Parker v. State

• Decision Date: 08 July 1998
• Docket Number: No. 49S00-9607-CR-00496,49S00-9607-CR-00496
• Citation: 698 N.E.2d 737
• Parties: Michael G. PARKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 737

698 N.E.2d 737

Michael G. PARKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S00-9607-CR-00496.

Supreme Court of Indiana.

July 8, 1998.

Lesa Lux Johnson, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Carol A. Nemeth, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

Following a jury trial, defendant Michael G. Parker was convicted of Robbery ¹ and found to be a habitual offender. ² He was sentenced for the robbery to twenty years, which was the maximum enhanced term for this class B felony, ³ and, on account of the habitual offender finding, his sentence was further enhanced to life without parole. ⁴

Defendant appeals. The life sentence gives us jurisdiction over this direct appeal. ⁵ We affirm in part and reverse in part.

Background

A summary of the facts most favorable to the judgment follows. After withdrawing $120 from an automated teller machine, the victim, Arnetra Rhodes, got into a car with her sister, Karen Clayborn, her sister's friend, Harry Turner, and defendant. Clayborn intended to buy food stamps from defendant with money Clayborn would borrow from Rhodes. These transactions never took place. Instead, defendant pulled out a gun, pointed it at Rhodes and demanded the money. Rhodes dropped it on the seat, and the two women fled. They immediately reported the incident to police. Turner remained in the car and later reported to police that after the women left, defendant pointed the gun at him and took his gold necklace.

After the witnesses identified defendant in a pre-trial photo array, he was arrested and charged with two counts of robbery while armed with a deadly weapon and with being a habitual offender. During the guilt phase of the trial and over defendant's objection, the witnesses were allowed to testify about their pre-trial identification of defendant and to identify him at trial. The jury returned a guilty verdict on the charge that defendant robbed Rhodes of her money, but a not guilty verdict on the charge that defendant robbed Turner of his gold necklace.

Two weeks later the jury was reassembled to hear the habitual offender phase of the trial. The prior felony convictions necessary for the habitual offender finding were proved with documentary evidence, to which defendant objected. The trial court overruled defendant's objection to instructing the jury that if it found that the State had proven the prior felonies, it "should" find defendant to be a habitual offender. The jury found defendant to be a habitual offender and the trial court sentenced him to life without the possibility of parole. Additional facts will be provided as necessary.

Defendant raises the following issues:

1. Whether the pre-trial identification procedures were unduly suggestive;

2. Whether the jury was properly instructed with regard to habitual offender status; and 3. Whether there was sufficient evidence to support the habitual offender finding.

Discussion

I

Defendant contends that the witnesses' pre-trial identifications were the result of an unduly suggestive police procedure, which, in turn, tainted their in-court identifications such that evidence of neither should have been admitted at trial. Defendant has preserved this error for review by way of a motion to suppress and an objection at trial.

Due process of law under the Fourteenth Amendment requires suppression of testimony about a pre-trial identification when the procedure employed is unnecessarily suggestive. Farrell v. State, 622 N.E.2d 488, 493 (Ind.1993); Bell v. State, 622 N.E.2d 450, 454 (Ind.1993); James v. State, 613 N.E.2d 15, 27 (Ind.1993). Otherwise, the defendant is subjected to the unacceptable risk that the identification process was conducted in such a way that it created a substantial likelihood of irreparable misidentification. Farrell, 622 N.E.2d at 493. "Whether the procedure employed was 'unnecessarily suggestive' in a particular case is to be determined under the totality of the circumstances." James, 613 N.E.2d at 27. See Harris v. State, 619 N.E.2d 577, 580 (Ind.1993). "If under the totality of the circumstances, the reviewing court finds the out-of-court procedures were not impermissibly and unnecessarily suggestive, both the evidence of the pretrial lineup and the in-court identification are considered to have been properly admitted by the trial court, and there is no need to proceed further." ⁶ Harris, 619 N.E.2d at 580 (citing Brooks v. State, 560 N.E.2d 49, 55 (Ind.1990)). See Farrell, 622 N.E.2d at 494; Bell, 622 N.E.2d at 454.

"Factors to be considered in evaluating the likelihood of a misidentification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, and (4) the level of certainty demonstrated by the witness." Farrell, 622 N.E.2d at 493-94; James, 613 N.E.2d at 27; Brooks, 560 N.E.2d at 55 n. 1. Among other factors the court may consider are (1) the manner and form in which the police asked the witness to identify the suspect and the witness's interpretation of their directives and (2) whether the police focused on the defendant as the prime suspect, either by their attitude or the makeup of the photo array. Bell, 622 N.E.2d at 454; Brooks, 560 N.E.2d at 55.

In defendant's case, Rhodes and Clayborn met with Indianapolis Police Detective Grant the day after the robbery. The sisters examined a computer-selected array consisting of some fifty to sixty photographs of men with the general physical attributes they had described. They viewed the photographs as images on a computer screen. Neither sister identified a suspect from this array, and whether defendant's photograph was included is unknown.

About one week later, Rhodes informed Detective Grant that she had just seen the robber in the same car in which the robbery had occurred, and that she had obtained the license plate number. Investigation showed that the car was registered to defendant. With this new information, Officer Grant asked Rhodes and Clayborn to look at another photo array.

This time, the sisters viewed color images of six men on the computer. Detective Grant included defendant's image in the array. The other men were selected with the help of the computer, and they all shared similar physical characteristics. Separately, Detective Grant ushered each sister into the computer room, and instructed each to look at the images. Each took about thirty seconds to identify defendant's image as that of the robber. When each sister had finished viewing the images, they stepped into another room, and signed a paper identifying defendant as the robber. A few days later, Turner repeated the same process and also selected defendant's image.

Defendant asserts that Detective Grant's comments made the procedure unduly suggestive because he indicated that the suspect was in the photo array. Br. of Appellant at 10. This assertion is not accompanied by citation to the record and our review of the record reveals no such evidence. See Brooks, 560 N.E.2d at 57 (no indication in record that police called attention to appellant in line up); cf. Sawyer v. State, 260 Ind. 597, 601-2, 298 N.E.2d 440, 443 (1973) (identification procedure may be unduly suggestive if police indicate suspect's photo included in the array).

Defendant also contends that the procedure was unduly suggestive because Detective Grant asked "Is that him?" as Clayborn looked at each picture. At trial, Clayborn testified that Detective Grant did not ask this question until after Clayborn had identified Defendant. In contrast, Clayborn's deposition testimony could be interpreted as indicating that the question was posed before she had made her selection. We believe that any discrepancy between Clayborn's trial testimony and deposition testimony was appropriately left for the trier of fact to resolve.

None of the other circumstances suggest an infirm pre-trial identification procedure. Each witness who identified defendant had sufficient opportunity to view him during the robbery so as to form the basis for the pre-trial identification. In fact, both Clayborn and Turner were already acquainted with defendant, though only as a man they knew as "Big Poppa." Each witness identified him without hesitation. Contrary to defendant's suggestion, the length of time between the robbery and the pre-trial identification, which was less than two weeks, does not suggest an invalid procedure. See, e.g., Farrell, 622 N.E.2d at 494 (concluding that ten months was not too long on the facts of that case). The witnesses' descriptions of defendant were reasonably consistent with his appearance in the computer-generated array and at trial, notwithstanding defendant's efforts on appeal to highlight discrepancies in the various descriptions of his clothing, his facial hair and the color of his car. In the context of the other strong evidence of a valid identification, any discrepancies can be described as minor.

In summary, we find the evidence amply supports the trial court's conclusion that there was nothing unnecessarily suggestive in the pre-trial identification procedure that would have influenced the witnesses' identification. As such, there is no need to evaluate defendant's contention that the in-court identifications were tainted by the pre-trial identifications. Bell, 622 N.E.2d at 455; Brooks, 560 N.E.2d at 55.

II

Defendant contends that the trial court erred by instructing the jury that if it found that the State had proved the predicate felonies, it "should" find defendant to be a habitual offender. He argues that the jury is entitled to make a determination of habitual offender status as a matter of law independent of its factual determinations regarding the predicate felonies.

Habitual offender status is given to persons under certain circumstances for the...