Murphy v. State, 4-1083A341

Docket NºNo. 4-1083A341
Citation475 N.E.2d 42
Case DateMarch 05, 1985
CourtCourt of Appeals of Indiana

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475 N.E.2d 42
David MURPHY, Jr., Appellant (Defendant Below),
STATE of Indiana, Appellee (Plaintiff Below).
No. 4-1083A341.
Court of Appeals of Indiana,
Fourth District.
March 5, 1985.

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Pamela P. Kosenka, Stults, Custer, Kutansky & McClean, Gary, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

A Lake County jury convicted David Murphy, Jr. of armed robbery, class B felony, in the theft of an automobile from Patricia Overmeyer, and the trial court sentenced him to six years in prison. Murphy bases the instant appeal on alleged error in his identification by eyewitnesses, on the failure of the trial court to grant a continuance, on a violation of the court's separation order, and on the insufficiency of the evidence. We are unable to find error in Murphy's contentions and affirm.


1. Whether the trial court erred by permitting eyewitnesses to make in-court identifications of Murphy in light of their previously suppressed testimony with respect to a tainted pre-trial photographic identification of him;

2. Whether the trial court abused its discretion by denying Murphy's request to sit elsewhere in the courtroom than counsel table in order to test the eyewitnesses' in-court identification;

3. Whether the trial court abused its discretion when it denied Murphy's request, made the day of trial, for a continuance to obtain an out-of-state witness;

4. Whether the trial court abused its discretion by failing to ensure enforcement of its order for the separation of witnesses;

5. Whether there was substantial evidence of probative value by which the jury could conclude that Murphy was guilty of the crime of robbery beyond a reasonable doubt.


Just before dusk on July 24, 1980, sometime between 7:00 and 8:00 P.M., Overmeyer and her friend, Annette LaBarge, finished shopping at the Venture department store in Griffith, and proceeded to return to Overmeyer's car. Overmeyer owned a blue 1980 Pontiac Firebird and had parked it some distance from the store in order to avoid placing it near other cars so as to prevent it from being nicked and scratched. As the two women approached the vehicle, Overmeyer thought it odd that another car with two occupants had been parked next to hers in an isolated area. This other was set parallel to Overmeyer's on the driver's side, and as she reached her door, the driver engaged her in a conversation about her car, particularly complimenting it. Overmeyer unlocked her car and disengaged the alarm system, while continually glancing at the other driver. She got in her car and locked it, but before she had an opportunity to unlock the passenger door for LaBarge, she saw the other driver bring a gun up and point it in her direction. He ordered her out of the car while LaBarge began to walk around the rear of Overmeyer's vehicle from the passenger side, in order to help. The driver then pointed the gun at LaBarge. Overmeyer, in the meantime, had gotten out of her car and tossed the keys to him. He ordered the women to turn and walk away, and they practically ran back to the store. The whole incident lasted from fifteen to thirty seconds, and both women insisted that, because of the intensity of the situation, they both kept their eyes almost constantly on the robber and because of the sunlight and their assailant's

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proximity, they both got a clear image of his features. (Overmeyer was only a couple feet away and faced the robber when she gave him the keys; LaBarge was separated only by the width of the car and watched him throughout most of the incident). Overmeyer duly reported the crime to the Griffith Police Department.

Nearly seven weeks later, on September 12, Officers Wade and McKinney of the Gary Police Department were working a parttime security detail at Lew Wallace High School in Gary when one Craig Matlock approached the officers and told them that Murphy would be arriving at the school in a stolen car. Matlock was evidently willing to turn over his friend because Murphy had stolen his girlfriend. Within 30 to 45 minutes, the officers spotted Murphy driving a blue Pontiac Firebird with Matlock riding as passenger. Matlock signalled the officers, and they activated the siren and flashing lights of their own vehicle and attempted to "curb" Murphy's car so they could run a check on its ownership. Instead, Murphy accelerated the Firebird and led the police in a high-speed (50 to 60 mph) chase through Gary. Eventually, the Firebird crashed into a fire hydrant, and Murphy attempted to escape on foot. He was pursued and captured with the help of an off-duty county officer. Officer McKinney verified that both the car and the license plate were stolen, the VIN of the wrecked Firebird matching that of Overmeyer's stolen vehicle. All the authorities could educe from Murphy was that the car belonged to someone named "Slick."

At trial, in May, 1983, both Overmeyer and LaBarge identified Murphy as the man who had threatened them with a gun then had stolen Overmeyer's car. In his defense, Murphy attempted to establish the alibi that he had spent most of the evening of July 24, 1980, with his mother and therefore could not have committed the instant offense. In addition, he produced witnesses who testified he always wore glasses, unlike the robber. The jury believed the state's case and found Murphy guilty of armed robbery.


Identification Evidence

Prior to trial, Murphy moved to suppress all identification evidence to be elicited from eyewitnesses, Overmeyer and LaBarge, both from a pre-trial photographic array and from any possible in-court identification. At the hearing on the motion, Murphy presented a convincing argument that the September 12 photographic array displayed to Overmeyer and LaBarge was improperly conducted because of the dissimilarity of three of the five photographs from Murphy's picture and the fact that Murphy's mugshot clearly displayed his September 12 arrest date. So convincing was Murphy's argument that the trial court granted his motion to suppress with regard to this identification. The court, however, refused to suppress either witness's in-court identification, finding there were sufficient independent bases for Overmeyer's and LaBarge's testimony.

At that hearing LaBarge testified that on the evening in question it was sufficiently light out for her to see the robber clearly and that she had been only a few feet away during the entire incident, and she stated she had watched him throughout. Overmeyer had been much closer to the perpetrator, described as within "arm's reach," and estimated the incident lasted close to thirty seconds. She too constantly observed the man and got a particularly clear view of his features when she tossed him her car keys. When Overmeyer and LaBarge reported the crime to the Griffith Police, they described their assailant as "Medium height, male, Negro, close cropped Afro-hair style, eighteen (18), seventeen (17), eighteen (18) years old, allegedly wearing blue jeans and some type of a top ...." Record, p. 176. They also declared he had no facial hair. The women then assisted in producing an identi-kit portrait of the robber, which bore the following description: "MALE/NEGRO-LIGHT TO MEXICAN FEATHURS [sic] 18 yrs. 5'6" APPOX [sic]" Record, p. 198. On the

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basis of this testimony the judge ruled against Murphy's motion to suppress and furthermore later overruled his objections to both witnesses' actual in-court identification. We believe he correctly ruled.

Our courts make a distinction between the admission of testimony concerning an improper pre-trial identification of a defendant and the admission of an in-court identification which is made without regard to the former. An in-court identification untainted by improper pre-trial procedures is, without question, admissible. Our inquiry in such situations is for the determination of whether an independent source exists for the in-court identification such that the taint of an earlier identification is of no moment. Cooper v. State (1977), 265 Ind. 700, 359 N.E.2d 532. We believe, as did the trial court, that such independent bases exist here.

As our law clearly allows, the state must establish an independent source for an in-court identification by demonstrating through clear and convincing evidence that the witness/es did have, at some time independent of any suggestive procedures, sufficient occasion to formulate an insular recognition of the defendant. Johnson v. State (1982), Ind., 432 N.E.2d 403. Our supreme court has declared that such scrutiny of a witness's independent recollection

"considers only the objective circumstances of each case. These consist of the witness' actual opportunity to observe the accused and such facts as would indicate whether or not the witness could have identified the suspect without the influence of the suggestive procedure."

Cooper v. State, supra, 265 Ind. at 703, 359 N.E.2d at 534. Such circumstances include:

1) "prior opportunity to observe the alleged criminal act,"

2) "the existence of any discrepancy between any pre-lineup description and the defendant's actual description,"

3) "any identification prior to lineup of another person,"

4) "the identification by picture of the defendant prior to the lineup,"

5) "failure to identify the defendant on a prior occasion,"

6) "the lapse of time between the alleged act and the lineup identification,"

7) "the length of time the witness was in the presence of the perpetrator,"

8) "the distance of the witness from him,"

9) "the lighting conditions at the time,"

10) "capacity for observation by the witness,"

11) "opportunity to observe particular characteristics of the criminal."

Harris v. State (1980), 273 Ind. 60, 62-63, 403 N.E.2d 327, 329; Johnson v. State, supra, 432 N.E.2d 403. Looking, as we must, to the evidence most favorable to the...

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    • United States
    • Indiana Court of Appeals of Indiana
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    ...court also has the power to exclude the testimony of a defense witness who has violated the court's separation order. Murphy v. State, 475 N.E.2d 42, 50-51 (Ind.Ct.App.1985), reh'g denied, trans. denied. However, due to the severe impact it has on the defendant's constitutional rights, disq......
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