Caywood v. State, 1--274A25

• Decision Date: 10 June 1974
• Docket Number: No. 1--274A25,1--274A25
• Citation: 160 Ind.App. 346,311 N.E.2d 845
• Parties: Marvin CAYWOOD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 845

311 N.E.2d 845

160 Ind.App. 346

Marvin CAYWOOD, Appellant, v. STATE of Indiana, Appellee.

No. 1--274A25.

Court of Appeals of Indiana, First District.

June 10, 1974.

Gerald E. Surface, Jr., Public Defender, Richmond, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

LOWDERMILK, Judge.

Defendant-appellant was tried by a jury on an amended affidavit charging him with commission of a crime while armed with a deadly weapon (to-wit, armed robbery) under IC 1971, 35--12--1--1, Ind.Ann.Stat. § 10--4709 (Burns, 1956). The jury returned its verdict of guilty of the included offense of robbery and on which verdict the court entered its judgment committing defendant-appellant to the Indiana Department of Corrections for not less than 10 years nor more than 25 years.

Defendant-appellant timely filed his motion to correct errors which motion was overruled by the court.

Four issues are presented for our consideration, each of which will be hereinafter treated.

The facts of this case are, briefly, that on June 7, 1973, at about 12:45 A.M., two men entered the Mr. Pizza restaurant in Richmond, Indiana. They conversed with three patrons who were dining and one of the patrons, while conversing with the defendant-appellant, determined that the defendant-appellant was armed with a revolver. In fact, they had some conversation about it.

While the three restaurant customers conversed with defendant-appellant and one Ronald Bledsoe who had entered the restaurant with him, defendant-appellant left the dining section of the restaurant and went over to the cashier's counter where Mrs. Gloria Jean Grimes was working and demanded money at gun point. She turned over to him something over $300.00 from the cash register and a money envelope. Defendant-appellant then went back, told Mr. Bledsoe it was time to leave, and they left together. He remarked to Mrs. Grimes as they went out the door that she had a good look at them. Following this, Mrs. Grimes fainted.

On June 9, 1973, Detective Irvine of the Richmond Police Department presented Mrs. Grimes with 9 photographs to be viewed by her and at this time she identified defendant-appellant as the man who had held her up on June 7th. Mrs. Grimes was again shown the pictures on June 23rd, 1973, and asked if she could once more identify the individual who robbed the Mr. Pizza restaurant where she was employed and again she identified defendant-appellant by one of the 9 photographs submitted. Mrs. Grimes testified that during the identification procedure there was no conversation with her at all and there were no suggestions made as to her previous examination of the photographs.

A witness, Randall Newman, who was one of the customers with whom the two men conversed, testified that on June 8, 1973, he positively identified defendant's picture out of numerous photographs presented him by the police. He further testified the only conversation he had with the police during the identification procedure was whether or not he could identify anyone in the pictures as the hold up man.

Ben Wolfenbarger, another customer, identified the picture of one Ronald Bledsoe, but clarified that identification by stating that he thought the one identified was not the individual who was armed, but his accomplice. In court Wolfenbarger made a positive identification of defendant-appellant.

Before the trial on the merits defendant-appellant had filed a motion to suppress the pre-trial identification evidence, on which hearing was had and the motion was overruled.

Defendant-appellant contends that the pre-trial identifications were so impermissibly suggestive that appellant was denied due process of law.

Anna McDaniel, an employee working in the restaurant, saw defendant-appellant put the money envelope in his pocket but was unable in the trial of the cause to identify defendant-appellant but did identify Mr. Bledsoe by his photograph.

Further, in the trial of the cause, witnesses Mrs. Gloria Jean Grimes, Mr. Randall Newman and Mr. Ben Wolfenbarger each made a positive identification of defendant-appellant as being in the restaurant on June 7, 1973 and having had the gun and robbed the Mr. Pizza by holding the gun on Mrs. Grimes. There is no evidence in the record that would indicate any impermissibly suggestive conduct on the part of the police during the pre-trial identification procedure or at any other time during the proceedings.

Defendant-appellant contends that the pre-trial identification procedures violated the standards as set out in Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 and Johnson v. State (1972), 257 Ind. 634, 277 N.E.2d 791, in that some of the photos were of darker subjects, thereby causing defendant to stand out and that conflicting testimony as to the number of photographs shown the witnesses caused uncertainty which resulted in prejudice to the defendant-appellant. The evidence disclosed that there were first handed the witnesses 9 photographs and one witness had 10 and another approximately 25.

The State contends that there was absolutely no evidence of impermissibly suggestive conduct by the police during the pre-trial identification procedure. We are unable to determine from the record that there was any irregularity on the part of the police and find there was none. Conversely, the in-court identifications were, under the totality of the circumstances, sufficiently independent of the pre-trial identifications so as not to be besmirched by the latter.

In Johnson v. State, supra, our Supreme Court discussed the standards in reviewing the pre-trial photograph identification procedure and quoted from Simmons v. United States, supra, as follows, to-wit:

'. . . (E)ach 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.'

In the case at bar defendant-appellant relies strongly on skin coloring as the prejudicial factor. He contends that Johnson, supra, requires that there not be a 'great age differential among the suspects, nor must there be difference in the complexion or hair color of the suspects.' On this subject, Johnson, supra, had the following to say:

'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...