. Lingenfelter, Deputy Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

Defendant-appellant Beacham was charged by affidavit with the crime of armed robbery. ¹ Pauper counsel was appointed for Beacham after his arrest which counsel he later fired. He then asked permission to try his own case. The record discloses that arraignment was waived and a plea of not guilty was entered. The record further discloses that a second pauper attorney was appointed and that counsel acted mostly in an advisory capacity, and that defendant-appellant for the most part acted as his own counsel.

The case was submitted to a jury. Beacham was convicted and was sentenced to a period of not less than ten nor more than twenty-five years.

ISSUES PRESENTED:

The issues we are required to pass upon here are:

1. Whether the pre-trial identification was so impermissibly suggestive that appellant was denied due process of law.

2. Whether the identification of appellant at trial was tainted by the impermissibly suggestive pre-trial identification.

3. Whether the court's failure to grant Beacham's motion for mistrial after objectionable comments were made by a witness for the prosecution constituted reversible error.

Issues 1 and 2 will be treated together, pursuant to Ind. Rules of Procedure, Appellate Rule 8.3(A)(7).

FACTS OF THE CASE:

On October 19, 1972, Beacham entered Room 1011 of Cromwell Hall at Indiana State University at about 9:30 P.M., where he visited the tenants, Bruce Patt and Carl Mitchell. Shortly after entry Beacham excused himself to leave the room and then returned accompanied by two other individuals who were almost instantly followed into the room by two other young men, namely, Bobby Swift and Steve Hollingsworth, friends of Patt and Mitchell.

After a short conversation between these men, Beacham and the two friends he had picked up (all three were young Negroes), on order of one to 'pull their pieces' robbed Bruce Patt of approximately $200.00. In so doing two of the three were armed with knives and the third man was armed with a gray pistol.

After the robbery the three Negroes left the room, warning the victims not to contact the police under threat of being killed.

About 10 to 10:30 the University police were summoned. Detective Donald Tryon of that department, with 20 years service as a Terre Haute police officer and detective, took charge of the investigation, interviewed Patt and Mitchell and received a description of the holdup men.

Carl L. Mitchell recognized Beacham during the robbery, as he had been in school and had seen Beacham but could not recall his name on the night of the robbery. Patt, Mitchell's roommate, also knew Beacham.

Hollingsworth was a student and knew Beacham, having been in school with him and having seen him there for more than a year, and told the police he was one of the three robbers.

James Kennedy, a student, observed three Negroes at the lower floor of the building and overheard them talking about being in a big hurry to get to the tenth floor. He did not know any of them personally but later recognized Beacham as one of the three he had seen just before the robbery.

ISSUES 1 and 2:

Detective Tryon testified he had five pictures of Negro students. They appeared to be about the age of Beacham, who, as above stated, had been a student at Indiana State University. These photos were University photos and had a name and number at the borrom of the same. Detective Tryon secured a photo of Beacham from the Terre Haute Police Department which had at the bottom of the same the legend identifying the Terre Haute Police Department, with a number and a date on the same. There was a front view and a side view and a height chart just back of Beacham. The evidence was that all these photos were laid side by side and all identification on each of them was covered over with a white paper and could not be seen. The only thing unusual about any of the photos was a height chart just back of Beacham and there was a front and side view of him.

DISCUSSION:

Beacham vigorously objected to the testimony relating to the identification on the grounds that the photographs, because of their nature, were so impermissibly suggestive as to give rise to the very substantial likelihood of irreparable mis-identification and the subsequent eye witness identification at trial should be set aside or suppressed and that failure to do so denied him due process.

The photographs were admitted into evidence during the testimony of James Kennedy when evidence pertaining to the admission of the same was heard in the absence of the jury. The record discloses that there was no request to exhibit the photographs to the jury and they were not so exhibited.

Beacham relies on the case of Johnson v. State (1972), Ind., 277 N.E.2d 791. In Johnson, supra, Justice Hunter discussed the matter of mis-identification and at page 794 said:

". . . we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 1972--1973, 18 L.Ed.2d 1199, 1206, and with decisions of other courts on the question of identification by photograph.' (Our emphasis)

'. . . Upon reviewing the procedure used in the instant case, we cannot say it 'was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' The method and language used by the officer in no way indicated that he desired any certain result. Upon viewing the photographs contained in the transcript we note that no great age differential is apparent among the five men, nor does appellant's complexion or hair color seem markedly different from the others. . . .'

In Jones v. State (1973), Ind.App., 293 N.E.2d 545, in discussing the claim that the pre-trial identifications were so impermissibly suggestive that the defendant was denied due process, this court said:

'. . . We do not weigh the evidence, but in observing the photographs and considering the evidence most favorable to the State, as is our duty, we cannot, using the words of Justice Hunter in Johnson v. State (1972), Ind., 277 N.E.2d 791, 794, say the pre-trial identification:

'. . . was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' . . .'

This court in Jones further quoted from the United States Supreme Court case of Simmons v. United States, 390 U.S. [166 Ind.App. 346] 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, which discussed this area extensively as follows:

"Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects and ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its...