MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Dec 11 2017, 9:25 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Curtis T. Hill, Jr.
Oldenburg, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Neve’rean Jackson, December 11, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1703-CR-520
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Angela Dow
Appellee-Plaintiff. Davis, Judge
Trial Court Cause No.
49G16-1611-CM-43017
Robb, Judge.
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Case Summary and Issue
[1] Following a bench trial, Neve’rean Jackson was convicted of resisting law
enforcement, a Class A misdemeanor. Jackson appeals his conviction and
raises one issue for our review: whether the trial court abused its discretion in
admitting pre-trial identification evidence. Concluding the trial court did not
abuse its discretion, we affirm Jackson’s conviction.
Facts and Procedural History
[2] On September 26, 2016, Officer Brandon Raftery of the Lawrence Police
Department was dispatched to a disturbance of a male and female arguing.
When he arrived on the scene, both the male and female began to flee. Officer
Raftery exited his vehicle and ordered them to stop. Officer Raftery then
pursued the male who climbed a fence to evade capture. As the officer reached
the fence, the male fell over the fence and landed on his back. Officer Raftery
climbed to the top of the fence, observed the male on his back, and again
ordered him to stop. When it became clear the male did not intend to comply,
Officer Raftery deployed his taser, but it became entangled in some bushes
without making contact with the male. The man then continued to flee and
temporarily evaded capture.
[3] On October 11, 2016, Detective Stacy Henshaw showed Officer Raftery a photo
array of six males. Because one of the males in the photo had his head tilted
upward and was not looking at the camera, Officer Raftery stated he would not
Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CR-520 | December 11, 2017 Page 2 of 6
attempt to identify the suspect from that photo array. Several days later,
Detective Henshaw showed Officer Raftery another photo array of six males.
From this photo array, Officer Raftery identified Jackson as the person who fled
from him on September 26, 2016.
[4] The State charged Jackson with resisting law enforcement, a Class A
misdemeanor; domestic battery, a Class A misdemeanor; and battery resulting
in bodily injury, a Class A misdemeanor. At trial, Officer Raftery testified and
identified Jackson as the person he chased. He based his in-court identification
on his recollection of Jackson during the pursuit. The State also admitted the
photo arrays into evidence, to which Jackson objected. The trial court found
Jackson guilty of resisting law enforcement and sentenced him to an executed
sentence of 180 days in the Indiana Department of Correction with 146 days of
credit time.1 Jackson now appeals.
Discussion and Decision
[5] Jackson argues the trial court abused its discretion in admitting evidence of the
photo arrays used to identify Jackson prior to trial. Specifically, Jackson claims
the photo arrays were inadmissible because they were susceptible to
misidentification and unduly suggestive.
1
At trial, the State moved to dismiss both battery charges.
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[6] The admission of evidence is within the trial court’s discretion and the decision
is reviewable only for an abuse of discretion. Albee v. State, 71 N.E.3d 856, 860
(Ind. Ct. App. 2017). However, identification procedures used by the police
must also comport with a defendant’s due process rights. Williams v. State, 271
Ind. 656, 660, 395 N.E.2d 239, 243 (1979). Identification procedures which are
so suggestive as to give rise to a substantial likelihood of misidentification
violate a defendant’s due process rights. Id. In determining whether
identification procedures should have been excluded, reviewing courts look to
the totality of the circumstances. Heiman v. State, 511 N.E.2d 458, 459 (Ind.
1987).
[7] Our examination of the photo arrays does not lead to the conclusion they are
likely to lead to misidentification and Jackson makes no argument regarding
how they are unduly suggestive. The first photo array contains six men of
similar age and characteristics. Because one of the men in that array is not
looking at the camera and had his head tilted upward, Officer Raftery refused to
make an identification from that array. The second array contains a photo of
the defendant and five other men of similar age and characteristics and is not
unduly suggestive.
[8] Moreover, even assuming it was unduly suggestive, Officer Raftery had a
substantial independent basis for making his in-court identification of Jackson.
When an unnecessarily suggestive pre-trial identification has occurred, a
witness’s in-court identification is permissible if, independent of the
unconstitutional confrontation, an independent basis for the witness’s in-court
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identification exists. Heiman, 511 N.E.2d at 460. The factors to be considered
include the witness’s opportunity to view the criminal when the crime was
committed, their degree of attention at the time, the accuracy of their prior
descriptions, their level of certainty in the pre-trial identification, and the length
of time between the crime and the identification. Id.
[9] At trial, Officer Raftery testified he clearly observed the features of the man he
chased such that he could identify him again. In describing the chase, Officer
Raftery stated,
[Officer Raftery]: I jumped up on the top of the privacy fence
and looked over and the male was laying on
his back looking up at me.
***
[State]: [W]ere you able to identify him at any point
or get a good look at the individual who was
fleeing from you?
[Officer Raftery]: I did get a good look at him, yes.
[State]: Would you be able to identify him if you
were to see him again?
[Officer Raftery]: Yes.
***
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[State]: And you stated that the bushes were not—
there were no leaves?
[Officer Raftery]: Yes, there were no leaves. I mean, I had a
clear view looking straight down at him.
Transcript, Volume II at 7-9, 22. Under these circumstances, we conclude
Officer Raftery had a sufficient independent basis from which he could make a
direct in-court identification of Jackson.
Conclusion
[10] The trial court did not abuse its discretion in admitting pre-trial identification
evidence. Accordingly, we affirm Jackson’s conviction.
[11] Affirmed.
Riley, J., and Pyle, J., concur.
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Neve'rean Jackson v. State of Indiana (mem. dec.)
Combined Opinion