ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
EUGENE C. HOLLANDER JEFFREY A. MODISETT
Indianapolis, Indiana Attorney General of Indiana
Deputy Attorney General
DAVID W. GIBSON, ) ) Appellant-Defendant, ) ) vs. ) No. 27A02-9802-CR-162 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
the man was wearing his sweatshirt hood, Hargrave could not see the man's hair or ears.
However, Hargrave could see that the man had a mustache and a patch of hair on his chin.
After some difficulty, Hargrave opened the register and gave the man some money from the
register. The man left the convenience mart and Hargrave made a 911 call to report the
John Shepard and his girlfriend, Kathy Brooks, were in their car in the parking lot of the Handy Andy at the time of the robbery. Shepard, who had served time in jail with Gibson, saw Gibson leave the store. Shepard went into the store and was told by Hargrave that Hargrave had just been robbed.
The Handy Andy convenience mart had a surveillance camera in the store. Chester Lee Johnson, an investigator with the Marion Police Department, along with several other detectives, watched the videotape of the robbery. Johnson, who was a friend of Gibson's older brother, knew Gibson since they were in middle school and had seen Gibson a few times since then. Johnson was positive that the individual on the videotape was Gibson. He based that opinion on his familiarity with Gibson's build, style of speech, voice and bow- legged manner of walking.
Hargrave viewed both a photo array and lineup. Hargrave selected Gibson as the person who looked like the man who robbed the store. Hargrave indicated that he could not be absolutely certain of the identification because he had not seen the robber's ears or hair. However, Hargrave indicated that nothing about Gibson's appearance ruled him out as the robber.
on the appellant to overcome that presumption. Sada v. State, 706 N.E.2d 192, 198 (Ind. Ct.
App. 1999). Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do
not necessarily amount to ineffective counsel unless, taken as a whole, the defense was
inadequate. Id. at 199.
Gibson's attorney did not object at trial when the police officer's identification testimony
On appeal, Gibson argues that had his attorney objected to the identification testimony of Investigator Johnson, the testimony would have been suppressed. Gibson argues that under the silent witness theory it was inappropriate to allow Johnson's testimony, and that his attorney's failure to object to that testimony amounts to the ineffective assistance of trial counsel.
Evid. R. 701 provides as follows:
If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.
Our supreme court addressed the admissibility of opinion testimony of lay witnesses in Weaver v. State, 643 N.E.2d 342, 345 (Ind. 1994). The underlying events which took place in Weaver occurred prior to the adoption of the Indiana Rules of Evidence in 1994. However, the supreme court discussed Evid. R. 701, since their review of the case occurred after the adoption of the rules, and concluded that the same result would obtain under the new rules of evidence. Id.
In Weaver, the supreme court upheld the trial court's decision to prevent the victim's lay opinion testimony as to the defendant's motivation for attempting to murder, confine and batter her. The defendant had raised a voluntary intoxication defense to negate his ability to form intent to commit the crimes. The defense sought to introduce the victim's opinion
about whether the defendant intended to kill her. The trial court excluded that opinion
testimony, but allowed the victim to testify about what happened and let the jury draw its
own conclusions. The supreme court agreed with the trial court's decision. Weaver, 643
N.E.2d at 345. The court held that the testimony was not objectionable merely because intent
was an ultimate issue to be decided by the trier of fact, but because opinion testimony
concerning intent or legal conclusions is not admissible. See Evid. R. 704(a) & (b).
In Kent v. State, 675 N.E.2d 332 (Ind. 1996), the defendant was convicted of the murder of a child. The child's mother, who had left the child in the care of the defendant, called for help when she discovered after returning home that her child was not breathing. An officer who arrived at the scene in response to the call for help observed the defendant roughly thrusting on the child's abdomen. The defense attempted to elicit testimony from the officer that the defendant's actions were efforts to revive the child. The prosecution elicited opinion testimony from the officer that the defendant's actions were consistent with inflicting harm to the child. The officer further testified that in his opinion the child's injuries were not sustained as the result of an accident as the defense had proposed.
The supreme court, in affirming the conviction, held that the trial court properly allowed the officer's testimony under Evid. R. 701. Id. at 339. The officer could testify about his opinion based on his own observations. Id. The conclusions he reached, though not expert, helped to explain his own testimony. Id.
We held, in Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App. 1997), that an opinion under Evid. R. 701 is rationally based, for purposes of the rule, if it is one that a
reasonable person normally could form from the perceived facts. An opinion is helpful, for
purposes of the rule, if the testimony gives substance to facts which were difficult to
In Mariscal, an eyewitness to a stabbing was allowed to testify under Evid. R. 701 about injuries he believed the defendant inflicted upon himself during an altercation. The eyewitness was a security guard, reserve police officer, part-owner of a martial arts business, and teacher of combative arts. He also had refereed several combat tournaments. The eyewitness was allowed, based upon his own observations, to explain his testimony that some of the stabbing motions missed their mark, and to give his opinion that the motions must have resulted in injuries to the defendant.
While these cases have addressed the admissibility of opinion testimony of lay witnesses under Evid. R. 701, who also were eyewitnesses to the crimes charged, none of those cases addressed the issue of allowing lay opinion testimony by a person who is not an eyewitness to the crimes charged concerning the identity of a person who is depicted in a surveillance videotape. In other cases we have looked to the Seventh Circuit for guidance when the text of the state rule of evidence is identical to its federal counterpart. See Pirnat v. State, 612 N.E.2d 153, 155 (Ind. Ct. App. 1993). The Seventh Circuit has interpreted Fed. R. Evid. 701 to permit a witness to offer an opinion on the identity of an individual in a surveillance video or a photograph, as long as there is a basis for finding that the witness has superior ability to identify the defendant than the jury. U.S. v. Stormer, 938 F.2d 759, 762 (7th Cir. 1990).
line-up which included a photograph of Gibson at the jail wearing jail clothes.See footnote
claims that he was prejudiced by his attorney's failure to object to this evidence.
Gibson's attorney decided to call Gibson as a witness at trial. The State contends that Gibson's attorney was not ineffective for failing to object to prior criminal history evidence because under Ind. Evidence Rule 609, Gibson's two theft convictions were available for impeachment purposes as crimes involving dishonesty or false statement. See Fassoth v. State, 525 N.E.2d 318, 322 (Ind. 1988).
Officer Williams' testimony was that he had booked Gibson before. Officer Williams made no reference to the crime committed which led to Gibson being booked by Williams. The State elicited the same information from Gibson during cross-examination of Gibson.
Gibson's counsel also attempted to present a mistaken identity defense. Part of that defense depended upon referring to Gibson's prior criminal record. Kathy Brooks testified for the defense that John Shepard told her that the person she saw coming out of Handy Andy's was the same person she had spoken with at a Christmas holiday food handout at the local coliseum. She testified that the people handing out the food were inmates.
In his opening statement Gibson's attorney stated that Brooks remembered speaking to the person she now believed was the robber at the food giveaway she attended, but that records of which inmates worked as part of the crew handing out the food indicated that
while Gibson was a member of the work crew, he did not work as part of the crew giving
away food at the coliseum on that occasion.
The supreme court has held that on appeal we may not second-guess strategic decisions requiring reasonable professional judgment even if the strategy or tactic, in hindsight, did not best serve the defendant's interests. State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997). In the present case, counsel decided to call Gibson, who did have a prior criminal record, as a witness in his own defense. Brooks, another defense witness testified that she thought the robber was a former inmate she had spoken to at a food giveaway. The theory of the defense was that Gibson was somewhere else at the time of the robbery, and that he was identified by Shepard mistakenly.
In light of the fact that Gibson's attorney attempted to use his criminal history to Gibson's advantage, we cannot say that Gibson's attorney's failure to object to other references made to Gibson's prior criminal history constituted ineffective assistance of counsel.
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