Rhyne v. State, 682S229

• Citation: 446 N.E.2d 970
• Decision Date: 06 April 1983
• Docket Number: No. 682S229,682S229
• Parties: Russ RHYNE, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 970

446 N.E.2d 970

Russ RHYNE, Appellant, v. STATE of Indiana, Appellee.

No. 682S229.

Supreme Court of Indiana.

April 6, 1983.

Kenneth T. Roberts, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of confinement and robbery, both Class B felonies. He was sentenced to two terms of ten years to be served concurrently. Appellant was also found to be an habitual offender. He was sentenced to thirty years on this count to run consecutively to Counts I and II.

The record reveals the victim, Petzl, a sales clerk for HiWay Parts, Inc., assisted two customers, one of which was later identified as appellant, in the purchase of a tire gauge. Approximately one hour and twenty minutes later, the same pair attempted to return the tire gauge. They also inquired about the price of a brake hose for a Chevrolet while consulting a repair manual. One man gave Petzl a ten dollar bill toward the purchase of splash guards. While the clerk rang up the sale, he became aware of appellant pointing a handgun at his chest. Appellant's accomplice directed Petzl to an Arvin rack where he was handcuffed. The robber removed Petzl's two wallets, checkbook, watch and wedding ring. Petzl heard what he believed to be the cash register being emptied. After he thought the robbers had fled, Petzl began calling for help. He was released from the handcuffs by officers who responded to his cries for help. Approximately one hundred dollars was missing from Petzl's wallet. Approximately five hundred dollars was missing from the cash register.

At the request of Officer Reardon, Petzl viewed nine hundred to one thousand photographs at the police station. He unequivocally identified appellant as the robber with the gun. Petzl identified a different picture of appellant in a smaller, subsequent photographic array. Petzl identified appellant in a line-up by his appearance and voice.

Appellant claims the trial court erred in admitting the testimony of Lt. Mann. The victim gave the police a hat worn by appellant during the robbery and left at the scene. Four head hairs were recovered from the hat and compared with a sample of appellant's hair. Lt. Mann testified the two specimens exhibited the same microscopic characteristics. He stated his analysis did not conclusively show that the two samples were from the same head. His analysis revealed that the sample could have come from the same head. While appellant now argues the evidence should have been excluded because it was based on speculation, guess and surmise and without foundation, he failed to present these grounds for objection to the trial court. The issue is consequently deemed to be waived. Petruso v. State, (1982) Ind., 441 N.E.2d 446. Moreover, appellant errs in his only citation to support his argument. Morris v. State, (1979) Ind., 384 N.E.2d 1022 does not address an allegation similar to the one presented here on appeal.

Appellant claims the trial court erred in denying his motion to suppress witness Petzl's in-court identification of him as the perpetrator of the offenses. Appellant argues Petzl's identification was tainted by suggestive pre-trial procedure.

The record reveals the police requested Petzl come to the police station to view photographs. Petzl looked at nine hundred to one thousand photographs in a file drawer consisting of men similar to appellant's height and race. Each photograph depicted a man with a placard displaying a six digit number hanging from his neck. Petzl exclaimed when he saw appellant's photograph, unequivocally identifying him. Police officers later displayed thirty photographs without placards to Petzl containing a different picture of appellant. After looking at five or six photographs, Petzl selected appellant's.

Appellant claims the photographs displaying placards were unnecessarily suggestive "in that a person of average intelligence would believe that the person in the picture has a criminal record." Appellant again erroneously relies on the authority of Fox v. State, (1980) Ind.App., 399 N.E.2d 827. Fox, supra, addressed the issue of mugshots, displayed to the jury, as being unnecessarily suggestive because "Improper use of [mugshots] may be sufficient to cause a juror of average intelligence to strongly suspect the defendant has a criminal record." (emphasis ours) Fox, supra at 829.

In Whitt v. State, (1977) 266 Ind. 211, 216-217, 361 N.E.2d 913, 915, we stated in response to a similar allegation:

"It is better practice for police officers not to use mugshots, or to cover any police identification markings on them if mugshots are used. We have never established, however, a strict rule against the dispolay of such photographs to witnesses. The nature of the photograph is only one factor to be considered. In determining the suggestiveness of photographic displays the courts consider the totality of the circumstances surrounding the display."

We find no impermissible suggestion in the case at bar. Petzl was requested to look through "mugshots" that were classified by height and race. He viewed, while alone, nine-hundred to one-thousand photos before seeing appellant's. No suggestions were made by police that a...