MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   Dec 11 2017, 9:25 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
Barbara J. Simmons                                      Curtis T. Hill, Jr.
Oldenburg, Indiana                                      Attorney General of Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Neve’rean Jackson,                                      December 11, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1703-CR-520
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Angela Dow
Appellee-Plaintiff.                                     Davis, Judge
                                                        Trial Court Cause No.
                                                        49G16-1611-CM-43017



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CR-520 | December 11, 2017              Page 1 of 6
                                Case Summary and Issue
[1]   Following a bench trial, Neve’rean Jackson was convicted of resisting law

      enforcement, a Class A misdemeanor. Jackson appeals his conviction and

      raises one issue for our review: whether the trial court abused its discretion in

      admitting pre-trial identification evidence. Concluding the trial court did not

      abuse its discretion, we affirm Jackson’s conviction.



                            Facts and Procedural History
[2]   On September 26, 2016, Officer Brandon Raftery of the Lawrence Police

      Department was dispatched to a disturbance of a male and female arguing.

      When he arrived on the scene, both the male and female began to flee. Officer

      Raftery exited his vehicle and ordered them to stop. Officer Raftery then

      pursued the male who climbed a fence to evade capture. As the officer reached

      the fence, the male fell over the fence and landed on his back. Officer Raftery

      climbed to the top of the fence, observed the male on his back, and again

      ordered him to stop. When it became clear the male did not intend to comply,

      Officer Raftery deployed his taser, but it became entangled in some bushes

      without making contact with the male. The man then continued to flee and

      temporarily evaded capture.


[3]   On October 11, 2016, Detective Stacy Henshaw showed Officer Raftery a photo

      array of six males. Because one of the males in the photo had his head tilted

      upward and was not looking at the camera, Officer Raftery stated he would not


      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CR-520 | December 11, 2017   Page 2 of 6
      attempt to identify the suspect from that photo array. Several days later,

      Detective Henshaw showed Officer Raftery another photo array of six males.

      From this photo array, Officer Raftery identified Jackson as the person who fled

      from him on September 26, 2016.


[4]   The State charged Jackson with resisting law enforcement, a Class A

      misdemeanor; domestic battery, a Class A misdemeanor; and battery resulting

      in bodily injury, a Class A misdemeanor. At trial, Officer Raftery testified and

      identified Jackson as the person he chased. He based his in-court identification

      on his recollection of Jackson during the pursuit. The State also admitted the

      photo arrays into evidence, to which Jackson objected. The trial court found

      Jackson guilty of resisting law enforcement and sentenced him to an executed

      sentence of 180 days in the Indiana Department of Correction with 146 days of

      credit time.1 Jackson now appeals.



                                     Discussion and Decision
[5]   Jackson argues the trial court abused its discretion in admitting evidence of the

      photo arrays used to identify Jackson prior to trial. Specifically, Jackson claims

      the photo arrays were inadmissible because they were susceptible to

      misidentification and unduly suggestive.




      1
          At trial, the State moved to dismiss both battery charges.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CR-520 | December 11, 2017   Page 3 of 6
[6]   The admission of evidence is within the trial court’s discretion and the decision

      is reviewable only for an abuse of discretion. Albee v. State, 71 N.E.3d 856, 860

      (Ind. Ct. App. 2017). However, identification procedures used by the police

      must also comport with a defendant’s due process rights. Williams v. State, 271

      Ind. 656, 660, 395 N.E.2d 239, 243 (1979). Identification procedures which are

      so suggestive as to give rise to a substantial likelihood of misidentification

      violate a defendant’s due process rights. Id. In determining whether

      identification procedures should have been excluded, reviewing courts look to

      the totality of the circumstances. Heiman v. State, 511 N.E.2d 458, 459 (Ind.

      1987).


[7]   Our examination of the photo arrays does not lead to the conclusion they are

      likely to lead to misidentification and Jackson makes no argument regarding

      how they are unduly suggestive. The first photo array contains six men of

      similar age and characteristics. Because one of the men in that array is not

      looking at the camera and had his head tilted upward, Officer Raftery refused to

      make an identification from that array. The second array contains a photo of

      the defendant and five other men of similar age and characteristics and is not

      unduly suggestive.


[8]   Moreover, even assuming it was unduly suggestive, Officer Raftery had a

      substantial independent basis for making his in-court identification of Jackson.

      When an unnecessarily suggestive pre-trial identification has occurred, a

      witness’s in-court identification is permissible if, independent of the

      unconstitutional confrontation, an independent basis for the witness’s in-court

      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CR-520 | December 11, 2017   Page 4 of 6
      identification exists. Heiman, 511 N.E.2d at 460. The factors to be considered

      include the witness’s opportunity to view the criminal when the crime was

      committed, their degree of attention at the time, the accuracy of their prior

      descriptions, their level of certainty in the pre-trial identification, and the length

      of time between the crime and the identification. Id.


[9]   At trial, Officer Raftery testified he clearly observed the features of the man he

      chased such that he could identify him again. In describing the chase, Officer

      Raftery stated,


              [Officer Raftery]:       I jumped up on the top of the privacy fence
                                       and looked over and the male was laying on
                                       his back looking up at me.


              ***


              [State]:                 [W]ere you able to identify him at any point
                                       or get a good look at the individual who was
                                       fleeing from you?


              [Officer Raftery]:       I did get a good look at him, yes.


              [State]:                 Would you be able to identify him if you
                                       were to see him again?


              [Officer Raftery]:       Yes.


              ***




      Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CR-520 | December 11, 2017   Page 5 of 6
               [State]:                 And you stated that the bushes were not—
                                        there were no leaves?


               [Officer Raftery]:       Yes, there were no leaves. I mean, I had a
                                        clear view looking straight down at him.


       Transcript, Volume II at 7-9, 22. Under these circumstances, we conclude

       Officer Raftery had a sufficient independent basis from which he could make a

       direct in-court identification of Jackson.



                                               Conclusion
[10]   The trial court did not abuse its discretion in admitting pre-trial identification

       evidence. Accordingly, we affirm Jackson’s conviction.


[11]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1703-CR-520 | December 11, 2017   Page 6 of 6
