Hill v. State

• Decision Date: 16 December 1982
• Docket Number: No. 682S226,682S226
• Citation: 442 N.E.2d 1049
• Parties: Henry Noodie HILL, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1049

442 N.E.2d 1049

Henry Noodie HILL, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 682S226.

Supreme Court of Indiana.

Dec. 16, 1982.

Nick J. Anast, Gary, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Henry Noodie Hill, Jr., was convicted by a jury of robbery, a Class B felony. Ind.Code Sec. 35-42-5-1 (Burns 1979 Repl.). He was sentenced to the Indiana Department of Correction for a period of fifteen years. In this belated direct appeal, he presents the following issues for our review:

1. Whether the trial court erred when it denied defendant's motion to suppress an in-court identification;

2. Whether defendant was denied the effective assistance of counsel; and

3. Whether the evidence was sufficient to sustain the conviction. The record reveals that on June 2, 1980, two men robbed the Indiana Bell Telephone office located at 422 Fayette Street in Hammond, Indiana. The subsequent police investigation culminated in defendant's conviction for the crime.

I.

Hammond Police Officers Raymond Myszak and Oscar Ramirez were summoned to the scene of the robbery immediately after it occurred. There, employees and clientele of Indiana Bell who had witnessed the robbery provided the police officers with descriptions of the perpetrators; in turn, the descriptions were dispatched via radio to patrol cars in the City of Hammond. Approximately one-half hour later, Police Officer Thomas Fielden, who was on patrol in the south Hammond area, observed the defendant cross the street in front of him. Because the defendant matched the description of one of the men who had robbed the telephone company office, Fielden gave chase to defendant, who had broken into a run when he had noticed the officer's presence. Defendant was apprehended after a lengthy chase through Hammond neighborhoods; once apprehended, he was returned to the scene of the crime. There, three employees of Indiana Bell who had witnessed the robbery--Priscilla Askew, Renee Rusin, and Nancy Breskovich--were taken outside the office where each identified defendant as one of the men who had participated in the robbery an hour earlier.

Prior to trial, defendant filed a motion to suppress any testimony regarding the "show-up" identification of defendant by the complaining witness, Priscilla Askew. Concomitantly, defendant's motion was designed to preclude any in-court identification by the complaining witness on the basis that it would be the product of the unnecessarily suggestive pretrial identification. Following a hearing on the motion, the trial court ruled that any testimony concerning the pretrial identification testimony of witness Askew should be suppressed. The court also ruled, however, that notwithstanding the inadmissibility of evidence regarding the show-up identification, an independent basis existed for an in-court identification of defendant by Askew.

Defendant maintains the trial court erred when it permitted Askew to make an in-court identification of him. He concedes that notwithstanding the fact that an unnecessarily suggestive pretrial confrontation has occurred, a witness may still be permitted to make an in-court identification if the state produces clear and convincing evidence that an independent basis for the identification exists. Neil v. Biggers, (1972) 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Remsen v. State, (1981) Ind. 428 N.E.2d 241; Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193. The question whether an independent basis exists is resolved by examining the totality of the circumstances surrounding the opportunity of the witness to observe the perpetrator at the scene of the crime, as well as the facts regarding the suggestive confrontation. Remsen v. State, supra; Love v. State, (1977) 266 Ind. 577, 365 N.E.2d 771; Jones v. State, (1975) 263 Ind. 555, 334 N.E.2d 689. If an independent basis exists to the extent that the suggestiveness in the improper confrontation could be resisted by the witness, an in-court identification is proper. Neil v. Biggers, supra; Simmons v. United States, (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Love v. State, supra.

The record reveals that the robbery occurred during the daylight hours (1:00 p.m.) and that the interior of the Indiana Bell office was illuminated by fluorescent lighting. Askew testified that the robbery lasted approximately fifteen minutes; her estimate was corroborated by other witnesses. Askew stated that throughout the fifteen minute period, she had an unobstructed view of both perpetrators. During the robbery, the man she identified as defendant occupied a position roughly thirty feet from her, where he stood guard at the door with a gun. Immediately following the robbery, she described him to police as a "very heavy" black male, approximately 250 pounds in weight and about 5'5" in height. She also indicated that the man had worn dark colored trousers, a blue banlon sweater, and had wrapped a yellow bandanna about the lower half of his face. At trial, she reiterated--without dissimilarities--her description of the physical attributes of the perpetrator whom she identified as defendant.

The show-up confrontation, on the other hand, was not rife with circumstances which would establish it as conducive to a substantial likelihood of irreparable misidentification. This Court, of course, has recognized that inherently, one-on-one confrontations are very suggestive. Poindexter v. State, (1978) 268 Ind. 167, 374 N.E.2d 509; Cooper v. State, (1977) 265 Ind. 700, 359 N.E.2d 532. Confrontations immediately after the crime, however, are not per se improper, for it is valuable to have the witness view a suspect while the image of the perpetrator is fresh in the witness's mind; indeed, the immediacy of the incident substantially diminishes the potential for misidentification. Whitlock v. State, (1981) Ind. 426 N.E.2d 1292; Rogers v. State, (1979) Ind. 396 N.E.2d 348; Hampton v. State, (1977) 172 Ind.App. 55, 359 N.E.2d 276. Given that purpose, defendant was transported to the scene of the crime in a squad car. There, Officer Myszak summoned witnesses from the office, informing them only that "we had somebody for them to look at." Witness Askew then approached the squad car and looked in at defendant; without hesitation or equivocation, she identified him as the perpetrator who had stood near the office entrance during the robbery.

To a certain extent, an aura of criminality may have been injected into the show-up confrontation by virtue of defendant's presence in the squad car. See generally, Dillard v. State, (1971) 257 Ind. 282, 274 N.E.2d 387; Cook v. State, (1980) Ind.App. 403 N.E.2d 860. That fact does not establish itself as the predominant and overriding basis for the in-court identification in light of the extensive length of time and excellent lighting conditions in which Askew had to observe the perpetrator. Coupled with the perpetrator's distinctive height and weight characteristics, the conditions surrounding Askew's opportunity to observe him during the robbery support the conclusion that an independent basis for her in-court identification did exist. Remsen v. State, supra; Whitlock v. State, supra; Poindexter v. State, supra. The trial court did not err in permitting Askew to identify defendant in court. Id.

In his brief, defendant has also argued that the in-court identifications of defendant by Renee Rusin and Nancy Breskovich were improperly admitted. He again asserts that their in-court identifications were the product of the show-up confrontation which occurred immediately after the crime.

The record reveals, however, that neither the show-up identifications or potential in-court identifications by Rusin and Breskovich were the subject of defendant's motion to suppress. Nor did defendant object at trial when their in-court identifications were solicited. Any error consequently has been waived. Stowers v. State, (1977) 266 Ind. 403, 363 N.E.2d 978. We note, however, that the opportunity for Rusin and Breskovich to view the perpetrators was virtually identical to Askew's circumstances. There was no error here.

II.

Defendant next asserts he was denied the constitutional guarantee of effective assistance of counsel at the trial court level of these proceedings. It is well settled that when confronted with a claim of ineffective assistance of counsel, this Court examines the totality of the circumstances to determine whether the representation afforded the defendant constituted a "mockery of justice," as modified by the requirement that the counsel provided amounted to adequate legal representation. Tessely v. State, (1982) Ind. 432 N.E.2d 1374; Cottingham v. State, (1978) 269 Ind. 261, 379 N.E.2d 984. Each case must be judged according to its own facts; a constant principle, however, is that a presumption exists that the representation afforded was adequate. Strong and convincing evidence is required to overcome the presumption. Tessely v. State, supra; Lindley v. State, (1981) Ind. 426 N.E.2d 398; Rinard v. State, (1979) Ind. 394 N.E.2d 160.

Defendant's primary basis for his claim of ineffective counsel concerns a technical miscue of his attorney during cross-examination of witness Priscilla Askew. In an attempt to impeach Askew with respect to her description of the perpetrators, defendant's attorney read from the police report compiled immediately after the robbery. The report included a reference to the show-up confrontation between Askew and defendant. After defense counsel read the reference to the confrontation, the state asserted that, notwithstanding the suppression ruling regarding the confrontation, the door had been opened for evidence regarding the show-up and identification therefrom. Defense counsel candidly conceded his error; at the same time, the state indicated that even if the...