Cooper v. State

• Court: Indiana Supreme Court
• Writing for the Court: PRENTICE; GIVAN, C.J., and HUNTER; DeBRULER; ARTERBURN
• Citation: Cooper v. State, 359 N.E.2d 532, 265 Ind. 700 (Ind. 1977)
• Decision Date: 09 February 1977
• Docket Number: No. 576S133,576S133
• Parties: Charles L. COOPER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

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.

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. 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 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:

'* * * The 'taint fruit' determination required by the Court involves more than considerable difficulty. I think it is practically impossible. How is a witness capable of probing the recesses of his mind to draw a sharp line between a courtroom identification due exclusively to an earlier lineup and a courtroom identification due to memory not based on the lineup?' 388 U.S. 219, 248, 87 S.Ct. 1926, 1943, 18 L.Ed.2d 1149, 1169.

This Court, however, has adopted the 'independent basis' test when dealing with an in-court identification which is potentially tainted by an unconstitutionally suggestive pre-trial procedure. Carmon v. State supra; Swope v. State, (1975) Ind., 325 N.E.2d 193; Victory v. State, (1974) 262 Ind. 376, 315 N.E.2d 715. Rather than to rely upon the witness' subjective memory, which appears to be the source of the problem rather than the solution, the independent basis test considers only the objective circumstances of each case. These consist of the witness' actual opportunity to observe the accused and such facts as would indicate whether or not the witness could have identified the suspect without the influence of the suggestive procedure. Vicory v. State, supra; Fraiser v. State (1974), 262 Ind. 59, 312 N.E.2d 77.

In the instant case, both witnesses had an ample opportunity to observe the robbers. The liquor store was well lighted, the robbers were no masks, and the robbery was in progress for ten to fifteen minutes. Unquestionably, the pre-trial identification procedure was impermissibly suggestive and is to be condemned. In the light of Neil v. Biggers, supra, however, and our earlier cases hereinbefore cited, there was no error in admitting the in-trial identification, as one untainted by the improper procedures. In addition, both witnesses independently identified the defendant not only as one of the robbers but specifically as the one who stood by the door with the sawedoff shotgun. Even had the police identification procedure suggested that the defendant was one of the robbers, there is no indication of any suggestion as to which one of the three he was. To some extent, this militates against the likelihood of a tainted in-court identification.

ISSUE II

During voir dire examination of the prospective jurors, the trial judge made the following comment:

'You know something? We have a man charged with armed robbery. People are getting killed all the time in armed robberies, innocent citizens. We're down to you and the preacher's wife.'

Defense counsel objected to this comment and moved for a mistrial. The court denied the motion but admonished the jurors with the following statement 'In my exasperation this morning, when, when that last gentleman, who was thinking of everything he could think of to get off of this Jury, I made the statement, something to the effect that people get killed in armed robberies and so forth. Now that was a general statement, and was not intended to reflect upon the guilty or innocence of Mr. Cooper, who is charged here today. I certainly take no position whatsoever, that...