Johnson v. State

• Decision Date: 22 February 1972
• Docket Number: No. 270S23,270S23
• Citation: 29 Ind.Dec. 308,257 Ind. 682,278 N.E.2d 577
• Parties: James Robert JOHNSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 577

278 N.E.2d 577

257 Ind. 682

James Robert JOHNSON, Appellant, v. STATE of Indiana, Appellee.

No. 270S23.

Supreme Court of Indiana.

Feb. 22, 1972.

Rehearing Denied April 7, 1972.

Gil I. Berry, Jr., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Hassett, Deputy Atty. Gen., for appellee.

PRENTICE, Judge.

Defendant (Appellant) was convicted of first degree burglary in a trial to the court and was sentenced to imprisonment for not less than ten nor more than twenty years and disfranchised. The alleged errors complained of relate to the sufficiency of the evidence and the identification procedures employed, which procedures the defendant contends were suggestive, tainted and not subject to cross examination. We shall review these questions in inverse order.

Mrs. Overbay, a resident of the burglarized premises, observed the defendant leave her residence, run past her, get into his car and, after some difficulty in starting it, drive away. She stood a few feet from him for from one to two minutes while this action took place. A few days later, she attended a preliminary hearing, where the defendant and other accused persons were present in court under police restraint. They were of varied sizes, and some were white and some black. Some had on regular street clothes and some, including the defendant were in jail uniforms. Prior to identifying the defendant in this group, Mrs. Overbay was shown photographs of the defendant, showing him with a mustache; and she declined to identify him from such photographs, because the man she saw at the scene of the crime had no mustache, and she commented that such photographs did not look like the man in question. After having viewed the photographs, however, Mrs. Overbay identified the defendant, when he walked into the courtroom. At the trial, she identified him on direct examination; and on cross examination she testified as related above concerning the identification at the preliminary hearing.

Miss Mertz, a witness for the prosecution, lived next door to the Overbays. She was present when the defendant ran past Mrs. Overbay and drove away in his automobile and observed him for a minute or more. On direct examination at the trial she identified him and further testified that she had seen him at the aforementioned preliminary hearing.

It was Defendant's position in his motion for a new trial that the identifications of him by Mrs. Overbay and Miss Mertz at the pre-trial hearing, being without notice and right to counsel, were violative of his 6th Amendment rights under the doctrines of United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 and Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

At the outset, it can be conceded that the confrontations of Defendant by Mrs. Overbay and Miss Mertz, being without notice and benefit of counsel fell squarely within the proscriptions of Wade (supra) and Gilbert (supra). Error, standing alone, however, does not compel reversal. It must also be shown that the complaining party was harmed by such error, Layton v. State (1968), 251 Ind. 205, 240 N.E.2d 489; Coppenhaver v. State (1903), 160 Ind. 540, 544, 67 N.E. 453; and that he took the available procedural steps to protect himself against such error. Sams v. State (1969), 251 Ind. 571, 574, 243 N.E.2d 879; Hensley v. State (1969), 251 Ind. 633, 244 N.E.2d 225; Lewis v. State (1969), 252 Ind. 454, 460, 250 N.E.2d 358; Tyler v. State (1968), 250 Ind. 419, 236 N.E.2d 815. It, therefore, appears that where a questionable out-of-court identification has been had, defense counsel should take prompt steps to assure that it not be utilized in evidence at the trial and that other evidence has not 'been come at by exploitation of that illegality' (Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441). Better practice dictates that the questions be presented and determined at a pre-trial hearing upon a motion to suppress. Absent prior knowledge of an out-of-court identification, the matter could be gone into by preliminary questioning, otu of the presence of the jury, at the time the in-court identification testimony is tendered. The question not having arisen by either of the foregoing methods, the defendant, at best, runs the risk of having the trier of the facts subjected to questionable testimony unnecessarily and a subsequent determination of whether it was error or prejudicial. The disadvantages inherent in awaiting the cross examination stages to raise the question are self evident. Although not in issue here, we can perceive circumstances that might compel us to hold that prior opportunity to raise the question having not been availed of, an objection to the identification or motion to strike came too late. In the Wade case (supra) the taint of the incourt identification by the suspect pre-trial identification was exposed through cross examination and a subsequent motion for a judgment or acquittal or, alternatively, to strike the courtroom identifications. Conceding, for the purpose of this analysis, that this motion was available to Defendant, it was not forthcoming. The question in issue is one of admissibility of evidence. It was first brought to the court's attention by Defendant by his motion to dismiss at the close of the State's evidence and came too late. To be available on review, an objection must have been timely made. American Carloading Corp. v. Gary Trust & Savings Bank, Administrator (1940), 216 Ind. 649, 661, 25 N.E.2d 777; Musser v. State (1901), 157 Ind. 423, 431, 61 N.E. 1; 1 I.L.E. Appeals § 92. Usually, this necessitates that the objection be made at the earliest opportunity. 4 C.J.S. Appeal and Error § 246. If there was no opportunity to object before the objectionable matter came into evidence, the remedy is by way of a motion to strike. Deming Hotel Company v. Prox (1968), 142 Ind.App. 603, 615, 236 N.E.2d 613.

If we were to regard the defendant's motion to dismiss as a timely alternative motion to strike, the motion, nevertheless, was properly overruled. The Stovall case (supra) cited in argument by Defendant's counsel to the trial court has no application here. To the extent that they are here applicable, the Wade and Gilbert cases (supra) also cited in argument by counsel, determined:

(1) A pre-trial identification confrontation is a critical stage of the prosecution and one at which the defendant is entitled to the benefits of the 6th Amendment right to counsel.

(2) Absent a proper waiver, the state is barred at the trial from presenting evidence of such confrontation if held in the absence of counsel. It is per se inadmissible.

(3) Evidence, which may be the fruit of or buttressed by such a confrontation will be held to be inadmissible, where evidence of such confrontation is brought in by the prosecution, the per se exclusionary rule being the only 'effective sanction to assure that law enforcement authorities will respect the accused's constitutional rights to the presence of his counsel at the critical line up.' (Gilbert v. California, supra).

(4) However, where the in-court identification is challenged as having been subjected to the improper influence of an unlawful confrontation, the occurrence of which has been brought to light by the defendant, the prosecution will be given the opportunity, and must carry the corresponding burden, to establish by clear and convincing evidence, that the in-court identification was free of taint from the illegal one. The application of these rules will compel law enforcement authorities to exercise all due care to assure the opportunity of the presence of counsel at out-of-court identification confrontations but will, nevertheless, avert the loss to the state of valid identification testimony in those rare cases where the witness may have been erroneously subjected to the improper influence, unless the state commits the additional error of capitalizing upon that influence.

Applying these rules, we must admit the illegality of the out-of-court confrontation and would apply the per se exclusionary rule as to it and its fruits. But it is clear from the record that the in-court identification by Mrs. Overbay was not tainted by the illegal confrontation but had an independent origin. She witnessed the defendant come out her front door and run right by her. He got into his car but had difficulty starting it. She stood approximately ten feet from him and talked to him for a period of from one to two minutes. She made mental note that he was almost the exact size as her husband, that his nose was prominent and snubbed and that he had no mustache or beard. Just prior to the out-of-court confrontation, she declined to identify Defendant from photographs, because she was not sure. Her in-court identification was made but slightly more than two months after she observed Defendant at the scene and time of the crime, and none of her testimony was impeached or discredited at the trial. In the Wade case (supra) the court determined that the record did not reveal enough to determine if the in-court identification had an independent origin, and it therefore reversed and remanded the case to the district court to determine that issue. Here, following the guidelines laid down for us in Wade (supra), it is clear from the record that the in-court identification testimony of Mrs. Overbay did have a sufficient independent origina and was free of taint. We agree, as stated by the court in United States v. Wade (supra) that such a determination is most properly made in the trial court. This can be done,...