Ingram v. State

1988 OK CR 102, 755 P.2d 120, 1988 Okla. Crim. App. LEXIS 102, 1988 WL 51839
CourtCourt of Criminal Appeals of Oklahoma
DecidedMay 18, 1988
DocketF-85-97
StatusPublished
Cited by2 cases

This text of 1988 OK CR 102 (Ingram v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ingram v. State, 1988 OK CR 102, 755 P.2d 120, 1988 Okla. Crim. App. LEXIS 102, 1988 WL 51839 (Okla. Ct. App. 1988).

Opinions

OPINION

PARKS, Judge:

Owen Ingram, appellant, was tried by jury and convicted of Robbery by Fear (21 O.S.1981, § 792), After Former Conviction of Two or More Felonies (21 O.S.1981, § 51(B)), in Case No. CRF-83-72, in the District Court of Washington County, the Honorable Janice Dreiling, Associate District Judge, presiding. The jury assessed punishment at twenty-five (25) years imprisonment. Judgment and sentence was imposed in accordance with the jury’s verdict.

[121]*121The question of first impression we address today is whether it is an abuse of discretion to admit the accused’s “mug shot” into evidence to prove identity because of changed appearance and permit the jury to review the mug shot during the guilt or innocence phase of trial when the accused does not take the stand and put his character into issue. To resolve this issue, we adopt the three-pronged balancing test enunciated in United States v. Fosker, 568 F.2d 207, 214 (1st Cir.1978), and United States v. Harrington, 490 F.2d 487, 494 (2nd Cir.1973).

The facts relevant to this issue are as follows: On February 17, 1983, a man robbed the Lander’s Food Palace in Bar-tlesville, Oklahoma. The assistant manager and the bookkeeper described the robber as being 6' to 6'2" tall, weighing between 200 and 220 lbs, with a full, thick beard and mustache, and having long hair sticking out from under a cap. Both victims picked appellant’s mug shot from a photographic lineup. Based upon this identification, the police entered appellant’s name into the National Crime Information Computer. Approximately three months later, appellant was arrested in Washington state and extradited to Oklahoma. When booked into the Washington County jail, appellant possessed a Colorado driver’s license issued two weeks after the robbery. Appellant’s photograph on the driver’s license depicts him with a full, extremely heavy beard and mustache.

By time of trial appellant’s appearance had changed dramatically, and he appeared clean shaven, with his hair cut shorter and weighed approximately 280 lbs. The assistant manager made a positive in-court identification of appellant as the robber despite his changed appearance. The manager based his identification on the similarities between the robber’s eyes and nose and appellant’s eyes and nose. The bookkeeper testified she was 99% certain that appellant robbed her, but could not be 100% certain because of his changed appearance. Both witnesses confirmed their earlier identification of appellant from his mug shot shown to them in the photographic lineup.

Appellant and the State stipulated to the driver’s license photograph as depicting his appearance two weeks after the crime, and this photograph was introduced into evidence for purposes of establishing identity. Over vigorous objection by defense counsel, the trial court entered into evidence all seven of the mug shots, including appellant’s mug shot, shown to the witnesses in the photographic lineup approximately one week after the crime.

In chambers, counsel objected: “If these pictures come in, you know, the jig’s up. That’s the case. I mean, there is no way to cover over Tulsa Police Department, Tulsa, Oklahoma. Who else has their picture taken in front of the thing with inches on it? ... The jurors are going to know that the men who are depicted in these photos have records or else they wouldn’t have their pictures taken.” The State proposed covering up the Tulsa Police Department identifying marks on the face of each mug shot with white tape. Counsel responded, “The stickers. My God. What are the juror’s going to think that these stickers are covering up, a hole in his shirt? I mean, they can just pull the little stickers right off and look at it and put it back on. I would if I were a juror.”

After the trial court admitted the mug shots, appellant demurred to the evidence and rested without putting on evidence or taking the stand.

It is a general rule that when put on trial, an accused must be convicted, if at all, by evidence which shows guilt of the offense charged, and proof that the accused is guilty of other offenses not connected with the crime for which he is on trial must be excluded. Sweatte v. State, 732 P.2d 476, 477 (Okla.Crim.App.1987). The law in this state is clear that it is reversible error to put the accused’s reputation in issue until such time as he brings his character into issue. Harvell v. State, 479 P.2d 586, 589 (Okla.Crim.App.1971). See also 12 O.S.1981, § 2404(A)(1).

Although evidence of other crimes or acts is not admissible to prove the character of the accused when he has not put his character into issue, evidence of other [122]*122crimes or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. 12 O.S.1981, § 2404(B); Sweatte, 732 P.2d at 477. In the instant case, appellant’s driver’s license and mug shot were introduced into evidence for the purpose of proving identity because of his changed appearance.

The admissibility of photographs into evidence is a question of legal significance for the trial court. Photographs are admissible when the probative value is not substantially outweighed by the danger of unfair prejudice to the accused. Diaz v. State, 728 P.2d 503, 512 (Okla.Crim.App.1986). See also 12 O.S.1981, § 2403. Photographs which show the accused’s appearance at the time of the crime are admissible because they tend to make more probable the identification of the accused as the robber than without the evidence. Black v. State, 663 P.2d 22, 23 (Okla.Crim.App.1983). We have no need to apply the Section 2403 balancing test to the admissibility of appellant’s driver’s license because appellant and the State stipulated to this photograph and it was introduced into evidence without objection,

Admission of the accused’s mug shot into evidence to prove identity, however, presents a special problem requiring us to balance the State’s need to introduce the photograph to prove identity against the accused’s need to be protected from the inherent prejudice flowing from the mug shot. The three factors of the balancing test are: (1) The State must have a demonstrable need to introduce the photographs; (2) the photographs themselves, if shown to the jury, must not imply that the accused has a prior criminal record; and (3) the manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs. Fosher, 568 F.2d at 214-15. Harrington, 490 F.2d at 494. This test presupposes that the photographs are relevant to a material issue at hand. Fosher, 568 F.2d at 215.

Applying the above factors to the facts of this case, we first inquire whether the State had a “demonstrable need” to introduce appellant’s mug shot into evidence. The assistant manager positively identified appellant in court, but the bookkeeper testified she was only 99% certain of her identification because of appellant’s changed appearance. Photographic identification showing appellant’s appearance at the time of the crime was crucial to the State’s case. However, in this case, that need was satisfied by the introduction into evidence of appellant’s driver’s license proving his appearance and weight within two weeks of the crime.

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Related

New v. State
1988 OK CR 165 (Court of Criminal Appeals of Oklahoma, 1988)
Ingram v. State
1988 OK CR 102 (Court of Criminal Appeals of Oklahoma, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
1988 OK CR 102, 755 P.2d 120, 1988 Okla. Crim. App. LEXIS 102, 1988 WL 51839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ingram-v-state-oklacrimapp-1988.