Henson v. State

• Citation: 467 N.E.2d 750
• Decision Date: 07 September 1984
• Docket Number: No. 1283S461,1283S461
• Parties: Eddie W. HENSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 750

467 N.E.2d 750

Eddie W. HENSON, Appellant, v. STATE of Indiana, Appellee.

No. 1283S461.

Supreme Court of Indiana.

Sept. 7, 1984.

Nancy L. Broyles, McClure, McClure & Kammen, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of inflicting bodily injury during a robbery, and was found to be an habitual criminal. The sentence imposed by the trial court was erroneous in that appellant was given thirty (30) years for inflicting injury in the course of a robbery and thirty (30) years for being an habitual criminal.

The status of being an habitual criminal does not establish a separate crime. It merely provides for the imposition of an enhanced penalty for the instant crime. Williams v. State, (1982) Ind., 431 N.E.2d 793; Badelle v. State, (1982) Ind., 434 N.E.2d 872.

The penalty imposed by the court for the conviction of inflicting injury in the course of a robbery should have been enhanced because of the habitual criminal status of the appellant. He should, therefore, have received a single enhanced sentence by the trial court.

The facts are: On the morning of March 2, 1983, the appellant and Michael Tyler forced their way into the home of Corrine Cummins in Indianapolis. Mrs. Cummins was robbed and injured.

Prior to trial the appellant sought to suppress any testimony concerning the pretrial photographic identification of him, as well as any in-trial identification. Appellant claims the pretrial identification was impermissibly suggestive and the in-trial identification was tainted by the pretrial identification. Police Detective Jerald Schemenaur obtained a description of the robbers from the victim. Later he received information that the appellant and Tyler might be involved in the robbery. He returned to Mrs. Cummins' home for the purpose of showing her a group of twelve photographs for identification purposes. Appellant's and Tyler's photographs were in the group. He testified he did not remember telling Mrs. Cummins that photographs of the suspects were included. He did not recall Mrs. Cummins asking him if he had anyone in mind as a suspect. Mrs. Cummins picked out Tyler's photograph immediately, and after studying all of the photographs for a period of time, picked out appellant's photograph. Mrs. Cummins was not told the photographs were those of the suspects until after she had picked them out from the group.

In an attempt to verify Mrs. Cummins' identification, Detective Schemenaur began looking in the neighborhood for others that might be able to identify the photographs. He located a filling station attendant, one Mike Marley, who was able to identify the two suspects as having been in his station on the morning of the robbery. Subsequently, a second attendant at the station, one Dane Strauser, also identified the photographs.

Appellant claims the procedures used in the identification process were unduly suggestive because an insufficient number of photographs were displayed, and the individuals in the photographs did not bear a sufficient likeness to appellant. He further claims the witnesses were aware that a suspect was included in the photographic display. This last contention is not supported by the evidence; in fact, the contrary appears to be true.

The test to determine the suggestiveness of a photographic array is whether the array was impermissibly suggestive and conducive to mistaken identification considering the totality of the circumstances. Hilton v. State, (1983) Ind., 454 N.E.2d 1216.

Appellant claims the photographs were too dissimilar by reason of differences in facial hair and hair color. An examination of the photographs shows them to be twelve pictures of white males relatively the same age and of shaggy appearance. Some are clean-shaven, some have mustaches and two have mustaches and beards, including appellant. We see nothing unusual about this type of photographic array. We hold they are not unduly suggestive. See Head v. State, (1982) Ind., 443 N.E.2d 44; Harris v. State, (1981) Ind., 427 N.E.2d 658; Shepard v. State, (1980) 273 Ind. 295, 404 N.E.2d 1; Himes v. State, (1980) 273 Ind. 416, 403 N.E.2d 1377.

Appellant claims it was error to show State's witness Marley only pictures of appellant and Tyler. This is not necessarily true. Even the use of one picture for identification purposes of a suspect is not per se impermissibly suggestive. Bennett v. State, (1981) Ind.App., 416 N.E.2d 1307; Dowdell v. State, (1978) 176 Ind.App. 84, 374 N.E.2d 540. The circumstances of the identification must be examined to determine whether or not there is impermissible suggestiveness involved.

In the case at bar, the officers were simply searching for persons who might have seen the suspects at a time subsequent to the identification of the suspects by the victims. The officers merely stopped at a filling station where Marley was employed, showed him the pictures of the suspects and asked him if he had seen either of these men in the vicinity recently. Marley was not a victim of a crime, had no knowledge or information of the nature of the crimes allegedly committed by the suspects. He was merely asked whether or not he had seen the two subjects in the pictures. This is in no way a line-up of pictures for the purpose of identification. This conduct on the part of the officers was entirely proper.

Appellant claims State's witness Dane Strauser's identification was tainted because he was aware the suspects' photographs were included in the photographic array. This was due to his talking with Marley, with whom he worked, and to Detective Schemenaur. For the same reasons above stated, there is absolutely nothing wrong with showing Strauser photographs and asking him whether he had ever seen any of those men before. See Petro v. State, (1983) Ind., 455 N.E.2d 332; Gambill v. State, (1982) Ind., 436 N.E.2d 301.

Appellant next argues the improper pretrial identification rendered the...