Diano L. Gordon v. State of Indiana
2013 Ind. App. LEXIS 26
| Ind. Ct. App. | 2013Background
- Gordon was convicted in Marion Superior Court of Class D felony attempted residential entry and Class D felony escape; sentenced to concurrent two-year terms after bench trial.
- Eyewitness Jodi Pearce described two men attempting to break into Switzer’s home; she later identified Gordon at a show-up at his residence about an hour after the crime.
- Pearce testified she recognized Gordon as the shorter man with similar build and hair; she stated certainty in court.
- Gordon wore an ankle monitoring bracelet for home detention; records show he left his home at 12:00 p.m. and returned at 12:10 p.m. on the day of the incident.
- Gordon did not object to Pearce’s identification testimony at trial.
- The trial court admitted Pearce’s show-up and in-court identifications; Gordon challenges the show-up as unduly suggestive, and argues lenity should reduce the escape to unauthorized absence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the show-up identification was unduly suggestive | Pearce’s show-up was suggestive due to one-on-one confrontation. | Show-up identification was unduly suggestive and fundamental error. | Show-up not unduly suggestive; not fundamental error. |
| Whether the escape conviction should be reduced under the rule of lenity | Lenity requires resolving statutes in defendant’s favor and may reduce the charge. | Lenity applies because home detention statutes are ambiguous and support unauthorized absence. | Lenity does not apply; statutes are unambiguous; escape conviction affirmed. |
Key Cases Cited
- Mitchell v. State, 690 N.E.2d 1200 (Ind. Ct. App. 1998) (factors for evaluating show-up identifications)
- Harris v. State, 716 N.E.2d 406 (Ind. 1999) (due process and suppression of impermissibly suggestive pretrial identifications)
- Brown v. State, 783 N.E.2d 1121 (Ind. 2003) (waiver and fundamental error related to pretrial identification; lenity discussion)
- Hale v. State, 976 N.E.2d 119 (Ind. Ct. App. 2012) (independent basis for in-court identification)
- Meredith v. State, 906 N.E.2d 867 (Ind. 2009) (rule of lenity and statutory construction)
- Schnepp v. State, 768 N.E.2d 1002 (Ind. Ct. App. 2002) (rule of lenity when statutes are unambiguous)