Carpenter v. State
| Decision Date | 14 February 1974 |
| Docket Number | No. 1--673A124,1--673A124 |
| Citation | 307 N.E.2d 109,159 Ind.App. 373,40 Ind.Dec. 618 |
| Parties | Milton Homer CARPENTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Gene E. Hutson, Richmond, for appellant.
Theodore L. Sendak, Atty. Gen., Erie L. Wyndham, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Milton Homer Carpenter appeals from a conviction of first degree burglary following trial by court. The issues presented for review are.
1. Whether the trial court erred in overruling appellant's motion to suppress testimony of a witness relating to identification of the appellant, the asserted grounds therefore being an impermissibly suggestive pre-trial photographic identification procedure.
2. Whether appellant's conviction is supported by sufficient evidence.
The facts relevant to the issues on appeal are as follows:
On the morning of November 16, 1972, Stanley McNew drove to the residence of his son and daughter-in-law, Ronald and Julia McNew. Approaching the house in his pickup truck, he observed a light blue station wagon parked on the driveway near the garage door. McNew then momentarily lost sight of the automobile while passing a stand of trees between the road and the house. As he proceeded up the driveway toward the house, he observed the automobile exiting toward him at what he considered to be a relatively fast rate of speed. McNew positioned his truck on the driveway in such a manner as to prevent the automobile from passing. When the automobile came to a halt, the drivers' side doors of the vehicles were only twelve to eighteen inches apart. McNew asked the two occupants the reason for their presence at his son's residence. The driver, who was later identified by McNew as the appellant, responded that they were searching for someone with a pony. McNew responded that he did not know of anyone who had a pony. Following this conversation, McNew recorded the license number of the automobile as it continued its exit from the driveway.
McNew entered the house through a garage door, using a key provided him by his son. Neither McNew's son nor his daughter-in-law were at home, both being at their places of employment. As he entered the laundry room, McNew observed that a door leading to the outside was open. Glass broken from the door covered the floor on the inside. Two shotguns belonging to McNew's son were lying on the floor near the door. McNew then telephoned the Wayne County Sheriff's Department.
A subsequent investigation culminated in appellant's arrest on the charge of first degree burglary.
ISSUE 1.
It is first contended that the trial court erred in overruling appellant's motion to suppress any and all testimony of witness Stanley McNew relating to identification of the appellant. Citing Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, appellant argues that the pre-trial photographic identification procedure conducted by the sheriff's department was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification.
On the afternoon of the burglary, Detective Sergeant Larry Blunk displayed several photographs to McNew in an attempt to identify the occupants of the blue station wagon. McNew was first handed seven photographs, one of which was a picture of the appellant. McNew was unable to identify the appellant from these pictures. However, this photograph was a blow-up of a picture from a high school book. Taken nearly five years prior to the burglary, it bears little resemblance to the photograph taken at the time of appellant's arrest. McNew was also handed a second group of photographs from which he identified appellant's cousin as being one of the occupants of the station wagon.
At a later date, McNew was shown a third set of photographs. Among these was a more recent picture of appellant, and McNew identified pictures of both appellant and his cousin as the occupants of the station wagon.
Appellant contends that this latter display was impermissibly suggestive in two respects. First, in describing the occupants of the vehicle to Detective Blunk on the day of the burglary, McNew had characterized the two as having 'kind of bushy hair'. Appellant submits that the pictures of his cousin and himself depict them with more hair than the other pictures presented. Secondly, each of the photographs displayed bore a series of numbers, and appellant's and his cousin's pictures had the same date (11--20--72) listed thereon. The dates shown on the other photographs were different. Appellant submits that this would indicate to McNew that the two persons were in some way linked with each other.
In commenting upon the practice of identification by photograph, the United States Supreme Court in Simmons v. United States, supra, said:
(Our emphasis.)
This standard has been subsequently applied in other decisions wherein methods of identification have been questioned, whether the procedure be by lineup, showup, or photograph. Where an out-of-court confrontation procedure is in fact found to be suggestive, the central question becomes whether the identification was reliable under the 'totality of the circumstances.' Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.
In Neil, the court applied the following test:
'. . . As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'
Similarly, our Supreme Court in Emerson v. State (1972), Ind., 287 N.E.2d 867, said:
Applying these tests in the instant case, we find a sufficient basis independent of the photographs for McNew's in-court identification of the appellant. McNew conversed with appellant for approximately a minute. While they both remained in their vehicles, the drivers' doors were only twelve to eighteen inches apart and their windows were rolled down. The sun was shining, and McNew's view of both occupants of the station wagon was not obstructed in any way. Hence, the witness caught much more than a mere glimpse of the suspects. Being suspicious of their presence at his son's residence, he studied them closely.
Neither are we able to conclude that the pre-trial photographic displays were so impermissibly suggestive as to raise a substantial...
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