Brown v. State, 45S00-8703-CR-271

• Decision Date: 29 August 1991
• Docket Number: No. 45S00-8703-CR-271,45S00-8703-CR-271
• Citation: 577 N.E.2d 221
• Parties: Deborah Denise BROWN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 221

577 N.E.2d 221

Deborah Denise BROWN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 45S00-8703-CR-271.

Supreme Court of Indiana.

Aug. 29, 1991.

Daniel Toomey, Merrillville, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Following a jury trial, Deborah Denise Brown was convicted of murder, a felony, Ind.Code Sec. 35-42-1-1; attempted murder, a class A felony, Ind.Code Secs. 35-41-5-1(a), 35-42-1-1; and child molesting, a class A felony, Ind.Code Sec. 35-42-4-3(a). After the penalty phase of the trial, the jury recommended the death penalty. ¹ The trial court sentenced Brown to death. Brown raises five issues in this direct appeal:

I. Did the trial court err in admitting the in-court identification of Brown by a witness who had previously participated in an unduly suggestive identification procedure?

II. Did the court err in admitting evidence of an extrinsic offense to prove the identity of the defendant?

III. Did the trial court err in admitting evidence of Brown's oral confession?

IV. Did the court err by admitting in the penalty phase of the trial a videotape of Brown's previous testimony?

V. Did the trial court err in rejecting the defendant's first instruction in the penalty phase of the trial?

Facts

The evidence supporting the jury's verdict reveals that on June 18, 1984, A.H., then age nine, and her niece, Tamika Turks, then age seven, were walking back to Tamika's house after a trip to a candy store and a hot dog stand in Gary. A man and a woman, Alton Coleman and Deborah Brown, approached the girls. Coleman asked the children if they wanted some clothes. They seemed agreeable, and Coleman asked them to follow Brown. Coleman said he would catch up with them later. Although Tamika commented to A.H. along the way that they should not have gone with these people, the children accompanied Brown on a walk to a secluded, wooded area. The walk was approximately 1.4 miles long, and was estimated to have taken 40 minutes for small children.

Coleman caught up with Brown and the children. At the woods he announced he was going to play a game. The adults removed Tamika's shirt and Brown then cut the shirt into strips which were used to tie up the hands, legs, and mouths of the children. At this point, Tamika began to cry and the attackers pushed her down. While Brown held Tamika's nose and mouth, Coleman stomped on Tamika's stomach and chest. The two assailants carried Tamika a short distance away, hidden in weeds out of A.H.'s view.

A.H. was then forced to perform oral sex on both Coleman and Brown. Coleman revealed a partially concealed gun and threatened to kill Annie if she did not comply. He then raped A.H. Afterwards, A.H. heard a loud moan coming from where the two had taken Tamika. Brown stated that the girl was not dead yet, and went over to the area where Tamika was.

When Brown returned, she and Coleman began choking A.H. with their belts. A.H. lost consciousness. When she awoke, the assailants were gone. A.H. stumbled back out of the wooded area. She was discovered by a woman who called A.H.'s mother and an ambulance. Tamika lay dead in the woods.

In the trial court, Brown was convicted of the murder of Tamika Turks, of the attempted murder of A.H., and of molesting A.H.

I. Could A.H. Properly Identify Brown?

Brown first asserts the trial court erred in permitting A.H. to identify her in court. Brown contends that the identification was tainted because A.H. had previously been shown a single photograph of the defendant before she testified at the trial of Alton Coleman in Ohio. An Ohio prosecutor had shown her Brown's picture and asked, "Can you identify this person?" The trial court held a hearing on Brown's motion to suppress A.H.'s identification; it denied the motion. Brown contends that this constitutes reversible error.

This Court has long held that extrajudicial exhibition of a single photograph to a victim is an unduly suggestive identification procedure. Parker v. State (1976), 265 Ind. 595, 358 N.E.2d 110; Emerson v. State (1972), 259 Ind. 399, 287 N.E.2d 867. As a result, "[d]irect eyewitness identification at trial is inadmissible if pre-trial photographic identification procedures which preceded it were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Haun v. State (1983), Ind., 451 N.E.2d 1072, 1075; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). This Court has repeatedly held, however, that "an in-court identification by a witness who has participated in an impermissibly suggestive out-of-court identification is admissible if the witness has an independent basis for the in-court identification." French v. State (1987), Ind., 516 N.E.2d 40, 42; Henson v. State (1984), Ind., 467 N.E.2d 750.

To determine whether A.H.'s in-court identification was permissible in Brown's trial requires determining whether there was clear and convincing evidence that the witness had an adequate independent basis for her in-court identification. See Heiman v. State (1987), Ind., 511 N.E.2d 458, 460. This review searches "the totality of the circumstances pertaining to the witness' opportunity to observe the perpetrator during the commission of the crime...." Dorsey v. State (1986), Ind., 490 N.E.2d 260, 267; see also Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). Among the pertinent factors are "the length of time the witness was in the presence of the perpetrator, the distance the witness was from him, the lighting conditions at the time, the witness' capacity for observation, and the opportunity to observe particular characteristics of the perpetrator." Dorsey, 490 N.E.2d at 267; see also Biggers, 409 U.S. 188 at 199, 93 S.Ct. 375 at 382.

The evidence suggests that A.H. was in the company of Brown for at least forty minutes, the time it was estimated to take for a child to walk with Brown to the park where the attack occurred. This walk and the subsequent attack took place in broad daylight, providing ample opportunity for a good look. A.H.'s eye doctor testified that the child could recognize anybody up to six or seven feet away. Record at 2319 (testimony of Dr. Raymond Carmody at suppression hearing). Based on the nature of the attack, A.H. was so close to Brown that her nearsightedness and lack of glasses would not have prevented her from perceiving and describing appellant. A.H.'s identification of Brown at trial was unequivocal, and she emphasized that her identification was based on her experience in the woods on the day of the incident. Furthermore, A.H. had already tentatively identified the defendant in a line up in which her nearsightedness may have come into play. Id. at 2273-77 (testimony of Mary Hillard); id. at 2296-97 (testimony of Lieutenant Kenneth Barnes). She had also earlier ruled out as suspects people shown to her who were not her assailants, id. at 2306-07 (testimony of Barnes).

Given these facts, covering the breadth of conditions mentioned in Dorsey, 490 N.E.2d at 267, there is clear and convincing evidence that A.H.'s in-court identification was based upon observations gained independently of any unduly suggestive pre-trial procedure. A.H.'s in-court identification of Brown was properly admitted at trial.

II. Evidence of an Extrinsic Offense

Appellant next contests the admission of evidence of an extrinsic offense, the Ohio murder of Tonnie Storey, during the guilt phase of her trial. ² Evidence of crimes extrinsic to the one for which a defendant is on trial is generally inadmissible in Indiana. Malone v. State (1982), Ind., 441 N.E.2d 1339. Long-recognized exceptions to this rule, however, provide that "[e]vidence of other criminal activity may be admissible in certain cases to prove an accused's identity, knowledge, intent or motive, or to demonstrate the common plan or scheme of criminal activity from which the accused originated the charged crime." Id. at 1346. Because such evidence can often be unduly prejudicial, however, exceptions to the rule are to be applied cautiously. Gibbs v. State (1989), Ind., 538 N.E.2d 937; Penley v. State (1987), 506 N.E.2d 806.

The parties to this litigation argue the admissibility of the Storey evidence on two recognized exceptions to the extrinsic offense exclusionary rule. One exception allows in evidence of extrinsic crimes shown to be part of a larger preconceived plan that includes the charged offense. Gibbs, 538 N.E.2d at 939; Penley, 506 N.E.2d at 809. The second category allows admission of extrinsic evidence to prove identity by showing the defendant committed other crimes with a similar modus operandi. Penley, 506 N.E.2d at 808-09.

Brown argues that evidence of the extrinsic offense admitted at trial falls within neither category of exceptions. Because we find that the uncharged crime satisfies the identity/modus operandi exception to the general rule, we need not address Brown's claim that the State did not prove the charged and uncharged crimes were part of a larger preconceived plan.

The use of modus operandi evidence to prove identity requires the State to show "that the similarities between the two crimes are so strong and the method so clearly unique that it is highly probable that the perpetrator of both is the same person." Penley, 506 N.E.2d at 809. The mere repetition of similar crimes will not suffice to qualify as an exception to the general rule. Gibbs, 538 N.E.2d at 939; Malone, 441 N.E.2d at 1346. Instead, "this Court requires a strong showing that the different criminal actions were so similarly conducted that the method of conduct can be considered akin to the accused's 'signature.' " Malone, 441 N.E.2d at 1346; Gibbs, 538 N.E.2d at 939.

The facts of the Ohio murder and the Gary incident were sufficiently similar to constitute signature...