Wheeler v. State

• Decision Date: 06 February 1976
• Docket Number: No. 1--675A108,1--675A108
• Citation: 168 Ind.App. 50,341 N.E.2d 202
• Parties: Eugene WHEELER, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 202

341 N.E.2d 202

168 Ind.App. 50

Eugene WHEELER, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--675A108.

Court of Appeals of Indiana, First District.

Feb. 6, 1976.

James F. Smock, Terre Haute, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

Before ROBERTSON, C.J., and LOWDERMILK and LYBROOK, JJ.

PER CURIAM.

In appealing his conviction for entering with intent to commit a felony and assault and battery with intent to commit a felony, the defendant-appellant, Wheeler, raises four issues which are:

1. Was the out of court identification procedure so suggestive as to make the in-court identification inadmissible;

2. Was there sufficient evidence to convict;

3. Did Wheeler receive a fair trial after a sworn juror admitted knowing one of the complaining witnesses; and

4. Was there error in allowing a portion of a police report into evidence?

We find no reversible error and accordingly affirm the judgment herein.

A review of the facts favorable to the State shows that Debbie Phillips answered a kncok on the door of her upstairs apartment. Upon opening the door there stood Wheeler who advised Phillips to keep her door locked because he had seen persons around her apartment. Phillips thanked Wheeler and proceeded to close the door when Wheeler forced his way into the apartment. He grabbed Phillips by the arm and during the ensuing struggle cut her finger and attempted to stab her in the back with a broken beer bottle. Charlotte Ishom, Phillips roommate, responded to Phillips' screams and began pummeling Wheeler. Wheeler then fled.

The incident was reported to the police that night and later the next day Phillips and Ishom went to the police department where they were seated at separate desks about six feet apart. Phillips picked Wheeler's picture out in the mug shot book. Ishom, without conversation with Phillips, shortly thereafter also picked out Wheeler. Both girls also picked Wheeler's picture from a selection of eight side views submitted for their perusal.

The remaining salient fact is that after the jury was sworn a juror advised the trial judge that she was employed at the same place as one of the complaining witnesses. (The record does not indicate if it was Phillips or Ishom.)

Wheeler's first contention is based upon the fact that having Phillips and Ishom in the same room and within hearing and viewing distance of each other at the time of the pre-trial photographic identification so tainted the identification that it should not have been admissible. This argument is based upon the supposition (not supported by the record) that some sort of communication existed between Phillips and Ishom during the time of viewing mug-shots.

The case of Emerson v. State (1972), 259 Ind. 399, 287 N.E.2d 867 adopted Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 which proscribes a photographic identification procedure 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification'. Additionally, the evaluation should be made in light of the totality of the surrounding circumstances and by giving consideration to the facts of each case.

In this case the record shows that both Phillips and Ishom clearly saw Wheeler's face during the melee. Phillips picked Wheeler's picture from a book of mug shots of black males. Ishom, sitting at a separate desk with no direct communication with Phillips, also picked Wheeler's picture from the same book. Neither girl was told the book contained the suspect's picture. Each girl additionally picked Wheeler's picture from eight side-view pictures submitted to them.

We cannot...