Popplewell v. State
| Decision Date | 03 October 1978 |
| Docket Number | 1277S823,Nos. 1077S761,s. 1077S761 |
| Citation | 381 N.E.2d 79,269 Ind. 323 |
| Parties | Doyle POPPLEWELL, Jr., Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). Bennie MAYNARD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
John F. Ittenbach, Indianapolis, for Bennie Maynard.
Theodore L. Sendak, Atty. Gen., Joseph R. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.
Defendants (Appellants) were jointly tried on charges stemming from the same incident. In the trial by jury, Maynard was convicted of the commission of a felony while armed, to-wit: robbery, Ind. Code § 35-12-1-1 (Burns 1975) and sentenced to thirty (30) years imprisonment. Popplewell was convicted of the infliction of a physical injury while in the commission of a robbery, Ind. Code § 35-13-4-6 (Burns 1975) and sentenced to life imprisonment. Although their appeals had been separately filed and briefed, they have been consolidated by this Court pursuant to Appellate Rule 5(B) and present the following issues:
(1) The admissibility of identification testimony over objection premised upon an allegedly impermissibly suggestive pre-trial photographic identification procedure.
(2) Denial of a defendant's motion for a continuance premised upon the presentation of a witness who was not listed as a State's witness in response to a discovery order.
(3) The admission into evidence of certain of State's exhibits over the objection that a proper foundation therefor had not been laid.
Only issue number 1 is relevant to Popplewell's appeal.
A pre-trial motion was filed to suppress evidence of a prior photographic identification of the defendants which had been made by the victim. Grounds for the motion were that the procedure therefor had been impermissibly suggestive, in that the identifying witness, who was the victim of the crime, was aware that two suspects had been arrested and that their photographs were among those displayed to him. A hearing was had thereon, and the motion was overruled. At trial, the same objection was made and overruled; and a further objection to the victim's being permitted to make an in-trial identification of the defendants was also overruled.
During the early morning hours of February 22, 1977, the victim became acquainted with the defendants while drinking at a tavern. The three talked for approximately thirty minutes and then left to go to a house where the defendants were to procure a prostitute for the victim. Popplewell rode with the victim in his truck, while Maynard led the way in his automobile. When they reached the house, all three went inside. The victim was then beaten, robbed and taken to his truck and driven to an isolated area where the defendants indicated that they intended to kill him. The Altogether, the victim spent approximately three and one-half to four hours in the company of the defendants. He admitted to having felt the effects of the alcohol that he had consumed but denied being "drunk" and maintained that he had his wits about him and knew what was going on.
victim escaped, however, when the defendants became frightened by an approaching vehicle.
On the day following the beating and robbery, the victim was taken to police headquarters, where he looked through several "mug" books. No identification was made at that time. Two or three weeks later, the victim learned from a newspaper article that two suspects had been arrested. His wife made inquiry of the police as to the correctness of such information, and it was verified. A day or two later, a police officer telephoned the victim's wife, told her that they had arrested two suspects and that her husband should come to headquarters to see if he could identify them from some pictures. When the victim went to police headquarters, he was shown twelve photographs, all of white men with mustaches and being of the same general appearance. The victim viewed the photographs one by one and upon coming to the photographs of the defendants he selected them without hesitation as photographs of the two who had beaten and robbed him.
The claim of impermissible suggestivity is that the police had made the victim aware that the pictures of the arrested suspects would be among those he would view. The practice of the police of sometimes indicating that they suspect one of the persons pictured when exhibiting photographs to a witness has been criticized in Simmons v. United States, (1968) 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, as having a potential for inducing a misidentification which the witness is, thereafter, likely to believe and retain. This Court agreed, and in Sawyer v. State, (1973) 260 Ind. 597, 298 N.E.2d 440, said that such a disclosure "needlessly decreases the fairness of the identification process." Nevertheless, the rule from Simmons, supra, and Sawyer, supra, is " * * * that convictions 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.
In viewing the totality of the circumstances, we are impressed with the length of time and the circumstances under which the victim had been with the defendants, the number of photographs contained in the display (twelve in all) and their similarity in appearance, the witness' prior viewing of police file photographs and correct rejection of all, and the swiftness and certainty with which he made his selection when the defendants' photographs appeared. All of these factors meld to...
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Decker v. State
...440, where the identification procedures were suggestive are therefore not applicable. Furthermore, our Supreme Court in Popplewell v. State (1978), Ind., 381 N.E.2d 79 stated that where an officer presenting pretrial photographic identification displays indicates that the suspect's photogr......
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Wooten v. State, 1-1180A322
... ... How this final matter tainted the display or prejudiced Wooten, he does not explain. We would note that rather than its being impermissibly suggestive, it suggests nothing whatever ... The case of Popplewell; Maynard v. State, (1978) 269 Ind. 323, 381 N.E.2d 79, is dispositive of this issue. There, the claim of impermissible suggestivity was made because police officers had informed the victim that the photograph of the arrested suspect would be included in the photographic display. Our Supreme Court ... ...
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Vanway v. State
... ... To support his proposition, the defendant cites us to cases involving police suggestions to witnesses about a certain person or that the suspect is included among those in the line-up or photo display prior to the witness identification. See Popplewell v. State (1978), 269 Ind. 323, 381 N.E.2d 79, and Stacks v. State (1978), 175 Ind.App. 525, 372 N.E.2d 1201. Reliability is the linchpin in determining the admissibility of identification testimony. The question to be determined is whether the identification procedure is so suggestive that a ... ...
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Spears v. State, 179S13
...with that order. "The sanctions for failure to comply with discovery orders are discretionary, not mandatory." Popplewell v. State, (1978) Ind., 381 N.E.2d 79, 82. Defendant suggests that it was improper for the trial court to hold the state to something less than strict compliance with the......