Eckman v. State

• Citation: 179 Ind.App. 525,386 N.E.2d 956
• Decision Date: 12 March 1979
• Docket Number: No. 3-178A4,3-178A4
• Parties: Timothy Elvin ECKMAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Court of Appeals of Indiana

Page 956

386 N.E.2d 956

179 Ind.App. 525

Timothy Elvin ECKMAN, Appellant, v. STATE of Indiana, Appellee.

No. 3-178A4.

Court of Appeals of Indiana, Third District.

March 12, 1979.

David M. Hamacher, Crown Point, for appellant.

Theo. L. Sendak, Atty. Gen., Victoria R. Van Duren, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

A jury found Timothy Elvin Eckman guilty of two counts of Robbery and he was sentenced to the Indiana Department of Corrections for two concurrent periods of not less than ten (10) nor more than twenty-five (25) years. In his appeal to this Court, Eckman raises the following issues:

(1) Whether the trial court erred when it denied defendant Eckman's motion to suppress and allowed two witnesses to identify him at trial?

(2) Whether the trial court erred when it denied Eckman's motion for a directed verdict on the two counts of Robbery?

(3) Whether the evidence was sufficient to support his conviction?

(4) Whether the trial court erred when it read Final Instruction No. 1 to the jury after the court had granted a directed verdict for Eckman on the subject matter of that instruction?

We affirm.

I. Identification

Eckman maintains that his due process rights were violated when the trial court allowed two complaining witnesses to make in-court identifications of him. Eckman predicates this contention on tandem bases (1) He first argues that the circumstances surrounding the out-of-court photographic identifications of him made by the witnesses were unnecessarily suggestive, and (2) He maintains no independent factual basis existed to support the subsequent in-court identifications made by the witnesses. Based on these companion allegations, Eckman argues that the in-court identifications were the product of the unconstitutionally conducted photographic identifications. ¹

An in-court identification by the same witness who has participated in an out-of-court identification conducted in an unnecessarily suggestive manner is permissible if an "independent basis" for the in-court identification is established. Parker v. State (1976), 265 Ind. 595, 599, 358 N.E.2d 110, 112; Swope v. State (1975), 263 Ind. 148, 157, 325 N.E.2d 193, 197, Cert. denied 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100. If the State shows that an independent basis for the in-court identification exists, assurance is provided that the identification in court is not the product of a pre-trial confrontation "so unnecessarily suggestive and conducive to irreparable mistaken identification that he (defendant) was denied due process of law." Stovall v. Denno (1967), 388 U.S. 293, 301, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199. Thus, an in-court identification may be proper in spite of an earlier photographic identification conducted in a suggestive manner. See, e. g., Emerson v. State (1972), 259 Ind. 399, 287 N.E.2d 867.

To determine if an independent basis for the in-court identification is present here, we examine the "totality of circumstances" surrounding the opportunity of the complaining witnesses to observe the perpetrator of the crime at the time it occurred. Swope v. State, supra at 197. Those circumstances include the length of time the perpetrator was in the presence of the witnesses, the lighting conditions at that time, the distance of the witnesses from the perpetrator, the capacity of the witnesses for observation, and the opportunity of the witnesses to observe particular characteristics of the perpetrator. Id.

The record reveals the following with regard to complaining witnesses Cheryle and Michael Cortezes' opportunity to observe one of the men who robbed them on the night of September 17, 1976. At the time of the occurrence, the Cortezes were about to leave an apartment complex where they had visited friends. It was 11:30 P.M. The Cortezes, who were seated in their automobile, were approached by three or four men. All but one of the men wore masks. The men pointed a shotgun at the Cortezes and ordered them to return to the apartment where the friends of the Cortezes resided. Once inside the apartment, the Cortezes and their friends were ordered to lie face down on the floor during the robbery.

The Cortezes testified that this prone position prevented them from observing the perpetrators inside the apartment. In addition, the complaining witnesses both stated that they were not facing any of the men as they walked from the parking lot to the apartment. The only opportunity to observe the men occurred as the Cortezes were accosted at their automobile.

The record reveals that Cheryle and Michael Cortez differed in their estimation of the time they had to observe the men at their car. Cheryle testified that approximately a minute and a half or two minutes passed before the group started toward the apartment, while Michael estimated that only thirty seconds elapsed during the confrontation at the car. Cheryle testified that a nearby apartment porch light and the automobile dome light provided light by which to observe the men. According to her, the man was not wearing a mask, had long hair, a beard, and did not wear glasses. Michael stated that he became excited at the presence of the gun but maintained his capacity to perceive the events around him. To their knowledge, neither complaining witness had seen the man before.

At trial, defendant Eckman had short hair, no beard, and wore glasses. Despite these distinct physical characteristics distinguishing Eckman from the man who robbed the Cortezes, both complaining witnesses identified Eckman at trial as the perpetrator who did not wear a mask. Subsequent testimony of Police Officer Robert Townsell, who observed Eckman when he was arrested on September 22, 1976, for the robbery, explains this disparity in physical appearances and indicates that an independent basis for the in-court identification did exist here. According to Townsell, when Eckman was arrested he was not wearing glasses and long hair and a beard. The consistency of this testimony with the observations of the complaining witnesses lends credence to the ...