Petitioner-appellant, Ricky Van Evey, Jr., is before this Court appealing from the denial of his petition for post-conviction relief. He was charged and convicted by a jury for robbery, a class A felony (Ind. Code § 35-42-5-1), and sentenced to twenty (20) years imprisonment. His conviction was affirmed on direct appeal in Evey v. State (1981), 275 Ind. 674, 419 N.E.2d 971. Petitioner raises three issues in this appeal: 1. the trial court's failure to give a jury instruction sua sponte regarding effect of defendant's failure to testify;
Defendant shows no basis for reversible error on this issue. See White v. State, (1982) Ind., 433 N.E.2d 761; Evey v. State, (1981) 275 Ind. 674, 419 N.E.2d 971. VI, VII, and VIII
Her independent basis for the in-court identification was sufficiently established without reference to the pretrial lineup, whether or not the lineup was impermissibly suggestive. White v. State, (1982) Ind., 433 N.E.2d 761; Hill v. State, (1982) Ind., 442 N.E.2d 1049; Evey v. State, (1981) 275 Ind. 674, 419 N.E.2d 971. Accordingly, Defendant has shown no error on this issue.
An in-court identification by the same person witness who has participated in impermissibly suggestive out-of-court identification is admissible if an "independent basis" for the in-court identification is established. Evey v. State, (1981) Ind., 419 N.E.2d 971; Parker v. State, (1976) 265 Ind. 595, 358 N.E.2d 110; Swope v. State, (1975) 268 Ind. 148, 325 N.E.2d 193, cert. denied (1975), 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100. The determination of "independent basis" is made by examining the "totality of circumstances" surrounding the witness's opportunity to observe the perpetrator at the time of the crime. These circumstances include the length of time the perpetrator was in the presence of the witness, the lighting conditions at the time, the distance of the witness for observation, and the opportunity of the witness to observe particular characteristics of the perpetrator.
Appellant concedes the challenge to this issue is waived because no objection was made to the admission of such testimony. Evey v. State, (1981) Ind., 419 N.E.2d 971. However, appellant argues the trial court's omission rises to the level of fundamental error.
It is well established that an in-court identification by a witness who has participated in an impermissibly suggestive out-of-court identification is admissible if an independent basis for the in-court identification is established. Evey v. State, (1981) Ind., 419 N.E.2d 971; Parker v. State, (1976) 265 Ind. 595, 358 N.E.2d 110; Swope v. State, (1975) 263 Ind. 148, 325 N.E.2d 193. In determining whether there is a sufficient independent basis, we examine the totality of the circumstances of the witness' opportunity to observe the perpetrator during the commission of the crime, including the length of time that the witness was in the presence of the perpetrator, the distance the witness was from him, the lighting conditions at the time, the witness' capacity for observation, and the opportunity to observe particular characteristics of the perpetrator.
Although appellant moved to suppress this testimony prior to the time it was offered to the jury, the law clearly requires an additional objection when the identification testimony is offered as evidence. Evey v. State, (1981) Ind., 419 N.E.2d 971; Duvall v. State, (1981) Ind., 415 N.E.2d 718; Drake v. State, (1979) Ind., 397 N.E.2d 600; Stowers v. State, (1977) 266 Ind. 403, 363 N.E.2d 978. Thus the issue is not preserved for review. We hold the trial court did not err in permitting the identification of the appellant.
Lt. Richard Renbarger of the Fort Wayne Police Department testified to certain statements made to him by Captain Gutermuth on the night of the crime. Contrary to the statement in appellant's brief, no timely objection was made at trial; therefore, Hoy cannot claim error on appeal.Evey v. State (1981), Ind., 419 N.E.2d 971. The record shows the following: