Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                   FILED
                                                                Jan 14 2013, 8:57 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                            CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MICHELLE F. KRAUS                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                                Attorney General of Indiana

                                                   JOSEPH Y. HO
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DEANTOINE M. HARRIS,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 02A03-1204-CR-185
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                               Cause No. 02D06-1201-FB-3



                                        January 14, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       At approximately 4:00 p.m. on December 28, 2011, Jamie Acosta arrived at a

residence to deliver a pizza. Upon arriving at the home, Acosta was met by a tall African-

American man. The man invited Acosta inside. Acosta decline the invitation. Moments

later, the tall man and a shorter African-American man charged at Acosta and tried to pull

him into the home. Acosta resisted. The shorter man pointed a gun in Acosta’s face. As

Acosta attempted to retreat, the shorter man kept the gun pointed in Acosta’s face and

demanded money. Acosta focused on the shorter man’s eyes. Acosta threw the money that

he had in his pocket at the shorter man who caught it, all while keeping the gun pointed in

Acosta’s face and demanding more money. Both men rummaged through Acosta’s vehicle,

looking for more money, before retreating to a nearby residence. The shorter man was

subsequently identified as Deantoine Harris.

       On January 14, 2012, the State charged Harris with Class B felony robbery. The State

subsequently amended the charging information to include the allegation that Harris was a

habitual offender. At trial, Acosta identified Harris as the individual who had robbed him at

gunpoint. Following trial, the jury found Harris guilty of Class B felony robbery and

determined that Harris was a habitual offender. The trial court sentenced Harris to an

aggregate thirty-year sentence. On appeal, Harris contends that the trial court erred in

admitting Acosta’s in-court identification of Harris as the individual who robbed him at

gunpoint. Concluding that the trial court did not err in admitting Acosta’s in-court

identification of Harris, we affirm.

                       FACTS AND PROCEDURAL HISTORY

                                               2
       On December 28, 2011, Harris resided at 6217 Downingtown Drive in Fort Wayne.

At approximately 4:00 p.m., Jamie Acosta was working as a pizza delivery man for Pizza Hut

when he made a delivery to 6232 Downingtown Drive. Acosta was carrying approximately

$30 to $40 in cash with him at the time of the delivery. Upon arriving at 6232 Downingtown

Drive, Acosta was met at the door by a tall African-American man wearing dark clothing.

The man invited Acosta inside the home, which Acosta noticed was empty. Acosta declined

the invitation. Acosta and the tall man had a brief conversation about the home being empty

before the man turned and walked into what appeared to be the kitchen.

       Suddenly, the tall man and a shorter African-American man came charging toward

Acosta and told him to “get inside the f-ing … house.” Tr. p. 70. The shorter man was

wearing a loose dark “hoodie” over other clothing and was holding a semi-automatic

handgun. Tr. p. 69. The shorter man held the gun “straight out” and pointed it in Acosta’s

face. Tr. p. 81. The handgun had a black handle and a silver muzzle. Acosta dropped the

pizzas and cheesecakes he was at the home to deliver as the two men attempted to pull him

into the home. While struggling with the two men, Acosta kept his eyes on the handgun and

the shorter man’s eyes.

       Eventually, Acosta freed himself and began to back away. As Acosta backed away,

the shorter man stood up, pointed the gun in Acosta’s face, and demanded money. Acosta

continued to look at the eyes of the shorter man, who was standing about two feet away, as he

backed away. Acosta threw the money he had in his pocket at the shorter man, who caught it

without lowering the gun from Acosta’s face. The shorter man continued to hold the gun in

                                             3
Acosta’s face while demanding more money. Acosta continued to back away and kept his

eyes on the shorter man’s eyes and the handgun. The men searched Acosta’s vehicle, looking

for more money, and took a pair of binoculars before walking away. Acosta watched the

men walk in between the two houses located at 6223 and 6217 Downingtown Drive before

calling the police.

       When the police arrived, they began looking for the men in the direction indicated by

Acosta. The police observed fresh footprints in the snow that entered, but did not leave, the

home located at 6217 Downingtown Drive. The responding officers did not observe any one

enter or leave the home or walking down Downingtown Drive upon their arrival. A canine

unit arrived approximately ten to twelve minutes after Acosta notified police of the robbery,

and tracked the robbers to 6217 Downingtown Drive. Police instructed the men inside 6217

Downingtown Drive to exit the home. When the men emerged with their hands in their air,

they were surrounded by officers, some of whom had weapons drawn. The men were taken

to the ground and placed in handcuffs.

       Acosta was still at the scene of the robbery when he saw police apprehend the two

men. Upon seeing the arrest of the two potential perpetrators, Acosta commented to his boss,

who had arrived at the scene and was standing next to him, that “look, they already got the

two guys.” Tr. p. 123. After apprehending the two men, police asked Acosta if he could

identify the men as those who robbed him. Acosta immediately identified the taller man as

the taller perpetrator based on his height, look, and demeanor. Acosta told officers that both

men had changed clothes in the nearly thirty minutes since the robbery had taken place.

                                              4
       With respect to the shorter man, Acosta requested an opportunity to get closer to the

man before identifying him as the individual who had pointed the gun in his face. Acosta

stated that he wanted to look the shorter man in the eyes before identifying him as the

perpetrator because he could not “forget the eyes.” Tr. p. 117. The officers complied with

Acosta’s request, after which he identified the shorter man as the individual who had robbed

him at gunpoint.

       The taller man was subsequently identified as Michael Eldridge. The shorter man was

subsequently identified as Harris. Upon searching Harris’s home, police recovered a

handgun that had a black handle and a silver muzzle, a pair of binoculars matching the ones

taken from Acosta’s vehicle, and a black hooded sweatshirt matching the description of

Harris’s clothing given by Acosta. Police subsequently found Harris’s identification card and

$34 in cash, consisting mostly of $1 bills, in the pocket of the black hooded sweatshirt.

       On January 4, 2012, the State charged Harris with Count I, Class B felony robbery.1

On February 3, 2012, the State amended the charging information to include Count II, which

alleged that Harris was a habitual offender. A two-day trial was commenced on February 28,

2012. Prior to the beginning of trial, Harris entered the court room wearing jail attire.

Acosta was present in the court room when Harris entered in jail attire and could potentially

have seen Harris wearing the jail attire. During trial, Acosta identified Harris as the

individual who had robbed him at gunpoint.          Acosta testified that he requested the

opportunity to get a closer look at Harris before identifying him as the perpetrator because he


       1
           Ind. Code § 35-42-5-1 (2011).
                                              5
did not want to make a false identification and “was afraid [he] was going to make a mistake

so … [he] wanted to [be] a hundred percent sure that that was the man.” Tr. p. 118. Acosta

further testified that after looking Harris in the eyes, he was “a hundred percent” sure that

Harris was the man who had robbed him at gunpoint. Tr. p. 118.

       At the conclusion of trial, the jury found Harris guilty of Class B felony robbery. The

jury also determined that Harris was a habitual offender. On March 28, 2012, the trial court

sentenced Harris to an aggregate term of thirty years of incarceration. This appeal follows.

                              DISCUSSION AND DECISION

                I. Whether the Trial Court Erred in Admitting Acosta’s
                       In-Court Identification of the Defendant

       Harris contends that the trial court erred in admitting Acosta’s in-court identification

of Harris as the man who robbed him at gunpoint. In making this contention, Harris argues

that the in-court identification was tainted because the procedure employed by police during

the pre-trial “show-up” identification of Harris by Acosta was unduly suggestive. Harris also

argues that the in-court identification was tainted because Acosta allegedly saw Harris

wearing jail attire in the court room prior to trial.

                          A. Pre-Trial “Show-Up” Identification

       In arguing that Acosta’s in-court identification was tainted by the pre-trial “show-up”

identification, Harris argues that the procedure employed by police during the pre-trial

“show-up” identification was unduly suggestive and, as a result, violated his due process

rights under the Fourteenth Amendment of the United States Constitution. “A show-up


                                                6
procedure may be so unnecessarily suggestive and so conducive to irreparable mistake as to

constitute a violation of due process of law under the Fourteenth Amendment.” Hubbell v.

State, 754 N.E.2d 884, 892 (Ind. 2001). However, in Hubbell, the Indiana Supreme Court

adopted the United States Supreme Court’s rejection of a per se rule of exclusion of pre-trial

identification evidence involving suggestive or unnecessary procedures. 754 N.E.2d at 892

(citing Manson v. Brathwaite, 432 U.S. 98, 109-14 (1977)). Instead, the Indiana Supreme

Court held that due process permits the admission of such evidence if, under the totality of

the circumstances, the identification is reliable. Id.

       Review of a challenge regarding the admission of evidence relating to a pre-trial

identification involves a two-step analysis. Id. (citing Slaton v. State, 510 N.E.2d 1343, 1348

(Ind. 1987)). “The first question is whether the initial identification procedure was

unnecessarily or impermissibly suggestive.” Id. (citing Slaton, 510 N.E.2d at 1348). “The

second inquiry is whether, under the totality of the circumstances, the identification was

reliable even though the procedure was suggestive. Id. (citing Slaton, 510 N.E.2d at 1348).

This review of the totality of the circumstances includes:

       (1) the opportunity of the witness to view the criminal at the time of the crime;
       (2) the witness’s degree of attention; (3) the accuracy of his or her prior
       description of the criminal; (4) the level of certainty demonstrated by the
       witness at the confrontation; and (5) the length of time between the crime and
       the confrontation.

Lyles v. State, 834 N.E.2d 1035, 1044-45 (Ind. Ct. App. 2005), trans. denied (citing Adkins v.

State, 703 N.E.2d 182, 186 (Ind. Ct. App. 1998)). “‘Identifications of a freshly apprehended

suspect have been held to be not unnecessarily suggestive despite the suggestive factors

                                               7
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.’” Id. at 1045

(quoting Lewis v. State, 554 N.E.2d 1133, 1135 (Ind. 1990)).

       Harris claims that Acosta’s in-court identification of him as the man who robbed

Acosta at gunpoint was tainted and should not have been admitted at trial because the pre-

trial “show-up” identification was unduly suggestive. In making this claim, Harris argues

that Acosta’s pre-trial identification was unduly suggestive because Acosta, who was still

present at the scene of the robbery approximately thirty minutes after the robbery occurred,

saw two men exit a home near where he told police that he had seen the perpetrators flee.

Acosta saw that the men were surrounded by police officers, some of whom had their

weapons drawn, as the men exited the home with their hands in the air. After exiting the

home, the men were taken to the ground and were put in handcuffs before being placed in the

backseat of a police cruiser. Acosta subsequently identified these two men as the individuals

who had robbed him. While we agree with Harris that these events, when viewed separate

from the rest of the relevant circumstances, could arguably be considered unduly suggestive

of guilt, upon review of the totality of the circumstances, we are convinced that Acosta’s

initial identification of Harris was reliable. See Hubbell, 754 N.E.2d at 892.

       Acosta went to the scene of the robbery to deliver pizzas and cheesecakes. When

Acosta arrived at the scene of the robbery, he spoke to and got a good look at the taller

perpetrator. Moments later, the shorter perpetrator, who was wearing a black hooded

sweatshirt, approached Acosta holding the gun “straight out” and pointed the gun in Acosta’s

                                              8
face. Tr. p. 81. During the robbery, the shorter perpetrator was in close proximity with

Acosta. Acosta testified that after the shorter perpetrator pointed the gun in his face, Acosta

focused on the perpetrator’s eyes. Acosta continued to look into the shorter perpetrator’s

eyes until he was able to retreat to the point that the perpetrators moved past Acosta to

Acosta’s vehicle. The perpetrators rifled through Acosta’s vehicle before fleeing. Acosta

watched the perpetrators flee, eventually losing sight of the perpetrators when they walked

between two houses. The perpetrators eventually emerged from one of these two houses.

          Upon seeing the arrest of the two potential perpetrators, Acosta commented to his

boss, who was standing next to him, that “look, they already got the two guys.” Tr. p. 123.

Acosta immediately identified the taller man as the taller perpetrator based on his height,

look, and demeanor. However, despite making the above-stated comment to his boss, Acosta

requested an opportunity to get closer to Harris before identifying him as the shorter

perpetrator who had pointed the gun in his face. Acosta testified that he requested the

opportunity to get a closer look at the shorter man before identifying him as the perpetrator

because he did not want to make a false identification and “was afraid [he] was going to

make a mistake so … [he] wanted to [be] a hundred percent sure that that was the man.” Tr.

p. 118. Acosta stated that both men had changed their clothing and that he wanted to look

the shorter man in the eyes before identifying him as the perpetrator because he could not

“forget the eyes.” Tr. p. 117. Acosta further testified that after looking Harris in the eyes, he

was “a hundred percent” sure that Harris was the man who had robbed him at gunpoint. Tr.

p. 118.

                                               9
       Based on the totality of the circumstances, we conclude that the trial court did not err

in finding Acosta’s pre-trial identification of Harris as the individual who held him at

gunpoint to be reliable. Acosta’s identification of Harris was not immediate. Rather, Acosta

requested permission to get closer to Harris to ensure that his identification of Harris was

accurate. Acosta testified that he wanted to look Harris in the eyes before identifying him as

the perpetrator because he had focused on the perpetrator’s eyes during the robbery. After

looking Harris in the eye, Acosta was “a hundred percent” sure that Harris was the man who

had pointed the gun in his face. Tr. p. 118. The record demonstrates that facts independent

of the potentially suggestive police procedure provided a basis for Acosta’s identification of

Harris as the perpetrator, and that the identification was not based on the potentially

suggestive police procedure itself. As such, we conclude that the pre-trial “show-up”

identification of Harris by Acosta was reliable and did not taint Acosta’s subsequent in-court

identification of Harris.

                     B. Alleged Observation of Harris in Jail Attire

       Having concluded that Acosta’s pre-trial “show-up” identification of Harris was

reliable and did not taint Acosta’s subsequent in-trial identification of Harris, we must next

consider Harris’s claim that the trial court erred in admitting Acosta’s in-court identification

because Acosta allegedly observed Harris wearing jail attire in the courtroom prior to trial.

In support of this claim, Harris relies on the Indiana Supreme Court’s opinion in Marsh v.

State, 480 N.E.2d 927 (Ind. 1985). In Marsh,

       The circumstances of the pretrial identification procedure of which Defendant
       complains are that two weeks after the instant robbery, Defendant and
                                             10
       Neumann robbed the restaurant again and were apprehended. The next day
       witness Springer accompanied police to the courtroom where Defendant and
       Neumann were being arraigned on the second robbery. Springer knew the
       names of the two suspects in this cause and when Defendant’s name was called
       and Defendant appeared, Springer told police he was the same man he had
       seen in the restaurant during the first robbery.

480 N.E.2d at 928. “Under the circumstances of this confrontation, Springer knew the name

of the man arrested in the second robbery of his restaurant and made his identification when

Defendant was singled out and presented to him.” Id. “The State [did] not disagree that this

identification procedure at Defendant’s arraignment was so suggestive that any identification

resulting from it would be inadmissible.” Id. The Supreme Court held that “Defendant’s

contention therefore is correct that Springer’s identification testimony was inadmissible

unless clear and convincing evidence proved that it was based on observations independent

of the above confrontation.” Id. (emphasis added).

       However, in relying on Marsh, Harris fails to address the second part of the Marsh

analysis which considers whether clear and convincing evidence proved that the

identification was based on observations independent of the challenged interaction. The

Marsh court held that reviewing courts “look to the totality of the circumstances to determine

whether an independent basis for the identification existed.” Id. (citing Kusley v. State, 432

N.E.2d 1337, 1338 (Ind. 1982)). Again,

       [t]he factors to be considered are the length of the initial observation of the
       accused, the lighting conditions, the distance between the witness and the
       accused, the witness’s capacity for observation, the witness’s level of certainty,
       any discrepancy between the witness’s initial description and the actual
       description and any identifications of another person. Morgan v. State, (1980)
       272 Ind. 504, 400 N.E.2d 111; Swope v. State, (1975) 263 Ind. 148, 325
       N.E.2d 193, cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100.
                                              11
Id.

       In considering the totality of the circumstances, the Marsh court held that the evidence

most favorable to the State tended to show that although the witness saw Defendant for only

a few seconds from thirty to forty feet away under fluorescent lights, the witness testified that

“he was certain of his identification and that it was based only on his observation of

Defendant in the restaurant.” Id.

       The evidence showed that a few weeks before trial, Springer chose someone
       other than Defendant from a lineup. He changed his mind, however, and
       finally chose Defendant. He testified his confusion resulted from the fact that
       Defendant had grown a beard by the time of the lineup, whereas at the time of
       robbery he had only a mustache. Springer expected Defendant to have tried to
       change his appearance in some way, and Springer was confused and initially
       chose a clean-shaven, lineup member thinking Defendant might have shaved
       his mustache. He insisted, however, his identification of Defendant was
       accurate and that it was based on his observation of Defendant at the restaurant
       and at the time of the first robbery.

Id. The Supreme Court held that the evidence before the jury was sufficient to show

independent recollection of witness Springer at the time of his testimony. Id. Finding no

error, the Supreme Court affirmed the trial court’s determination to allow the witness’s

identification of the defendant. Id.

       Similar to Marsh, the record in the instant matter supports the determination that

Acosta’s identification was not based on the fact that he allegedly saw Harris in the court

room in jail attire prior to the start of trial, but rather was based on independent

circumstances.    Upon being asked by police to identify two individuals that were

apprehended near the scene of the robbery approximately thirty minutes after the robbery

                                               12
occurred, Acosta immediately identified the taller perpetrator but requested permission to get

a closer look at Harris to ensure that provided an accurate identification of the shorter

perpetrator. Acosta testified that he wanted to look Harris in the eyes before identifying him

as the perpetrator because he had focused on the perpetrator’s eyes during the robbery. After

looking Harris in the eyes, Acosta was “a hundred percent” sure that Harris was the man who

had pointed the gun in his face. Tr. p. 118.

       Upon considering the totality of the circumstances, we conclude that Acosta’s

identification of Harris was based on facts independent of the fact that Acosta allegedly saw

Harris in jail attire in the court room prior to the beginning of trial. As such, we conclude

that the alleged sight of Harris in jail attire prior to the beginning of trial did not taint

Acosta’s subsequent in-court identification of Harris. Having concluded that the trial court

did not err in admitting Acosta’s in-court identification of Harris as the individual who

robbed him at gunpoint, we affirm Harris’s conviction for Class B felony robbery.

       The judgment of the trial court is affirmed.

NAJAM, J., and FRIEDLANDER, J., concur.




                                               13
