Attorney for Appellant
Anthony C. Lawrence
Anderson, IN
Attorneys for Appellee
Karen M. Freeman-Wilson
Attorney General of Indiana
Adam M. Dulik
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
RICHARD D. SWIGEART,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 48S00-9909-CR-480
)
)
)
)
)
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APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Judge
Cause No. 48D03-9806-CF-243
ON DIRECT APPEAL
June 28, 2001
SULLIVAN, Justice.
Defendant Richard Swigeart attacked and injured Cheryl Graggs during
an attempt to rob a liquor store. We uphold his convictions for attempted
robbery, battery, and criminal confinement. In doing so, we find that the
trial court properly excluded photographs because the use of a telephoto
lens may have made them misleading. And we find the circumstances
supported a witness’s in-court identification of Defendant.
Background
The facts most favorable to the judgment indicate that just after
midnight on May 31, 1998, Defendant and his son, Dennis, attacked Cheryl
Graggs as she was leaving work. Defendant and Dennis went in Defendant’s
truck to Cain’s liquor store “to rob the lady that was working there.”
Defendant was armed with a BB gun, and Dennis had a stun gun. As Graggs
closed the store and went to her car, Defendant and Dennis attacked her.
Defendant put his arm around her and “put the BB gun to her like it was a
real pistol.” Dennis then demanded money from Graggs. Graggs then started
screaming, at which point Defendant hit her in the head with the gun and
forced her around to the back of the building. As Defendant was pulling
Graggs to the back of the building, Dennis stunned her with the stun gun.
Defendant and Dennis beat Graggs and began restraining her with tape, but
fled when some people approached in a car.
Soon after the attack, Officer Mark McCann was dispatched to the area
of the attack to look for the suspects. Officer McCann stopped Dennis on
the street, questioned him, and took him into custody. As Officer McCann
was returning to the police station with Dennis, he passed a person that he
later identified as Defendant. As Officer McCann was turning a corner, he
spotted an individual walking through a parking lot, but because he did not
know that the subject was also a participant in the crime, he did not
immediately report seeing anyone. The next day, however, Officer McCann
returned to the police station because he wanted to make sure that somebody
had “identified or somebody had [known] about the subject that [he had]
seen.” Officer McCann spoke to Detective Gary Copeland and described the
person that he had seen and said that he could recognize the individual if
he saw a picture. Later that day, Officer McCann identified Defendant from
a photograph.
Defendant was convicted of Attempted Robbery, a Class A felony,[1]
Battery, a Class C felony,[2] Criminal Confinement, a Class B felony,[3]
and Defendant pled guilty to being a habitual offender.[4] The trial court
sentenced Defendant to 50 years for the attempted robbery,[5] eight years
for battery, and 20 years for criminal confinement, to be served
concurrently.
Discussion
I
Defendant contends that the trial court abused its discretion by
excluding certain photographic evidence. See Appellant’s Br. at 9.
At trial, Defendant sought to introduce a series of photographs,
Exhibits 16 through 19, into evidence to “depict the angle that the
Defendant was traveling on foot.” Appellant’s Br. at 9. The trial court
sustained the State’s objections to Defendant’s exhibits 17 and 19. On
appeal, Defendant argues that the photographs were significant because they
“demonstrated the angle at which Officer McCann allegedly observed
[Defendant] walking near the crime scene” as Officer McCann passed by in
his car. Appellant’s Br. at 9.
Exhibits 16 through 19 were all photographs depicting an individual,
other than Defendant, standing in the parking lot. Exhibits 16 and 17 were
almost identical pictures of the individual, but each taken with a
different lens. Exhibit 16, taken with a 35-millimeter camera, displayed
the individual standing in the parking lot with the person’s back to the
camera. Exhibit 17 was taken of the same person in nearly the same
position, but the picture was taken from the street with a wide-angle
telephoto lens.
Exhibits 18 and 19 were also nearly identical. Exhibit 18, taken with
a 35-millimeter camera, shows a person standing in the parking lot facing
away from the camera, at an angle, with the person’s face turned toward the
camera. Exhibit 19 shows the same person at the same angle, but was taken
with a wide-angle telephoto lens.
Granting the State’s request, the trial court excluded Exhibits 17 and
19. The State objected after Defendant’s witness disclosed that the
photographs had been taken with a wide-angle telephoto lens. Although the
trial court excluded the evidence without comment, it is likely that the
trial court excluded the photographs on these grounds. Even where a trial
court does not state the ground on which it excluded evidence, a reviewing
court may sustain an evidentiary ruling if it can do so on any theory
consistent with the evidence presented. See Reaves v. State, 586 N.E.2d
847, 857 (Ind. 1992).
The admission or exclusion of photographic evidence lies within the
trial court’s discretion. See Robinson v. State, 693 N.E.2d 548, 553 (Ind.
1998). We will not reverse the trial court’s ruling absent an abuse of
discretion. Id. “The law approves of the use of photographs to prove the
existence and nature of relevant physical objects and scenes so long as
they are true and accurate.” See Patel v. State, 533 N.E.2d 580, 583
(1989); Boyd v. State 494 N.E.2d 284, 295 (Ind. 1986), cert. denied 479
U.S. 1046 (1987). “The purpose of such photographs is to aid the jury in
visualizing the scene as described in testimony.” Patel, 533 N.E.2d at
583.
The trial court most likely excluded the exhibits because they were
not a “true and accurate” depiction Officer McCann’s view of Defendant in
the parking lot. Both of the excluded photographs were taken with a wide-
angle telephoto lens and therefore presented an enhanced view of what
Officer McCann could have seen. Defendant offered the evidence to
“demonstrate[] the angle at which Officer McCann allegedly observed
[Defendant] walking.” Appellant’s Br. at 9. There is no apparent reason
that the jury needed to see a magnified photograph. If Defendant intended
to show the jury what Officer McCann would have seen from his car, then the
pictures taken with the wide-angle telephoto lens could well have been
misleading. The trial court did not abuse its discretion by excluding
Exhibits 17 and 19. Furthermore, Exhibits 17 and 19 were almost identical
to 16 and 18, making them cumulative.
II
Defendant argues that Officer McCann’s pre-trial identification was
the result of an unduly suggestive police procedure. He contends that the
pre-trial identification tainted his in-court identification, thereby
violating his due process rights. See Appellant’s Br. at 12.
The day after the attack, Officer McCann identified Defendant from a
photograph as the man he had seen in the vicinity of the liquor store soon
after the attack. Evidence of this initial identification was never
introduced at trial. In his testimony, however, Officer McCann did
identify Defendant as the man he had seen in the vicinity of the attack.
The day after the attack, Officer McCann told Detective Copeland that
he had observed another subject on the scene the previous night. Officer
McCann testified that he described the person to Detective Copeland as “a
male white, approximately forty to fifty years of age, dark long black
hair, tattoos on both arms, no shirt on, ... and possibly a goatee.” (R.
at 480-81.) Officer McCann told Detective Copeland that he could identify
the individual if he saw a picture.
Officer McCann was able to identify Defendant from a picture as the
man that he had seen on the night of the attack. His identification of
Defendant, however, was not done according to normal procedures. Detective
Copeland testified that typically, a witness is shown a photo array
containing photographs of six different individuals from which the witness
can identify a suspect. According to Officer McCann, he walked into
Detective Copeland’s office and saw a picture of Defendant on his desk.
Defendant’s picture was lying on the desk with two pictures of Dennis
McCann. Officer McCann immediately recognized Defendant and stated,
“that’s the guy.” Detective Copeland testified that the identification was
not done with a photo array because Officer McCann had come into his office
unexpectedly.
The Due Process Clause of the Fourteenth Amendment requires
suppression of testimony concerning a pre-trial identification when the
procedure employed is impermissibly suggestive. See Harris v. State, 716
N.E.2d 406, 410 (Ind. 1999); Parker v. State, 698 N.E.2d 737, 740 (Ind.
1998); James v. State, 613 N.E.2d 15, 27 (Ind. 1993). A photographic array
is impermissibly suggestive if it raises a substantial likelihood of
misidentification given the totality of the circumstances. See Harris, 716
N.E.2d at 410. A pre-trial identification may occur in a manner so
suggestive and conducive to mistaken identification that permitting a
witness to identify a defendant at trial would violate the Due Process
Clause. See Young v. State, 700 N.E.2d 1143, 1146 (Ind. 1998).
Nevertheless, a witness who participates in an improper pretrial
identification procedure may still identify a defendant in court if the
totality of the circumstances shows clearly and convincingly that the
witness has an independent basis for the in-court identification. Id.
To determine whether a witness had an independent bases for the in-
court identification, we consider the following factors: The amount of
time the witness was in the presence of the defendant; the distance between
the two; the lighting conditions; the witness’ degree of attention to the
defendant; the witness’ capacity for observation; the witness’ opportunity
to perceive particular characteristics of the perpetrator; the accuracy of
any prior description of the perpetrator by the witness; the witness’ level
of certainty at the pretrial identification; and the length of time between
the crime and the identification. See Utley v. State, 589 N.E.2d 232, 238
(Ind. 1992), cert denied, 506 U.S. 1058 (1993).
The State did not introduce evidence of Officer McCann’s
identification of Defendant at the police station. It is Defendant’s
contention, however, that Officer McCann’s identification of Defendant at
the police station was so suggestive that it violated Due Process to allow
Officer McCann to identify Defendant at trial. Officer McCann, however,
had an independent basis for his in-court identification of Defendant. As
Officer McCann was driving toward the police station, he saw Defendant from
a close distance. Officer McCann testified that he saw Defendant in the
vicinity of the crime scene for approximately six to eight seconds as
Defendant was walking in a well-lit parking lot. Prior to seeing the
photograph of Defendant, Officer McCann described Defendant as being a
white man, approximately forty to fifty years old, with long black hair,
tattoos on both arms, no shirt on, and a goatee. Officer McCann testified
that he watched Defendant until he was out of sight.
We find that the totality of the circumstances shows clearly and
convincingly that Officer McCann had an independent basis for his in-court
identification. Although it is irrelevant in the analysis of whether the
identification was valid, other evidence in the case also pointed to
Defendant as perpetrator. Most notably, Defendant’s son, Dennis, testified
regarding Defendant’s involvement in the attack. Defendant’s palm print
was also found on an air conditioner unit that sat next to where the attack
occurred. McCann’s identification was cumulative of other substantial
probative evidence of identification.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, and BOEHM, JJ., concur.
RUCKER, J., concurs in result.
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[1] Ind. Code §§ 35-42-5-1 and 35-41-5-1(1993).
[2] Id. § 35-42-2-1 (1997).
[3] Id. § 35-42-3-3 (1993).
[4] Id. § 35-50-2-8 (Supp. 1997).
[5] The sentence for the robbery conviction was enhanced by 30 years
according to the habitual offender statute.