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,

1
    Ind. Code § 35-42-5-1.
                                              2
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.



                                             3
         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.




                                             4
       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.

                                            5
                            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

                                            6
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.



                                             7
       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).



                                             8
          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).
                                                 9
      The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.




                                           10
