ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ann M. Skinner Jeffrey Modisett
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
DUJUAN EMERSON, )
)
Appellant (Defendant Below), )
)
v. ) No. 49S00-9808-CR-419
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9608-CF-116145
March 1, 2000
SHEPARD, Chief Justice.
A jury found appellant Dujuan Emerson guilty of felony murder,
Ind. Code § 35-42-1-1; murder, Ind. Code § 35-42-1-1; conspiracy to
commit robbery, a class A felony, Ind. Code § 35-41-5-2; two counts of
robbery, class A and class B felonies, Ind. Code § 35-42-5-1; and
carrying a handgun without a license, a class A misdemeanor, Ind. Code §
35-47-2-1 and -23. The trial court sentenced him to sixty-five years for
felony murder, twenty years for conspiracy, twenty years for each count
of robbery (to run consecutively with the felony murder conviction), and
one year for carrying a handgun without a license. The total sentence is
105 years.
On direct appeal, Emerson raises the following issues:
1. Whether the trial court erred in refusing to give Emerson’s
tendered instruction on identification;
2. Whether an eyewitness was properly permitted to identify
Emerson during his testimony;
3. Whether the identity evidence was sufficient to support the
convictions;
4. Whether a pre-sentence report prepared by Emerson’s probation
officer was properly considered by the trial judge during
sentencing; and
5. Whether the consecutive sentences for felony murder and the
underlying robbery constituted double jeopardy.
Statement of the Facts
On the evening of July 31, 1996, several people were gathered at
Watkins Park in Indianapolis watching and playing basketball. Among them
were Kenneth Mason, Anthony Robinson, Mark Garrett and Ronnie Williams.
Two men carrying guns walked onto the court during one of the games. One
of these men, Larry Porter, approached Kenneth Mason and fatally shot him
as Mason attempted to flee. The other man confronted the on-lookers and
demanded various valuables. The State accused Dujuan Emerson as the non-
shooter accomplice.
The parties scheduled three witnesses to testify about the identity
of the non-shooter: Robinson and Garrett for the State, Williams for the
defense. Williams would testify that he knew Emerson, but did not see
him at Watkins Park that night. Through the use of a photo array,
Robinson identified Emerson five days after the incident. In contrast,
Garrett did not attempt an identification of Emerson until trial, two
years after the shooting.
Both Robinson and Garrett gave statements to the police soon after
the shooting. In identifying the non-shooter, Robinson described him to
be around 5’9” to 5’10” in height, of medium build and dark-skinned. (R.
at 224.) The non-shooter had pointed a gun at Robinson and robbed him of
his jewelry. (R. at 220-22.) Although Garrett stated that he “really
didn’t see his face,” he described the non-shooter as an older man
between 5’8” and 5’9”. (R. at 189-192.) He too was robbed by the non-
shooter. (R. at 176-77.) At the time of the shooting, Emerson was
twenty-five years old, 200 pounds and approximately 5’5” tall. (R. at
105.)
In an attempt to see whether Garrett could pick Emerson out from a
group of men, the defense moved for a pre-trial line-up. The court
denied this motion. Subsequently, the defense moved in limine to prevent
Garrett from making an identification at trial. The defense justified
this request by citing Garrett’s failure to make an out-of-court
identification, the court’s denial of the motion for a pre-trial line-up,
and the presence of the State’s witnesses at prior proceedings while
Emerson was also present. Counsel argued that it would be unduly
subjective to have a witness make his first identification of the
accomplice from the stand nearly two years after the shooting. Again,
the court denied Emerson’s motion.
Both parties presented their witnesses and thoroughly cross-examined
them concerning the discrepancies. Emerson was convicted on each count.
I. Instruction on Identification
Emerson first asserts as error that the trial court rejected his
tendered identity instruction. Emerson asserts that using a general
credibility instruction was inadequate, citing the defense’s theory of
mistaken identity and saying that the witnesses gave varying descriptions
of the non-shooter and only one witness had previously identified Emerson
out of court. In response, the State claims that the tendered identity
instruction contained language that would have invaded the province of
the jury.
We review trial court decisions concerning instructions for an abuse
of discretion. Harrison v. State, 699 N.E.2d 645 (Ind. 1998); Fields v.
State, 679 N.E.2d 1315 (Ind. 1997). In reviewing the lower court’s
refusal to provide disputed instructions, we consider (1) whether the
instruction correctly states the law, (2) whether there is evidence in
the record to support the giving of the instruction, and (3) whether the
substance of the tendered instruction is covered by other instructions.
Harrison, 699 N.E.2d at 649.
The lengthy instruction proposed by Emerson told the jury it could
consider conditions such as lighting that might affect a witness’s
ability to observe, whether a witness’s later identification was the
product of his or her own recollection as opposed to some other
influence, and so on. (R. at 77-79.)
A substantially similar instruction was tendered in Frye v. State,
447 N.E.2d 569, 572-73 (Ind. 1983). While we sanctioned a substantially
shortened identity instruction in that case, we commented that rather
than endorsing such an instruction, “it has been rejected in favor of a
more general instruction upon the credibility of the witnesses.” Id. at
573. Rather than give Emerson’s instruction, the trial court found that
its preliminary instruction regarding credibility adequately covered the
identification issue. The instruction given was as follows:
You are the exclusive judges of the evidence, the credibility of
the witnesses and of the weight to be given to the testimony of each
of them. In considering the testimony of any witness, you may take
into account his or her ability and opportunity to observe; the
memory, manner and conduct of the witness while testifying; any
interest, bias or prejudice the witness may have; any relationship
with other witnesses or interested parties; and the reasonableness of
the testimony of the witness considered in light of all the evidence
in the case.
You should attempt to apply the evidence to the presumption that
the defendant is innocent and the belief that every witness is telling
the truth. You should not disregard the testimony of any witness
without a reason and without careful consideration. However, if you
find that the testimony of a witness is so unreasonable as to be
unworthy of belief, or if you find conflict between the testimony of
witnesses to the extent that you cannot believe all of them, then you
must determine which of the witnesses you will believe and which of
them you will disbelieve.
In weighing the testimony to determine what or whom you will
believe, you should use your own knowledge, experience and common
sense gained from day to day living. You may find that the number of
witnesses who testify to a particular fact, on one side or the other,
or the quantity of evidence on a particular point is in conflict with
your own determination of the truth, and in such case you should give
the greatest weight to that evidence which convinces you most strongly
of its truthfulness.
(R. at 69.)
Here, the court's instruction properly advised the jury on assessing
the credibility of witnesses. Emerson's tendered instruction was quite
long and detailed concerning the attention the jury should give to the
identification witnesses. Further, the court's instruction about
credibility did not place undue attention on the testimony of specific
witnesses, as did the instruction tendered by Emerson. The trial court
properly refused Emerson's instruction.
II. Propriety of the In-Court Identification
Emerson next asserts that Garrett’s in-court identification was
impermissibly suggestive. He contends that Garrett never selected him
from a group of men. Instead, Garrett’s identification was from the
stand nearly two years after Mason’s death. The State responds by
asserting that Garret had a sufficient basis for his identification and
was thoroughly cross-examined by defense counsel concerning it.
A degree of suggestiveness is inherent in all in-court
identifications; the practical necessity of having the appellant sit at
the defendant's table with defense counsel naturally sets him apart from
everyone else in the courtroom. Griffin v. State, 493 N.E.2d 439, 442
(Ind. 1986). Whether a particular identification procedure rises to a
level of suggestiveness that constitutes reversible error must be
determined from the context of the case. Id.
Suggestiveness is proscribed only when, under the circumstances, it
can reasonably be avoided. Because of a criminal defendant’s right to be
present and confront his accusers, the suggestiveness in this case could
not be avoided. Here, no extraordinary effort was made to single out
Emerson at trial, and the witness professed no doubt as to the identity
of his assailant. (R. at 180-81, 257-59.)
That Garrett had made no previous identification of the defendant in
the two years since the shooting and yet was able to identify him at
trial was a matter of weight and credibility for the jury to consider.
Harris v. State, 619 N.E.2d 577 (Ind. 1993). An in-court identification
does not become invalid merely because an extended time passes between
the time of the crime and the initial identification. See, e.g., Wolfe
v. State 562 N.E.2d 414, 416 (Ind. 1990).
Appellant contends that because some of the State’s witnesses were
present during a pre-trial proceeding that Emerson attended, Garrett’s
identification was unduly suggestive. We find this claim unavailing. On
the stand, Garrett testified that he had not been present at any previous
proceeding where Emerson was also present. (R. at 181.) Garrett’s
testimony need not have been prohibited because of a former impermissible
confrontation. See Goudy v. State, 689 N.E.2d 686, 694-95 (Ind. 1997).
The primary element of suggestiveness was Emerson's position at the
defense table when Garrett identified him. Due process does not require
that a victim identify his assailant from a courtroom containing people
of similar physical characteristics. Griffin, 493 N.E.2d at 442. It was
the jury’s function to reconcile Garrett’s ability to identify Emerson
with the time-span between the crime and trial.
Moreover, Garrett’s testimony was not the only evidence linking
Emerson to Watkins Park. Robinson had identified Emerson from a
photographic array soon after the shooting, and he also testified that
Emerson was Porter’s accomplice the night Mason was murdered. (R. at 224-
27.) A single eyewitness' testimony is sufficient to sustain a
conviction. Anderson v. State, 469 N.E.2d 1166, 1169 (Ind. 1984), cert.
denied, 469 U.S. 1226 (1985). Because Garrett’s testimony was not unduly
suggestive and other evidence linked Emerson to the scene, there was no
error in the trial court’s admission of Garrett’s identification.
III. Sufficiency of the Evidence
Emerson next asserts that the evidence was insufficient to prove he
participated in the crimes charged.[1] Emerson points to several
discrepancies in the witnesses’ descriptions to police and his actual
appearance. (R. at 224, 189-92, 105.) The State responds by stating
that the inconsistencies in the evidence are only minor, and that these
differences are to be resolved by the jury.
Inconsistencies in identification testimony go only to the weight of
that testimony; it is the task of the jury to weigh the evidence and to
determine the credibility of the witnesses. See Parsley v. State, 557
N.E.2d 1331, 1335 (Ind. 1990). This Court does not weigh the evidence or
resolve questions of credibility when determining whether the
identification evidence is sufficient to sustain a conviction. Rather, we
look to the evidence and the reasonable inferences therefrom which
support the verdict of the jury. Anderson, 469 N.E.2d at 1169.
If there is evidence of probative value from which a reasonable
trier of fact could infer that appellant was guilty beyond a reasonable
doubt, then the conviction must be affirmed. Smith v. State, 275 Ind.
642, 419 N.E.2d 743 (1981). The unequivocal identification of the
defendant by a witness in court, despite discrepancies between his
description of the perpetrator and the appearance of the defendant, is
sufficient to support a conviction. See Killion v. State, 464 N.E.2d 920
(Ind. 1984).
The jury heard three witnesses. Two stated unequivocally that
Emerson was the person who robbed them at gunpoint while the other
maintained that Emerson was not present that evening. (R. at 224-27, 189-
92, 299.) It was entirely reasonable for a jury to believe the
identification testimony of two witnesses, both of whom were physically
robbed by the shooter and both of whom identified the same person, that
Emerson was, in fact, the accomplice of Larry Porter the night Kenneth
Mason was murdered.
While there were some differences between the State’s witnesses’
descriptions and Emerson’s actual appearance, such discrepancies could
have been, and most likely were, considered by the jury in assessing the
credibility of their testimony. Moreover, a clear conflict existed
between the testimony of Garrett and Robinson and the testimony of
Williams, who stated Emerson was not present that night. It is the
jury’s function to resolve such conflicts. Also, the unequivocal
identification of Emerson by both Robinson and Garrett in court, despite
discrepancies between their original out-of-court descriptions, is
sufficient to support a conviction. See Killion, 464 N.E.2d at 921.
Both Robinson and Garrett identified the defendant in court without
hesitation, and both were steadfast in their determination that Emerson
was Porter’s accomplice. (R. at 189-92, 224-27.)
The evidence was sufficient to support the jury's conclusion that
Emerson was the non-shooter. See Hill v. State, 450 N.E.2d 64, 65 (Ind.
1983) (contradictory evidence about bandit's height, hair color, and cap
not significant enough to preclude a jury determination of guilt).
IV. Probation Officer’s Pre-sentence Report
Under Ind. Code § 35-38-1-8(a), a defendant convicted of a felony
may not be sentenced before a written pre-sentence report is prepared by
a probation officer and considered by the sentencing court. In preparing
his report, the probation officer contacted Emerson to attempt an
interview, but Emerson demanded legal representation before consenting to
the interview. The probation officer then contacted Emerson’s attorney
for assistance. Although it is unclear whether the attorney instructed
Emerson to comply, the probation officer’s second attempt to interview
Emerson was also denied. The probation officer included the following in
his pre-sentence report:
The defendant was also uncooperative in regards to the
Presentence Investigation. This Officer attempted to interview
the defendant on two occasions. The defendant refused to answer
any questions. He indicated that he did not care the
Presentence Investigation was a Court-ordered report. Due to
the defendant’s noncompliance with the Presentence
Investigation, his extensive criminal history, and the
seriousness of the instant offense, this Officer feels the
defendant is appropriate for a lengthy sentence to be served in
the Indiana Department of Correction.
(R. at 119.)
Emerson asserts that his refusal to be interviewed had a negative
impact on the preparation of the report, and that because of this
prejudicial impact, he was denied an unbiased report that provided a
balanced view of his social history. The State responds by emphasizing
that Emerson had ample opportunity to participate in the report’s
compilation and refute any inaccuracies or prejudicial remarks found
therein.
While Emerson asserted a right to counsel during his pre-sentence
investigation, this Court has held that no such right exists. Lang v.
State, 461 N.E.2d 1110, 1115-16 (Ind. 1984). Emerson is correct in
stating that the pre-sentence report should consist of neutral and
professional observations rather than personal opinions, although the
probation officer is given wide discretion to include in the pre-sentence
report any matters deemed relevant to determining a sentence. Allen v.
State, 720 N.E.2d 707, 714 (Ind. 1999). It was not error for the
probation officer to consider “the whole history” of Emerson’s
“encounters with the criminal justice system.” See id. at 715. One of
these was Emerson’s approach to the presentence report.
Emerson’s primary concern is the prejudicial effect his refusal to
participate had on the probation officer’s recommendation of a “lengthy
sentence.” Of course, Emerson had a full opportunity to testify at the
sentencing hearing. Before Emerson testified at the hearing, defense
counsel told the court “some of the information that was not available to
the probation officer will be made available through testimony here
today.” (R. at 344.) Both Emerson and his mother testified during the
sentencing hearing about his family/personal background. (R. at 344-49,
350-54.) This clearly represented an opportunity to refute any
possible “inaccuracies” caused by his refusal to be interviewed
previously.
Most importantly for purposes of this appeal, the trial court did
not base the sentence on Emerson’s refusal to be interviewed. Rather, it
considered “the risk the Defendant would commit another crime, the nature
and circumstances of this crime, Defendant’s prior criminal record,
character and condition, as well as the input of the victim’s family in
this matter, and the Defendant’s statement.” (R. at 364.) The trial
court listed the reasons for imposing the sentence and took into account
the facts Emerson claimed were omitted from the pre-sentence report.
(Id.) We see no justification for reversal or re-sentencing because of
the pre-sentence report. The probation officer did the best he could
under the circumstances.
V. Double Jeopardy
Emerson’s final argument is that his consecutive sentences for
felony murder and robbery constituted double jeopardy. The State
concedes that the trial court improperly sentenced Emerson for both
felony murder and the underlying felony.
VII. Conclusion
We remand with directions to vacate the robbery conviction. The
judgment of the trial court is otherwise affirmed.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Emerson does not attack the sufficiency of the evidence supporting
any specific crime charged. Emerson attacks only the identification
evidence asserting that it was insufficient to establish that he was
“[any]where near Watkins Park on the night of the shooting.”
(Appellant’s Br. at 17.) By contrast, for example, Porter contended on
appeal that there was inadequate evidence that he and Emerson agreed to
act in concert. Porter v. State, 715 N.E.2d 868, 871-72 (Ind. 1995).