Neil C. Albee v. State of Indiana ( 2017 )

FILED
Feb 28 2017, 9:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher P. Phillips Curtis T. Hill, Jr.
Phillips Law Office, P.C. Attorney General of Indiana
Monticello, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Neil C. Albee, February 28, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1606-CR-1266
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Sean M. Persin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D05-1511-F6-502
Barnes, Judge.
Case Summary
[1] Neil Albee appeals his convictions for Level 6 felony voyeurism and Class B
misdemeanor residential entry. We reverse.
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Issues
[2] Albee raises two issues, which we restate as:
I. whether the trial court abused its discretion by admitting
into evidence the victim’s pre-trial and in-court
identifications of Albee; and
II whether the evidence as a whole is sufficient to support
Albee’s convictions, thereby permitting his retrial.
Facts
[3] On October 31, 2015, Margaret Schuerger was at home in her sorority house on
Purdue University’s campus in Tippecanoe County. At approximately 10:30
p.m., she took a shower. While she was in the shower, Schuerger noticed
someone standing outside the obscure-glass shower door. Although Schuerger
could not see the person in detail, she could tell the figure was tall and dressed
in dark clothing. Schuerger waited for a minute, and the shower door, which
stays fastened with a magnetic closure, opened approximately one inch.
Schuerger pulled the door closed again, and the figure moved away.
[4] Schuerger finished her shower and returned to her bedroom. She was sitting on
her bed texting a friend when she heard her bedroom door open. Schuerger
looked up and saw the reflection of a man in the full-length mirror that connects
the two rooms of her suite. Schuerger and the man “made eye contact” in the
mirror for a few seconds. Tr. p. 216. The man left, and, after summoning a
housemate, Schuerger called the police. Schuerger described the man she saw
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in the mirror as approximately forty years old and wearing a hooded navy blue
sweatshirt and jeans. She also said he had dark, curly hair that was “very
distinctly matted down on his forehead.” Id. at 217. The man was not wearing
a hat.
[5] Officers from the Purdue University Police Department (“PUPD”) arrived and
searched the area around the sorority house. At 12:19 a.m. on November 1,
2015, the PUPD observed Albee in the parking lot adjacent to Schuerger’s
sorority house and detained him. Officers then accompanied Schuerger to the
parking lot and asked her if she could identify “the suspect,” Albee, as the man
she saw in her house. Id. at 73.
[6] Schuerger observed Albee from approximately thirty yards away. Albee was
wearing a hat. He was handcuffed, and there were at least six police officers
around him. Schuerger could see three police cars. Albee was illuminated by
the spotlight from one of the police cruisers. In addition to Schuerger viewing
Albee from a distance, a police officer also took a picture of him with a digital
camera and took it to Schuerger to view. Schuerger was not completely sure
Albee was the man she saw in her house, though she testified, “I thought about
where we live on college campus back in our neighborhood it’s all Greek
houses so most people are under the age of twenty-three. And so, it made sense
that this could – this is the only person who matched the identification one
hundred percent spot on.” Id. at 238. In order to help facilitate a more certain
identification, the officers asked Schuerger to go to the police station to view
Albee in better lighting.
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[7] When Albee arrived—in custody—at the police station, an officer escorted him
to an interview room. The officer then took Schuerger into another area of the
police station where she was able to watch Albee via a closed-circuit television.
The officers took photographs of Albee—with and without his hat—with a
digital camera and asked Schuerger to identify him from the digital image on
the camera’s screen. The officers did not compile a photo array or organize a
lineup. Schuerger identified the image of Albee on the camera as the man she
saw in her house.
[8] The State charged Albee with voyeurism, a Class B misdemeanor; voyeurism, a
Level 6 felony; residential entry, a Level 6 felony; and with an habitual offender
enhancement. Albee filed a motion to suppress Schuerger’s identification of
him, and the trial court denied that motion. In March 2016, Albee was tried by
a jury, but that jury was unable to reach a verdict. On April 28, 2016, a second
jury found Albee guilty of Class B misdemeanor voyeurism and Level 6 felony
residential entry. During the trial, Albee objected when the State offered
evidence related to Schuerger’s pretrial viewings and identification of Albee and
her in-court identification. Albee waived his right to a jury trial with regard to
the Level 6 felony enhancement to his voyeurism conviction, and the trial court
found him guilty of the enhanced charge. On May 19, 2016, the trial court
sentenced Albee to an aggregate sentence of two years in the Department of
Correction. Albee now appeals.
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Analysis
I. Identification
[9] Albee contends the trial court abused its discretion by admitting testimony
regarding Schuerger’s pretrial and in-court identifications of him. “The
admission or exclusion of evidence falls within the sound discretion of the trial
court, and its determination regarding the admissibility of evidence is reviewed
on appeal only for an abuse of discretion.” Gordon v. State, 981 N.E.2d 1215,
1217 (Ind. Ct. App. 2013). A trial court abuses its discretion when its decision
is clearly against the logic and effect of the facts and circumstances before the
court. Id.
[10] The Fourteenth Amendment’s guarantee of due process of law
requires the suppression of evidence when the procedure used
during a pretrial identification is impermissibly suggestive. In
some circumstances, a show-up identification may be so
unnecessarily suggestive and so conducive to irreparable mistake
as to constitute a violation of due process.
Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013) (citations omitted), trans.
denied. “The practice of conducting a one-on-one show-up between a suspect
and a victim has been widely condemned as being inherently suggestive both by
the United States Supreme Court and by this Court.” Wethington v. State, 560
N.E.2d 496, 501 (Ind. 1990) (citing Stovall v. Denno, 388 U.S. 293, 87 S. Ct.
1967 (1967), and Slaton v. State, 510 N.E.2d 1343, 1348 (Ind. 1987)). “Even
when the police use such a procedure . . . suppression of the resulting
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identification is not the inevitable consequence.” Perry v. New Hampshire, 565
U.S. 228, 239, 132 S. Ct. 716, 725 (2012).
[11] Instead of mandating a per se exclusionary rule, th[is] Court held
[in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972)] that the
Due Process Clause requires courts to assess, on a case-by-case
basis, whether improper police conduct created a substantial
likelihood of misidentification. [R]eliability [of the eyewitness
identification] is the linchpin of that evaluation . . . . Where the
indicators of [a witness’] ability to make an accurate
identification are outweighed by the corrupting effect of law
enforcement suggestion, the identification should be suppressed.
Id. at 239, 132 S. Ct. at 724-25 (quotations omitted) (citations omitted) (third,
fourth, and fifth alterations in original).
[12] Albee’s claim involves a two-step analysis. See Hubbell v. State, 754 N.E.2d 884,
892 (Ind. 2001). “The first question is whether the initial identification
procedure was unnecessarily or impermissibly suggestive . . . . The second
inquiry is whether, under the totality of the circumstances, the identification
was reliable even though the procedure was suggestive.” Id. “Although not an
exhaustive list,” when examining the totality of the circumstances surrounding
the identification, Indiana courts have considered:
The amount of time the witness was in the presence of the
perpetrator and the amount of attention the witness had focused
on him, the distance between the two and the lighting conditions
at the time, the witness’s capacity for observation and
opportunity to perceive particular characteristics of the
perpetrator, the lapse of time between the crime and the
subsequent identification . . . .
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Flowers v. State, 738 N.E.2d 1051, 1056 (Ind. 2000) (ellipses in original). Courts
have also considered additional factors relevant in this case: “any
identifications of another person,” Olson v. State, 563 N.E.2d 565, 570 (Ind.
1990), and “the level of certainty demonstrated by the witness.” Gordon, 981
N.E.2d at 1218. “[O]ne-on-one confrontations have been found proper where
circumstances rendered an alternative approach such as a lineup impossible.”
Hubbell, 754 N.E.2d at 892.
[13] Here, Schuerger, who was texting at the time, heard a noise in her bedroom and
briefly observed the reflection of a man in her mirror.1 An hour and forty-five
minutes later, police asked her to identify Albee in a parking lot under the
illumination of a police vehicle’s spot light. Officers referred to Albee as the
“suspect,” and Schuerger observed him in handcuffs and surrounded by at least
six officers from the PUPD. Tr. p. 73. There were several police cars on the
scene and visible to Schuerger during the show-up as well.
[14] Due at least in large part to the poor lighting in the parking lot, Schuerger was
unable to identify Albee with certainty, and the officers offered her another
chance to identify Albee under better lighting conditions at the police station.
Although Schuerger was not certain Albee was the man she saw in her
1
Although Schuerger also saw someone outside her shower door, her view of that person was obscured, and
she could not see that person’s facial features.
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bedroom, she testified, in essence, that he was the only person in the area who
matched the description of the man she saw in her bedroom. See Tr. p. 238.
[15] At the police station, Schuerger had two more opportunities to view Albee.
The first was through a closed-circuit camera, and Schuerger was able to watch
Albee for an unspecified period of time while he waited in an interrogation
room.2 Schuerger knew Albee was the same suspect she saw handcuffed and
surrounded by police officers and police cars in the parking lot adjacent to her
sorority house, and she knew that she was watching Albee while he was in
custody at the police station. Schuerger next viewed Albee in digital
photographs officers took while Albee waited in the interrogation room at the
police station. Schuerger knew that the photographs she viewed depicted the
suspect she saw in police custody in the parking lot and later via closed-circuit
camera in an interrogation room at the police station. After she had three
opportunities to view Albee, Schuerger was finally able to positively identify
him.
[16] The police officers never asked Scheurger to identify the man she saw in her
house from either a photo array or a lineup. Schuerger testified she was not
asked to identify the man she saw in her bedroom through either a photo array
or lineup because there was only one suspect. See Tr. pp. 78-79. With regard to
2
We acknowledge Schuerger’s testimony that the police officers did not ask her to identify Albee based on
her observation of him through the closed-circuit television. Nonetheless, she had the opportunity to view
him during the time he was in the interrogation room and knew he was the suspect in police custody.
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the possibility of arranging a lineup, PUPD Officer Jared Baer testified, “What
do you mean line-up . . . We don’t do that and I’ve never heard that.” Tr. pp.
323-24. In short, there is absolutely no evidence of any exigent circumstances
that “precluded setting up a properly constituted lineup” or photo array for
Schuerger to view. Wethington, 560 N.E.2d at 502. The police had no suspect
except Albee.
[17] The circumstances in this case are similar to those in Wethington, 560 N.E.2d
496. In that case, Wethington and Pemberton forced Pat Adair and her two
adult children, at gunpoint, to lie on their living room floor while the men
ransacked the house and stole money and marijuana. The Adairs contacted the
police, who then apprehended Wethington and Pemberton. Two hours after
the commission of the crime, the police transported the suspects and Adairs to
an intersection where they asked the Adairs to look at the men. While the
Adairs viewed Wethington and Pemberton, Wethington and Pemberton were
handcuffed. There were three police cars and at least seven police officers, most
in uniform, at the intersection at the time. Finally, the officers displayed on the
hood of one police car a gun and a knife police seized from Wethington. The
Adairs identified Wethington as one of the men in their house, but they did not
identify Pemberton with certainty. Three hours after the commission of the
crime, the Adairs were taken to a fire station and seated in a conference room.
While they were there, “numerous police and fire officials, some in uniform,
milled about the room.” Id. at 502. The gun and knife and the stolen
marijuana were set out nearby and within the Adairs’ view. The police then
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escorted Wethington and Pemberton into the room. Although our supreme
court concluded admission of the Adairs’ pre-trial identifications was harmless
beyond a reasonable doubt, it called circumstances of the identifications
“egregious and . . . deserving of the strongest judicial condemnation.” Id. at
502. Based on the totality of the circumstances in this case, we conclude the
manner in which the PUPD conducted the show-ups was unnecessarily
suggestive.
[18] We next turn our attention to the reliability of Schuerger’s eventual
identification. Schuerger testified during the suppression hearing that she only
observed the reflection of the man in her bedroom “for a couple of seconds.” 3
Tr. p. 70. Schuerger testified she observed the man’s reflection “long enough
for me to be able to see what he was wearing and he gave me eye contact” and
that the image of that man has “reoccurred” in her mind since she saw it, yet
she acknowledged, “It was still pretty quick.” Id. at 65. We note that
Schuerger’s fleeting view of the man’s reflection was significantly shorter than
the opportunities witnesses had to view perpetrators in other cases in which we
concluded show-ups were not unnecessarily suggestive. See e.g. Lyles v. State,
834 N.E.2d 1035, 1045 (Ind. Ct. App. 2005) (concluding witness had a
3
We reject the State’s assertion that Schuerger had two opportunities to see the man inside her house and
that she was able to “match what she saw in the shower with the person she saw in her bedroom – his dark
clothes for example . . . [and] was therefore able to identify that the person in the shower was the person in
the bedroom.” Appellee’s Br. pp. 12-13. Schuerger unequivocally stated that, although she was able to
determine someone was standing outside her shower door and could “see color,” she did not have “face-to-
face contact with that person and could not see the “details of who a person is.” Tr. pp. 66-67.
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sufficient opportunity to observe the appellant where witness viewed him in the
middle of the day and conversed with him for several minutes at a distance of
no more than five feet), trans. denied; Gordon, 981 N.E.2d at 1219 (concluding
show-up identification was not unduly suggestive, in part, because witness
observed the appellant “for several minutes in the middle of the day at a fairly
close distance”).
[19] We note that Schuerger did not have an opportunity to see Albee in the parking
lot until nearly two hours after she observed the intruder’s reflection.
[I]t is permissible for a law enforcement officer to present a
suspect for identification within a few hours of the commission of
the crime. Identifications of a freshly apprehended suspect have
been held to be not unnecessarily suggestive despite the
suggestive factors unavoidably involved in such confrontations
because of the value of the witness’s observation of the suspect
while the image of the offender is fresh in his mind.
Lewis v. State, 554 N.E.2d 1133, 1135 (Ind. 1990). But this rationale presumes
both that the witness had an adequate opportunity to observe the perpetrator in
the first place and that the witness was able to identify the subject of the show-
up with a great degree of certainty; neither is true in this case.
[20] We are particularly troubled by the fact that, after Schuerger’s initial inability to
positively identify Albee as the intruder, the PUPD gave her additional
opportunities view their sole suspect until she was able to do so. Each
subsequent time Schuerger viewed Albee, it was tainted by the suggestiveness of
the circumstances surrounding the prior viewings. We conclude that
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Schuerger’s eventual identification of Albee was not reliable. Therefore, the
unnecessarily-suggestive show-up violated Albee’s right to due process.
[21] Where it is established that evidence of an out-of-court
identification has been erroneously admitted based on a finding
that the confrontation procedure was impermissibly suggestive,
such error may be harmless constitutional error under Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), see
also Moore v. Illinois, 434 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424
(1977), and furthermore, a subsequent in-court identification may
still be admissible if the State establishes by clear and convincing
evidence that an independent basis for that in-court identification
exists. Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401
(1972); Heiman v. State (1987), Ind., 511 N.E.2d 458; Lyons v.
State (1987), Ind., 506 N.E.2d 813. A determination that an in-
court identification by a witness was properly admitted will, in
many instances, render the erroneous admission of a pre-trial
identification by the same witness harmless. United States ex rel.
Moore v. Illinois, 577 F.2d 411 (7th Cir. 1978).
Wethington v. State, 560 N.E.2d at 50-03 (Ind. 1990).
The inquiry with reference to the in-court identification is
whether, under the totality of the circumstances surrounding the
witness’s initial observation of the perpetrator at the scene of the
crime, the witness could resist any suggestiveness inherent in the
improper confrontation staged by the police and make an
accurate decision, based on that earlier contact with the
perpetrator, that the person presented to him at trial was the one
who committed the crime.
Id. at 503.
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[22] There is no independent basis for Schuerger’s in-court identification in this case.
The in-court identification was simply Schuerger’s most recent opportunity to
view Albee and was tainted by the prior, unnecessarily suggestive viewings.
For the reasons discussed above—Schuerger was only in the intruder’s presence
for a short period of time; her attention was divided when she noticed him; and
Schuerger was not able to identify Albee with certainty until the third time she
saw him hours after her initial contact with the intruder—Schuerger’s in-court
identification was not reliable and could not overcome the suggestiveness of the
pre-trial identifications. See Wethington, 560 N.E.2d at 503. The trial court
abused its discretion by admitting both Schuerger’s pretrial and in-court
identifications of Albee.
II. Double Jeopardy
[23] Whether double jeopardy permits Albee’s retrial depends on the sufficiency of
the evidence. “When deciding whether retrial is permissible, we consider all of
the evidence admitted by the trial court, including any erroneously admitted
evidence.” Harmon v. State, 849 N.E.2d 726, 735 (Ind. Ct. App. 2006). “If that
evidence, viewed as a whole, would have been sufficient to sustain the
judgment, retrial would not offend double jeopardy principles.” Id. If not,
however, the State may not retry Albee. See id.
[24] When reviewing a claim of insufficient evidence, an appellate
court considers only the evidence most favorable to the verdict
and any reasonable inferences that may be drawn from that
evidence. If a reasonable finder of fact could determine from the
evidence that the defendant was guilty beyond a reasonable
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doubt, then we will uphold the verdict. We do not reweigh the
evidence or judge the credibility of witnesses. These evaluations
are for the trier of fact, not appellate courts. In essence, we assess
only whether the verdict could be reached based on reasonable
inferences that may be drawn from the evidence presented.
Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (quotations omitted) (citations
omitted).
[25] The evidence as a whole was sufficient to support Albee’s convictions. That
evidence included Schuerger’s identification of Albee as the man whose
reflection she saw in her mirror and whose clothing and build, to the extent she
could see those things through the obscure glass shower door, matched those of
the intruder in her bedroom. Schuerger’s testimony that Albee stood outside
her shower door and then opened that door is sufficient to prove the person
committed voyeurism.4 That Albee was not a resident of Schuerger’s sorority
house or an invited guest of a resident is sufficient to prove he knowingly or
intentionally broke and entered that dwelling.5 Because the evidence as a whole
was sufficient to sustain Albee’s convictions, double jeopardy does not preclude
retrial. Because the law dictates that we must, we include in our review of the
4
A person who knowingly or intentionally peeps into an area where an occupant of the area reasonably can
be expected to disrobe, including restrooms, baths, showers, or dressing rooms without the consent of the
other person commits voyeurism. Ind. Code § 35-45-4-5. The offense is elevated from a Class B
misdemeanor to a Level 6 felony if the person who commits the offense has a prior unrelated conviction
under this section. Id. “‘Peep’ means any looking of a clandestine, surreptitious, prying, or secretive nature.”
Id.
5
Indiana Code Section 35-43-2-1.5 defines residential entry as knowingly or intentionally breaking and
entering the dwelling of another person.
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evidence the now-excluded identifications that violated Albee’s right to due
process.
Conclusion
[26] The circumstances surroundings Schuerger’s pre-trial identification of Albee
were unnecessarily suggestive, and those identifications were so unreliable that
Albee’s right to due process was abridged when the trial court admitted his
identifications into evidence. The evidence as a whole, however, was sufficient
to support Albee’s convictions for voyeurism and residential entry. Retrial
would not offend double jeopardy principles. We reverse.
[27] Reversed.
Kirsch, J., and Robb, J., concur.
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