Jefferson Billimon v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 13 2020, 5:44 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
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Courtney L. Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jefferson Billimon, January 13, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1007
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable Michael J. Cox,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
82C01-1806-F4-4079
Mathias, Judge.
[1] Jefferson Billimon (“Billimon”) was convicted in Vanderburgh Circuit Court of
Level 4 felony unlawful possession of a firearm by a serious violent felon, two
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counts of Level 5 felony intimidation, and two counts of Level 6 felony pointing
a firearm. Billimon appeals his convictions and sentence raising two issues,
which we restate as:
I. Whether Billimon’s due process rights were violated by the show-up
identification procedure; and,
II. Whether remand is necessary to correct the inconsistency between oral
and written sentencing statements.
We affirm in part, reverse in part, and remand for proceedings consistent with
this opinion.
Facts and Procedural History
[2] On June 9, 2018, at approximately 9:00 p.m., Evan Riehle (“Evan”) and James
Dixey (“James”’) were walking James’s dog, Tiny. During the walk, Tiny
urinated on a light pole. As they continued walking, Evan heard someone
behind him. He turned around and saw Billimon walk toward them from the
front porch of a house on South Elliott Street.
[3] Billimon pulled a gun from his waistband and pointed it at Evan and James. He
cocked the gun and said, “That’s disrespectful.” Tr. Vol. II p. 38; Tr. Vol. III,
pp. 104, 137. Billimon was upset that Tiny urinated in his yard. Billimon
continued to point his gun at James and asked James to apologize. James
apologized to prevent the situation from escalating. Evan and James then
returned home where they called the police.
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[4] The encounter with Billimon lasted two to three minutes. Both Evan and James
gave a description of Billimon to the investigating officers. James stated that
Billimon had “black or darker skin” and “matty” or “curly” hair. Tr. Vol. II,
pp. 14–15. James informed the officer that Billimon had an accent and was
wearing a dark colored shirt. Evan stated that Billimon had “[c]urly hair, dark
complexion, maybe a Mexican” or black. Tr. Vol. II, p. 43. Evan said Billimon
was 5’7” or 5’8” and “scrawny.” Id. Evan also noted that Billimon had an
accent.
[5] Evansville Police Department officers responded to the 911 call and proceeded
to the residence on Elliott Street. Billimon’s father, Jasper Billimon, spoke to
the officers and stated that his son met the description of the man who
threatened James and Evan with a gun. Billimon exited the home at the
officers’ request, and he was placed into custody for officer safety. Billimon was
the only individual that exited the home that matched the description given by
James and Evan.
[6] Approximately twenty to thirty minutes after Billimon threatened Evan and
James, Evansville Police Department Detective Karin Montgomery arrived at
James’s home. She explained that she would drive him by a residence, and the
man who threatened him would possibly be outside the residence. The detective
then drove James to Billimon’s house and parked her vehicle at the end of the
alley. Two or three men were standing against a police vehicle next to a police
officer. An assisting officer shined a light on the group to give James a better
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view. James remained in the vehicle and identified Billimon as the man who
threatened him.
[7] When James returned home, Evan and James were not permitted to speak to
one another. The detective repeated the procedure with Evan and drove him to
Billimon’s house. Evan remained in the detective’s vehicle. There were still two
or three individuals standing against a car in the driveway of Billimon’s house.
An officer shined a light on the group allowing Evan to see their facial features.
Evan identified Billimon as the man who pointed a gun at him. He also noted
that Billimon had changed his clothes.
[8] After James and Evan identified Billimon, the officers began to search for the
gun. Detective Michael Beitler searched the perimeter of the home and
surrounding yard. He found a handgun lying against the fence of the property.
Based on the handgun’s condition, the detective did not believe that the gun
had been lying against the fence for any significant length of time. Tr. Vol. 3, p.
193.
[9] On June 12, 2018, Billimon was charged with Level 4 felony unlawful
possession of a firearm by a serious violent felon, two counts of Level 5 felony
intimidation, and two counts of Level 6 felony pointing a firearm. 1 Prior to trial,
1
Billimon was also charged with Level 5 felony carrying a handgun without a license, but this count was
dismissed.
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Billimon filed a motion to suppress any evidence of or derived from the “show-
up” identification. The trial court denied the motion and found:
[A]lthough such procedure is ordinarily disapproved, the Court
has considered: the separation of the two complaining witnesses
when they independently identified the suspect, the relatively
short period of time between the incident and the identifications,
the length of time and the opportunity to observe the suspect
(distance and lighting) when the suspect was in the witnesses’
presence, the witnesses’ ability to observe and recollect particular
characteristics of the suspect and their certainty of that
recollection, and the presence of another individual or
individuals next to the suspect when he was identified. Although
law enforcement’s procedure was arguably suggestive, under the
totality of the circumstances, the Court finds that the
identifications were sufficiently reliable.
Appellant’s App. p. 8.
[10] Jury trial commenced on February 19, 2019. During trial, over Billimon’s
objection, Evan and James unequivocally identified Billimon as the man who
threatened him. Tr. Vol. 3, pp. 104, 143, 164.
[11] Billimon’s sentencing hearing was held on April 2, 2019. The trial court noted
that Billimon’s criminal history was a significant aggravating factor. In its oral
sentencing statement, the trial court ordered Billimon to serve eight years in the
Department of Correction, and the trial court ordered the sentence to be served
consecutive to a sentence for a conviction in Spokane County, Washington.
The written sentencing judgment ordered Billimon to serve eight years for each
conviction regardless of the level of felony. Billimon now appeals.
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Show Up Identification
[12] Billimon argues the show up identification violated his due process rights. The
Due Process Clause of the Fourteenth Amendment requires suppression of
testimony concerning a pre-trial identification when the procedure employed is
impermissibly suggestive. Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999). Such
procedures are known as “show-up identifications.” The admissibility of a
show-up identification turns on an evaluation of the totality of the
circumstances and whether the circumstances lead to the conclusion that the
confrontation was conducted in a manner that could guide a witness into
making a mistaken identification. Gordon v. State, 981 N.E.2d 1215, 1218 (Ind.
Ct. App. 2013).
[13] Our courts consider the following factors in evaluating the admissibility of a
show-up identification:
(1) the opportunity of the witness to view the criminal at the time
of the crime,
(2) the length of initial observation of the criminal,
(3) lighting conditions,
(4) distance between the witness and the criminal,
(5) the witness’s degree of attention,
(6) the accuracy of the witness’s prior description of the criminal,
(7) the level of certainty demonstrated by the witness, and
(8) any identifications of another person.
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Id.
[14] “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.” Rasnick v. State, 2
N.E.3d 17, 23 (Ind. Ct. App. 2013) (quotations omitted), trans. denied.
[15] However, Billimon argues that the show-up identification was impermissibly
suggestive because Evan and James knew that law enforcement had a suspect in
custody. And during the show-up identification, Billimon was in handcuffs and
standing next to an officer. Billimon also claims that Evan’s and James’s
identification of Billimon is unreliable because they could not determine
whether he was African-American or Mexican. He observes that their
descriptions of Billimon’s hair were not identical. James stated that Billimon’s
hair was matted and curly, but Evan stated it was curly like a “big” Afro. Tr.
Vol. II, pp. 14–15, 43; Tr. Vol. III, pp. 108, 151.
[16] But Billimon agrees that the altercation took place “while there was still some
sun light,” approximately fifteen feet “from a light pole which illuminated the
area.” Appellant’s Br. at 12. Both Evan and James had an unobstructed view of
Billimon during the altercation which lasted between two and three minutes.
They were both focused on Billimon while he threatened them with his
handgun.
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[17] Only thirty minutes after Billimon threatened them, Evan and James separately
participated in the show-up identification, and both identified Billimon. Neither
Evan nor James noticed that Billimon was in handcuffs. And Billimon was
standing against a police car with an officer and two or three other men who
also had dark complexions. Both Evan and James were confident in their
identification of Billimon as the man who threatened them with a gun.
[18] Under the totality of these circumstances, we conclude that the show-up
identification was not impermissibly suggestive. And even if we were to
conclude otherwise, Evan’s and James’s identifications of Billimon were
reliable under these circumstances. Therefore, Billimon’s due process rights
were not violated when the trial court denied Billimon’s motion to suppress and
admitted evidence of the show-up identifications into evidence at trial.2
Sentencing
[19] From the trial court’s statements during the sentencing hearing, we can
reasonably assume that the court intended to impose an aggregate eight-year
sentence to be served consecutive to the sentence imposed for an offense
Billimon had been convicted of committing in Spokane County, Washington.
However, the trial court’s sentencing order imposes eight years for each
conviction regardless of the level of felony. Appellant’s App. p. 123. While
2
Billimon also argues that Evan’s and James’s subsequent in-court identifications of him at trial were tainted
by the impermissibly suggestive show-up identification procedure. Because we conclude that the show-up
procedure was not unduly suggestive and Evan’s and James’s identifications of Billimon were reliable, we
conclude the in-court identifications were also properly admitted.
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eight years is a legal sentence for Billimon’s Level 4 felony conviction, it is not a
legal sentence for his Level 5 and Level 6 felony convictions. See Ind. Code §§
35-50-2-5.5, -6, -7. Moreover, in its written sentencing order, the trial court
ordered the eight-year sentence imposed for each conviction to be served
consecutive to Billimon’s sentence for his Washington offense. Appellant’s
App. p. 123.
[20] The parties agree that we should remand this case to the trial court to correct its
sentencing order. See Appellant’s Br. at 14–15, Appellee’s Br. at 15. Remand is
required to correct the illegal sentences and to clarify whether Billimon’s
sentences will run concurrent or consecutive to each other.
Conclusion
[21] The show-up identification at issue did not violate Billimon’s due process
rights. However, the trial court’s sentencing order requires correction and
clarification. We therefore remand this case to the trial court for proceedings
consistent with this opinion.
[22] Affirmed in part, reversed in part, and remanded for proceedings consistent
with this opinion.
Robb, J., and Pyle, J., concur.
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