Cooper v. State, No. 576S133

• Docket Nº: No. 576S133
• Citation: 359 N.E.2d 532, 265 Ind. 700
• Case Date: February 09, 1977

Page 532

359 N.E.2d 532 265 Ind. 700 Charles L. COOPER, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 576S133. Supreme Court of Indiana. Feb. 9, 1977.

[265 Ind. 701]

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Harold Kohlmeyer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

This is a direct appeal from the Marion County Criminal Court, Division Four. Defendant (Appellant) was convicted of committing a felony while armed with a deadly weapon and was sentenced to imprisonment for a determinate period of fifteen years. Two issues are presented for our determination:

(1) Correctness of the trial court's ruling permitting the in-court identification of the defendant by an eyewitness to the crime, over the objection that it was fatally tainted by impermissibly suggestive pre-trial identification procedure.

(2) Correctness of the trial court's denial of a motion for a mistrial predicated upon allegedly prejudicial remarks made by the court in the presence of the jury venire.

The evidence disclosed that the defendant and two other black males entered the victimized premises, a liquor store in Indianapolis. , as one of the two employees attending the store commenced to register a sale to one of the three, he observed that they were armed. One of the three held a gun on the second employee and another, the defendant, stood by the public entrance and held a sawed-off shotgun. The employee at the sales counter took $675.00 from the cash register and gave it to the third man, who in turn gave it to the defendant.

ISSUE I

The defendant's motion to suppress any in-court identification by the two eyewitness-employees was based upon the hypothesis that the pre-trial identification procedure conducted by the Indianapolis police was unnecessarily suggestive, Stovall v. Denno (1967), 388 U.S. [265 Ind. 702] 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Fields v. State (1975), Ind., 333 N.E.2d 742; Dillard v. State (1971), 257 Ind. 282, 274 N.E.2d 387, and resulted in the 'likelihood of irreparable mis-identification' which tainted any subsequent identification, Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Carmon v. State (1976), Ind., 349 N.E.2d 167; Sawyer v. State (1973), 260 Ind. 597, 298 N.E.2d 440.

The defendant and the two eyewitnesses testified at the pre-trial hearing upon the motion to suppress. The substance of the testimony indicated that the two witnesses were called to the police station with the understanding that they were to identify someone. They were seated in an office,

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and the defendant, wearing prison clothing, was brought in and seated before them for some five or ten minutes and then removed. No words were uttered during this observation. Thereafter, a police officer asked the witnesses whether or not the defendant was one of the robbers, and they agreed that he was.

There is a generally recognized distinction between the admissibility of evidence relating the facts of an improperly conducted pre-trial identification and the admissibility of an in-court identification which is made without reference to the prior identification, Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Norris v. State (1976), Ind., 356 N.E.2d 204; Sawyer v. State, supra. The admissibility of an in-court identification cannot be attacked in this context unless the testimony relating the pre-trial identification would have been inadmissible. But even though the evidence relating to the pre-trial identification be inadmissible, in order for the in-court identification to be precluded by reason of the suggestiveness of the out-of-court identification, it must have been thereby fatally tainted. United States v. Wade (1967), 388 U.S. 219, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Norris v. State, supra.

Determining the existence of a 'taint' presents certain difficulties. As Justice Black observed in his dissent to the Wade decision:

[265 Ind. 703] '* * * The 'taint fruit' determination required by the Court involves more than considerable difficulty. I think it is practically impossible. How is a witness capable...