Harris v. State, 49S00-9701-CR-0033.

• Decision Date: 23 September 1999
• Docket Number: No. 49S00-9701-CR-0033.,49S00-9701-CR-0033.
• Citation: 716 N.E.2d 406
• Parties: Alfonso HARRIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

716 N.E.2d 406

Alfonso HARRIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S00-9701-CR-0033.

Supreme Court of Indiana.

September 23, 1999.

Patricia Caress McMath, Indianapolis, IN, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.

Defendant Alfonso Harris appeals convictions and sentences imposed for felony murder, attempted murder, robbery, criminal confinement and carrying a handgun without a license in connection with assaults on two men. Our analysis reveals no reversible error and we affirm.

This Court has jurisdiction over this direct appeal because the longest single sentence exceeds fifty years. Ind. Const. art. 7, § 4; Ind. Appellate Rule 4(A)(7).

Background

On the evening of January 10, 1996, Julius Johnson, Kenny Elmore and Ronald Eldridge decided to rob a drug dealer named Marcus Coe. The next day, Elmore, Johnson and Eldridge picked up Defendant and the four men drove to Elmore's house. There, Eldridge contacted his step-brother, Coe, and told him that someone wanted to buy drugs. Coe eventually agreed to sell what he had.

While waiting for Coe to arrive, Defendant told Eldridge and Johnson that he was going to hit Coe with a pistol. Later, believing Coe was not going to appear, Eldridge and Johnson left.

In the meantime, Coe convinced Kelly Abney to drive him to Elmore's house. Abney parked his van in front of the house while Coe went inside; Coe said he would return shortly. After waiting thirty minutes, someone waved Abney into the house. Upon approaching the house, two men confronted Abney; one of them held a gun to his head.

When Abney entered the living room, he observed Coe sitting on the couch, tied up and bleeding. Abney was tied up and his watch, ring, shoes, jacket and ten dollars were taken. At this time, Abney was unable to identify the individuals in the house because the men wore masks over their faces.

The men placed Abney in a closet. Eventually, he managed to untie himself. He peered through the keyhole and noticed that a side door to the house was open. When a man, later identified as Elmore, opened the closet door, Abney was able to escape and run out the side door. Elmore chased Abney out of the house and a struggle ensued. During the struggle, Abney removed Elmore's mask. Defendant followed to assist Elmore. He pointed a gun at Abney's head and instructed Abney to return to the house. On the way back to the house, Abney knocked the gun away and ran off. During the escape, Abney was shot in the arm.

Even after being shot, Abney was able to run to a nearby house for help where the police were finally summoned. Police were also dispatched to the 3200 block of North New Jersey where they found a blue van with Coe slumped in the driver's seat. Coe had died from multiple gunshot wounds.

On January 17, 1996, Defendant was charged with Murder,¹ Felony Murder,² Attempted Murder,³ Conspiracy to Commit Robbery,⁴ a class B felony, Robbery,⁵ a class B felony, Criminal Confinement,⁶ a class B felony, and Carrying a Handgun without a License.⁷ After the first jury trial ended in a mistrial, a second jury trial, in which both Defendant and a co-defendant Kenny Elmore were tried, was held on September 16-20, 1996. At trial, both Abney and Trya Bentley, a woman who observed Abney's escape from an upstairs window in Elmore's house, identified Defendant as the man who shot Abney. The jury found Defendant guilty of felony murder, attempted murder, conspiracy to commit robbery, robbery, criminal confinement, and carrying a handgun without a license.

Additional facts will be provided as necessary.

Discussion

I

Defendant first contends that the prosecutor engaged in misconduct by improperly vouching for a witness's credibility. During cross-examination of Tyra Bentley, the following testimony and objections occurred (counsel for co-defendant Elmore questioning):

Q. And you're telling this jury that Rahshaun Robinson was with you.

A. Yes. He did ... he did....

Q. They don't tape him until the next day at 10:20 p.m. That is about thirty-three hours later.

A. Yes.

Q. Did he need thirty-three hours to get his story together?

A. I don't know.

Q. I see. You got yours together though by January 12th at 1:15?

[Prosecutor]: Your Honor, State objects to the tenor and the characterization of the question. The witness is trying to answer as truthfully as she can.

The Court: Nonetheless, this is cross examination....

[Counsel for Defendant]: Objection to counsel's comments, Your Honor. It's up to the jury to decide whether this witness is answering truthfully or not.

The Court: Let's not get into a bickering match, counsel. Go ahead, [counsel for co-defendant Elmore].

(R. at 408-09.)

While the prosecutor should not have referred to the truthfulness of the witness's testimony, we see no reversible error. The context of the comment was an objection to what the prosecutor perceived as badgering of the witness about the precise sequence of events which occurred months before. In effect, the prosecutor was saying, "Have defense counsel cut her some slack, judge, she's doing the best she can." Even if the prosecutor's comment caused Defendant some prejudice in the eyes of the jury, which we do not believe it did, we hold that it was cured when the trial court referred to the entire exchange as a "bickering match."

II

Defendant contends that Abney's pre-trial identification was the result of an unduly suggestive police procedure, which, in turn, tainted his in-court identification such that evidence of neither should have been admitted at trial. Defendant argues that the photographic array from which Abney identified him was impermissibly suggestive because (1) he was the sole person depicted in the array wearing a white shirt, and (2) only he and one other person are depicted in the array with hairstyles that resemble dreadlocks.

Due process of law under the Fourteenth Amendment requires suppression of testimony concerning a pre-trial identification when the procedure employed is impermissibly suggestive. Parker v. State, 698 N.E.2d 737, 740 (Ind. 1998); James v. State, 613 N.E.2d 15, 27 (Ind.1993); Bell v. State, 622 N.E.2d 450, 454 (Ind.1993). A photographic array is impermissibly suggestive if it raises a substantial likelihood of misidentification given the totality of the circumstances. Parker, 698 N.E.2d at 740; James, 613 N.E.2d at 27; Hampton v. State, 553 N.E.2d 132, 135 (Ind.1990). Factors to be considered in evaluating the likelihood of a misidentification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, and (4) the level of certainty demonstrated by the witness. Parker, 698 N.E.2d at 740; James, 613 N.E.2d at 27; Lyons v. State, 506 N.E.2d 813, 815 (Ind.1987).

A review of the photographs at issue discloses that each of the photographs depicted young African-American men who shared similar physical characteristics. Defendant's photograph is not distinguishable from the others by virtue of his clothing or hair style nor are any of his physical characteristics uniquely distinguishable from those of the other men depicted in the array.⁸ See Farrell v. State, 622 N.E.2d 488, 494 (Ind.1993) (finding photographic array not impermissibly suggestive where the defendant wore a dark t-shirt and had a different hair style from others depicted in array); Hampton, 553 N.E.2d at 134-35 (depicting the defendant in "dress shirt" as opposed to casual shirt did not make the array impermissibly suggestive). Further, Abney reported to police officials that Defendant wore a black jacket at the time of the crime.⁹ Defendant's appearance in the photo array wearing a white shirt suggests that Abney identified Defendant without relying on clothing. With respect to hairstyles, all of the men depicted in the array had some form of braids or "dreadlocks." Although the hairstyles were dissimilar in length, a photographic array is sufficient if the defendant "does not stand out so strikingly in his characteristics that he virtually is alone with respect to identifying features." Pierce v. State, 267 Ind. 240, 246, 369 N.E.2d 617, 620 (1977). Defendant did not stand out.

Given the totality of the circumstances, including Abney's description of Defendant and his level of certainty in identifying Defendant, we find the record demonstrates that the photographic array was not impermissibly suggestive. The trial court properly admitted this evidence. Where the pre-trial procedures are not impermissibly suggestive, both the evidence of the pre-trial and in-court identifications are held to be properly admitted without further analysis. Parker, 698 N.E.2d at 740; see also Bell, 622 N.E.2d at 454 (citing Coleman v. State, 558 N.E.2d 1059 (Ind.1990)). Accordingly, we need not address whether an independent basis existed for Abney's in-court identification.

III

Defendant next contends that the trial court improperly instructed the jury on the elements necessary for the State to prove he carried a handgun without a license. Defendant argues that the trial court failed to include as an element of the offense that he did not have a license to carry the handgun thereby placing the burden on him to show he possessed a valid license.¹⁰

The relevant statute states, "Except as provided in section 2 of this chapter, a person shall not carry a handgun in any vehicle or on or about his person, except in his dwelling, on his property or fixed place of business, without a license issued under this chapter being in his possession." Ind. Code § 35-47-2-1 (1993).¹¹ We have previously held that once the State proves that the defendant carried a handgun on or about his person, away from his dwelling or...