Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Adam M. Dulik
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
June 28, 2001
Soon after the attack, Officer Mark McCann was dispatched to the area of
the attack to look for the suspects. Officer McCann stopped Dennis on
the street, questioned him, and took him into custody. As Officer McCann
was returning to the police station with Dennis, he passed a person that
he later identified as Defendant. As Officer McCann was turning a corner,
he spotted an individual walking through a parking lot, but because he did
not know that the subject was also a participant in the crime, he
did not immediately report seeing an
yone. The next day, however, Officer McCann
returned to the police station because he wanted to make sure that somebody
had identified or somebody had [known] about the subject that [he had] seen.
Officer McCann spoke to Detective Gary Copeland and described the person that
he had seen and said that he could recognize the individual if he
saw a picture. Later that day, Officer McCann identified Defendant from a
Defendant was convicted of Attempted Robbery, a Class A felony,
Battery, a Class
Criminal Confinement, a Class B felony,
and Defendant pled guilty to
being a habitual offender.
The trial court sentenced Defendant to 50 years
for the attempted robbery,
eight years for battery, and 20 years for criminal
confinement, to be served concurrently.
At trial, Defendant sought to introduce a series of photographs, Exhibits 16 through
19, into evidence to depict the angle that the Defendant was traveling on
foot. Appellants Br. at 9. The trial court sustained the States
objections to Defendants exhibits 17 and 19. On appeal, Defendant argues that
the photographs were significant because they demo
nstrated the angle at which Officer McCann
allegedly observed [Defendant] walking near the crime scene as Officer McCann passed by
in his car. Appellants Br. at 9.
Exhibits 16 through 19 were all photographs depicting an individual, other than D
standing in the parking lot. Exhibits 16 and 17 were almost identical
pictures of the individual, but each taken with a different lens. Exhibit
16, taken with a 35-millimeter camera, displayed the individual standing in the parking
lot with the persons back to the camera. Exhibit 17 was taken
of the same person in nearly the same position, but the picture was
taken from the street with a wide-angle telephoto lens.
Exhibits 18 and 19 were also nearly identical. Exhibit 18, taken with
a 35-millimeter camera, shows a person standing in the parking lot facing away
from the camera, at an angle, with the persons face turned toward the
camera. Exhibit 19 shows the same person at the same angle, but
was taken with a wide-angle telephoto lens.
Granting the States request, the trial court excluded Exhibits 17 and 19.
The State objected after Defendants witness disclosed that the photographs had been taken
with a wide-angle telephoto lens. Although the trial court excluded the evidence
mment, it is likely that the trial court excluded the photographs on
these grounds. Even where a trial court does not state the ground
on which it excluded evidence, a reviewing court may sustain an evidentiary ruling
if it can do so on any theory consistent with the evidence presented.
See Reaves v. State, 586 N.E.2d 847, 857 (Ind. 1992).
The admission or exclusion of photographic evidence lies within the trial courts di
See Robinson v. State, 693 N.E.2d 548, 553 (Ind. 1998). We
will not reverse the trial courts ruling absent an abuse of discretion.
Id. The law approves of the use of photographs to prove the
existence and nature of relevant physical objects and scenes so long as they
are true and accurate. See Patel v. State, 533 N.E.2d 580, 583
(1989); Boyd v. State 494 N.E.2d 284, 295 (Ind. 1986), cert. denied 479
U.S. 1046 (1987). The purpose of such photographs is to aid the
jury in visualizing the scene as described in testimony. Patel, 533 N.E.2d
The trial court most likely excluded the exhibits because they were not a true and a ccurate depiction Officer McCanns view of Defendant in the parking lot. Both of the excluded photographs were taken with a wide-angle telephoto lens and therefore presented an enhanced view of what Officer McCann could have seen. Defendant offered the evidence to demonstrate the angle at which Officer McCann allegedly observed [Defendant] walking. Appellants Br. at 9. There is no apparent reason that the jury needed to see a magnified photograph. If Defendant intended to show the jury what Officer McCann would have seen from his car, then the pictures taken with the wide-angle telephoto lens could well have been misleading. The trial court did not abuse its discretion by excluding Exhibits 17 and 19. Furthermore, Exhibits 17 and 19 were almost identical to 16 and 18, making them cumulative.
The day after the attack, Officer McCann identified Defendant from a photograph as
the man he had seen in the vicinity of the liquor store soon
after the attack. Evidence of this initial identification was never introduced at
trial. In his testimony, however, Officer McCann did identify Defendant as the
man he had seen in the vicinity of the attack.
The day after the attack, Officer McCann told Detective Copeland that he had
bserved another subject on the scene the previous night. Officer McCann testified
that he described the person to Detective Copeland as a male white, approximately
forty to fifty years of age, dark long black hair, tattoos on both
arms, no shirt on, ... and possibly a goatee. (R. at 480-81.)
Officer McCann told Detective Copeland that he could identify the individual if
he saw a picture.
Officer McCann was able to identify Defendant from a picture as the man
that he had seen on the night of the attack. His identification
of Defendant, however, was not done a
ccording to normal procedures. Detective Copeland
testified that typically, a witness is shown a photo array containing photographs of
six different individuals from which the witness can identify a suspect. According
to Officer McCann, he walked into Detective Copelands office and saw a picture
of Defendant on his desk. Defendants picture was lying on the desk
with two pictures of Dennis McCann. Officer McCann immediately recognized Defendant and
stated, thats the guy. Detective Copeland testified that the identification was not
done with a photo array because Officer McCann had come into his office
The Due Process Clause of the Fourteenth Amendment requires suppression of test
a pre-trial identification when the procedure employed is impermissibly suggestive. See Harris
v. State, 716 N.E.2d 406, 410 (Ind. 1999); Parker v. State, 698 N.E.2d
737, 740 (Ind. 1998); James v. State, 613 N.E.2d 15, 27 (Ind. 1993).
A photographic array is impermissibly suggestive if it raises a substantial likelihood
of misidentification given the totality of the circumstances. See Harris, 716 N.E.2d
at 410. A pre-trial identification may occur in a manner so suggestive
and conducive to mistaken identification that permitting a witness to identify a defendant
at trial would violate the Due Process Clause. See Young v. State,
700 N.E.2d 1143, 1146 (Ind. 1998). Nevertheless, a witness who participates in
an improper pretrial identification procedure may still identify a defendant in court if
the totality of the circumstances shows clearly and convincingly that the witness has
an independent basis for the in-court identification. Id.
To determine whether a witness had an independent bases for the in-court identific
we consider the following factors: The amount of time the witness was
in the presence of the defendant; the distance between the two; the lighting
conditions; the witness degree of attention to the defendant; the witness capacity for
observation; the witness opportunity to perceive particular characteristics of the perpetrator; the accuracy
of any prior description of the perpetrator by the witness; the witness level
of certainty at the pretrial identification; and the length of time between the
crime and the identification. See Utley v. State, 589 N.E.2d 232, 238
(Ind. 1992), cert denied, 506 U.S. 1058 (1993).
The State did not introduce evidence of Officer McCanns identification of Defendant at
the police station. It is Defendants contention, however, that Officer McCanns identif
of Defendant at the police station was so suggestive that it violated Due
Process to allow Officer McCann to identify Defendant at trial. Officer McCann,
however, had an independent basis for his in-court identification of Defendant. As
Officer McCann was driving toward the police station, he saw Defendant from a
close distance. Officer McCann testified that he saw Defendant in the vicinity
of the crime scene for approximately six to eight seconds as Defendant was
walking in a well-lit parking lot. Prior to seeing the photograph of
Defendant, Officer McCann described Defendant as being a white man, approximately forty to
fifty years old, with long black hair, tattoos on both arms, no shirt
on, and a goatee. Officer McCann testified that he watched Defendant until
he was out of sight.
We find that the totality of the circumstances shows clearly and convincingly that
fficer McCann had an independent basis for his in-court identification. Although it
is irrelevant in the analysis of whether the identification was valid, other evidence
in the case also pointed to Defendant as perpetrator. Most notably, Defendants
son, Dennis, testified regarding Defendants involvement in the attack. Defendants palm print
was also found on an air conditioner unit that sat next to where
the attack occurred. McCanns identification was cumulative of other substantial probative evidence
SHEPARD, C.J., and DICKSON, and BOEHM, JJ., concur.
RUCKER, J., co
ncurs in result.