                                                                    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.



      Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017             Page 1 of 15
                                                     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


      Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017   Page 2 of 15
      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.

      Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017   Page 3 of 15
[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.




      Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017   Page 4 of 15
                                                     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



       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017   Page 5 of 15
       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 . . . .

       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017    Page 6 of 15
       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.

       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017                 Page 7 of 15
       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.

       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017                     Page 8 of 15
       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


       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017   Page 9 of 15
       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.

       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017                       Page 10 of 15
       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

       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017   Page 11 of 15
       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.




       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017   Page 12 of 15
[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

       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017   Page 13 of 15
                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.

       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017                       Page 14 of 15
       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.




       Court of Appeals of Indiana | Opinion 79A02-1606-CR-1266| February 28, 2017   Page 15 of 15
