Wilson v. State

360 N.E.2d 1010, 172 Ind. App. 476, 1977 Ind. App. LEXIS 781

• Court: Indiana Court of Appeals
• Decided: March 17, 1977
• Docket: 2-1075A273
• Status: Published

Opinions

Sullivan, J.

Wilson seeks to set aside his conviction for commission of robbery while armed.¹ He argues (1) that in-court identification by the victim, Ball, should not have been allowed because an unduly suggestive pre-trial line-up made the identification unreliable, and (2) that there was insufficient evidence to establish that he committed the robbery.

We affirm.

I.

THE LINE-UP WAS NOT UNDULY SUGGESTIVE

Wilson argues that the pre-trial line-up was unduly suggestive in that none of the four other line-up participants had black hair, or a moustache similar to his, and that he was the only one with a tattoo.²

The four additional line-up participants were white males of approximately the same age and build as Wilson. All had shoulder length hair, and two had facial hair. Wilson, however, was the only one with a tattoo on his arm. Since the robbery was committed by a person wearing a jacket, the fact that he was the only one with a tattoo is irrelevant. Although it might have been preferable to have someone else with black hair in the line-up with Wilson, we cannot say as a matter of law that the line-up was unduly suggestive.

Moreover, the circumstances of the robbery were such that any suggestiveness in the line-up was overcome. The store was well-lit, and Wilson stood about 3 feet from Mr. Ball, while he faced Mrs. Ball across the cashier’s counter, holding a sawed-off shotgun no more than 2 inches from her stomach. Nothing obstructed Mr. Ball’s view of the robber.

Even assuming arguendo that the line-up was unduly suggestive, the factors just enumerated form sufficient independent ground to establish the reliability of Ball’s in-court identification of Wilson. Parker v. State (1976), 265 Ind. 595, 358 N.E.2d 110; Swope v. State (1975), 263 Ind. 148, 325 N.E.2d 193, cert. den. 423 U.S. 870.

The trial court did not err in allowing in-court identification of Wilson by Ball.

II.

THE EVIDENCE IS SUFFICIENT TO SUSTAIN THE VERDICT AND JUDGMENT³

Wilson argues that Ball, the only eyewitness to testify, was so equivocal and uncertain in his identification of Wilson that his testimony had no probative value.

On the night of the robbery, Ball and his wife, the only two people in the store when it was robbed, were shown 50 to 75 pictures by the police. They indicated that one of those pictures looked like the robber, but said that it was not him. The next day, Sgt. Ashton returned to the store with the same group of photographs to which one of Wilson was added. Ball and his wife viewed these photographs outside the presence of the other, and both independently identified Wilson as the one who had committed the robbery. At the line-up two and one-half months later both again independently identified Wilson. At trial, Ball identified a black-and-white photograph of Wilson as being the man he had picked at the line-up, but qualified that statement, saying, “I can’t say I’m sure.”

We are well aware that “[s]ome of the most tragic miscarriages of justice have been due to testimonial errors . . . due to imperfect Recollection, with the occasional further complication of defective Perception and of Suggestion.” Baker v. State (1956), 236 Ind. 55, 58, 138 N.E.2d 641, 643, quoting 3 WIGMORE, EVIDENCE § 786a, at 163 (3d ed. 1940). However, we do not agree with Wilson that Baker involved “a very similar set of facts.”

Although' Ball may have equivocated regarding a black- and-white photograph at trial, he was positive in his identification of Wilson from a color photograph the day after the robbery, at a line-up two and one-half months later, and at the trial. As stated, the store was well-lit at the time of the robbery, and Wilson stood about 3 feet away from Ball. These facts, along with Ball’s equivocations concerning the photographs, were matters for consideration by the jury. As our Supreme Court said in Stinson v. State (1974), 262 Ind. 189, 313 N.E.2d 699, 701:

“It has often been observed by this Court and courts in other jurisdictions that personal identification evidence is doubtful at best and should be subject to close scrutiny. It ■ would be naive to say that any person could be absolutely certain of the identification of another person whom they had never known previously and had observed only in a brief period of excitement and great tension. All testimony of such a nature must certainly be subject to extensive cross-examination in order that the jury may properly evaluate its content.”

Ball was skillfully and thoroughly cross-examined by Wilson’s defense counsel. The discrepancies in Ball’s description affect only the weight of the evidence. Perkins v. State (1973), 156 Ind. App. 163, 294 N.E.2d 846.

In Lottie v. State (1974), 262 Ind. 124, 311 N.E.2d 800, 803, our Supreme Court stated:

“Identifying testimony need not necessarily be unequivocal. Indeed, many convictions are predicated upon circumstantial evidence without any identifying testimony; but the totality of the evidence in all cases must be such as will permit the trier of facts, as reasonable men, to find guilt beyond a reasonable doubt.”

Although there were some internal contradictions in Ball’s testimony at trial, we cannot say that his testimony had no probative value in light of the totality of the identification evidence.

The judgment of the trial court is affirmed.

Lybrook, J. (participating by designation), concurs; White, J., concurs with separate opinion.

1 . IC 35-12-1-1.

2 . Wilson also argues that he was denied counsel at the line-up. The record indicates that Wilson’s then attorney was notified of the line-up, but was unable to he present. The attorney instructed the police to go ahead with the line-up without him. (This attorney was not Mr. Burns who represented Wilson at trial and who has taken this appeal.) This may have constituted a waiver of presence of counsel at the line-up. We need not rest our decision on that ground, however. Wilson did not assert lack of counsel at the time of the line-up in his Motion to Correct Errors, and has therefore waived the issue on appeal. Ind. Rules of Procedure, TR. 59(G), Cole v. State (1975), 167 Ind. App. 310, 338 N.E.2d 651, 654.

3 . To the extent that the separate concurrence by Judge White espouses a prerogative of a trial judge to nullify a jury verdict by serving as a “thirteenth juror”, the author of this opinion would reiterate the views contained in his dissenting opinion in Collins v. Grabler (1970), 147 Ind. App. 584 at 597-599, 263 N.E.2d 201 at 209-210.