Hart v. State

412 N.E.2d 833, 1980 Ind. App. LEXIS 1794
CourtIndiana Court of Appeals
DecidedNovember 25, 1980
DocketNo. 3-480A106
StatusPublished
Cited by3 cases

This text of 412 N.E.2d 833 (Hart v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hart v. State, 412 N.E.2d 833, 1980 Ind. App. LEXIS 1794 (Ind. Ct. App. 1980).

Opinion

STATON, Judge.

When Howard Schweitzer, a volunteer fireman and railroad car inspector answered a fire alarm on October 1, 1978 at approximately 9:20 P.M. in the Griffith railroad yard, he saw his red, 1972 Ford pickup truck engulfed in flames. Before the alarm, he had left the truck about a half mile away and just north of Schererville at a house trailer. Later the same evening, he found the house trailer engulfed in flames.

Gary Alan Hart had been identified by Jimmy Jackson, a brakeman for E. J. & E. Railroad, as one of the two men in a red Corvair that he observed in the railroad yard just before the truck burst into flames. Hart failed to attend his jury trial on the charges of Theft and Criminal Mischief. In his absence the jury found him guilty of Criminal Mischief, a Class A misdemeanor.1 He was sentenced to the Indiana Department of Correction for a period of one year.

In his appeal, Hart raises these three issues for our review:

(1) Was the photographic identification conducted in an impermissibly suggestive manner?
(2) Did the trial court err in admitting his “mug shots” into evidence?
(3) Was the judgment supported by sufficient evidence?

We affirm.

I.

Pre-Trial Photographic Display

Hart contends that the pre-trial display was conducted in an impermissibly suggestive manner because two of the seven pictures in the line-up were of him. We disagree.

Suppression of identification evidence is necessary only where the pre-trial procedure utilized is so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. Popplewell v. State (1978), Ind., 381 N.E.2d 79. To determine whether a pre-trial identification procedure has been conducted in an impermissibly suggestive manner, we will look to the “totality of the circumstances.” Hill v. State (1977), 267 Ind. 411, 370 N.E.2d 889; Kizer v. State (1979), Ind.App., 395 N.E.2d 841.

Jackson was shown seven pictures of white males between 17 and 25 years of age. All the men portrayed had shoulder length light blonde hair. Two of the pictures were of Gary Hart.

Sergeant Evanson explained that the two “very dissimilar” pictures of Hart were included “because of the years of difference that the photographs was taken; and Mr. Hart had changed his appearance. He still had the long hair, but he also had a beard.” According to Evanson, several people had looked at the photographic display and had been unaware that two pictures of Hart had been included. Jackson, however, had no trouble in picking out both pictures.

We are unpersuaded that, in this situation, the use of two “very dissimilar” pictures of Hart was a “fatal error.” The fact that, despite the dissimilarity of the photos, Jackson was able to readily select both pictures lends credence to his identification. In considering the “totality of the circumstances,” we conclude that the pretrial photographic display was not conducted in an impermissibly suggestive manner.

Jackson made his in-court identification of Hart from the pictures used in [836]*836pre-trial display. When considering an in-court identification which is potentially tainted by a suggestive pre-trial procedure, our Indiana Supreme Court has adopted the “independent basis” test. Young v. State (1979), Ind., 395 N.E.2d 772. To determine whether an independent basis for an in-court identification exists, a “totality of the circumstances” standard is used. Young, supra; Eckman v. State (1979), Ind.App., 386 N.E.2d 956. These circumstances include such facts as would indicate whether or not the witness could have identified the suspect without the influence of the pretrial procedure and the opportunity of the witness to have observed the accused. Young, supra.

The record indicates that Jackson observed Hart when he “shined” his lantern in Hart’s face from a distance of 40 to 45 feet under bright lights. He also saw Hart from a distance of 200 feet as he jumped out of the Corvair.

Jackson testified:

“A. Well, we had the mercury vapor overhead lights. There’s one on every telephone pole plus my railroad-lantern when he come driving by, I shined my railroad lantern in his face, and turned and looked at me.
“Q. Could you describe the build of the individual you saw driving the Cor-vair?
“A. The physical build was a slim build. Now, I was approximately 200 feet away or so at the time I seen him out of the car. It was just like a silhouette.
“Q. Tell the Court what is the description you did give?
“A. Description I give he was approximately 5,7 5,5 in height; approximately 135, 150 pounds; and had long shoulder length or almost shoulder length whitish, blonde hair.”

We conclude that there is a sufficient basis for recognition, independent oN the pre-trial identification, to have allowed Jackson’s in-court photographic identification of Hart.

II.

Mug Shots

Hart next argues that the trial court erred by admitting his “mug shots” in that they were prejudicial.2

If a defendant does not take the stand or otherwise put his character in issue, “mug shots” are generally inadmissible when they tend to imply or prove that the defendant has a criminal record. Shindler v. State (1975), 166 Ind.App. 258, 335 N.E.2d 638. In Vaughn v. State (1939), 215 Ind. 142, 19 N.E.2d 239, 241, our Supreme Court noted that there are, however, some circumstances in which a “mug shot” may be properly admissible.3 Such a photograph may be admissible if the State can demonstrate that the “mug shot” has some substantial evidential value independent of other evidence and that it is not unduly prejudicial. Shindler, supra; Saffold v. State (1974), 162 Ind.App. 6, 317 N.E.2d 814. The admission of photographs is within the sound discretion of the trial court, and its decision may be reversed only upon a showing of an abuse of that discretion. Rogers v. State (1979), Ind., 383 N.E.2d 1035.

The Court in McHenry v. State (1980), Ind.App., 401 N.E.2d 745 (transfer denied), explored the use of “mug shots” in the absence of the defendant:

“Despite warnings by the court and his attorney’s attempts to locate him, [837]*837McHenry did not appear for his trial, a result, the court was faced with a problem.

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Related

Hoskins v. State
486 N.E.2d 593 (Indiana Court of Appeals, 1985)
Strong v. State
435 N.E.2d 969 (Indiana Supreme Court, 1982)

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Bluebook (online)
412 N.E.2d 833, 1980 Ind. App. LEXIS 1794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hart-v-state-indctapp-1980.