Carlos Hale v. State of Indiana

FOR PUBLICATION
FILED
Sep 24 2012, 9:05 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CARLOS HALE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1202-CR-83
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark D. Stoner, Judge
Cause No. 49G06-1104-FB-28571
September 24, 2012
OPINION – FOR PUBLICATION
BAKER, Judge
Here, a woman was robbed at gunpoint by two men right outside her apartment
building. She identified the two men, including the defendant in this case, through what
is known as a show-up identification. Specifically, the woman was transported by a
police officer to where the suspects were located, and she was shown four suspects one at
a time. Evidence of the show-up identification and the woman’s in-court identification of
the defendant were admitted at trial with no objection. On appeal, the defendant argues
that the admission of the show-up identification was fundamental error and asks that we
reverse his conviction.
Inasmuch as the show-up identification was not unduly suggestive, the trial court
did not err by admitting it into evidence. Moreover, in light of the woman’s in-court
testimony identifying the defendant, no fundamental error could have occurred even if
the admission of the show-up identification had been error. Accordingly, we decline the
defendant’s request to reverse his conviction.
Finally, we note that the fundamental error doctrine is being casually invoked
whenever there is a failure to timely object at trial. This is not the purpose of the
fundamental error doctrine, which is extremely narrow and reserved only for the most
egregious circumstances.
Appellant-defendant Carlos Hale appeals his conviction for Robbery, 1 a class B
felony. Specifically Hale argues that the victim’s show-up identification of him was
unduly suggestive, insofar as police officers displayed him in handcuffs. Furthermore,
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Ind. Code § 35-42-5-1.
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Hale maintains that the introduction of this evidence was fundamental error. Concluding
that Hale’s failure to object to the introduction of this evidence results in waiver on
appeal and that the admission of the show-up identification was not error, let alone
fundamental error, we affirm the decision of the trial court.
FACTS
On April 23, 2011, Berenice Martinez was tending bar at the Blue Iguana in
Indianapolis, working the late shift. On April 24, when Martinez’s shift ended at 3:00
a.m., she left the bar with $100 in cash plus her tips for the night that she kept in her
purse. Martinez also had a $50 bill in her pants pocket. Martinez got into her vehicle to
start her twenty-minute drive home to the Forest Hills Apartments.
When Martinez arrived at Forest Hills Apartments, she noticed a silver vehicle
behind her. When she exited her vehicle to go into her apartment, Martinez made it as far
as the sidewalk before a man put a gun to her head. Martinez was frightened and
screamed. She pressed her telephone, but the two men took it from her. One of the men
called her a “b*tch,” but then told her she “smelled good” and “was pretty.” Tr. p. 21.
Hale checked the inside of Martinez’s purse and took the money out. The other
man told Hale to recheck the purse. Hale took the $50 out of her pocket and checked her
other pockets to see if she had any more. When Hale found money in her coat, Hale told
the other man to check her purse again, and then he pushed her down. The other man
threw all of the contents of the purse onto the ground.
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When the two men found no more items of interest, they retreated to the silver
vehicle that Martinez had seen earlier. Once the men were back at their vehicle, Martinez
turned to look at them and then ran to knock on the door of her cousin’s apartment. The
police arrived within fifteen to twenty minutes.
Indianapolis Metropolitan Police Department (IMPD) Officers George June and
Roger Taylor were involved in a nearby traffic investigation. Officer June responded to a
dispatch of a robbery in progress at the 500 block of Forest Hills. This dispatch related
that the suspects were last seen leaving the apartment complex in a silver vehicle. Officer
June saw a vehicle fitting the description traveling at a high rate of speed. When Officer
June caught up to the vehicle, he activated his lights and siren and could see that there
were four people in the vehicle.
Officer Taylor saw the same vehicle exit Forest Hills at a high rate of speed and
only lost sight of the vehicle for less than thirty seconds. When the vehicle came to a
stop, Officer Taylor pulled up behind Officer June, and Officer June explained that the
language barrier between Martinez and the officers slowed communications but that the
officers “were steadily getting more and more description” as he and Officer Taylor were
waiting for additional officers to arrive on the scene. Tr. p. 46. The description the
officers were provided matched the persons in the back seat, namely, Hale and Martell
Stott.
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As he approached the vehicle, Officer June could see a handgun magazine sitting
under the passenger side door on the ground. After the door was opened, Officer June
could see a handgun under the seat on the passenger side.
Less than an hour after the silver vehicle was stopped, Detective Benjamin Bierce
arrived with Martinez. The suspects had been separated immediately after being taken
into custody, were handcuffed from behind, and were being kept in an area that was not
visible to Detective Bierce or Martinez from Detective Bierce’s vehicle.
Martinez was shown four suspects, each being brought around to Detective
Beirce’s vehicle. Martinez remained in the vehicle while she viewed the four men.
Martinez identified both Stott and Hale as the men who had robbed her. A purple cell
phone cover belonging to Martinez and $286 in cash were found on Hale during a search
incident to his arrest.
On April 25, 2011, the State charged Hale with class B felony robbery. On
December 19, 2011, Hale’s jury trial commenced. In open court without objection,
Martinez identified Hale as the man who had grabbed her purse. Additionally, through
Detective Bierce’s testimony, the State presented evidence that Martinez identified Hale
and Stott during a show-up identification. After all the evidence had been presented, the
jury found Hale guilty as charged.
On January 18, 2012, the trial court held a sentencing hearing. The trial court
sentenced Hale to seven years, six years in the Department of Correction (DOC) and one
year in community corrections. Hale now appeals.
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DISCUSSION AND DECISION
Hale argues that Martinez’s show-up identification of him was overly suggestive,
inasmuch as he was in handcuffs. Hale further contends that even though he failed to
object at trial, the admission of the show-up identification amounted to fundamental error
and that without it, the evidence is insufficient to sustain his conviction for class B
robbery.
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. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.
2002). An abuse of discretion occurs when the trial court’s decision is clearly against the
logic and effect of the facts and circumstances before the court. Doolin v. State, 970
N.E.2d 785, 787 (Ind. Ct. App. 2012).
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. Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999).
Nevertheless, a contemporaneous objection is required to preserve an issue regardless of
whether the defendant filed a pretrial motion to suppress. Jackson v. State, 735 N.E.2d
1146, 1152 (Ind. 2000). Failure to make such an objection waives any claim on appeal
that the evidence was improperly admitted. Brown v. State, 783 N.E.2d 1121, 1126 (Ind.
2003). More particularly, “[t]o preserve an error for review on appeal, the specific
objection relied upon on appeal must have been stated in the trial court as a basis for the
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objection.” Mitchell v. State, 690 N.E.2d 1200, 1205 (Ind. Ct. App. 1998). The purpose
of this rule is to give the trial court the opportunity to evaluate the objection under the
basis relied upon. Id. at 1206.
Here, Hale concedes that defense counsel did not oppose the admission of the
show-up identification. Specifically, defense counsel neither filed a pretrial motion to
suppress it nor did he timely object to its admission at trial. Appellant’s Br. p. 10.
Accordingly, the trial court was not afforded the opportunity to evaluate Hale’s objection
to this evidence, and he has waived this issue on appeal.
Notwithstanding the above, Hale attempts to avoid waiver by invoking the
fundamental error doctrine. The fundamental error doctrine is extremely narrow.
Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). To be sure, it “applies only when the
error constitutes a blatant violation of basic principles, the harm or potential for harm is
substantial, and the resulting error denies the defendant fundamental due process.”
McQueen v. State, 862 N.E.2d 1237, 1241 (Ind. Ct. App. 2007).
While our Supreme Court has cautioned against one-on-one show-ups because of
their inherent suggestiveness, there is no per se rule of exclusion. Mitchell, 690 N.E.2d at
1203. Rather, the admissibility of a show-up identification turns on an evaluation of the
totality of the circumstances and whether they lead to the conclusion that the
confrontation was conducted in a manner that could guide a witness into making a
mistaken identification. Id.
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Here, the crime scene was lighted with street lights, and Martinez testified that she
could clearly see Hale’s face because he was in front of her. Tr. p. 37. Furthermore, the
show-up identification occurred soon after the robbery. See Mitchell, 690 N.E.2d at 1204
(listing several factors to consider when determining whether a show-up was permissible,
including the witness’s opportunity to view the criminal, the distance between the witness
and criminal, the lighting conditions, and the length of time between the commission of
the crime and the show-up). Accordingly, the trial court did not err by admitting
evidence of the show-up identification.
Notwithstanding our conclusion, we are compelled to point out that defense
counsel did not object to Martinez’s in-court identification of Hale. Tr. p. 20-21. And it
is well-settled that when a witness had an opportunity to observe the perpetrator during
the crime, a basis for an in-court identification exists, independent of the propriety of
pretrial identification. Brown v. State, 577 N.E.2d 221, 225 (Ind. 1991); Adkins v. State,
703 N.E.2d 182, 185 (Ind. Ct. App. 1998). Insofar as Martinez had an opportunity to
clearly observe Hale, there was an independent basis for the in-court identification. Thus,
even if the trial court had erred by admitting the evidence of the show-up identification,
Hale’s claim of fundamental error would have failed under these circumstances. See
Hoglund v. State, 962 N.E.2d 1230, 1239-40 (Ind. 2012) (holding that fundamental error
had not occurred when erroneously-admitted expert testimony was cumulative of other
evidence properly before the jury).
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Finally, in a related matter, we note that Anders2 Briefs are not permissible in
Indiana. See Mosley v. State, 908 N.E.2d 599, 601-02 (Ind. 2009) (requiring that in any
“direct criminal appeal as a matter of right, counsel must submit an advocative brief”).
Nevertheless, this Court cannot ignore the alarming trend of questionable fundamental
error claims. For instance, it is not uncommon for a criminal defendant to argue on
appeal that the introduction of evidence amounted to fundamental error whenever the
defendant failed to object to its admission at trial. See Brown v. State, 929 N.E.2d 204,
207-08 (Ind. 2010) (agreeing with the Court of Appeals that the defendant’s failure to
timely object to the admission of the evidence waived the error on appeal and did not
amount to fundamental error); Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007)
(concluding that the failure to object to the State’s substantive amendment to the charging
information resulted in waiver and that “[s]imply asserting the legal conclusions that his
trial was unfair and that he received ineffective assistance of counsel, without any cogent
argument or citation to authority, is not enough to prove fundamental error”).
Again, the fundamental error doctrine is an “extremely narrow” doctrine that is
available only in “egregious circumstances.” Brown, 929 N.E.2d at 207. This rationally
follows from the purpose of requiring a contemporaneous objection in the first place,
which is to give the trial court the opportunity to correct any errors before they become
fundamental error.
2
Anders v. California, 386 U.S. 738 (1967).
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The judgment of the trial court is affirmed.
ROBB, C.J., and BRADFORD, J., concur.
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