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10/16/87 ANTHONY E. PETERSON v. STATE INDIANA

Filed: October 16, 1987.

ANTHONY E. PETERSON, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM THE MARION SUPERIOR COURT, CRIMINAL DIVISION FIVE, The Honorable Roy F. Jones, Judge.

DeBRULER, J., Shepard, C.j., Givan, Pivarnik, and Dickson, JJ., concur.

Author: Debruler

DeBRULER, J. -

Appellant was convicted in a trial by jury of murder in the shooting death of pharmacist John Stockdale during a robbery of the Brock's Pharmacy in Indianapolis. He received a sentence of fifty years. An appeal from a conviction at a previous trial for this offense resulted in a reversal because of the erroneous admission of identification testimony of one of the State's eyewitnesses produced through hypnosis. Peterson v. State (1983), Ind., 448 N.E.2d 673. Appellant's two accomplices in the robbery, John and Clarence Randall, were also convicted and their convictions were affirmed in Randall v. State (1983), Ind., 455 N.E.2d 916, and Randall v. State (1985), Ind., 474 N.E.2d 76.

The present appeal to this court challenges; (1) the admissibility of testimony of three State's witnesses evidencing their direct in-trial and pre-trial identifications; (2) the admissibility of a photograph of the body of the victim; (3) a restriction upon the cross-examination of a State's witness John Patton; (4) the admissibility of testimony by a State's witness who had been subjected to hypnosis; (5) a restriction upon the cross-examination of the State's witness Marjorie Carter; (6) the admissibility of articles seized during a stop of appellant, an arrest, and a search of his hotel room and automobile; and (7) the sufficiency of evidence of identification.

The evidence reveals that three men, one armed with a sawed-off shotgun and the other two with handguns, robbed a pharmacy in Indianapolis, shot and killed the pharmacist, stole cash and drugs, and restrained several employees and customers in the process. The man who shot and killed the pharmacist pulled a mask over his face during the final and exit stages of the episode, while the other two used no disguise at all. The following day appellant, John Randall, and Clarence Randall, checked into a Muncie, Indiana hotel, requesting adjoining rooms. The Randalls were identified at trial as two of the men who had robbed the pharmacy. A shotgun resembling the one used in the robbery was seized from appellant's car.

I.

Carter, a school teacher and former store security person, and a cashier on duty at the time of the crime pointed out appellant at trial as the masked man who passed her on the way out of the store and who carried a pharmacy medicine bag. She likewise testified that she selected appellant's photograph from an array shown her by police, two days after the crime.

Patton, a customer in line at the pharmacy counter, pointed out appellant at trial as the man whom he observed standing behind the counter talking with the pharmacist, and as the man who, while without any disguise, shot and killed the pharmacist. He likewise testified that he selected a photograph from an array shown him by police, four months after the crime.

Jeter, another cashier on duty at the store, pointed out appellant as having been a customer in the store on several occasions prior to the day of the crime. She likewise testified that she picked out a photograph of appellant as a customer of the store during a photographic display five months after the crime.

Two days after the robbery Carter and Jeter were shown a group of fifteen photographs arranged on a table in three vertical rows of five each. They were told that three suspects were among them. The photograph of appellant and those of the Randalls had plain backgrounds while the others showed height charts. Appellant argues that there were significant disparities in the distinguishing features of those portrayed in the photographs, however the record does not bear this out. Carter selected the photographs of appellant and both Randalls. Jeter selected the photographs of the Randalls but not the one of Carter. Patton was not present at this procedure. No defense counsel was present.

On the third day after the robbery, appellant personally appeared in a lineup viewed by Carter, Jeter, and Patton. Carter pointed out appellant, but Jeter and Patton did not. No defense counsel was present.

Five months after the robbery, Jeter and Patton were shown a photographic display. Jeter selected appellant, not as a participant in the robbery, but as a customer of the pharmacy on at least five separate occasions prior to the robbery. Patton identified appellant from the photographs as the man who shot and killed the pharmacist. No defense counsel was present.

Appellant claims that the admission of evidence of the identification of him by these three witnesses, both before and during trial was error, and denied him due process of law. Due process of law requires the exclusion of evidence of out-of-court identifications in physical lineups or photographic displays, and direct in-court identifications, which are the product of identification procedures staged by the police which are impermissibly and unnecessarily suggestive and thereby create a substantial likelihood of irreparable misidentification. Zion v. State (1977), 266 Ind. 563, 365 N.E.2d 766. Sawyer v. State (1973), 260 Ind. 597, 298 N.E.2d 440.

Appellant argues that the telling of the witnesses that three suspects were among those portrayed in the fifteen photographs, together with the differing backgrounds and differing physical characteristics of the persons shown, was impermissibly and unnecessarily suggestive. In answer, it may be said that the photos of appellant and the Randalls were not clustered together as they were displayed in the three vertical rows so as to suggest them. Moreover, appellant and the Randalls were very different looking, and this difference caused difficulty in fairly presenting them in a photographic array. It was however, on the other hand, unduly suggestive to state that three suspects were among the fifteen. And yet back on the other side of the ledger, Carter testified that she paid no attention at all to the background of the photographs when selecting appellant's photograph. On balance, the means adopted at the first photographic lineup were not impermissibly and unnecessarily suggestive, and therefore both the in-court identification of appellant by the three witnesses and the out-of-court identification by Carter were properly admitted despite the level of suggestiveness present.

Appellant next argues that the live lineup conducted was an extension of the unduly suggestive photographic identification procedure of the previous day and the identification of him by Carter from this lineup was achieved in violation of his right to have counsel present. On the first point, the photographic procedure was not unduly suggestive as determined above. On the second and subsequent points made in this appeal, there was no right to counsel at either of the two photographic displays under the holding of United States v. Ash (1973), 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619, and there ...


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