Decker v. State, 2-877-A-331

Decision Date05 March 1979
Docket NumberNo. 2-877-A-331,2-877-A-331
Citation386 N.E.2d 192,179 Ind.App. 472
PartiesConrad Eugene DECKER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Carol Glass, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Dennis K. McKenney, Deputy Atty. Gen. of Indiana, Indianapolis, for appellee.

MILLER, Judge.

On March 4, 1977, Defendant was convicted of robbery 1 as an included offense of IC 35-12-1-1, 2 after a trial by jury. On March 23, 1977, the Defendant was sentence to an indeterminate term of not less than ten (10) years nor more than twenty-five (25) years. Thereafter, the Defendant initiated this appeal.

We affirm.

The evidence disclosed that on June 26, 1976, at approximately 9:30 P.M. the Defendant entered a grocery store located near the intersection of 30th Street and Emerson in Indianapolis, Indiana, known as Wiles and Roy's Market which was incorporated in the State of Indiana as Dormas, Inc. Present in the store were Charles Dorman, part-owner of the business, his daughter Sandra Dorman, age 13, his daughter Connie Dorman, age 20, and a nephew Gary Dorman, age 16. Charles Dorman was in the office in the front of the store, Connie Dorman was sacking groceries at the cash register, Gary Dorman was standing approximately ten feet from the cash register at the front of the store and Sandra Dorman was working the cash register at the front of the store. The Defendant approached Sandra and asked for change for the cigarette machine and then said he wanted the rest of the money in the cash register. Sandra noticed he had a gun tucked in his pants. Sandra called for her father who came to the cash register and Sandra advised her father that she was being held up. The Defendant held a gun on Charles Dorman while Sandra removed money in the amount of approximately $113.00 and an unknown quantity of food stamps from the cash register and gave them to the Defendant. The Defendant backed out of the store and left.

At trial all four Dormans identified the Defendant as the robber.

On appeal the Defendant argues the following issues in his Brief:

1. Did the trial court err in overruling the Defendant's motion to suppress the in-court identification of the Defendant by the eyewitnesses to the crime for the reason that the pretrial identification procedure was impermissibly suggestive?

2. Did the trial court err in overruling a motion by Defendant's counsel to withdraw his appearance?

3. Was there sufficient evidence to support the jury's verdict?

4. Did the trial court abuse its discretion in allowing the jury to continue deliberations after being notified by the jury that they had reached an impasse?

5. Did the trial court err in giving instructions numbered 5 and 5A which dealt with the law of reasonable doubt?

6. Did the trial court err in its instruction numbered 19 which dealt with the concept of the possible reduction of Defendant's sentence for good time after confinement.

7. Did the trial court's communication with the jury outside the presence and without the knowledge of Defendant and defense counsel and after deliberations commenced, constitute fundamental error?


Impermissibly suggestive pretrial identification.

Photographic arrays were displayed to each of the four witnesses before trial. Defendant filed a pretrial Motion to Suppress Evidence of the identification of the Defendant which had been made by the witnesses. Grounds for the motion were that the procedure had been impermissibly suggestive in that the identifying witnesses were made aware that a suspect had been arrested and his photograph was among those displayed to them and that two of the witnesses were aware that the other two witnesses had selected a suspect from the group viewed.

A pretrial hearing on Defendant's Motion to Suppress was conducted and the substance of the testimony revealed that a police officer displayed a group of twenty photographs of subjects similar to the description of the robber to Charles and Sandra Dorman two or three days after the robbery; that the officer separated Charles and Sandra Dorman before he showed them the photographs; that the gallery numbers and physical descriptions on the photographs were concealed from the witnesses; that Charles Dorman immediately selected the Defendant's photograph and identified him as the robber, and that when viewing the same group of photographs as her father, Sandra Dorman indicated that the Defendant's photograph looked like the person who had committed the robbery but she just couldn't say for sure without seeing him in person. Sometime during the month of July the same police officer displayed the same group of photographs, taking the same aforementioned precautions, to Connie and Gary Dorman separately and each independently selected the Defendant's photograph and identified him as the robber.

The trial court found that the pretrial photographic identification procedure was not impermissibly suggestive and overruled Defendant's Motion to Suppress.

On appeal the Defendant asserts that the trial court erred in overruling his Motion to Suppress and that the four witnesses had an insufficient independent basis for the in-court identification for the reason that the pretrial identification procedure was impermissibly suggestive.

There is no evidence in the record to indicate that the officer informed or suggested to any of the witnesses to the crime that one of the photographs in the photographic array was that of a person who had been arrested and charged with the crime. Neither was the Defendant singled out by the authorities nor a strong suggestion made to any of the witnesses that he was the person who committed the crime. The cases cited by the Defendant, Vicory v. State (1974), 262 Ind. 376, 315 N.E.2d 715; Bowen v. State (1975), 263 Ind. 558, 334 N.E.2d 691 and Sawyer v. State (1973), 260 Ind. 597, 298 N.E.2d 440, where the identification procedures were suggestive are therefore not applicable.

Furthermore, our Supreme Court in Popplewell v. State (1978), Ind., 381 N.E.2d 79 stated that where an officer presenting pretrial photographic identification displays indicates that the suspect's photograph is included the rule is ". . . that convictions based on eyewitness identification at trial following a pre-trial 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." (emphasis added)

The record indicates that the four Dormans were eyewitnesses to the crime and as such had sufficient independent basis for their in-court identification. Cooper v. State (1977), Ind., 359 N.E.2d 532. They had ample opportunity to observe and identify the robber. The store was well lit and the robber wore no mask. Charles, Sandra and Connie Dorman were at the cash register and Gary Dorman was standing approximately ten feet away while the robbery was in progress. At trial each of the four Dormans identified the Defendant as the robber. Under these circumstances we conclude that the photographic identification procedure was not impermissibly suggestive, that the four eyewitnesses to the crime had a sufficient independent basis for the in-court identification and that there was no likelihood of misidentification. We find no error in the trial court's overruling of the Defendant's Motion to Suppress the in-court identification of the Defendant.

Furthermore, the Defendant posed no objection to the in-court identification made by any of the four Dormans. Hence, even if the photographic displays had been impermissibly suggestive or the Dormans did not have a sufficient independent basis for their in-court identification of the Defendant, the Defendant failed to preserve the error since there must be a proper objection made at the time evidence is offered in order to preserve the error for appeal. Lagenour v. State (1978), Ind., 376 N.E.2d 475; Carpenter v. State (1978), Ind.App., 378 N.E.2d 908.


Motion to withdraw appearance.

The Defendant next states that the trial court erred in overruling the motion of Alex Rogers to withdraw as Defendant's attorney, claiming there was an alleged conflict between Rogers' representation of the Defendant and the Defendant's interest. This Court can find no evidence of such conflict in the record of the proceedings.

On September 24, 1976, when this action was initiated, Merle Rose was appointed as public defender to represent the Defendant. On October 26, 1976, Alex Rogers entered an appearance on behalf of the Defendant. On February 1, 1977, Rogers filed a motion to withdraw his appearance for the Defendant. The only reason given by Rogers for his request to withdraw was that the Defendant was unable to pay Rogers as agreed. In his motion Rogers suggested that the trial court reappoint pauper counsel. The trial court denied Rogers' motion and reappointed Merle Rose as co-counsel.

The Defendant claims a conflict of interest with attorney Rogers but the record does not disclose such conflict or any prejudice to Defendant. If the Defendant is regarded as challenging Rogers' competency or adequacy of representation, we note the general rule that counsel is presumed competent in the absence of strong and convincing evidence to the contrary. Cushman v. State (1978), Ind., 378 N.E.2d 643; further, the presumption prevails unless there is evidence that counsel made the proceedings a mockery of justice. Cottingham v. State (1978), Ind., 379 N.E.2d 984. On behalf of Defendant, counsel filed a Notice of Alibi and Motion to Suppress. He conducted the hearing on said motion, cross-examined the State's witnesses in some detail during trial, called and examined six defense witnesses and submitted jury instructions to the court...

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