Hollonquest v. State
| Decision Date | 26 December 1979 |
| Docket Number | No. 978S188,978S188 |
| Citation | 398 N.E.2d 655,272 Ind. 380 |
| Parties | Clifton HOLLONQUEST, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Walter E. Bravard, Jr., Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was tried and convicted in a jury trial on charges of commission of a felony while armed, to-wit: robbery, and of assault with intent to kill. Ind.Code § 35-12-1-1 and Ind.Code § 35-13-2-1 (). He was sentenced to twenty-three years imprisonment for the robbery while armed and two to fourteen years for the assault with credit for confinement awaiting trial and sentencing. On appeal the issues presented are whether the trial court erred in permitting a State's witness to describe two pre-trial incidents in which he had identified appellant as the person who had robbed him and whether the evidence was sufficient to support the conviction.
On May 22, 1977, at about 9:00 p. m. two persons were present at a filling station at Massachusetts and 34th Streets in Indianapolis, a lone attendant and a customer. The attendant was in the process of pumping gas into the customer's car and the customer was standing nearby. A man walked into the station, drew a gun, stuck it in the side of the attendant and demanded his money. The attendant handed his money over to the man who then jogged out of the station. The robber entered a car parked nearby and drove away. The customer immediately got in his car and followed the getaway car. During this pursuit the fleeing robber stopped his car, got out, and shot at the following car, the bullet striking the front windshield and exiting the rear window and passing within inches of the customer's head. The armed robber then disappeared from view.
At trial appellant was identified as the robber by the attendant, but the customer was unable to so identify him. The attendant added to this direct identification testimony that he had selected two photographs of appellant from an array of thirty provided him by the investigating officer, and subsequently picked appellant from a corporeal line-up.
Appellant contends that the testimony of the gas station attendant describing his pre-trial identifications of appellant, first by photograph and later at a line-up, should have been suppressed. Due process requires the suppression of evidence of out-of-court identifications conducted in an unnecessarily suggestive manner and resulting in the creation of a substantial likelihood of misidentification. Stovall v. Denno, (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Neil v. Biggers, (1972) 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Manson v. Brathwaite, (1977) 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140. Subsequent in-court identification by the same witness is subject to suppression as well. Simmons v. United States, (1968) 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193. Where the extrajudicial identification procedure was not unnecessarily suggestive of guilt, the out-of-court and the in-court identification by a witness may be admitted. Norris v. State, (1976) 265 Ind. 508, 356 N.E.2d 204; Zion v. State, (1977) 266 Ind. 563, 365 N.E.2d 766. The photograph as well as the live line-up can be impermissibly suggestive so as to violate the right to due process and require suppression. Simmons v. United States, supra; Sawyer v. State, (1976) 260 Ind. 597, 298 N.E.2d 440.
Shortly after the robbery, while at the home of his sister, the witness was handed a stack of thirty photographs by the investigating officer among which were two different photographs of appellant. The two photographs became State's Exhibits 1 and 2 at trial. During preliminary questioning for the purpose of lodging an objection, the witness described the events which immediately followed his receipt of the stack as follows:
"Q. And from that stack you say you picked out State's Exhibit 1, is that right?
A. That's right.
Q. And then isn't it a fact that he then gave you some other pictures and said 'see if you can find another picture of the same man in this stack'?
A. No sir, he gave me the one stack and said 'see if you recognize him' and I went through them and picked the first one out and he said 'go on and finish with the rest of them and see, in case there is any other' and then I picked that one out.
Q. He said nothing to you that there was another picture of the same man in that stack?
A. No sir.
Q. You are sure of that?
A. Positive."
The technique employed here did not include the exhibition of a single photograph of a suspect or the verbal suggestion to the witness that a suspect was to be found among the photographs to be examined. Parker v. State, (1976) 265 Ind. 595, 358 N.E.2d 110, and Whitt v. State, (1977) 266 Ind. 211, 361 N.E.2d 913. Appellant complains that there were two photographs of him in the stack of photographs rather than simply one as in the case of the others portrayed, and that the presence of these two rendered the procedure impermissibly suggestive of his guilt. Appellant argues that it would be easier to identify a vaguely familiar face if there were two photographs in the stack rather than one. It would of course be true that two separate and distinct photographs of the same person taken on different occasions, as is the case before us, together can constitute a more accurate portrayal of that person than simply one photograph, but it does not follow that the presence of two photographs of the same person or a more accurate photograph of one than of another would tend to suggest to a significant degree to the viewer that the police considered the individual so portrayed to be a prime suspect. Johnson v. State...
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Hollonquest v. State
...to terms of twenty-three years and two-to-fourteen years respectively. His conviction was affirmed by this Court in Hollonquest v. State, (1979) Ind., 398 N.E.2d 655. He now raises two issues in this 1. Whether he was denied the effective assistance of counsel; and 2. Whether he was entitle......
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Tolbert v. State
...Any inconsistencies or weaknesses in the victim's testimony were matters to be weighed and considered by the jury. Hollonquest v. State, (1979) 272 Ind. 380, 398 N.E.2d 655. There was sufficient probative evidence of identification from which a reasonable jury could have found the defendant......
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McCann v. State
...at 620. Similarly, the inclusion of two pictures of McCann, apparently by mistake, was not unduly suggestive. See Hollonquest v. State, 272 Ind. 380, 398 N.E.2d 655 (1979) (holding that where a witness was shown a thirty-picture array which contained two pictures of the defendant, and he se......
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Henderson v. State
...in the testimony rendered the evidence insufficient to convict. They were matters to be considered by the jury." Hollonquest v. State, (1979) Ind., 398 N.E.2d 655, 658. III. Defendant contends that the trial court erred in permitting the state to amend the information charging defendant wit......