Kizer v. State, No. 3-179A23

Docket NºNo. 3-179A23
Citation182 Ind.App. 525, 395 N.E.2d 841
Case DateOctober 24, 1979
CourtCourt of Appeals of Indiana

Page 841

395 N.E.2d 841
182 Ind.App. 525
Albert J. KIZER, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 3-179A23.
Court of Appeals of Indiana, Third District.
Oct. 24, 1979.

Page 842

Joseph A. Williams, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Albert J. Kizer was charged and convicted of the crime of robbery, a Class C felony. 1 He was sentenced to the Indiana Department of Corrections for a period of five years.

On appeal, Kizer raises four issues for our review:

(1) Did the trial court err in allowing into evidence the identification testimony of two witnesses for the State?

(2) Is the evidence sufficient to support the trial court's judgment?

(3) Was it error to allow the investigating officer to remain in the courtroom although a separation of witnesses had been ordered?

(4) Was Kizer's incriminating statement rendered inadmissible due to an illegal arrest and promises of leniency by police?

We affirm.

Page 843

The following facts are relevant to our disposition of the case. On the morning of November 28, 1977, Patricia (Ryan) Northrup was robbed while in her home with her young daughter. Shortly before the robbery occurred, Kay Gastright, a neighbor of Mrs. Northrup, had talked with a man on her front porch and had later seen him in a nearby alley. On December 15, 1977, the police visited the Northrup home to show Mrs. Northrup and Ms. Gastright eight photographs of black males. The photographs generally resembled the man described by both women. Both women separately identified Kizer as the man they had seen that morning in November.

Kizer was arrested on December 15, 1977 and taken to the police station. After being advised of his rights, he stated that he understood them and signed an Advice of Rights form and a Waiver of Rights provision. [182 Ind.App. 527] Kizer then gave a statement to police which implicated him in the robbery of Mrs. Northrup.

Kizer contends that the trial court erred when it allowed Mrs. Northrup and Ms. Gastright to identify him in court after the police used an allegedly suggestive pre-trial photographic display.

Suppression of identification evidence is necessary only when the pre-trial procedure utilized is unnecessarily suggestive. Whitt v. State (1977), 266 Ind. 211, 361 N.E.2d 913. Our Supreme Court in Popplewell v. State (1978), Ind., 381 N.E.2d 79, 81 stated that:

"(C)onvictions based on eyewitness identification at trial following a pre-trial 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."

To determine whether a pre-trial identification procedure has been conducted in an impermissibly suggestive manner, we look to the "totality of the circumstances." Hill v. State (1977), Ind., 370 N.E.2d 889.

There is scant evidence in the record to indicate that the photographic display, presented to Mrs. Northrup and Ms. Gastright on December 15, was impermissibly suggestive. The women were separated and each was shown eight photographs of black males. The photographs were similar to the description of the man seen by both women. When the pictures were presented to the two women, the police merely asked them to examine the photographs. They did not indicate that Kizer was one of the men pictured, nor did they indicate that one of the pictures should be selected. We conclude that the photographic identification procedure was not impermissibly suggestive.

Even if the earlier photographic identification had been conducted in a suggestive manner, an in-court...

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6 practice notes
  • Bottoms v. B & M Coal Corp., No. 1-379A63
    • United States
    • Indiana Court of Appeals of Indiana
    • June 4, 1980
    ...sufficient to warrant a reasonably prudent man in believing the arrestee was committing an illegal act. Kizer v. State, (1979) Ind.App., 395 N.E.2d 841. The officers unequivocally testified they observed the convoys arrive, men leave their vehicles and extensively vandalize B & M's property......
  • Rutledge v. State, No. 3-383A60
    • United States
    • Indiana Court of Appeals of Indiana
    • August 24, 1983
    ...on June 13, 1982. The separation of witnesses rests within the sound discretion of the trial court. Kizer v. State (1979), Ind.App., 395 N.E.2d 841, 844. Our Supreme Court has held that it is not an abuse of discretion for the trial court to permit the investigating officer to remain in the......
  • Bennett v. State, No. 3-880A229
    • United States
    • Indiana Court of Appeals of Indiana
    • February 26, 1981
    ...likelihood of irreparable misidentification. Popplewell v. State (1978), Ind., 381 N.E.2d 79; Kizer v. State (1979), Ind.App., 395 N.E.2d 841. We will look to the "totality of the circumstances" to determine whether a pre-trial identification procedure has been conducted in an impermissibly......
  • Hart v. State, No. 3-480A106
    • United States
    • Indiana Court of Appeals of Indiana
    • November 25, 1980
    ...we will look to the "totality of the circumstances." Hill v. State (1977), 267 Ind. 411, 370 N.E.2d 889; Kizer v. State (1979), Ind.App., 395 N.E.2d 841. Jackson was shown seven pictures of white males between 17 and 25 years of age. All the men portrayed had shoulder length light blonde ha......
  • Request a trial to view additional results
6 cases
  • Bottoms v. B & M Coal Corp., No. 1-379A63
    • United States
    • Indiana Court of Appeals of Indiana
    • June 4, 1980
    ...sufficient to warrant a reasonably prudent man in believing the arrestee was committing an illegal act. Kizer v. State, (1979) Ind.App., 395 N.E.2d 841. The officers unequivocally testified they observed the convoys arrive, men leave their vehicles and extensively vandalize B & M's property......
  • Rutledge v. State, No. 3-383A60
    • United States
    • Indiana Court of Appeals of Indiana
    • August 24, 1983
    ...on June 13, 1982. The separation of witnesses rests within the sound discretion of the trial court. Kizer v. State (1979), Ind.App., 395 N.E.2d 841, 844. Our Supreme Court has held that it is not an abuse of discretion for the trial court to permit the investigating officer to remain in the......
  • Bennett v. State, No. 3-880A229
    • United States
    • Indiana Court of Appeals of Indiana
    • February 26, 1981
    ...likelihood of irreparable misidentification. Popplewell v. State (1978), Ind., 381 N.E.2d 79; Kizer v. State (1979), Ind.App., 395 N.E.2d 841. We will look to the "totality of the circumstances" to determine whether a pre-trial identification procedure has been conducted in an impermissibly......
  • Hart v. State, No. 3-480A106
    • United States
    • Indiana Court of Appeals of Indiana
    • November 25, 1980
    ...we will look to the "totality of the circumstances." Hill v. State (1977), 267 Ind. 411, 370 N.E.2d 889; Kizer v. State (1979), Ind.App., 395 N.E.2d 841. Jackson was shown seven pictures of white males between 17 and 25 years of age. All the men portrayed had shoulder length light blonde ha......
  • Request a trial to view additional results

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