Emerson v. State, 469S79

• Decision Date: 20 February 1970
• Docket Number: No. 469S79,469S79
• Citation: 253 Ind. 515,255 N.E.2d 532
• Parties: Henry Grady EMERSON, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 532

255 N.E.2d 532

253 Ind. 515

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

No. 469S79.

Supreme Court of Indiana.

Feb. 20, 1970.

Rehearing Denied April 16, 1970.

Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

Appellant was charged by affidavit with robbery and was found guilty as charged. Appellant's sole specification of error before this court concerns the manner in which his initial identity as the perpetrator of the crime was established at the trial.

The following excerpt from the direct examination of William Thornell, Jr., the victim of the robbery, serves as the basis for this appeal:

Q. Do you know Henry Emerson?

A. No. I don't.

Q. Do you see him here in Court?

A. Yes.

Q. Where is he?

Mr. Pleak: I am going to object, your Honor, if he doesn't know the man, he has already testified he doesn't know him.

The Court: Well, I guess knowing him is a mental calculation as far as whether you would know a person or not, there are degrees, I suppose, of knowing. He doesn't I don't think have to know the individual personally. Do you want to withdraw that question?

Mr. Brunt: I will withdraw it.

Q. Do you see that man seated over there on the end next to his lawyer?

Mr. Pleak: I am goint to object, your Honor, to the Prosecuting Attorney pointing to this man, pointing this man out, and move for a mistrial for the reason that is is improper for the Prosecuting Attorney to identify a man who hasn't taken the stand. It is a violation of his constitutional rights.

The trial court overruled appellant's objection and his motion for a mistrial. Following the overruling, the witness was not asked for an answer, and none was given. Following the objection, the State then proceeded to have the prosecuting witness recount the story of the robbery. He stated in substance that two 'gentlemen' came up to his car and took his wallet and money and that one of them was the appellant Emerson. The defense objected again on the ground Emerson had not been identified. The court overruled the objection. The witness then testified:

Q. 'This Emerson you referred to in your last answer is he here in the court room?'

A. 'Yes, he is.'

Q. 'Would you point him out, please?'

A. 'He is the man over there (pointing to defendant).'

Appellant contends that he was prejudiced by the prosecuting attorney's conduct in directing the witnesses' attention to the appellant for the purpose of identification. We find no error.

Research discloses that the cases dealing with the precise point under consideration have been decided upon various theories and often upon facts peculiar to the particular case. Moreover these situations generally deal with alleged self-incrimination violations when the issue of identity is in doubt. See cases collected at 171 A.L.R. 1144.

In the early case of People v. Gardner (1894), 144 N.Y. 119, 38 N.E. 1003, 28 L.R.A. 699, a witness was called upon to identify the defendant. The witness was asked: 'Would you know Mr. Gardner?' Answer: 'I do not.' Question: 'Would you know him if you saw him?' Answer: 'Yes, sir.' The court then directed the defendant to stand up and he was then identified by the witness. In holding that the defendant's rights were not violated the court stated:

'He was bound to be in court, and in the presence of the jury, the recorder, and the witnesses who might be there. The recorder, the jurors, and the witnesses had the right to see him, and he had the right to see them. It was necessary that he should be identified as the person named in the indictment and charged with the crime. His mere standing up did not identify him with the alleged crime, and did not disclose any act connected with the crime. There was nothing on his person or in his appearance that in any way connected him with the crime, or furnished any evidence whatever of his guilt. Suppose he had come into court with his face veiled, could not the recorder compel him to remove the veil, that his face might be seen? Could he not compel him to remove his hat? to stand or sit in the prisoners' dock? In the examination of the witness, could not the district attorney have pointed to the defendant and asked the witness whether he was the person he had seen with Mrs. Amos? Instead of compelling the defendant to stand up, could not the recorder have directed the witness to go to the place where he was, and look at him with the view of identifying him? If all these things could be done without violating the rights of the prisoner, how is it possible to say that he was harmed, or that his constitutional right was invaded, by compelling him to stand up for the purpose of identification?' (Emphasis added)

In Panzich v. United States (9th Cir. 1933), 65 F.2d 550 the court clerk requested the defendants to step forward as he read their names at the opening of the trial. This procedure was held not to be error even though the government's witnesses were present. See also: Swingle v. United States (10th Cir. 1945), 151 F.2d 512.

In Moore v. State (Tex.Cr.App.1968), 424 S.W.2d 443, it was said:

'We know of no law which prohibits a court from requiring that a defendant sit at the counsel table with his attorney during the trial. Nor do we know of any law which prohibits state's counsel from pointing to a defendant in the courtroom and referring to his physical appearance in the presence of witnesses. No authority is cited by appellant in support of his...