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Pre-trial ID of attacker allowed at trial

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The trial court didn’t err in allowing a victim’s pre-trial identification of his attacker, the Indiana Court of Appeals ruled today in a matter of first impression.

Anthony Neukam attacked his former girlfriend’s new boyfriend, Carlos Aquino, putting Aquino in the hospital. The two have never met but Aquino recognized Neukam from photos in the girlfriend’s home and on the girlfriend’s MySpace page. Aquino told police it was Neukam who attacked him. Police got a print of Neukam’s photo from the Bureau of Motor Vehicles and showed the photo to Aquino; he confirmed that was the man who attacked him.

Before his trial for battery and criminal mischief started, Neukam filed a motion to suppress the out-of-court identification, which the trial court denied. He was convicted of both charges.

In Anthony E. Neukam v. State of Indiana, No. 16A01-1002-CR-50, Neukam argues the identification process was unduly suggestive because the police officer showed Aquino only one photo that had Neukam’s name on it. Even though he failed to object at trial to the identification evidence and waived his claim on appeal, the Court of Appeals addressed it and found he wouldn’t have prevailed.

Aquino wasn’t identifying an unknown assailant and told police who his attacker was right after he was attacked. Only after Aquino said who his attacker was did police show him Neukam’s photo, wrote Judge Paul Mathias.

There isn’t any other Indiana case on this point, but using a case out of Kansas, State v. Franklin, 121 P.3d 447, 453 (Kan. 2005), they found the identification evidence to be properly admitted.

“The police showed Aquino Neukam’s BMV photograph, not so that Aquino could identify an unknown assailant, but simply to confirm that the Anthony Neukam Aquino identified was the same person as the defendant. Under these circumstances, we cannot say that this identification was impermissibly suggestive,” wrote the judge.

The appellate court also found sufficient evidence to support Neukam’s convictions.

 

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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