Emerson v. State, 971S264

• Decision Date: 18 October 1972
• Docket Number: No. 971S264,971S264
• Citation: 259 Ind. 399,287 N.E.2d 867,33 Ind.Dec. 115
• Parties: Henry Grady EMERSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 867

287 N.E.2d 867

259 Ind. 399

Henry Grady EMERSON, Appellant, v. STATE of Indiana, Appellee.

No. 971S264.

Supreme Court of Indiana.

Oct. 18, 1972.

Harriette Bailey Conn, Public Defender, David J. Colman, Deputy Public Defender, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

DeBRULER, Justice.

Appellant in this case was convicted of robbery in a trial before Honorable Robert Wade, Judge Pro Tem of the Marion County Criminal Court, and was subsequently sentenced to ten to twenty years at the Indiana State Prison. Appellant appealed the conviction alleging that the prosecutor's questions to a State's witness were suggestive of the appellant's identification in the court room. Emerson's conviction was affirmed by this Court in the case of Emerson v. State (1970), Ind., 255 N.E.2d 532. Shortly thereafter appellant filed a petition for post conviction relief under Ind. PC. Rule 1, alleging that (1) the use of a photograph by the Indianapolis Police Department in its pre-trial investigation of the crime was so impermissibly suggestive of appellant's identity that it requires reversal, and (2) newly discovered evidence requires that the conviction be reversed and a new trial granted. A hearing was held on appellant's petition by the Honorable John T. Davis in the Marion County Criminal Court and relief was denied. Appellant now appeals that denial here.

Evidence at the original trial indicated that the victim of the alleged robbery, William Thornell, met a girl at the corner of 27th and Meridian, and offered to drive her home. After they arrived at her house the girl, Farah Broughton, asked him to wait while she went in and changed her clothes. When she came out of the house Miss Broughton requested that Thornell drive her over to a girlfriend's house. They proceeded to a stop sign at the end of the block where two men in a car behind Thornell's got out, forced Thornell out of his car at gunpoint and took his money. Apparently this operation took some minutes and a crowd began to gather around the cars. The two robbers, and Miss Broughton, got into the second car and sped away. Some people in the crowd told Thornell that they recognized one of the robbers as being Henry Emerson, a resident of the neighborhood.

Lieutenant Offutt of the Indianapolis Police Department next testified that Thornell described his assailant to him and told him of the name, Henry Emerson, he had been given at the scene of the robbery. He further told the officer Miss Broughton had left with the robbers and showed Officer Offutt the house where he had waited for her prior to the robbery. Armed with this information the policemen went to the Indianapolis Police Department's identification branch and found that Henry Emerson resided at the house where Miss Broughton had told Thornell to wait for her. Officer Offutt took a picture of Emerson from his file at the police station and, a day or so following the robbery, showed the single picture to Thornell. Thornell identified that man as the man who had robbed him. Emerson was arrested sometime later. At the trial Mr. Thornell identified Emerson as his assailant. There was no evidence admitted as to the prior identification or the photograph itself.

Petitioner here asserts that this use of the single photograph violates due process in that it is impermissibly suggestive of the defendant's identity under the rule of Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. The test laid down in that case was that:

'. . . convictions based on eyewitness identification at trial following a pretrial 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.' 390 U.S. at 384, 88 S.Ct. at 971.

The Supreme Court further recognized in that case, as it had in earlier pre-trial identification problems, that claims in this area should be evaluated in light of the totality of the surrounding circumstances and with consideration to the facts of each case. Simmons v. United States, supra; Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

The record here indicates that the police used a single photograph of Emerson in its pre-trial investigation. This procedure is fraught with danger and, absent an independent basis for identification, would require reversal of the conviction. In situations where the victims catch only a fleeting glance of a criminal or where some time has elapsed between the crime and their view of a single photograph the danger increases that what the witnesses are identifying at trial is not what they remember from the crime but what they remember from the photograph. Simmons v. United States, supra. Courts have attempted to alert police departments to the risks of abuse in the pre-trial identification area and have previously suggested that the best way to avoid reversals on this ground would be for the department to adopt regulations incorporating the necessary constitutional safeguards. United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Several photographs, preferably not mug-shot types, should be displayed to the victim with a request that he pick out his assailant. The pictures themselves should not indicate which among them, if any, the police believe the criminal to be, and the officer displaying the photographs should endeavor to do so in an impartial manner.

'The police should take affirmative action to avoid giving the witness the idea that they have the man involved and what they are seeking is a confirmation from the witness.' Parker v. State (1970), Ind., 261 N.E.2d 562.

This method attempts to insure that any selection made by the victim is based on what he recalls from the crime and is not a product of the suggestive nature of the procedure employed.

The facts presented here indicate that this use of a single photograph was indeed suggestive of the identity of the defendant. That in itself, however, does not dictate that the conviction must be reversed. The rule in such situations is clear that when it is apparent from the circumstances of the case that there existed a sufficient basis, independent of the photograph, for the identification of the defendant then the verdict will not be disturbed. Wilson v. State (1970), Ind., 255 N.E.2d 817; United States v. Cook, 464 F.2d 251 (8th Cir. 1972). Among those circumstances which should be investigated to determine if there is a sufficient independent origin for the identification are 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'. Dillard v. State (1971), Ind., 274 N.E.2d 387.

The record in this case indicates that there existed sufficient basis for identification in spite of the unsatisfactory use of a single photograph. The robbery took at least several minutes to complete and was a face to face confrontation. The robbers wore no masks...