Wilson v. State

• Decision Date: 17 March 1977
• Docket Number: No. 2--1075A273,2--1075A273
• Citation: 360 N.E.2d 1010,172 Ind.App. 476
• Parties: Lawrence O. WILSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 1010

360 N.E.2d 1010

172 Ind.App. 476

Lawrence O. WILSON, Appellant, v. STATE of Indiana, Appellee.

No. 2--1075A273.

Court of Appeals of Indiana, Second District.

March 17, 1977.

Timothy J. Burns, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Wilson seeks to set aside his conviction for commission of robbery while armed. ¹ He argues (1) that in-court identification by the victim, Ball, should not have been allowed because an unduly suggestive pre-trial line-up made the identification unreliable, and (2) that there was insufficient evidence to establish that he committed the robbery.

We affirm.

I. THE LINE-UP WAS NOT UNDULY SUGGESTIVE

Wilson argues that the pre-trial line-up was unduly suggestive in that none of the four other line-up participants had black hair, or a moustache similar to his, and that he was the only one with a tatoo. ²

The four additional line-up participants were white males of approximately the same age and build as Wilson. All had shoulder length hair, and two had facial hair. Wilson, however, was the only one with a tatoo on his arm. Since the robbery was committed by a person wearing a jacket, the fact that he was the only one with a tatoo is irrelevant. Although it might have been preferable to have someone else with black hair in the line-up with Wilson, we cannot say as a matter of law that the line-up was unduly suggestive.

Moreover, the circumstances of the robbery were such that any suggestiveness in the line-up was overcome. The store was well-lit, and Wilson stood about 3 feet from Mr. Ball, while he faced Mrs. Ball across the cashier's counter, holding a sawed-off shotgun no more than 2 inches from her stomach. Nothing obstructed Mr. Ball's view of the robber.

Even assuming arguendo that the line-up was unduly suggestive, the factors just enumerated form sufficient independent ground to establish the reliability of Ball's in-court identification of Wilson. Parker v. State (1976) Ind., 358 N.E.2d 110; Swope v. State (1975) Ind., 325 N.E.2d 193, cert. den. 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100.

The trial court did not err in allowing in-court identification of Wilson by Ball.

II.

THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE VERDICT AND

JUDGMENT ³

Wilson argues that Ball, the only eyewitness to testify, was so equivocal and uncertain in his identification of Wilson that his testimony had no probative value.

On the night of the robbery, Ball and his wife, the only two people in the store when it was robbed, were shown 50 to 75 pictures by the police. They indicated that one of those pictures looked like the robber, but said that it was not him. The next day, Sgt. Ashton returned to the store with the same group of photographs to which one of Wilson was added. Ball and his wife viewed these photographs outside the presence of the other, and both independently identified Wilson as the one who had committed the robbery. At the line-up two and one-half months later both again independently identified Wilson. At trial, Ball identified a black-and-white photograph of Wilson as being the man he had picked at the line-up, but qualified that statement, saying, 'I can't say I'm sure.'

We are well aware that '(s)ome of the most tragic miscarriages of justice have been due to testimonial errors . . . due to imperfect Recollection, with the occasional further complication of defective Perception and of Suggestion.' Baker v. State (1956), 236 Ind. 55, 58, 138 N.E.2d 641, 643, quoting 3 Wigmore, Evidence § 786a, at 163 (3d ed. 1940). However, we do not agree with Wilson that Baker involved 'a very similar set of facts.'

Although Ball may have equivocated regarding a black-and-white photograph at trial, he was positive in his identification of Wilson from a color photograph the day after the robbery, at a line-up two and one-half months later, and at the trial. As stated, the store was well-lit at the time of the robbery, and Wilson stood about 3 feet away from Ball. These facts, along with Ball's equivocations concerning the photographs, were matters for consideration by the jury. As our Supreme Court said in Stinson v. State (1974), 262 Ind. 189, 313 N.E.2d 699, 701:

'It has often been observed by this Court and courts in other jurisdictions that personal identification evidence is doubtful at best and should be subject to close scrutiny. It would be naive to say that any person could be absolutely certain of the identification of another person whom they had never known previously and had observed only in a brief period of excitement and great tension. All testimony of such a nature must certainly be subject to extensive cross-examination in order that the jury may properly evaluate its content.'

Ball was skillfully and thoroughly cross-examined by Wilson's defense counsel. The discrepancies in Ball's description affect only the weight of the evidence. Perkins v. State (2d Dist.1973) Ind.App., 294 N.E.2d 846.

In Lottie v. State (1974) 262 Ind. 124, 311 N.E.2d 800, 803, our Supreme Court stated:

'Identifying testimony need not necessarily be unequivocal. Indeed, many convictions are predicated upon circumstantial evidence without any identifying testimony; but the totality of the evidence in all cases must be such as will permit the trier of facts, as reasonable men, to find guilt beyond a reasonable doubt.'

Although there was some internal contradictions in Ball's testimony at trial, we cannot say that his testimony had no probative value in light of the totality of the identification evidence.

The judgment of the trial court is affirmed.

LYBROOK, J., (participating by designation) concurs.

WHITE, J., concurs, with separate opinion.

WHITE, Judge, concurring.

I concur in the court's opinion because I agree that from the appellate viewpoint the evidence is sufficient to sustain the conviction. But I regret the majority's failure to address the trial judge's question whether, from his viewpoint as the thirteenth juror, the evidence is sufficient.

In overruling Wilson's motion to correct errors the trial court filed a memorandum which said, in part:

'Had I been the sole trier of fact, I would have acquitted on the sole issue of identity. However, it would have been a 'not proven', beyond a reasonable doubt, conclusion. Yet, I believed him guilty by a preponderance of the evidence.

'I let the verdict stand because I thought the jury's wisdom and its responsibility should not be set aside unless I believed the defendant innocent . . .'

His memorandum also notes that '(t)he decisions do not define the quantum of proof or lack thereof which should govern the trial judge in passing upon the proof after a jury verdict of guilty.' He invites us to speak to the problem.

It is true that virtually all of the recent Indiana cases which discuss the judge's power and duty with respect to requests for new trials on the ground that the verdict is against the weight of the evidence are civil cases. And these provide little or no guidance as to 'the quantum of proof or lack thereof which should govern the trial judge' even in civil cases. However, the leading case of Bailey v. Kain (1963), 135 Ind.App. 657, 666, 192 N.E.2d 486, 490, observes:

'. . . that the duties evolving upon the trial judge when invoked by consideration of a motion for a new trial do in fact and law constitute him a thirteenth juror. Our case law in Indiana re the duty and responsibility of the trial court in such instances is paralleled by the case law governing the federal trial courts and in analogous situations the federal trial judge sits as the 'thirteenth juror'. ⁴'

The three federal cases cited are criminal cases. In the first, United States v. Parelius (D.Hawaii, 1949), 83 F.Supp. 617, 618, the trial judge opined that: 'If the judge sits as a thirteenth juror, as some authorities hold, then a verdict in which he could not concur should not stand if it is properly moved against.'

In the second, United States v. Robinson (D.D.C.1947), 71 F.Supp. 9, 14, Judge Alexander Holtzoff reviewed many federal authorities preliminary to concluding that although there was a prima facie case against Robinson the testimony of his alleged accomplices that he was not involved 'far outweighs the somewhat dubious and conjectural evidence against him,' and ordered a new trial. Obviously, Judge Holtzoff found the evidence of Robinson's guilt much less convincing than Judge Jacobs found the evidence of Wilson's identity as the perpetrator of the robbery. Consequently, Robinson does not stand for the proposition that a trial judge should grant a new trial if he is convinced of guilt by a preponderance of evidence but not beyond a reasonable doubt. However, it does cite and quote with apparent approval from many cases including the following:

'. . . Judge Denison, in Bain v. United States, 6 Cir., 262 F. 664, 666, made the following succinct comment:

"It is, of course, within the discretion of a trial judge to grant a new trial, if he thinks that, in a civil case, the jury disregarded the preponderance of the evidence, or that, in a criminal case, the evidence lacks that degree of persuasiveness without which there should be no conviction; * * *." (71 F.Supp. at 12.)

Robinson and quotes from Applebaum v. United States (7th Cir. 1921), 274 F. 43--46, which is the third federal criminal case cited in Bailey v. Kain, supra. Although Applebaum provides no direct answer to Judge Jacobs' question it does state 'that the trial judge, as well as the jurors, should attentively consider and weigh the evidence as it is being introduced, because in that respect he is sitting as the thirteenth juror'. Read in connection with its prior statement that 'in a criminal case (the judge instructs the jurors) that they cannot find the...