Love v. State

• Decision Date: 29 July 1977
• Docket Number: No. 1075S265,1075S265
• Citation: 365 N.E.2d 771,266 Ind. 577
• Court: Indiana Supreme Court
• Parties: Lincoln LOVE, Appellant, v. STATE of Indiana, Appellee.

Page 771

365 N.E.2d 771

266 Ind. 577

Lincoln LOVE, Appellant, v. STATE of Indiana, Appellee.

No. 1075S265.

Supreme Court of Indiana.

July 29, 1977.

Craig A. Hanson, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Joseph J. Reiswerg, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant was convicted of premeditated and felony first degree murder, Ind.Code § 35-13-4-1(a) (Burns 1975), and robbery, Ind.Code § 35-13-4-6 (Burns 1975). Appellant was indicted and tried jointly with one Leroy Williams and convicted after jury trial. Williams was acquitted of all charges. Appellant was sentenced to life imprisonment and an indeterminate term of ten to twenty-five years. On appeal he raises three issues: (1) the admissibility of eyewitness identification testimony; (2) the propriety of allowing the prosecutor to impeach a State's witness with prior statements, and; (3) the sufficiency of the evidence to support his convictions.

The incident in question occurred on July 17, 1974, when two armed men held up the Mill Gate Inn in East Chicago, Indiana. Mrs. Beverly Russell, an employee of the restaurant, was shot and killed during the robbery. At the time of the incident the restaurant was closed and Harry Osterman, a friend of Mrs. Russell, was the only customer remaining in the restaurant. He was sitting at the counter while she counted the night's receipts, waiting to walk her home. All the other customers and employees had left and the dining area lights had been turned off. Spotlights behind the counter provided dim light throughout the restaurant and good light behind the counter.

We first take up the issue of the admissibility of eyewitness identification testimony of Harry Osterman. Osterman's testimony indicated that two men entered through the unlocked front door and exhibited automatic pistols. One man walked behind Osterman and ordered him into the men's restroom. The other approached Mrs. Russell. Osterman was taken into the restroom, relieved of his money, and told to remain there. He heard two shots; when he exited the restroom the robbers were gone, and he found Mrs. Russell in a stockroom, shot in the head.

Mr. Osterman, from his seat, could see the men as soon as they entered the restaurant. He turned to face the man who approached him. Although his attention was on this robber, he could "get a fairly good side look at the other." In spite of the fact that he was held some of this time in the men's room, Osterman said that he observed each robber for five to ten minutes.

Osterman described both robbers to the police as men in their mid-twenties to early thirties, six feet tall, weighing about 160 pounds, wearing waist-length coats, golf hats, and large sunglasses, which he originally mistook for masks. On July 29, 1974, he was shown a group of mugshots and selected one as one of the robbers. This photograph was of a man named Buggs. Osterman also identified Buggs in a line-up. Three months later, on November 7, 1974, the detectives told Osterman that their investigation revealed that Buggs was not a participant in the robbery. They showed him another group of five or six photos, none of which were of Buggs, telling him that it contained photos of the persons who had robbed him. Osterman picked photos of appellant and Williams. Several days before trial Osterman was shown four photographs in the prosecutor's office, including those of appellant, Williams, and Buggs.

During an in-trial suppression hearing, defense counsel exhibited a group of photographs to Osterman and requested that he select the robbers' pictures. These photographs are not in the record. Osterman picked two photographs. One of these seems to have been of Buggs. The transcript of this procedure does not convey what transpired with complete clarity. In subsequent testimony it was revealed that Osterman had identified Buggs and Williams from the suppression hearing display. There was evidence also that appellant and Buggs resembled each other to quite some extent.

Osterman testified that he was sure of his in-court identification and that it was based upon his recollection of the night of the crime. He said that he was sure enough that he would "stake his life on it."

The trial court ruled that the November 7th photograph identification procedure was improperly suggestive, but that the witness had an independent basis for his in-court identification of appellant and Williams.

A witness who has been subjected to an unnecessarily suggestive confrontation with the accused may nonetheless identify the accused at trial as the perpetrator of the offense if the pre-trial confrontation has not created a "very substantial likelihood of irreparable misidentification," Norris v. State, (1976) Ind., 356 N.E.2d 204, or in other words, if the witness has a basis for his in-court identification independent of the suggestive procedure. Johnson v. State, (1977) Ind., 359 N.E.2d 525. The factors considered in determining the existence of an independent basis have been set out in several cases, and may be divided into two sets: those dealing with the witness' opportunity to observe the offender, and those relating to the reliability of his recollection of his original observation of the offender. Specific factors in the first group were enumerated in Parker v. State, (1976) Ind., 358 N.E.2d 110, 112:

The facts of paramount importance to this question relate to the opportunity of the witness to view the offender at the time of the offense; the duration for which the witness can observe the perpetrator; the distance separating them; the lighting conditions; and circumstances affecting the amount of attention the witness can devote to observing the guilty party.

See also Dillard v. State (1971) 257 Ind. 282, 289, 274 N.E.2d 387, 389.

Factors in the second group were described in Swope v. State (1975) 263 Ind. 148, 157, 325 N.E.2d 193, 197, quoting United States v. Wade (1967) 388 U.S. 218, 241, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1165:

(T)he prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.

The State bears the burden in the trial court of producing "clear and convincing evidence" of an independent basis, Swope v. State, supra, at 325 N.E.2d 197, but in reviewing the lower court's finding we do not reweigh the evidence, but look to the evidence most favorable to the trial court and any uncontradicted evidence favorable to the appellant. We accept the trial court's finding if it is supported by sufficient evidence. Whitt v. State (1977) Ind., 361 N.E.2d 913.

Witness Osterman indicated that there was sufficient light behind the counter to see someone's face. He also indicated that it was Love who went behind the counter to the decedent. His observation time was between five and ten minutes. The witness gives much evidence about the actions of the defendants during the encounter in the restaurant. He stated that the photos of the appellant and Buggs looked quite a bit alike, but that in observing the appellant in the courtroom he was certain he was the man who robbed him in company with Williams on the night in question. The trial court and jury had an opportunity to observe the witness and receive and consider his evidence. The trial court's finding was supported by sufficient evidence and there was no error in permitting the in-court testimony of witness Osterman to go to the jury.

The next issue raised by appellant surrounds the testimony by the investigating detectives as to the statement of one Shirley Glover. Glover was a cook at the Mill Gate and an acquaintance of appellant. At trial the prosecution produced a written statement attributed to Glover and signed by her, to the effect that a week before the robbery appellant told her that he wanted to rob the Mill Gate, and that afterwards he admitted to her that he had robbed the restaurant and killed the employee. Miss Glover took the stand, denied making the statement, and claimed she had been coerced into signing it. The state was permitted to introduce her prior inconsistent statements.

Augusto Flores Jr., an East Chicago police officer, testified that he talked to Glover as a possible witness of the death of Russell. Glover had first been contacted by telephone and indicated that she wanted to make a statement. She was advised of her rights, though she was not a suspect and was not in custody. She was free to leave at any time. Flores related the statement given to him by Glover. Glover was never threatened or abused, and she volunteered to go to the police station and make the statement while a man in her house volunteered to watch her child. In the statement she indicated that Love told her he got about a thousand dollars in the robbery, that he carried it out in a garbage can, and that a garbage...