Larry Love v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited Aug 20 2014, 9:28 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VALERIE K. BOOTS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LARRY LOVE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1311-CR-553
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William Nelson, Judge
The Honorable David Hooper, Commissioner
Cause No. 49F18-1110-FD-75242
August 20, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Larry Love appeals the denial of his motion to suppress. We affirm.
Issue
We address one dispositive issue, which we state as whether the trial court
properly denied Love’s motion to suppress because a show-up identification was not
unduly suggestive.
Facts
At around 6:00 p.m. on October 20, 2011, Eric Brock was driving home from
work in Indianapolis when he noticed a red car following him. Brock stopped to get gas,
and the driver of the red car stopped behind him at the gas station and waited for Brock to
get gas. Because Brock was concerned about being followed, he did not look back at the
driver of the red car. After Brock left the gas station, he stopped to make a left turn and
was rear ended by the red car.
Brock got out of his car and walked back to the open driver’s side of the red car
and stood about a foot from the open door. Brock saw that the airbag had deployed and
the driver was trying to push it down. No one else was in the car. Brock asked the driver
if he was okay, and the driver swore at Brock. Brock asked the driver if he was okay a
second time and got the same response. The driver then pushed the airbag down, closed
the door, and drove away. The exchange between the driver and Brock lasted from thirty
seconds to one minute. Brock called 911 and gave the dispatcher the license plate
number of the red car.
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While an off-duty officer responded to scene of the accident, Officer Curt Collins
of the Indianapolis Metropolitan Police Department went to a nearby residence on
Bancroft Street because another police officer had been flagged down by another witness
and asked to follow a red car that was involved in a hit and run accident. When Officer
Collins arrived at the Bancroft Street residence, a red car with front end damage was
there. Officer Collins left the Bancroft Street residence and went to the scene of the
accident.
Officer Collins asked Brock if he would recognize the driver of the red car, and
Brock said he would. Officer Collins informed Brock that he thought they had the driver
in custody at a nearby residence. Brock rode along with Officer Collins to identify the
driver. As they approached the residence, Love and another man were standing with two
or three uniformed police officers. There was at least one marked squad car at the
residence. Before Officer Collins stopped his cruiser, Brock volunteered “that’s him.”1
Tr. p. 30. When they got closer, Officer Collins pointed at Love and asked if he was the
driver, and Brock reaffirmed that Love was the driver of the car. Love was wearing the
same clothes Brock remembered him wearing.
The State charged Love with Class D felony operating a motor vehicle as an
habitual traffic violator, Class A misdemeanor operating while intoxicated, Class C
misdemeanor operation with a BAC between .08 and .15, and Class C misdemeanor
1
Love makes much of the fact that at the suppression hearing Brock was questioned about his previous
deposition testimony in which he indicated he was “pretty sure” Love was the driver before the officer
pointed to him and asked if it was him. Tr. p. 26. At the suppression hearing, Brock testified that he was
able to identify Love as soon as he saw him. See id.
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failure to stop at the scene of a property damage accident. The State also alleged that two
offenses were committed while having previously been convicted of the offense of
operating while intoxicated within the last five years.
Love filed a motion to suppress contending that the show-up identification
procedure was unduly suggestive. Love requested that Brock’s identification of him and
the results of the investigation, including blood alcohol tests, field sobriety tests, and
officer interviews and observations, be suppressed.
At the hearing on Love’s motion to suppress, Brock identified Love as the driver
of the red car.2 Brock described the driver as a white man in his forties or fifties. Brock
testified that he remembered the driver wearing a dark blue jacket that reminded him of a
mechanic’s jacket. Brock stated that he was unsure about the driver’s height and weight
because the driver was seated. Brock did not notice the driver wearing glasses or having
any scars, tattoos, or unique facial features.
After the parties filed post-hearing briefs, the trial court denied Love’s motion to
suppress. Love filed an unopposed motion for interlocutory appeal, which the trial court
granted. We have accepted jurisdiction over his interlocutory appeal.
Analysis
Love argues that the trial court erred in denying his motion to suppress because the
show-up identification procedure was unduly suggestive. “We review a trial court’s
2
Love did not object to Brock’s in-court identification of Love, but in his post-hearing brief Love
challenged the in-court identification. The State does not argue that this issue was not properly preserved
or that the argument is premature because the challenged in-court identification occurred during a
suppression hearing, not at trial. Regardless, because of our holding that the show-up identification was
not unduly suggestive, we need not address Love’s argument regarding the in-court identification.
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denial of a defendant’s motion to suppress deferentially, construing conflicting evidence
in the light most favorable to the ruling, but we will also consider any substantial and
uncontested evidence favorable to the defendant.” Robinson v. State, 5 N.E.3d 362, 365
(Ind. 2014). “We defer to the trial court’s findings of fact unless they are clearly
erroneous, and we will not reweigh the evidence.” Id.“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.” Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans.
denied. “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.’” Id. (quoting Hubbell v. State, 754 N.E.2d 884, 892 (Ind. 2001)). In reviewing
challenges to show-up identifications, we examine the totality of the circumstances
surrounding the identification, including:
(1) the opportunity of the witness to view the offender at the
time of the crime; (2) the witness’s degree of attention while
observing the offender; (3) the accuracy of the witness’s prior
description of the offender; (4) the level of certainty
demonstrated by the witness at the identification; and (5) the
length of time between the crime and the identification.
Id. 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 the witness’s mind. Id.5
Brock observed the driver of the red car for thirty seconds to one minute when he
spoke to the driver immediately after the accident from near the open driver’s side door.
Brock was able to describe the driver’s age, race, and clothing. Although Brock was
worried after the accident, there is no indication that he was distracted when he spoke to
the driver or that Brock’s general description of the driver was inaccurate. Further, Brock
was confident he could identify the driver prior to the show-up and immediately
identified Love, as opposed to the other civilian, as the driver when he and Officer
Collins approached the Bancroft Street residence. Finally, Brock identified Love as the
driver less than fifteen minutes after the accident. Consideration of these factors does not
support the claim that the show-up was unduly suggestive.
Love contends that this case is like Wethington v. State, 560 N.E.2d 496 (Ind.
1990), in which our supreme court concluded that the testimony regarding show-up
identifications should have been suppressed. In Wethington, the victims of an armed
robbery, who had been bound, gagged, and threatened at gunpoint, were asked to identify
two suspects on the side of a road two hours after the crime. Police officers told the
victims that they had picked up two hitchhikers and wanted to see if they were the
individuals who had committed the crime. When the victims arrived at the intersection,
there were three police cars and at least seven police officers, most of whom were in
uniform, the suspects were handcuffed, and the weapons used in the commission of the
offense were displayed on the hood of car. The victims identified one suspect
immediately but were less sure about the identity of the second suspect. Three hours
after the crime was committed, the victims were taken to a fire station meeting room
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where numerous police and fire officials milled about the room and weapons used during
the robbery and marijuana that had been taken during the robbery were displayed. The
victims identified the various items, and the suspects were escorted into the room by
police officers. Again the victims identified one suspect but were less sure about the
identity of the second suspect.
Our supreme court concluded that displaying the suspects at the roadside and
parading them at the fire station with the items of physical evidence so prominently
featured and with so many law enforcement officials in attendance “was highly
suggestive of guilt and totally unnecessary.” Wethington, 560 N.E.2d at 502. The court
observed that no exigent circumstances existed which precluded setting up a properly
constituted lineup, “and the intervening time and events between the incident and the
confrontations negated the freshness of the image in the minds of the victims as a
justification for a one-on-one show-up.” Id.
Here, when Officer Collins and Brock arrived at the Bancroft Street residence,
there were two civilians standing among the two or three uniformed police officers and
one or two squad cars, and neither civilian was handcuffed. Although Officer Collins had
suggested to Brock that they had the driver in custody, Brock immediately identified
Love as the driver as they approached before Officer Collins prompted him. As for
Officer Collins’s testimony that the red car was parked at the residence, at least initially,
Brock did not specifically testify about the red car being there during the show-up.3 Most
3
Officer Collins was questioned, “And you said there was a red vehicle with front end damage at
Bancroft Street. Did you see that when you initially went out to Bancroft?” Tr. p. 30. Officer Collins
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significantly, unlike in Wethington, Brock identified Love less than fifteen minutes after
the accident occurred, while the image of the driver was still fresh in his mind.
As for Love’s argument that Brock did not get a good look at the driver so as to
excuse the suggestiveness of the show-up, we are not persuaded. Love’s challenge to
Brock’s opportunity to observe the driver because of the brevity of the encounter, the
driver’s struggle with the air bag, and Brock’s nervousness about the being followed is a
request to reweigh the evidence, which we cannot do. See Robinson, 5 N.E.3d at 367
(declining defendant’s invitation to “substitute our own judgment for that of the trial
court and rebalance the scales in her favor.”). Love has not established that the trial court
erred in denying his motion to suppress.
Conclusion
The trial court properly denied Love’s motion to suppress. We affirm.
Affirmed.
FRIEDLANDER, J., and MATHIAS, J., concur.
answered, “Yes.” Id. Brock testified that marked squad cars were at the Bancroft Street residence when
he arrived with Officer Collins and that he was not sure if there were other vehicles in the driveway. See
id. at 22.
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