Whitt v. State
| Decision Date | 21 April 1977 |
| Docket Number | No. 1176S394,1176S394 |
| Citation | 361 N.E.2d 913,266 Ind. 211 |
| Parties | Bernard WHITT, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Richard L. Milan, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., David T. O'Malia, Deputy Atty. Gen., Indianapolis, for appellee.
Bernard Whitt was convicted of commission of a felony while armed, to-wit: robery, in violation of Ind.Code § 35--12--1--1 (Burns 1975), and sentenced to twenty years of imprisonment. On appeal he argues that the trial court erred in failing to suppress the identification testimony of three witnesses.
On the night of November 22, 1974, two men entered Sam's Liquor Store in Indianapolis. One carried a sawed-off shotgun, the other a revolver. These men ordered the two store employees, George Duerson and Richard Hunter, and a friend of the employees, Jessie Dawkins, to lie on the floor, and took a cash box and some money from a cash register, about $800.00 total. The witnesses' estimates of the buration of the robbery ranged from 'a few seconds' to 'three to five minutes.' The witnesses were within a few feet of the robbers, and could see their faces. The store was lighted.
A few days after the robbery, Detective George Grant of the Indianapolis Police Department displayed a large number of photographs to witness George Duerson, who was unable to find either of the robbers among the photos.
On May 28, 1975, all three eyewitnesses were shown a group of seven color photographs at police headquarters by Sergeant Clarence Grant. All three selected a photograph of appellant as that of the robber armed with the pistol.
On September 30, 1975, a lineup was conducted at the Marion County Jail. Detective George Grant had requested all three eyewitnesses to view the lineup, but only George Duerson appeared. Yvonne Watkins, the attorney then representing appellant, was present and observed the procedures employed. Duerson identified appellant and another prisoner as the robbers.
Prior to trial appellant filed a written motion to suppress identification testimony. A hearing was held on the motion, which was then denied. At trial appellant renewed his motion and was allowed to introduce new evidence concerning the pre-trial confrontations; the trial court again overruled the motion. The three eyewitnesses all identified appellant as one of the robbers. Additionally an accomplice, George Wallace Washington, described the robbery and identified appellant as one of the robbers. Appellant presented testimony by Yvonne Watkins as to the circumstances of the lineup, and also presented an alibi defense.
Appellant challenges both the lineup and the May 28th photographic display as being unnecessarily suggestive. His arguments may be summarized, and will be considered, as follows:
(1) The May 28th photographic display was rendered suggestive because the photographs displayed were 'mug shots' containing placards with physicial descriptions of their subjects, and because appellant's photograph alone contained front and side views.
(2) The lineup was rendered suggestive by comments of the detective and by the witness's seeing a list of the names of the participants.
Seven photographs were shown to each of the eyewitnesses on May 28, 1975, at police headquarters by Sergeant Grant. The witnesses were separated while viewing the pictures. The photographs were handed to each witness in a stack, and nothing was said to them while they made their selection. Six of the photographs were Indianapolis Police Department mugshots, each showing a front view of its subject only; each subject wears a placard containing his name, age, height, and weight. The other photograph, that of appellant, was a Birmingham, Alabama, police mugshot, front view and profile, with no name or physical description marked on the photograph. The persons depicted in all seven photographs were fairly young Black men, with no egregious dissimilarities of complexion, facial features, or hair styles. The heights and weights marked on the placards, however, were with one exception, less than six feet tall and 160 pounds weight. The other photograph was of Ricky Lee Vaughn, who at that time was suspected of the murder of an Indianapolis Police officer in a widely publicized case, and whose picture appeared often in Indianapolis newspapers.
Appellant argues that the witnesses could eliminate five of the seven photographs because of disparities in height and weight (the robbers had been described as over six feet tall and weighing 170 pounds), and could eliminate the sixth because his face was well-known. Thus the witnesses were left with one photograph, that of appellant, and the procedure suggested to them that they should select that photograph.
The exhibition of photographs bearing identifying markings to a witness could constitute an unnecessarily suggestive procedure if those markings allow the witness to eliminate all but one of the photographs. However the witnesses all testified that during the May 28th display they did not read the height or weight from the placards, or did not pay attention to them.
Cross-examination by Rick Samek of George Duerson:
'Q. Did you read the placard?
A. Yes, I didn't, I didn't read them as, I didn't read them trying to gain an identification, no, I was looking at the face.
Q. Did you notice how tall each of these individuals were in the pictures?
A. I said I did not, I didn't pay any attention to it.'
Direct examination of Jessie Dawkins by Rick Samek:
'Q. Did anybody call your attention to the placard hanging around the heads of the rest of these pictures?
A. They never said nothing about them, I never seen them before.
Q. Did you happen to read what was on these placards?
A. No.'
Direct examination of Richard Hunter by Merle Rose:
'Q. And isn't it true that when you're looking at that picture, you can't help but look at that placard on his chest?
Q. Well, did you or did you not when looking at that picture look at the placard too?
A. Yeah, I looked at it.
Q. You saw it and read it, did you not?
A. Uh, huh.'
Cross-examination of Richard Hunter by Rick Samek:
'Q. Did you know when you saw these pictures the heights of the individuals?
A. No.'
It therefore appears that the trial court could correctly determine that the exhibition of photographs with the placards was not so unnecessarily suggestive as to give rise to a substantial likelihood of irreparable misidentification.
Appellant also argues that his photograph was singled out and emphasized by virtue of the fact that it was the only photograph showing front and side views of its subject. We note that the Court of Appeals has recently held that the exhibition of photographs to a witness is not rendered suggestive by the fact that a defendant's photograph is the only one showing two views. Beacham v. State, (1975) Ind.App., 336 N.E.2d 404. However, we find it unnecessary to resolve this issue. The rule regarding suggestive identification procedures requires suppression only when the confrontation is unnecessarily suggestive. Stovall v. Denno, (1967) 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199. Sergeant Grant testified that the Indianapolis Police Department had no photograph of appellant on May 28, 1975; appellant had never been arrested in Indianapolis. The photograph obtained from the Birmingham Police, showing two views of appellant, was the only picture available to display to the witnesses. The use of this photograph was not unnecessarily suggestive.
Appellant also seems to argue that the display was unnecessarily suggestive because 'mug shot' photographs were used. He attempts to support this position with our language in Emerson v. State, (1972) 259 Ind. 399, 287 N.E.2d 867:
'Several photographs, preferably not mug-shot types, should be displayed to the victim . . ..' (Appellant's emphasis.) 259 Ind. at 403, 287 N.E.2d at 870.
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 display 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. Emerson v. State, supra. The photographic display was not unduly suggestive.
The lineup viewed by Duerson consisted of eight persons. A photograph of the lineup appears in the record. The eight participants are similar in height and complexion; all wear jail clothing, and none have unusually distinctive features.
Appellant does not challenge the composition of the lineup, but argues that remarks by Detective Grant rendered the confrontation unduly suggestive.
Duerson testified at the in-trial suppression hearing that before being taken to the jail he was told by the detective that 'both people that was involved in the robbery would be in the lineup.' Yvonne Watkins testified in the pre-trial suppression hearing that during the lineup, the participants were numbered from left to right, appellant being number two. Duerson ws given a sheet of paper on which to write his choices. He wrote '7' and...
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