Cook v. State

• Decision Date: 22 April 1980
• Docket Number: No. 1-1079A286,1-1079A286
• Citation: 403 N.E.2d 860
• Parties: Charles Thomas COOK, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 860

403 N.E.2d 860

Charles Thomas COOK, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-1079A286.

Court of Appeals of Indiana, First District.

April 22, 1980.

Bruce A. Smith, Hayes, Hayes & Smith, Washington, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Jeff G. Fihn, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellant Charles Thomas Cook, Jr., was convicted following a trial by jury of the offense of burglary, Ind.Code 35-43-2-1 (Supp.1979), and sentenced to the Indiana Department of Corrections for five years. Following his conviction, defendant requested that the trial court appoint an attorney to prepare his appeal.

We find no reversible error and, accordingly, affirm the judgment of the trial court.

FACTS

The facts of this case most favorable to the State are as follows: Ellis Dyer (Dyer) and his son operate a general store in Glendale, Indiana. A burglar alarm is connected between the store and Dyer's home about 115 feet away. On May 13, 1978, at 1:15 a. m., the alarm sounded in Dyer's home. Dyer dressed, picked up a broom, and proceeded to the store, arriving approximately five minutes after hearing the alarm. There he encountered the defendant who was some 15 feet outside the store's open door and 15 feet from Dyer. The area in front of the store was illuminated by a security light and several lighted soft drink machines. Dyer cried out at the defendant who then dropped several objects he was carrying. These were later identified as wristwatches taken from the store. At this point, Dyer fell. The defendant headed for an occupied car that was parked at the side of the store. Dyer got up from the ground, went to the parked car, and told the defendant not to get into the car, lest he would hit the defendant with the broom. Dyer was "half a car length" away from the defendant at this time. The defendant backed away from the car, crossed the road, and hesitated for some time. He was then 22 feet away from Dyer. Defendant then proceeded east on Glendale Road on foot.

The occupant of the parked car, who is unidentified, got out and asked Dyer what was going on. Dyer told him of the burglary and asked him to go to the home of Dyer's son nearby and have him call the sheriff. Declining, the unidentified man drove off. Dyer went to his son's home. His son then called the sheriff, reporting the burglary and that the burglar, a young white male, was last seen proceeding afoot east on Glendale Road. Dyer had examined the store's door and noticed marks indicating that it had been pried open with a rounded tool.

Deputy Sheriff Steven Riney received the report of the burlary at 1:34 a. m., while he was patrolling an area approximately ten miles from the scene of the crime. He was apprised that the burglar had fled east on Glendale Road, and he approached the Dyer store on that road in a westerly direction. At approximately 1:55 a. m., Officer Riney noticed the defendant walking east on Glendale Road about a mile and a half to two miles from the Dyer store. Officer Riney stopped, had the defendant identify himself, and asked him if he wanted a ride. Officer Riney explained that he had a stop to make and then, if everything worked out, he would help defendant get on his way. ¹ They then drove to the store. Officer Riney asked defendant to accompany him into the store. The defendant bought a soft drink and entered the store, followed closely by Officer Riney. Upon their entrance, Dyer, who was inside the store, stated spontaneously, "That is the s.o.b. right there." Officer Riney asked Dyer several times if he was sure and Dyer responded affirmatively. Officer Riney then arrested the defendant and gave him the Miranda warnings.

ISSUES

The defendant assigns the following allegations of error for our review:

I. Whether the trial court erred in overruling defendant's motion to suppress evidence relating to the pretrial identification of defendant by Ellis Dyer, the prosecuting witness.

II. Whether the trial court erred in allowing Dyer to make an in-court identification of the defendant.

III. Whether the trial court erred in admitting into evidence a photograph allegedly containing hearsay evidence.

IV. Whether the trial court erred in admitting evidence obtained by the State as a result of the allegedly illegal arrest of the defendant.

V. Whether the trial court erred in not properly admonishing the jury after sustaining defendant's motion to exclude certain testimony.

VI. Whether defendant was denied a fair trial because of the alleged incompetence of his trial attorney. ²

VII. Whether the evidence is sufficient to sustain the verdict of the jury.

DISCUSSION AND DECISION

ISSUE I

Defendant argues that the trial court erred in overruling his motion to suppress testimony relating to his pretrial identification by Dyer. He urges that: the confrontation was unnecessarily suggestive and likely to lead to a mistaken identification; Officer Riney could have used less suggestive means to obtain the identification; and Dyer did not have sufficient opportunity to clearly observe the suspect he encountered outside the store.

We find no error here. An on-the-scene identification of a suspect which is "unnecessarily suggestive and conducive to irreparable mistaken identification" is a denial of due process. Stovall v. Denno, (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Whether the confrontation at issue is to be so characterized is determined by considering the total circumstances. Stovall, supra; Hampton v. State, (1977) Ind.App., 359 N.E.2d 276. Pretrial confrontations occurring immediately after the commission of an offense and upon the apprehension of an accused are not per se unduly suggestive even though the accused is the only suspect present. Wright v. State, (1972) 259 Ind. 197, 285 N.E.2d 650; Hampton, supra. In Dillard v. State, (1971) 257 Ind. 282, 274 N.E.2d 387, 389, the Indiana Supreme Court stated that the test in Stovall, supra, focuses attention on two different sets of facts:

"(1) The facts bearing on whether the confrontation was conducted in such a fashion as to lead the witness to make a mistaken identification, e. g., how the police asked the witness to attempt the identification, what the witness thought he was doing, the displayed attitude of the police towards the suspect, etc. (2) The facts bearing on how good a chance the witness had to observe the perpetrator of the crime such that any suggestiveness in the conduct of the confrontation could be resisted by the witness and he could make an accurate decision as to whether the man presented was the man who committed the crime. These would include the length of time the witness was in the presence of the perpetrator, the distance of the witness from him, the lighting conditions at the time, capacity for observation by the witness, opportunity to observe particular characteristics of the criminal, etc."

We cannot say that the confrontation under review was conducted in such a fashion as to lead Dyer to make a mistaken identification. It is true that Dyer saw the defendant arrive in the sheriff's marked car and thought that the defendant had been picked up as a suspect. Defendant, however, was not handcuffed and did not appear to be in custody. Officer Riney did not elicit an identification by any suggestive questioning; indeed, Dyer made the identification spontaneously. In Hampton, supra, 359 N.E.2d at 279, Judge Garrard stated, "The freshness of the event substantially offsets the chance for misidentification presented by the fact of a single suspect in apparent custody." We feel that such is the case here. Further, we believe that, despite the defendant's insistance to the contrary, Dyer had sufficient opportunity to observe the perpetrator in their initial encounter. In this respect, defendant urges that lighting conditions were poor, that Dyer was not wearing his glasses, that Dyer was unable to describe the suspect in any but general terms, and that he was totally unable to describe the unidentified occupant Two very recent Indiana cases support our opinion here. In Nelson v. State, (1980) Ind., 401 N.E.2d 666, the alleged confrontation was the inadvertent and spontaneous identification of the defendant in the booking room by the victim as she walked by. McHenry v. State, (1980) Ind.App., 403 N.E.2d 893, considered the situation wherein the victim, who had shot the defendant during an attempted burglary, was taken to the hospital to identify the burglar within one hour and on a one-on-one basis. The courts in both cases held that the identification procedures were not unduly suggestive and that the later identifications at trial were not tainted by the pretrial identifications.

of the car. We cannot say as a matter of law that the lighting conditions, though shown to be dim, and particularly so on the side of the building where the car was parked, were such as to render an accurate identification impossible. Dyer initially observed the defendant from a distance of 15 feet, then got as close as "half a car length away" when discouraging the defendant from entering the car, and then viewed defendant as the latter hesitated for some time across the road at a distance of 22 feet. There was ample opportunity for Dyer to observe the defendant. Dyer stated that he wore glasses for limited purposes only. Dyer's inability to offer a description of the unidentified occupant of the parked car, whom he encountered on the unlit side of the building, does not render him incapable of identifying the defendant.

ISSUE II

Defendant's second issue is related to his first. Here, he contends that the trial court erred in allowing Dyer to make the in-court identification of defendant. He argues that the in-court identification was the result of an overly suggestive pretrial confrontation and that Dyer had no basis for the in-court identification...