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02/18/88 MICHAEL E. LEE v. STATE INDIANA

Filed: February 18, 1988.

MICHAEL E. LEE, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW).



Appeal from the Vanderburgh Superior Court, The Honorable Thomas Lockyear, Judge, Cause No. 85CR-275

Shepard, C.j., DeBRULER, Givan, Pivarnik, Dickson, JJ., Concur.

Author: Shepard

SHEPARD, C.J.

Appellant Michael E. Lee was tried before a jury and convicted of two counts of forgery, a class C felony, Ind. Code § 35-43-5-2 (Burns 1985 Repl.). The jury also determined that he was an habitual offender, Ind. Code § 35-50-2-8 (Burns 1985 Repl.). The trial Judge sentenced Lee to thirty-two years imprisonment.

On direct appeal, Lee raises three issues:

1) Whether the trial court erred in admitting an impermissibly suggestive photographic line-up;

2) Whether the trial court erred in admitting improperly certified habitual offender documents, and

3) Whether the trial court erred in allowing a witness to identify Lee as the person convicted of a prior felony when the identification was assisted by a photograph not in evidence.

The evidence at trial showed that Lee twice attempted to cash stolen and forged checks at two Evansville grocery stores. Clerks from both stores identified Lee from a photographic line-up and later in court as the person who attempted to cash the checks.

I. Photographic Array

Before trial, Lee moved to suppress the witnesses' identification, arguing that it was based on an unduly suggestive array of photographs. The trial court denied the motion. Both witnesses identified Lee in court and testified about their earlier identification of his photograph without objection. When the State offered the array of photographs, Lee objected based on his earlier motion to suppress. The objection was overruled and the photographs were admitted.

The State correctly argues that Lee has waived any error in his identification. Two witnesses identified Lee as the perpetrator without objection. By failing to object to that in-court identification and the testimony about the photographic line-up, Lee afforded the trial Judge no opportunity to reconsider his ruling on the motion to suppress. The later admission of the photographic array was merely cumulative.

In any event, an objection would have been unavailing. "A photographic array is impermissibly suggestive when it raises a substantial likelihood of misidentification given the totality of the circumstances." Dumbsky v. State (1987), Ind., 508 N.E.2d 1274, 1277. This line-up consists of photographs of seven black males, all of similar age and general appearance. Lee points to the fact that the subjects of the other photographs are more slightly built than he. Given that Lee stands six feet three inches and weighs 272 pounds, the Evansville Police Department would find it a difficult task to assemble subjects any more similar in appearance than the ones contained in this array. Additionally, the photographs depict only the head and shoulders of the subjects. From this view, the differences in height and weight are not obvious.

Lee also argues that the contrast in tone makes his picture appear darker than the others, rendering the array impermissibly suggestive. Each photograph in the array varies slightly in tone from the others; we cannot say ...


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