Leslie v. State

558 N.E.2d 813, 1990 Ind. LEXIS 162, 1990 WL 122242
CourtIndiana Supreme Court
DecidedAugust 21, 1990
DocketNo. 49S00-8806-CR-580
StatusPublished
Cited by3 cases

This text of 558 N.E.2d 813 (Leslie v. State) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leslie v. State, 558 N.E.2d 813, 1990 Ind. LEXIS 162, 1990 WL 122242 (Ind. 1990).

Opinion

SHEPARD, Chief Justice.

Appellant Mort Leslie was tried before a jury and convicted of burglary, a class C felony, Ind.Code § 35-48-2-1 (West 1986). The jury also determined that he was an habitual offender, Ind.Code § 85-50-2-8.1 The trial court sentenced him to five years imprisonment for the burglary and added thirty years imprisonment for being an habitual offender. We affirm.

Leslie raises four issues on appeal:

I. Whether the trial court erred by admitting evidence of a one-person showup and the subsequent identification testimony in court.
II. Whether the trial court erred by allowing into evidence statements the defendant made to the police.
III. Whether the evidence was suffi-client to support the conviction.
IV. Whether the trial court erred by not allowing the defendant to argue the potential penalty during the habitual offender phase of the trial.

On the evening of February 25, 1984, Albert Cornell, an employee of the Honeywell Protection Services, received a radio dispatch informing him that the alarm at the Pakway Container Corporation had been triggered. Approximately ninety minutes after receiving the dispatch, Cornell arrived at Pakway and began cireling the building in his pickup truck.

[815]*815As Cornell passed the southeast corner of the building, he noticed a hole in the overhead door. He parked about fifteen feet from the building with his headlights on bright and aimed in the direction of the hole. Within a few moments, Cornell observed a man exit the hole. The man then ran under a fence out of Cornell's sight. Cornell radioed for the police and drove around to the front of the building where he saw the same man walking along the street. When the man noticed Cornell following him, he began running. Cornell continued following the man in his truck until he lost sight of him.

Approximately five minutes after last seeing the man, Cornell met the police at Pakway. Cornell described the burglar to the police as a black man, around thirty years old, wearing "a derby hat, flat top, brown jacket, blue jeans." He also told them in which direction the burglar had proceeded.

The police searched the area. Within five minutes, they found a person matching the initial description. He identified himself as Mort Leslie. The police took Leslie to Pakway for an eyewitness identification. As Leslie sat handcuffed in the back of the police car, Cornell was brought to the car and asked if he could identify the man. Cornell unequivocally identified Leslie as the man he had seen leaving the building, and Leslie was arrested.

On February 26th at approximately 9:37 a.m., Detective Charles Hasselburg interrogated Leslie. Hasselburg testified that he read Leslie his Miranda rights, explained each point, and asked Leslie to read them for himself. He then asked Leslie if he understood the rights, and Leslie answered affirmatively. Detective Hasselburg also testified that Leslie indicated he would not have signed the waiver if he had not understood his rights. Hasselburg stated that Leslie did not appear to be incapacitated during this time, to have any difficulty understanding the nature of what was oc curring, or to be under the influence of drugs or alcohol. He also added that he did not make any guarantees or threats to Leslie during the questioning.

Leslie denied committing the burglary. Asked why he was in the area on the night of the burglary, Leslie explained that he was returning home from visiting a friend's house located at 2045 Park Avenue. Detective Hasselburg went to this address and discovered that both the nineteen hundred and two thousand block of Park Avenue comprised a city park.

The defense moved to suppress the statements Leslie made to Detective Hassel-burg. At the suppression hearing, Leslie testified that he did not understand his rights, and that if he waived them, he did so without knowledge. He admitted to making the statements, but he explained he only made them because he had just awoken and was drowsy. He added that Detective Hasselburg did not explain his rights to him but simply gave him the paper listing the rights to read for himself. Leslie stated that he told the detective that he could not read very well, but that Has-selburg still did not read his rights aloud. When asked his reason for signing the waiver, Leslic testified that the detective told him "it wouldn't hurt me ... and told me to sign."

I. Leslie's Showup

Leslie claims his identification as the burglar was so impermissibly suggestive that it violated due process and should have been suppressed. The facts show that Leslie sat alone, handcuffed, in the backseat of a police car at the crime scene, surrounded by police officers. Leslie argues this show-up indicated to the witness that Leslie was the only choice in identifying the burglar.

Leslie's argument is a familiar one to this Court. See, e.g., Moore v. State (1988), Ind., 518 N.E.2d 1093, 1094; Coker v. State (1983), Ind., 455 N.E.2d 319. Showup identifications are not in themselves impermissible per se. They can be useful when held immediately after the crime because they allow the witnesses to view the suspect while the image of the perpetrator is still fresh in their minds. Russell v. State (1988), Ind., 519 N.E.2d 549. To determine whether a particular identification is impermissibly suggestive, we examine whether there is a substantial [816]*816likelihood of misidentification in light of all the circumstances. Linthicum v. State (1987), Ind., 511 N.E.2d 1026. Other identification procedures may be less suggestive, but not every one-person showup is a violation of due process.

This case closely resembles the set of facts presented in Coker, 455 N.E.2d 319. Like Leslie, Coker argued that returning him to the crime scene in a police car while handcuffed was suggestive. In Coker, the officers returned the suspect to the scene within 30 to 45 minutes following the crime. 455 N.E.2d at 821. We found that this showup was not unduly suggestive. Leslie was returned to Pakway approximately five minutes after the witness last saw him.

This Court has sometimes been divided on whether a particular showup was unduly suggestive. See, e.g., Samaniego v. State (1990), Ind., 553 N.E.2d 120 (DeBruler, J., with Dickson, J., concurring in result with opinion). In other cases, like Coker, we have substantially agreed that the presentation of the defendant to the victim was acceptable. (Prentice, J. concurring in result without opinion, 455 N.E.2d at 322). We find that the showup involving Leslie was much like the one approved in Coker and conclude that it was not impermissibly suggestive.

Leslie further contends that Cornell's in-court identification should have been suppressed because it was the product of a suggestive showup.

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558 N.E.2d 813, 1990 Ind. LEXIS 162, 1990 WL 122242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leslie-v-state-ind-1990.