Barnes, J.
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On October 31, 2015, Margaret Schuerger was at home in her sorority house on Purdue University’s campus in Tippecanoe County. At approximately 10:30 p.m., she took a shower. While she was in the shower, Schuerger noticed someone standing outside the obscure-glass shower door. Although Schuerger could not see the person in detail, she could tell the figure was tall and dressed in dark clothing. …
Officers from the Purdue University Police Department (“PUPD”) arrived and searched the area around the sorority house. … observed Albee in the parking lot adjacent to Schuerger’s sorority house and detained him. Officers then accompanied Schuerger to the parking lot and asked her if she could identify “the suspect,” Albee, as the man she saw in her house.
Schuerger observed Albee from approximately thirty yards away. … handcuffed, and there were at least six police officers around him. … Albee was illuminated by the spotlight from one of the police cruisers. … a police officer also took a picture of him with a digital camera and took it to Schuerger to view. Schuerger was not completely sure Albee was the man she saw in her house … the officers asked Schuerger to go to the police station to view Albee in better lighting.
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The officers took photographs of Albee … and asked Schuerger to identify him from the digital image on the camera’s screen. The officers did not compile a photo array or organize a lineup. Schuerger identified the image of Albee on the camera as the man she saw in her house.
The State charged Albee with voyeurism, a Class B misdemeanor; voyeurism, a Level 6 felony; residential entry, a Level 6 felony; and with an habitual offender enhancement. Albee filed a motion to suppress Schuerger’s identification of him, and the trial court denied that motion. … On May 19, 2016, the trial court sentenced Albee to an aggregate sentence of two years in the Department of Correction. …
Albee contends the trial court abused its discretion by admitting testimony regarding Schuerger’s pretrial and in-court identifications of him. …
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…Based on the totality of the circumstances in this case, we conclude the manner in which the PUPD conducted the show-ups was unnecessarily suggestive.
We next turn our attention to the reliability of Schuerger’s eventual identification. Schuerger testified during the suppression hearing that she only observed the reflection of the man in her bedroom “for a couple of seconds.” …
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… We conclude that Schuerger’s eventual identification of Albee was not reliable. Therefore, the unnecessarily-suggestive show-up violated Albee’s right to due process.
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… The trial court abused its discretion by admitting both Schuerger’s pretrial and in-court identifications of Albee.
Whether double jeopardy permits Albee’s retrial depends on the sufficiency of the evidence. “When deciding whether retrial is permissible, we consider all of the evidence admitted by the trial court, including any erroneously admitted evidence.” Harmon v. State, 849 N.E.2d 726, 735 (Ind. Ct. App. 2006). …
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The circumstances surroundings Schuerger’s pre-trial identification of Albee were unnecessarily suggestive, and those identifications were so unreliable that Albee’s right to due process was abridged when the trial court admitted his identifications into evidence. The evidence as a whole, however, was sufficient to support Albee’s convictions for voyeurism and residential entry. Retrial would not offend double jeopardy principles.
Reversed.
Kirsch, J., and Robb, J., concur.