Algier Flippin v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 30, 2017
• Docket: 49A02-1701-CR-87
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 30 2017, 9:08 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Susan D. Rayl Curtis T. Hill, Jr. Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Algier Flippin, June 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1701-CR-87 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa Borges, Judge Appellee-Plaintiff Trial Court Cause No. 49G04-1509-F3-32727

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 1 of 11 Case Summary [1] Algier Flippin appeals his convictions for Level 3 felony robbery and Level 3

felony attempted robbery. After the police arrested him, Flippin and two other

suspects were presented to the victims in a parking lot for a show-up

identification. The victims identified Flippin and one other suspect as the

robbers. Flippin did not object to this evidence at trial. On appeal, he argues

that the trial court committed fundamental error when it admitted the show-up

identification because it was unfairly suggestive and prejudicial. Flippin also

contends that, even if the show-up identification was properly admitted, the

evidence is insufficient to support his convictions for robbery and attempted

robbery. Finding no error and sufficient evidence, we affirm.

Facts and Procedural History [2] Around 6:00 p.m. on September 12, 2015, Joseph Lackner and Roy Jones were

walking home from a neighborhood block party in Indianapolis. While

walking along the eastern border of Garfield Park, Lackner and Jones saw a

group of teens on the opposite side of the street. The teens crossed the street,

surrounded Lackner and Jones, and demanded that the two men hand over

their phones, wallets, and car keys. Two teens pointed guns at Lackner and

Jones. Lackner handed over his iPhone, wallet, and keys. Lackner’s iPhone

case doubled as his wallet, which held his credit cards, driver’s license, business

cards, a single $100 bill, and his MIBOR realtor card. Jones was not carrying

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 2 of 11 any of the demanded items on him and turned out his pockets to show the teens

that he had nothing of value on him.

[3] After taking Lackner’s possessions, the teens took off to the west into Garfield

Park. Lackner and Jones ran to a nearby house and called 911. The call was

placed at 6:05 p.m. Lackner described the robbers as a group of four or five

African-American teens who were wearing black jackets with red logos. One of

the teens had dreadlocks. The 911 dispatcher relayed this information to police.

While Lackner was still on the phone with 911, Indianapolis Metropolitan

Police Department Officer Mark Spears, who was responding to the robbery,

reported seeing a group of four African-American teens wearing black and red

clothing on Pleasant Run Parkway by Garfield Park. Officer Spears was

driving a fully marked police car with his lights and siren on. When the teens

saw him, they took off running. While in pursuit of the teens, Officer Spears

reported back to dispatch that he needed a perimeter set up to confine where the

teens could run. The teens ran north to Raymond Street and continued running

north along the railroad tracks. Officer Spears followed on foot and

apprehended one of the teens, who was later identified as K.D. K.D. was taken

into custody at 6:10 p.m.

[4] Officer Douglas Correll also responded to the robbery and began working as

part of the perimeter team. A few minutes after K.D. was apprehended, Officer

Correll was driving on Raymond Street, two blocks west of the railroad tracks;

he looked north and saw two African-American males running to the west who

matched the description of the robbers. Officer Correll stopped both individuals

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 3 of 11 and took them into custody; they were later identified as Flippin and Lamont

Martin. Officer Spears later identified Flippin and Martin as two of the three

teens who had evaded him. Officers never located the fourth teen.

[5] While officers were pursuing the teens, Lackner and Jones were taken back to

their home. Detective Jean Burkert met with each of them separately and took

their statements. Lackner said that the teen who held the gun on him had “wild

hair” with “different colors in it[.]” Tr. Vol. II p. 9. During his meeting with

Detective Burkert, a couple approached Lackner and gave him his driver’s

license and some of his personal effects they had found in Garfield Park.

Detective Burkert had officers retrace the teens’ westward path through the park

to look for more of Lackner’s possessions. Officers followed a trail of discarded

items belonging to Lackner, including his business cards, MIBOR card, and his

wallet/iPhone case. Along with Lackner’s personal effects, officers were

searching for the two guns but were unsuccessful in locating the weapons or

Lackner’s iPhone.

[6] After taking their statements, Detective Burkert transported Lackner and Jones,

one at a time, to a parking lot just north of Garfield Park. Waiting in the lot

were Officers Spears and Correll with the three suspects they had apprehended.

Detective Burkert conducted a show-up identification of the suspects. “A show-

up is where a crime has occurred and we either have arrestees or people that are

detained that possibly match the description. We’ll bring the victims or

witnesses to that location, have the victim and witness make an identification

right then and there.” Id. at 121. To ensure that an individual does not feel

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 4 of 11 compelled to identify a person during a show up, Detective Burkert “always

tell[s] a victim or witness that the people they are about to see may or may not

be involved” and to focus on the individual’s face. Id. The victim or witness

remains in a police car, and the suspects are presented to the victim or witness,

one at a time, for identification. The suspect is approximately twenty-five to

thirty feet away and a spotlight is shining in their direction so that the suspect

cannot see the victim or witness. The suspect will be with an officer but will not

be in handcuffs to reduce the appearance of guilt. These steps were taken when

Lackner and Jones participated in the show-up identifications.

[7] Jones was not able to identify any of the three suspects as having taken part in

the robbery. Lackner, however, “didn’t hesitate” to identify Flippin as the teen

with the “wild hair” who had held a gun on him. Id. at 125. Flippin had multi-

colored dreadlocks. State’s Exs. 16, 19. Lackner mentioned to Detective

Burkert that Flippin’s clothes were different, but she reminded him, “you don’t

focus on the clothes. You focus on the face.” Tr. Vol. II p. 131. Despite the

clothing, Lackner was positive that Flippin was one of the robbers.

[8] Lackner was also able to identify Martin as the robber with the second gun. He

was not as confident in his identification of Martin but was “in the 90

percentile.” Id. at 23. Lackner was not able to identify K.D. as having taken

part in the robbery. Detective Burkert, without checking for fingerprints,

returned to Lackner all of his personal effects that the officers had recovered.

Both Lackner and Jones had returned to their home by 7:30 p.m., roughly

ninety minutes after calling 911.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 5 of 11 [9] Flippin and Martin were both charged with Level 3 felony robbery (Lackner),

Level 3 felony attempted robbery (Jones), and Class A misdemeanor resisting

law enforcement. K.D. was charged with only resisting law enforcement. At a

two-day jury trial for Flippin, the State introduced evidence of the show-up

identification made by Lackner. Flippin did not object to this evidence. The

jury returned guilty verdicts on all three charges. Flippin was sentenced to a

total term of eighteen years, with six years suspended.

[10] Flippin now appeals.

Discussion and Decision [11] Flippin contends that the trial court committed fundamental error by admitting

the show-up identification. In the alternative, Flippin argues that, even with the

show-up identification, the evidence presented at trial is insufficient to support

his convictions for robbery and attempted robbery.1

I. Fundamental Error [12] Flippin argues that the admission of the show-up identification constituted

fundamental error and violated his due-process rights because it was “so

extremely unfair that its use impairs the concept of ordered liberty.”

Appellant’s Br. p. 16 (citing Perry v. New Hampshire, 565 U.S. 228, 237 (2012)).

1 Flippin does not challenge the sufficiency of the evidence supporting his resisting-law-enforcement conviction.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 6 of 11 Normally, the decision to admit or exclude evidence falls within the sound

discretion of the trial court, and its determination regarding the admissibility of

the evidence is reviewed for an abuse of discretion. Gordon v. State, 981 N.E.2d

1215, 1217 (Ind. Ct. App. 2013). But where, as here, the defendant does not

make a contemporaneous objection, the issue is waived. To prevail on appeal,

the defendant must demonstrate fundamental error. Fundamental error is an

extremely narrow exception to the waiver rule, and the defendant is faced with

the “heavy burden of showing that the alleged errors are so prejudicial to the

defendant’s rights as to make a fair trial impossible.” Ryan v. State, 9 N.E.3d

663, 668 (Ind. 2014). Stated another way, the defendant must show that, given

the circumstances, the trial court erred when it did not raise the issue sua sponte

because the alleged error was a blatant violation of due process and presented

“an undeniable and substantial potential for harm.” Id.

[13] Our Supreme Court has cautioned against the use of show-up identifications

because of their inherent suggestiveness, see Wethington v. State, 560 N.E.2d 496,

501 (Ind. 1990), but identification evidence gathered via a show-up procedure is

“not subject to a per se rule of exclusion[,]” Gordon, 981 N.E.2d at 1218.

Instead, the admissibility of show-up identification depends on the totality of

the circumstances and “whether they lead to the conclusion that the

confrontation was conducted in a manner that could guide a witness into

making a mistaken identification.” Id. In determining whether the show-up

identification was permissible, we consider several factors, including (1) the

witness’s opportunity to view the criminal during the crime, (2) the witness’s

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 7 of 11 degree of attention while observing the criminal, (3) the accuracy of the

witness’s prior description of the criminal, (4) the witness’s level of certainty

when identifying the criminal, and (5) the length of time between the crime and

identification. Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans.

denied.

[14] Flippin specifically argues that the show-up identification was unduly

suggestive and unnecessary as the suspects were being guarded by police

officers, and Lackner and Jones were shown each suspect individually rather

than in a lineup or photo array. We disagree that it was unduly suggestive.

Lackner was only a few feet away from Flippin and the other teens when they

robbed him and attempted to rob Jones. The robbery lasted for approximately

five minutes, ample time for Lackner to imprint specific details about the

robbers. Lackner gave statements to the 911 dispatcher and police that one of

the teens had dreadlocks or “wild hair” with different colors in it. Later,

Lackner “didn’t hesitate” to identify Flippin at the show up because Flippin’s

hair was so distinctive—multi-colored dreadlocks. Tr. Vol. II p. 125. Despite

Flippin’s clothing being different, Lackner was still positive in his identification

of Flippin as one of the robbers. Lackner admitted that he was not as confident

when identifying Martin, and he could not identify K.D. as one of the robbers.

Furthermore, only ninety minutes transpired from the time of the robbery to

when Lackner and Jones were both home after viewing the suspects at the show

up.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 8 of 11 [15] Flippin also contends that the show-up identification was improper and violated

his due-process rights because there was no on-going emergency at the time.

Again, this entire ordeal—from the time of the robbery to when Lackner

identified Flippin—transpired in under ninety minutes. Officers had a report of

a group of teens walking around the Garfield Park area with guns robbing

people. To determine whether they had apprehended the correct individuals, it

was imperative for police to know if the armed robbers were still at large or in

custody. The exigency of the situation called for an expedited identification

process. See Slanton v. State¸510 N.E.2d 1343, 1348 (Ind. 1987) (stating that

show-up identifications are proper “where circumstances rendered an

alternative approach such as a line-up impossible.”). Given the totality of the

circumstances, we conclude that the trial court did not commit fundamental

error by admitting the show-up identification.2

II. Sufficiency of Evidence [16] Flippin also argues that, even if we do not find fundamental error with regard to

the show-up identification being admitted, the evidence is insufficient to

support his convictions for robbery and attempted robbery. When reviewing

the sufficiency of the evidence, we neither reweigh the evidence nor determine

2 Flippin raises a third argument regarding the show up: There was an inherent risk in the method of communication used by the police during the show-up proceedings. Detective Burkert communicated with Officers Spears and Correll via radio. Flippin makes a generalized argument that the use of radios “could have” led to a misidentification. Appellant’s Br. p. 25. He does not cite from the record a specific miscommunication that occurred during the show up. Accordingly, this argument is waived. See Ind. Appellate Rule 46(A)(8)(a).

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 9 of 11 the credibility of witnesses; that role is reserved for the factfinder. Bailey v. State,

979 N.E.2d 133, 135 (Ind. 2012). “The evidence—even if conflicting—and all

reasonable inferences drawn from it are viewed in a light most favorable to the

conviction.” Id. A conviction will be affirmed “if there is substantial evidence

of probative value supporting each element of the crime from which a

reasonable trier of fact could have found the defendant guilty beyond a

reasonable doubt.” Id.

[17] Flippin does not challenge the fact that Lackner was robbed and an attempted

robbery was committed against Jones. Rather, he argues that there is no

evidence outside of the show-up identification to tie him to these crimes. The

crimes were committed by a group of four or five African-American teens, who

were dressed in red and black. The teens then fled to the west through Garfield

Park. While Lackner was still on the phone with the 911 dispatcher, Officer

Spears saw a group of four African-American teens, who were all dressed in red

and black, headed west through Garfield Park. Officer Spears was driving a

marked police car with his lights and siren on, and once the teens saw him they

began running. “[E]vidence of flight may be considered as circumstantial

evidence of consciousness of guilt.” Myers v. State, 27 N.E.3d 1069, 1077 (Ind.

2015). But “something more than running” is necessary to infer guilt. Willis v.

State, 27 N.E.3d 1065, 1067 (Ind. 2015). The State presented something more:

Lackner, without hesitation, identified Flippin as one of the robbers. When a

victim identifies the defendant as the one who robbed him, our Supreme Court

has stated that “[t]he uncorroborated testimony of the victim is sufficient to

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 10 of 11 support the conviction.” Rhyne v. State, 446 N.E.2d 970, 972 (Ind. 1983); see

also Houze v. State, 441 N.E.2d 1369, 1371 (Ind. 1982); Poston v. State, 429

N.E.2d 643, 644 (Ind. 1981). The evidence is sufficient to support Flippin’s

convictions for Level 3 felony robbery and Level 3 felony attempted robbery.

[18] Affirmed.

Bailey, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-87 | June 30, 2017 Page 11 of 11