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                 MEMORANDUM DECISION – NOT FOR PUBLICATION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.



                                            2
        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.
                                                    3
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.


                                                    4
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

                                             6
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
                                                  7
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.
                                                    8
