Neil C. Albee v. State of Indiana, 2017 Ind. App. LEXIS 91

On Oct. 31, 2015, Margaret Schuerger briefly saw the reflection of a man in her sorority suite mirror after noticing someone at her shower door; she could not see facial details inside the shower.
Approximately 1 hour 45 minutes later police detained Neil Albee in the parking lot near the sorority house; he was handcuffed, surrounded by officers, illuminated by spotlights, and Schuerger viewed him from ~30 yards and was unsure.
Officers then took Albee to the police station; Schuerger observed him via closed‑circuit TV and identified digital photos the officers had taken (no lineup or photo array was used).
Albee was charged with voyeurism (Class B misdemeanor and elevated to Level 6 felony by prior conviction) and Level 6 residential entry; a first jury deadlocked, a second convicted him; the court admitted Schuerger’s pretrial and in‑court identifications over Albee’s objection.
On appeal the court held the one‑on‑one show‑ups and repeated exposures at the scene and station were unnecessarily suggestive and that the out‑of‑court and in‑court identifications were unreliable and should have been excluded.
The court nevertheless found the remaining evidence (including the now‑excluded identifications considered for sufficiency review) sufficient to sustain the convictions and allowed retrial under double jeopardy principles.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pretrial one‑on‑one show‑ups and the subsequent in‑court identification were improperly suggestive and therefore inadmissible	State: identifications were permissible, witness had fresh memory of the event and was able to identify defendant	Albee: the show‑ups were inherently suggestive (handcuffs, officers, spotlights, single suspect) and repeated viewings at the station tainted reliability	Court: show‑ups and in‑court ID were unnecessarily suggestive and unreliable; admission was an abuse of discretion
Whether, given the erroneous admission, the evidence as a whole suffices to allow retrial (double jeopardy)	State: even excluding constitutional error, remaining evidence supports convictions so retrial is permitted	Albee: erroneous admissions deprived him of due process and retrial should be barred if evidence is insufficient	Court: viewing all admitted evidence (including erroneously admitted IDs) the evidence was sufficient; retrial does not violate double jeopardy

Wethington v. State, 560 N.E.2d 496 (Ind. 1990) (one‑on‑one show‑ups are highly suggestive; courts must scrutinize totality of circumstances)
Neil v. Biggers, 409 U.S. 188 (1972) (framework: assess whether suggestive identification procedure created substantial likelihood of misidentification; reliability is critical)
Perry v. New Hampshire, 565 U.S. 228 (2012) (no per se exclusion for show‑ups; due process prohibits identifications that are unnecessarily suggestive and conducive to irreparable mistaken ID)
Gordon v. State, 981 N.E.2d 1215 (Ind. Ct. App. 2013) (factors for evaluating reliability and admissibility of eyewitness ID; witness certainty and the ID circumstances weigh heavily)
Hubbell v. State, 754 N.E.2d 884 (Ind. 2001) (two‑step inquiry: whether procedure was impermissibly suggestive and, if so, whether the identification was nonetheless reliable under totality of circumstances)