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11/06/87 KEITH ALLEN HEGG v. STATE INDIANA

Filed: November 6, 1987.

KEITH ALLEN HEGG, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE WAYNE COUNTY CIRCUIT COURT, The Honorable Robert L. Reinke, Special Judge, Cause No. C-85-1453-CR.

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

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant Keith Allen Hegg was found guilty by a jury in the Wayne Circuit Court of robbery, a class C felony, and was also found to be an habitual offender. The trial court sentenced him to a term of five (5) years for the robbery enhanced by thirty (30) years for the habitual finding for a total term of thirty-five (35) years.

Four issues are presented for our consideration in this direct appeal:

1. error in allowing identification testimony at trial;

2. error in giving an instruction on flight;

3. sufficiency of the evidence; and

4. error in allowing the State to amend the information alleging Defendant was an habitual offender.

On January 1, 1985 victim Benny E. Crawford was drinking in the Sundowner Bar. Appellant Hegg and Garry Cosby sat down on either side of the victim, who bought them at least one drink. Subsequently the three left together, supposedly to go to another bar. While going through an alley en route to the other bar, Hegg suggested to Cosby that they take the victim's money. Hegg grabbed the victim from behind while the co-defendant grabbed him from the front. Hegg then removed the victim's wallet and the two ran away. There was conflict as to what money, if any, was in the victim's billfold. He claimed to have had from sixty ($60) to one-hundred ($100) dollars but Cosby testified that Hegg gave him only twenty ( $20) as his share of the amount taken from the wallet.

I

Hegg claims the trial court erred by permitting State's witness Sharon Hackworth to identify him in court. He cites to us the principle that an in-court identification of the accused is impermissible when it is tainted by an unduly suggestive pretrial confrontation unless it can be shown that a factual basis for the identification exists independent of the pretrial confrontation. Bundy v. State (1981), Ind., 427 N.E.2d 1077. Our courts have sought to eliminate the admission of identification testimony predicated on suggestive and/or prosecutorial identification procedures. Robertson v. State (1981), Ind., 429 N.E.2d 258, 259-60. We agree with Hegg's analysis of the law on this subject but find the facts do not support his contention that there was an unduly suggestive pretrial confrontation involving this witness.

Sharon Hackworth was a bartender at the Sundowner disco on the night in question. Shortly after the robbery police showed her two photo lineups, one of which contained a picture of Hegg. She was unable to make an identification at that time. Photo number 8 was Hegg's picture but Hackworth could not be certain he was either of the persons she saw leave with the victim that night. She was unable to say any of the persons in the photo array were in the Sundowner that night. On the day of trial, over a year later, Hackworth was brought to testify by the prosecuting attorney. As she looked into the waiting room, she saw Hegg sitting there and immediately recognized him as one of the persons she saw in the Sundowner on the night in question. She immediately communicated this recognition to the prosecuting attorney. She testified she did not know Hegg by name, that he was not handcuffed, and she did not notice a deputy sheriff sitting next to him. Hackworth was not aware he was one of the persons on trial, but immediately recognized Hegg when she saw him. She said her recognition of Hegg did not follow any suggestion or ...


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