Saffold v. State, 3--174A12

• Citation: 162 Ind.App. 6,317 N.E.2d 814
• Decision Date: 22 October 1974
• Docket Number: No. 3--174A12,3--174A12
• Parties: Robert Terry SAFFOLD, Defendant-Appellant v. STATE of Indiana, Plaintiff-Appellee. . Third District
• Court: Court of Appeals of Indiana

Page 814

317 N.E.2d 814

162 Ind.App. 6

Robert Terry SAFFOLD, Defendant-Appellant v. STATE of Indiana, Plaintiff-Appellee.

No. 3--174A12.

Court of Appeals of Indiana. Third District.

Oct. 22, 1974.

Paul J. Giorgi and Nicholas J. Schiralli, Merrillville, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Gary M. Crist, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Chief Judge.

Defendant-appellant Robert Terry Saffold (Saffold) and Larry Eugene Bass were charged by affidavit with the crime of robbery. Saffold was tried separately by a jury and found guilty as charged. He was sentenced to the Indiana State Prison for a period of not less than ten years nor more than twenty-five years. Thereafter, the trial court permitted Saffold to file a belated motion to correct errors. The motion was overruled and this appeal followed.

The facts in the records before us most favorable to the State show that shortly after midnight of August 27, 1970, Ronald Max Sobczak (Sobczak) was at work at a Clark Service Station in Hammond, Indiana, as a 'pump attendant.' While Sobczak was on duty, two men posing as customers drew pistols, threatened to 'blow your (Sobczak's) head off', and ordered him into the back room of the station where they robbed him of money and cigarettes. Sobczak testified that one of the men who robbed him was 'well-built', approximately six feet tall, weighed 190 pounds and was about 22 or 23 years of age. He further described this man as having large sideburns, a barely discernable mustache and gray hair around his temples; and further stated that of the two persons who robbed him, Saffold was 'the big one, he was the one with the cut-off shirt, the orangish-red dark shirt with the large arms, the one who had the white pistol.' Sobczak identified the defendant, Robert Terry Saffold, as this man. However, Sobczak testified that defendant's appearance had changed at the time of trial in that he had no gray hair then and had lost weight.

An off-duty employee of the station, Gary Keith Bales (Bales) arrived at the station while Sobczak and the robbers were in the rear room of the station. He had parked his car on the station drive and was walking toward the door of the station when he saw Saffold emerge holding a coin changer and several cartons of cigarettes. Saffold saw Bales and ran from the station area.

Hammon police officers Jim Lawson and Stanley A. Burczyk were on routine mobile patrol when they passed the Clark Service Station and saw Saffold running from the station carrying cartons of cigarettes and a gray box. They gave chase, and Saffold was apprehended shortly thereafter with the weapon used in the robbery and items taken in the robbery in his possession. Both officers testified that Saffold's appearance at trial was different than on the night of the robbery.

After his arrest, Saffold was taken to the Hammond Police Station and 'booked.' Detective Sgt. William Sebastyen identified the defendant in court as the same man he interviewed on the morning following the robbery. He also stated that the defendant's appearance had changed at the time of trial. During the routine booking procedure following his arrest Saffold was photographed with a sign suspended about his neck reading:

'Police Dept. Hammond Ind 10307 8--26--70'

At trial, this photograph was introduced in evidence and examined by the jury after Detective Sgt. Sebastyen had identified it as the photograph of Saffold taken following his arrest on the morning of the robbery. The photograph is a single, frontal pose showing Saffold from middle chest to head. Beneath the photograph is the defendant's name, 'Robert Saffold.'

The sold question presented by this appeal is whether the admission of this photograph in evidence over the defendant's objection constituted error.

It is the general rule that 'mug shots' of a criminal defendant are inadmissible at his trial where the defendant has not testified or otherwise placed his character in issue. It has been held that the introduction of such photographs in evidence under these circumstances would likely indicate to the jury that the defendant had previously been convicted of one or more crimes at a time when any direct evidence of such convictions would be inadmissible. The primary Indiana case law authorities for this proposition are: Blue v. State (1968), 250 Ind. 249, 235 N.E.2d 471; Vaughn v. State (1939), 215 Ind. 142, 19 N.E.2d 239.

In Blue our Supreme Court considered a situation where 'mug shots' of the two defendants in the three classic, postoffice-type poses were introduced in evidence at their joint trial. The signs worn by the defendants in those pictures showed the date they were taken, and thus it was apparent that the photograph of one defendant had been taken in connection with a prior arrest and, of the other, following his arrest for the crime being tried. In holding the latter photographs inadmissible under the above stated rule, the court relied heavily upon decisions of the Federal Courts, and concluded:

'However, as to appellant Blue, the photograph was taken incidental to his arrest for the crime charged in the case at bar. A careful investigation of the cases dealing with the question of the introduction of 'mug shots' into evidence shows abundantly clear (sic), that when the photos were taken is not material. Indeed, in Barnes v. United States (supra,) ((1966), 124 U.S.App.D.C. 318, 365 F.2d 509) and in Vaughn v. State (supra,) the printing on the pictures was covered with tape or paper rendering it difficult for the jury to know when or where the photos were taken. What remained and what was objected to was a photograph which depicts an individual in the three classic poses. It is hardly an unreasonable assumption to make, that the jurors would know that these photos were taken incidental to an arrest or prison term and would not make the minute distinction as to when they were taken. They could readily assume that the subject depicted had a criminal record. These photographs are highly prejudicial upon sight and may very easily create an unfavorable automatic reaction in a juror's mind without further investigation by him.

'It should also be noted that where the witness positively identifies the defendant in the Court room as the felon; 'mug shots' introduced as evidence going to identification are irrelevant, and of no probative value, as well as an encumbrance on the record. Vaughn v. State (supra).

'In conclusion we can see no reason why the rationale of the cases studied should not be extended to the 'mug shot' of appellant Blue, and its introduction constitutes reversible error as well.'

The factual situation in the case at bar is superficially similar to that discussed in the above quote from Blue. However, upon careful consideration it is apparent that substantial factual differences from Blue are present in the instant case.

At the outset, it should be noted that in the case at bar the introduction of the single photograph was necessary to explain an apparent inconsistency in the testimony of the State's witnesses which was vigorously probed by the defendant on cross-examination. Each witness described a subject materially different in appearance from the defendant in the courtroom, and the defense made much of this identity question on cross-examination. Therefore, near the close of its case-in-chief, the State used the only means at its disposal, the photograph, to prove to the jury that the defendant had appeared at the time of his arrest as the witnesses described him at the time of trial.

The exact situation presented in the case at bar was foreseen by our Supreme Court in Vaughn v. State, supra. In Vaughn the court explained the circumstances in which such photographs would be admissible and, at 145--146 of 215 Ind., at 241 of 19 N.E.2d, stated:

'There is no contention that the defendant had changed in appearance between the date of the crime charged and the date of trial, nor is it contended that it was not obvious, without the testimony of any person, that the photograph was the picture of the defendant. There may be cases where a defendant's appearance has changed, in which a witness may be permitted to identify a photograph as a basis for other witnesses testifying that the defendant, though changed in appearance, is the identical person represented by the photograph; and there may be other cases in which a photograph may have some substantial probative force, but even in such a case the court should require the removal of anything of a prejudicial character from the photograph. Pictures of criminals showing a front and profile view, with a number displayed on the breast, are common and familiar. * * * It may well be doubted whether the jurors remained in ignorance of the fact that the photographs and card had to do with some criminal record of the defendant. It was not proper to prove that the defendant had a criminal record, and what may not be done directly may not be done by indirection or subterfuge. If the photographs had any substantial probative force and furnished any further...