Jones v. State, 1--1072A85

• Decision Date: 19 March 1973
• Docket Number: No. 1--1072A85,1--1072A85
• Citation: 293 N.E.2d 545,155 Ind.App. 536
• Parties: Walter Everett JONES, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 545

293 N.E.2d 545

155 Ind.App. 536

Walter Everett JONES, Appellant, v. STATE of Indiana, Appellee.

No. 1--1072A85.

Court of Appeals of Indiana, First District.

March 19, 1973.

Gerald E. Surface, Jr., Public Defender Wayne Superior Court, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., for appellee.

LOWDERMILK, Judge.

Defendant-appellant was charged by affidavit with the crime of armed robbery. He was arrested, arraigned and entered a plea of not guilty. This was followed by several pre-trial motions of the defendant-appellant, one of which was a motion to suppress pre-trial identification evidence and on which evidence was heard and the court's refusal to suppress pre-trial identification evidence is one of the errors relied upon herein.

The case was tried to a jury; the defendant-appellant was found guilty as charged and was sentenced and committed to the custody of the Indiana Department of Corrections for a determinate period of ten years.

The motion to correct errors was timely filed and the same is, in brief, as follows, to-wit:

1. Whether the pre-trial identifications were so impermissibly suggestive that appellant was denied due process of law.

2. Whether the in-court identifications were tainted by the impermissibly suggestive pre-trial identification.

3. Whether the trial court erred in overruling appellant's motion for a directed verdict.

4. Whether the repeated remarks of the Prosecuting Attorney, during closing argument, in regards to appellant's failure to testify denied appellant due process of law.

5. Whether the Prosecuting Attorney's conduct during closing argument was prejudicial and inflamed the jury against the appellant.

6. Whether the conviction of appellant was based upon insufficient evidence.

7. Whether the conviction of appellant was contrary to law.

The facts of the case are that on December 17, 1971, at 1:30 P.M., Janice Harman, assistant cashier at Ayr-Way, Incorporated, Richmond, Wayne County, Indiana, was robbed at gunpoint by a man who took approximately.$637.00. This robbery was witnessed by Sandy Lewsader, also an employee of Ayr-Way.

The money was put in what Harman thought was a paper bag and what Lewsader thought was a cloth bag and the hold-up man hurriedly left the store and was seen by a maintenance man, Roy Isch, who was working in the location of the Gateway Shopping Center on said day and hour and at about 1:30 P.M. saw a man running past him 'like mad'; the man jumped into a car bearing an Ohio license plate, number K--7609, which number Mr. Isch wrote down. This man was carrying a brown bag in his right hand. Mr. Isch saw no weapon.

At the trial of the cause Mr. Isch could not positively identify the defendant-appellant as being the man he saw running on the day of the alleged crime. However, a check with Ohio authorities revealed that the license number taken from the car had been issued by the State of Ohio to Walter E. Jones. Jones had been arrested in Columbus, Ohio, and returned to Richmond to stand trial.

Detective Kolentus of the Richmond Police Department testified his investigation led to the name of the suspect, Walter Everett Jones. Detective Kolentus obtained Jones' photograph from Ohio authorities and sought similar photographs from the Richmond files for identification purposes, of which he received five.

Detective Kolentus testified that he was looking for certain physical appearances when he selected the photographs, such as dark rim glasses, long, black unkempt hair, acne scars or pockmarks on the face, and a picture of a man approximately in his thirties. His description of the subject was given to him by Janice Harman, the victim.

Janice Harman looked at all six of the pictures and without being advised or prompted by any police officer, promptly picked out and identified the photograph of defendant-appellant.

The same routine was followed by handing the pictures to Sandy Lewsader, who also promptly identified the defendant-appellant as being the man that she saw commit the hold up in the Ayr-Way store.

We shall, pursuant to Rule AP. 8.3(A)(7), treat specifications 1 and 2 as one; 4 and 5 as one, and 6 and 7 as one:

The photographs from the Richmond Police Department had what we assume to be an identification of some kind, either name or number, blocked out with a blue strip of paper at the top. The photograph of the defendant-appellant had a strip of the same kind of paper apparently blocking something out at the bottom of the photo. The photo of the defendant-appellant was slightly larger than the other photos, but was noticeable only after having that called to one's attention.

Each of the photos showed men with glasses, all with shell rims except one, and one who was slightly balding, others with dark, more or less bushy hair, but none with long hair, and the defendant-appellant's photo showed a short cropped head of hair. Defendant-appellant contends that the pre-trial identifications were so impermissibly suggestive that he was denied due process. We do not weigh the evidence, but in observing the photographs and considering the evidence most favorable to the State, as is our duty, we cannot, using the words of Justice Hunter in Johnson v. State (1972), Ind., 277 N.E.2d 791, 794, say the pre-trial identification:

'. . . 'was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' . . .'

The United States Supreme Court, in the case of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, has discussed this area extensively as follows:

'Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to phohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. . . .'

No police officer or other person was shown by the record to have told or even suggested the identity of the defendant-appellant to either of the female witnesses who examined the photographs.

The case of Johnson v. State, supra, in our opinion, adequately sets to rest the second specification of error, wherein it is claimed that the in-court identifications were tainted by the impermissibly suggestive pre-trial identifications.

Defendant-appellant's argument to bear this out is that because the witnesses had identified the photographs and knew that it was necessary for the defendant to be in court for his trial and would be at the counsel table with his counsel that their identification of him in court was tainted from that knowledge and the photographs that they had seen. He also urges that just before trial police officers again showed the female witnesses who identified the appellant in open court the photographs. However, the record does not disclose any impropriety or undue influence on the part of the police officers or the Prosecuting Attorney.

Again quoting from Johnson v. State, supra:

'Since the extra-judicial identification was not improper it follows that the...