Norris v. State, No. 776S200

Docket NºNo. 776S200
Citation265 Ind. 508, 356 N.E.2d 204
Case DateNovember 01, 1976
CourtSupreme Court of Indiana

Page 204

356 N.E.2d 204
265 Ind. 508
Edward NORRIS, Appellant,
v.
STATE of Indiana, Appellee.
No. 776S200.
Supreme Court of Indiana.
Nov. 1, 1976.

[265 Ind. 510]

Page 205

Kenneth T. Roberts, Wilson, Coleman & Roberts, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Appellant, Edward Norris, was convicted of armed robbery, Ind.Code § 35--12--1--1 (Burns 1975), by the Marion County Criminal Court, after the Marion County Juvenile Court waived its jurisdiction over him. Appellant received a determinate sentence of fifteen years.

Appellant filed a motion to correct errors seeking a new trial on the basis of newly discovered evidence. 1 The motion recited that the victim, Mrs. Louise Simpson, identified appellant at the juvenile court waiver hearing, and that appellant had newly discovered evidence showing that 'her identification in Juvenile Court was suggestive.' Two exhibits were attached to the motion: a transcript of the waiver hearing, and a copy of a newspaper article which appellant's brief identifies as having appeared in the Indianapolis Star at sometime between appellant's arrest and the waiver hearing.

The motion to correct errors seems to allege that the transcript of the waiver hearing is 'newly discovered evidence' showing that Mrs. Simpson saw a photograph of appellant in the newspaper exhibit 'and therefore there was no independent basis for the identification.'

We understand appellant's motion to correct errors to argue as follows:

(1) Victim Louise Simpson saw a picture of appellant in the newspaper before identifying him at the waiver hearing.

(2) Her seeing this picture constituted an impermissibly suggestive identification proceeding, which tainted her subsequent in-court identifications of appellant at the waiver hearing and at trial.

[265 Ind. 511] (3) The fact that Mrs. Simpson saw the newspaper picture is proven by the transcript of the waiver hearing, which did not become known to appellant's counsel until after appellant's conviction.

On appeal, appellant argues the above and alleges that the in-court identification at the waiver hearing was unduly suggestive and that it tainted the identification at trial.

I.

Appellant seems to misapprehend the nature of the rules concerning suggestion identification, in arguing that Mrs. Simpson's identification of appellant at the waiver hearing was 'suggestive' because Mrs. Simpson's alleged viewing of appellant's newspaper photograph caused the lack of any 'independent basis' for her identification testimony at the hearing.

Page 206

Due process requires suppression of testimony concerning an out-of-court identification when the procedure employed was unnecessarily suggestive. Stovall v. Denno, (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Swope v. State, (1975) Ind., 325 N.E.2d 193. A subsequent in-court identification by the same witness is permitted if under all the circumstances, the in-court identification is reliable; that is, the earlier identification must not have been...

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41 practice notes
  • Bundy v. State, No. 57772
    • United States
    • United States State Supreme Court of Florida
    • June 21, 1984
    ...(9th Cir.1978); United States v. Zeiler, 470 F.2d 717 (3d Cir.1972); Stroud v. State, 246 Ga. 717, 273 S.E.2d 155 (1980); Norris v. State, 265 Ind. 508, 356 N.E.2d 204 (1976); Sanders v. State, 612 P.2d 1363 (Okla.Crim.App.1980). Others have found that there was not a substantial likelihood......
  • Com. v. Davis
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 4, 1980
    ...v. Boston, 508 F.2d 1171, 1177-1178 (2d Cir. 1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975); Norris v. State, 265 Ind. 508, 511-513, 356 N.E.2d 204 15 On April 6, two days before the lineup, Cohen had identified the defendant's picture in a group of six pictures, c......
  • Cobb v. State, No. 778S142
    • United States
    • Indiana Supreme Court of Indiana
    • November 7, 1980
    ...admissibility of their in-court identification. Gaddis v. State, (1977) 267 Ind. 100, 107, 368 N.E.2d 244, 249; Norris v. State, (1976) 265 Ind. 508, 512, 356 N.E.2d 204, 206. Accordingly, the court properly admitted the in-court identification testimony of these two Appellant Cobb tendered......
  • Daniels v. State, No. 380S66
    • United States
    • Indiana Supreme Court of Indiana
    • September 9, 1983
    ...necessary to gain a new trial as set out in our case law. 4 Bryant v. State, (1979) 270 Ind. 268, 385 N.E.2d 415; Norris v. State, (1976) 265 Ind. 508, 356 N.E.2d 204; Bradburn v. State, (1971) 256 Ind. 453, 269 N.E.2d Defendant finally contends that the court erred by allowing the state to......
  • Request a trial to view additional results
41 cases
  • Bundy v. State, No. 57772
    • United States
    • United States State Supreme Court of Florida
    • June 21, 1984
    ...(9th Cir.1978); United States v. Zeiler, 470 F.2d 717 (3d Cir.1972); Stroud v. State, 246 Ga. 717, 273 S.E.2d 155 (1980); Norris v. State, 265 Ind. 508, 356 N.E.2d 204 (1976); Sanders v. State, 612 P.2d 1363 (Okla.Crim.App.1980). Others have found that there was not a substantial likelihood......
  • Com. v. Davis
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 4, 1980
    ...v. Boston, 508 F.2d 1171, 1177-1178 (2d Cir. 1974), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975); Norris v. State, 265 Ind. 508, 511-513, 356 N.E.2d 204 15 On April 6, two days before the lineup, Cohen had identified the defendant's picture in a group of six pictures, c......
  • Cobb v. State, No. 778S142
    • United States
    • Indiana Supreme Court of Indiana
    • November 7, 1980
    ...admissibility of their in-court identification. Gaddis v. State, (1977) 267 Ind. 100, 107, 368 N.E.2d 244, 249; Norris v. State, (1976) 265 Ind. 508, 512, 356 N.E.2d 204, 206. Accordingly, the court properly admitted the in-court identification testimony of these two Appellant Cobb tendered......
  • Daniels v. State, No. 380S66
    • United States
    • Indiana Supreme Court of Indiana
    • September 9, 1983
    ...necessary to gain a new trial as set out in our case law. 4 Bryant v. State, (1979) 270 Ind. 268, 385 N.E.2d 415; Norris v. State, (1976) 265 Ind. 508, 356 N.E.2d 204; Bradburn v. State, (1971) 256 Ind. 453, 269 N.E.2d Defendant finally contends that the court erred by allowing the state to......
  • Request a trial to view additional results

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