Love v. State

365 N.E.2d 771, 266 Ind. 577, 1977 Ind. LEXIS 431
CourtIndiana Supreme Court
DecidedJuly 29, 1977
Docket1075S265
StatusPublished
Cited by25 cases

This text of 365 N.E.2d 771 (Love 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
Love v. State, 365 N.E.2d 771, 266 Ind. 577, 1977 Ind. LEXIS 431 (Ind. 1977).

Opinions

Pivarnik, J.

Appellant was convicted of premeditated and felony first degree murder, Ind. Code § 35-13-4-1 (a) (Burns 1975), and robbery, Ind. Code § 35-13-4-6 (Burns 1975). Appellant was indicted and tried jointly with one Leroy Williams and convicted after jury trial. Williams was aquitted of all charges. Appellant was sentenced to life imprisonment and an indeterminate term of ten to twenty-five years. On appeal he raises three issues: (1) the admissibility of eyewitness identification testimony; (2) the propriety of allowing the prosecutor to impeach a State’s witness with prior statements, and; (3) sufficiency of the evidence to support his convictions.

The incident in question occurred on July 17, 1974, when two armed men held up the Mill Gate Inn in East Chicago, Indiana. Mrs. Beverly Russell, an employee of the restaurant, was shot and killed during the robbery. At the time of the incident the restaurant was closed and Harry Osterman, a [579]*579friend of Mrs. Russell, was the only customer remaining in the restaurant. He was sitting at the counter while she counted the night’s receipts, waiting to walk her home. All the other customers and employees had left and the dining area lights had been turned off. Spotlights behind the counter provided dim light throughout the restaurant and good light behind the counter.

We first take up the issue of the admissibility of eyewitness identification testimony of Harry Osterman. Osterman’s testimony indicated that two men entered through the unlocked front door and exhibited automatic pistols. One man walked behind Osterman and ordered him into the men’s restroom. The other approached Mrs. Russell. Osterman was taken into the restroom, relieved of his money, and told to remain there. He heard two shots; when he exited the restroom the robbers were gone, and he found Mrs. Russell in a stockroom, shot in the head.

Mr. Osterman, from his seat, could see the men as soon as they entered the restaurant. He turned to face the man who approached him. Although his attention was on this robber, he could “get a fairly good side look at the other.” In spite of the fact that he was held some of this time in the men’s room, Osterman said that he observed each robber for five to ten minutes.

Osterman described both robbers to the police as men in their mid-twenties to early thirties, six feet tall, weighing about 160 pounds, wearing waist-length coats, golf hats, and large sunglasses, which he originally mistook for masks. On July 29, 1974, he was shown a group of mugshots and selected one as one of the robbers. This photograph was of a man named Buggs. Osterman also identified Buggs in a line-up. Three months later, on November 7, 1974, the detectives told Osterman that their investigation revealed that Buggs was not a participant in the robbery. They showed him another group of five or six photos, none of which were of Buggs, telling him that it contained photos of the persons who had [580]*580robbed him. Osterman picked photos of appellant and Willians. Several days before trial Osterman was shown four photographs in the prosecutor’s office, including those of appellant, Williams, and Buggs.

During an in-trial suppression hearing, defense counsel exhibited a group of photographs to Osterman and requested that he select the robbers’ pictures. These photographs are not in the record. Osterman picked two photographs. One of these seems to have been of Buggs. The transcript of this procedure does not convey what transpired with complete clarity. In subsequent testimony it was revealed that Osterman had identified Buggs and Williams from the suppression hearing display. There was evidence also that appellant and Buggs resembled each other to quite some extent.

Osterman testified that he was sure of his in-court identification and that it was based upon his recollection of the night of the crime. He said that he was sure enough that he would “stake his life on it.”

The trial court ruled that the November 7th photograph identification procedure was improperly suggestive, but that the witness had an independent basis for his in-court identification of appellant and Williams.

A witness who has been subjected to an unnecessarily suggestive confrontation with the accused may nonetheless identify the accused at trial as the perpetrator of the offense if the pre-trial confrontation has not created a “very substantial likelihood of irreparable misidentification,” Norris v. State, (1976) 265 Ind. 508, 356 N.E. 2d 204, or in other words, if the witness has a basis for his in-court identification independent of the suggestive procedure. Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d 525. The factors considered in determining the existence of an independent basis have been set out in several cases, and may be divided into two sets: those dealing with the witness’ opportunity to observe the offender, and those relating to the reliability of his recollection of his original observation of the [581]*581offender. Specific factors in the first group were enumerated in Parker v. State, (1976) 265 Ind. 595, 358 N.E.2d 110, 112:

“The facts of paramount importance to this question relate to the opportunity of the witness to view the offender at the time of the offense; the duration for which the witness can observe the perpetrator; the distance separating them; the lighting conditions; and circumstances affecting the amount of attention the witness can devote to observing the guilty party.”

See also Dillard, v. State, (1971) 257 Ind. 282, 289, 274 N.E.2d 387, 389.

Factors in the second group were described in Swope v. State, (1975) 263 Ind. 148, 157, 325 N.E.2d 193, 197, quoting United States v. Wade, (1967) 388 U.S. 218, 241, 87 S.Ct. 1926, 1940, 18 L.E.2d 1149, 1165:

“ ‘ [T] he prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.’ ”

The State bears the burden in the trial court of producing “clear and convincing evidence” of an independent basis, Swope v. State, supra, at 325 N.E.2d 197, but in reviewing the lower court’s finding we do not reweigh the evidence, but look to the evidence most favorable to the trial court and any uncontradicted evidence favorable to the appellant. We accept the trial court’s finding if it is supported by sufficient evidence. Whitt v. State, (1977) 266 Ind.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Adams v. State
490 N.E.2d 346 (Indiana Court of Appeals, 1986)
Gibbs v. State
483 N.E.2d 1365 (Indiana Supreme Court, 1985)
Hossman v. State
473 N.E.2d 1059 (Indiana Court of Appeals, 1985)
Gentry v. State
471 N.E.2d 263 (Indiana Supreme Court, 1984)
Hiner v. State
470 N.E.2d 363 (Indiana Court of Appeals, 1984)
Hill v. State
442 N.E.2d 1049 (Indiana Supreme Court, 1982)
Head v. State
443 N.E.2d 44 (Indiana Supreme Court, 1982)
Ward v. State
438 N.E.2d 966 (Indiana Supreme Court, 1982)
Kusley v. State
432 N.E.2d 1337 (Indiana Supreme Court, 1982)
Remsen v. State
428 N.E.2d 241 (Indiana Supreme Court, 1981)
Dooley v. State
428 N.E.2d 1 (Indiana Supreme Court, 1981)
Smith v. State
422 N.E.2d 1179 (Indiana Supreme Court, 1981)
Hatcher v. State
414 N.E.2d 561 (Indiana Supreme Court, 1981)
Borden v. State
400 N.E.2d 1368 (Indiana Supreme Court, 1980)
Morgan v. State
400 N.E.2d 111 (Indiana Supreme Court, 1980)
White v. State
397 N.E.2d 949 (Indiana Supreme Court, 1979)
Ruetz v. State
373 N.E.2d 152 (Indiana Supreme Court, 1978)
Pierce v. State
369 N.E.2d 617 (Indiana Supreme Court, 1977)
Love v. State
365 N.E.2d 771 (Indiana Supreme Court, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
365 N.E.2d 771, 266 Ind. 577, 1977 Ind. LEXIS 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/love-v-state-ind-1977.