Hall v. State, 4-581A2
Decision Date | 14 June 1982 |
Docket Number | No. 4-581A2,4-581A2 |
Citation | 436 N.E.2d 357 |
Parties | Ervin HALL and Joe Bray, Jr., Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff. |
Court | Indiana Appellate Court |
Daniel L. Toomey, Toomey & Woloshansky, Merrillville, for appellants-defendants.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Appellants Ervin Hall (Hall) and Joe Bray, Jr. (Bray) appeal their convictions for robbery, Class C felony, and robbery, Class B felony respectively.
We affirm.
Peoples Gas, Inc., a Colias family corporation, was in the fuel oil business in northern Lake County, Indiana in 1979. On August 27th of that year, Emily Colias and her grandmother were in the firm's Hammond office. About 9:30 a. m., they heard a knock on the door. The grandmother unlocked the door to accomodate a man outside she thought wanted to order fuel oil. This man entered the premises, produced a handgun, and demanded money. A second man, unarmed, followed the first into the office and stood by the doorway. The first man ordered the women to open the safe, and they complied.
The men took all the cash, stock certificates, truck titles and other items from the office safe and cash register and left the premises. These items totaled about $55,000 in value. The men were in Emily's and her grandmother's view for approximately five minutes.
Although her grandmother was too shaken to make any identification, Emily assisted the police in making composite pictures of the suspects. She viewed hundreds of pictures on two separate days thereafter, but could not identify the suspects from those photographs. At that point the Hammond Police Department had no leads.
On September 11th, however, one Rachael Brooks contacted Officer Havill, the investigator on the case. She identified the defendants as the perpetrators of the crime, validating her identification by telling the officer facts concerning the crime known to him but which had not been made public. The police went to the address Rachael had given them and arrested Bray. Hall was not there at the time.
The police took a polaroid snapshot of Bray, placed it in one of the books of photographs Emily had viewed previously, and asked her to look through these books again.
Each book contained approximately 100 photographs, three photographs to a page. The police did not tell her either suspect's picture was in the books, nor did they suggest at any time she was looking at one of the robbers. Emily positively identified Bray's photograph as being one of the perpetrators of the robbery. Although Hall's picture was also in the books Emily viewed, she did not identify him as the other robber.
The next day, however, Emily did identify Hall through a more recent photograph the police had obtained of him in the interim. Emily testified at trial she had a good opportunity to observe both defendants at close quarters, the lighting was good, and she was wearing her contact lenses.
Appellants present the following issues for our consideration:
1. Whether the trial court erred in permitting Emily to make an in-court identification since the out of court photographic identification procedure was so impermissively suggestive as to give rise to the substantial likelihood of misidentification.
2. Whether the trial court erred in denying Hall's motion for severance.
Before reaching these issues, however, we must deal separately with Bray's attempted appeal. He was sentenced December 23, 1980, and his motion to correct errors was filed February 27, 1981, sixty-six days after his sentencing. Thus, as a motion to correct errors, it was not timely filed. Failure to timely file a motion to correct errors precludes appellate review. Skolnick v. State, (1981) Ind., 417 N.E.2d 1103, Ind. Rules of Procedure, Trial Rule 59(C). 1 The pleading Bray filed, however, was entitled a "Belated Motion to Correct Errors" in an apparent attempt to overcome the effects of the late filing. Such cases are governed by the post-conviction remedy rules of our Supreme Court.
Ind. Rules of Procedure, Post-Conviction Remedies, Rule PC 2 in part provides:
Here Bray filed no petition for permission to file a belated motion to correct errors before he filed his belated motion. The question then becomes whether a petition for permission to file a belated motion to correct errors must be filed and acted upon before such motion can be filed in the trial court.
The filing of such petition is mandatory. The rule provides:
"The trial court shall not consider the merits of the motion, but shall determine whether there are grounds for allowing the belated motion to correct error to be filed...." (emphasis supplied.)
"If the trial court finds such grounds," permission can be granted to file it, but only after the prescribed determination has been made by the trial court. Because no petition was filed or determination made by the trial court on this subject, this appeal as to Bray must be dismissed. Filing of a petition for permission to file a belated motion to correct errors and the trial court's ruling thereon are jurisdictional matters so far as this court is concerned. However, such dismissal is without prejudice to Bray's right to file such petition with the trial court and proceed under the provisions of PC 2, Section 1 to perfect his appeal as therein provided.
As a general rule, identification procedures leading up to in-court identifications are impermissibly suggestive only if the totality of the circumstances of prior confrontation were so unnecessarily suggestive and conducive to irreparable mistaken identification as to deprive the defendant of due process of law. Frasier v. State, (1974) 262 Ind. 59, 312 N.E.2d 77. The question then becomes, were the identification procedures used in this case impermissibly suggestive?
After Ms. Brooks had identified Bray and Hall as the perpetrators of the crime, Officer Havill telephoned Emily and asked her to view more photographs. He testified as to his conversations with her on the subject as follows:
It is apparent the potential suggestivity was heightened by Officer Havill's conversations with Emily prior to her identification of Hall. As DeBruler, J. said:
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