Sawyer v. State

• Decision Date: 11 July 1973
• Docket Number: No. 771S204,771S204
• Citation: 37 Ind.Dec. 405,298 N.E.2d 440,260 Ind. 597
• Parties: Cleotha SAWYER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 440

298 N.E.2d 440

260 Ind. 597

Cleotha SAWYER, Appellant, v. STATE of Indiana, Appellee.

No. 771S204.

Supreme Court of Indiana.

July 11, 1973.

A. Martin Katz, Gary, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This case comes to us on appeal from the Lake Criminal Court, Honorable Vernon Sigler, Commissioner. Appellant was convicted of the offense of robbery (I.C. 1971, 35--13--5--6, being Burns § 10--4101) and sentenced to the Indiana Reformatory for not less than ten nor more than twenty-five years. He appeals on two grounds: (1) That the trial court erred in not sustaining his motion to strike witness Clifford Fry's in-court identification of appellant because Fry had been present at a photographic display which was both suggestive in nature and conducted without the presence of appellant's counsel even though appellant had already been arrested and charged with the crime; (2) Ineffective representation by his trial counsel.

On January 26, 1970, at about 6:00 p.m. two men entered the Butternut Bakery in Calumet Township. They walked to a display rack, picked up a cake and approached the checkout counter. At that time they announced they were holding up the store. One of the men pulled a shotgun from underneath his coat and came around to the back of the counter. Two workers behind the counter were ordered to take the money from the cash register and put it in a paper-bag. The other man ordered two customers in the store against the wall. He kept his hand in his right jacket pocket and told the men to hand over their wallets or he would blow their heads off. The holdup men left the bakery with about $150.00.

There were five State witnesses at the trial, four of whom were the workers and customers at the bakery the night of the incident. All four of these witnesses described the holdup men as Black and in their early twenties. The man with the shotgun was described as somewhat taller than the other man. One of the employees could not say whether or not the appellant was one of the men at the store because she testified that she had deliberately kept her head down during the robbery so as not to arouse the men's suspicions that she was studying their features. The other employee testified that appellant 'looked like' the shorter of the two men but she could not be sure.

Both of the customers stated that it was the shorter man who told them to stand against the wall. He kept his hand in his jacket pocket the entire time they were in the shop. Both witnesses testified that the shorter man took their wallets and identified appellant as that man. The fifth State witness was a police officer who took a statement from appellant concerning the holdup. The statement was introduced and received in evidence over the objections of appellant but he does not urge the trial court's ruling on that point as error. He does, however, appeal on the court's ruling concerning his objection to the testimony of one of the customer-witnesses, Clifford Fry.

During the testimony of Clifford Fry appellant asked for and was granted permission to voir dire the witness out of the presence of the jury. On the voir dire appellant established that the police had come to Fry's house about two weeks after the robbery. They told Fry that they had arrested someone for the robbery and they wanted Fry to pick him out of some photographs they had. They showed him about twenty different photographs of Black males of various descriptions, out of which Fry picked three or four that resembled the men at the store. Fry went over these carefully and indicated who he thought were the holdup men.

After this voir dire appellant made a motion to strike witness Fry's identification testimony on the grounds that his in-court identification was tainted by a suggestive out-of-court photographic procedure, and further because appellant was deprived of his right to counsel at this post-arrest photographic display. The trial court denied appellant's motion and he now appeals that decision.

The Sixth Amendment to the Federal Constitution guarantees that the accused in a criminal prosecution shall have the assistance of counsel. In two related cases handed down in 1967, the United States Supreme Court interpreted this provision to provide for the right to counsel at a post indictment corporeal lineup. United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. The court held that the post indictment lineup was a 'critical stage' of the criminal proceeding and one in which a defendant was entitled to be represented by counsel. Appellant now contends that a photographic display shown to a State witness after the defendant has been charged is not distinguishable from a corporeal lineup at the same stage of the proceedings and, under the Wade and Gilbert rationale, one conducted in the absence of counsel violates his Sixth Amendment rights and taints the in-court identification of the witness.

In the United States Supreme Court's recent decision in United States v. Ash (1973), --- U.S. ---, 93 S.Ct. 2568, 37 L.Ed.2d 619, however, it was specifically held that the Sixth Amendment does not grant the right to have counsel present at a post indictment photographic display. The court stated that this type of display was not a critical stage of the criminal proceeding since the accused was not present at the display and did not require aid in 'coping with legal problems or help in meeting his adversary.' Under the Ash decision therefore appellant's Sixth Amendment contention is without merit.

Appellant also contends, however, that the procedure used by the police at the photographic showup was impermissibly suggestive and therefore violated his right to due process. It has been recognized for some time that in the use of photographs to identify a defendant there is a potential danger that the procedure used may hinder or even prevent a true selection of the perpetrator of the crime by a witness. Both the United States and the Indiana Supreme Courts have held that a procedure which is so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification violates a defendant's right to due process. Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Emerson v. State (1972), Ind., 287 N.E.2d 867.

The procedure used by the police here does indicate a needless amount of suggestivity under the circumstances. Although this is not a situation where a single photograph was used, or where the defendant's photograph was somehow unique in relation to the others, it does appear that Fry was given information which could have, absent a substantial opportunity for independent origin, lead to a mistaken identification. Fry testified on voir dire that the police told him at the display that the suspects had been arrested and their pictures were included in the pile he was to...