Glotzbach v. State

Citation783 N.E.2d 1221
Decision Date28 February 2003
Docket NumberNo. 10A05-0207-CR-321.,10A05-0207-CR-321.
PartiesDennis R. GLOTZBACH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana

Dennis R. Glotzbach, Westville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Andrew A. Kobe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Dennis R. Glotzbach appeals his conviction for public indecency as a class D felony.1 Glotzbach raises two issues, which we expand and restate as:

I. Whether he received ineffective assistance of trial counsel by reason of failure to seek exclusion of identification evidence;

II. Whether the trial court committed fundamental error by admitting the evidence of identification, and;

III. Whether there is sufficient evidence to sustain his conviction for public indecency as a class D felony because committed in a public place where a child less than sixteen years of age was present.

We affirm.

The facts most favorable to the conviction follow. On March 16, 2000, seventeen-year-old Ashley Hutt was doing her math homework in the Jeffersonville Public Library. While she was working, she heard a funny noise. She looked up and saw a man masturbating. Hutt told library employee Charles Welch what she had seen. While speaking with Welch, Hutt pointed to a man who was walking out from between a couple of stacks. Welch attempted to follow the man, saying, "excuse me, sir" in an attempt to get his attention as he walked through the library. However, the man started walking faster and eventually exited the library. Welch followed him to the parking lot and saw him get into a Nissan Sentra with license plate number 10A193. The license plate number is registered to Glotzbach. The Jeffersonville Township Public Library Incident Form, completed by a member of the library staff on the day in question, described the perpetrator as a "[m]an approximately 30-40 with dark grayish hair; average male height. Wore a bright red plaid shirt with a black jacket; dark pants." State's Ex. 5.

Approximately one week later, Hutt identified Glotzbach's photograph from an array of four photographs. The State charged Glotzbach with public indecency as a class D felony. The jury found Glotzbech guilty as charged and the trial court sentenced him to three years in the Indiana Department of Correction.

I.

The first issue is whether Glotzbech received ineffective assistance of counsel. Here, Glotzbach claims that "[t]rial counsel improperly failed to file a motion to suppress the identification evidence, [and] failed to make a contemporaneous objection to the in-court identification." Appellant's Brief at 12. Ineffective assistance of counsel claims are governed by the two part test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),reh'g denied. See also Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001)

. According to this test, Glotzbach must first establish that his trial counsel's performance was deficient. Id. To demonstrate deficient performance, Glotzbach must show that his trial counsel's representation fell below an objective standard of reasonableness and that the errors were so serious that they resulted in a denial of Glotzbach's Sixth Amendment right to counsel. Id. Second, Glotzbach must demonstrate that the deficient performance prejudiced his defense. Id. In order to establish prejudice, Glotzbach must show that there is a reasonable probability that, but for his trial counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

When considering a claim of ineffective assistance of counsel, a "strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Morgan v. State, 755 N.E.2d 1070, 1072 (Ind.2001). Evidence of isolated poor strategy, inexperience, or bad tactics will not support a claim of ineffective assistance of counsel. Clark v. State, 668 N.E.2d 1206, 1211 (Ind.1996), reh'g denied, cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997). Moreover, when an appellant brings an ineffective assistance of counsel claim based upon trial counsel's failure to make an objection, the appellant must demonstrate that the trial court would have sustained a proper objection. Stroud v. State, 587 N.E.2d 1335, 1338 (Ind.Ct.App.1992), trans. denied. Further, the decision of whether to file a particular motion is matter of trial strategy, and, absent an express showing to the contrary, the failure to file a motion does not indicate ineffective assistance of counsel. Id.

First, Glotzbach argues that his trial counsel rendered ineffective assistance by failing to file a motion to suppress the photograph array which he claims was impermissibly suggestive. The array consisted of four photographs. The first was one taken of the defendant as he stood before a counter window in the police station. It was taken as he turned in response to an officer calling his name. The other pictures were each of a different man in front of the same counter window. Specifically, Glotzbach argues that the photograph array was unduly suggestive because: (1) the photograph array included only four photographs; (2) the other three subjects in the photographs were relaxed and posed while he appeared startled; (3) he was the only subject wearing a plaid shirt; (4) differences in height are apparent; and (5) the age of the subject in photograph number two was suggestive because he was obviously older than the other three subjects and was not likely to be identified.

Our review of the record indicates that, under the totality of the circumstances, the photograph array was not impermissibly suggestive. Moreover, we acknowledge that law enforcement officers are not required to "perform the improbable if not impossible task of finding four or five other people who are virtual twins to the defendant." Pierce v. State, 267 Ind. 240, 246, 369 N.E.2d 617, 620 (1977). Here, the distinctions which Glotzbach identifies are not so critical that they would likely lead to a misidentification. First, the fact that the photograph array contained no more than four photographs does not necessarily indicate that the photograph array was unnecessarily suggestive. See, e.g., Farrell v. State, 622 N.E.2d 488, 494 (Ind. 1993)

(stating that an array of fewer than five photographs does not render the testimony regarding the identification inadmissible per se). Further, all four photographs were taken in the same location and although Glotzbach's body is not directly facing the camera, like the other three subjects, his position in the photograph does not differ to the degree whereby the photograph array would be perceived as impermissibly suggestive. Moreover, although Glotzbach was the only subject wearing a plaid shirt, it was primarily blue and not "bright red" as specified in the perpetrator's description on the Jeffersonville Township Public Library Incident Form. State's Ex. 5. Lastly, the difference in the height, age, and build of the four subjects were minimal and were therefore not impermissibly suggestive.

Although he did not file a motion to suppress, trial counsel's cross-examination was calculated to raise doubts about the legitimacy of the photograph array at trial. As our supreme court has observed, "there is no one way to defend a particular defendant, and so a reviewing court must grant the trial attorney significant deference in choosing a strategy which, at the time and under the circumstances, he or she deems best." Potter v. State, 684 N.E.2d 1127, 1133 (Ind.1997). As such, trial counsel's decision not to file a motion to suppress was a matter of trial strategy. Moreover, Glotzbach has not demonstrated that the photograph array was impermissibly suggestive. Accordingly, he has failed to establish that, but for trial counsel's failure to file the motion to suppress, the result of the proceedings would have been different. See, e.g., Stroud, 587 N.E.2d at 1338

(holding that defendant failed to demonstrate that trial counsel's failure to file a motion to suppress amounted to ineffective assistance of counsel).

Glotzbach also argues that his trial counsel rendered ineffective assistance because he failed to make a contemporaneous objection to the admission of the photograph array at trial. When an appellant brings an ineffective assistance of counsel claim based upon trial counsel's failure to make an objection, the appellant must demonstrate that the trial court would have sustained a proper objection. Id. at 1338. As we have previously mentioned, Glotzbach has failed to prove that the photograph array was impermissibly suggestive. As such, he has not established that the trial court would have sustained an objection to the admissibility of the photograph array. Moreover, Glotzbach has not demonstrated that, but for trial counsel's failure to make a contemporaneous objection, the result of the proceedings would have been different. See, e.g., Grigsby v. State, 503 N.E.2d 394, 396 (Ind.1987)

(holding that trial counsel's representation did not amount to ineffective assistance of counsel where he failed to object to one of the trial court's final instructions). Accordingly, Glotzbach has failed to establish that his trial counsel's performance was ineffective.

II.

The second issue is whether the trial court committed fundamental error by admitting the evidence of identification. As we know, Glotzbach did not object to the admission of the identification evidence at trial and such a failure normally results in waiver of the issue on appeal. Oberst v. State, 748 N.E.2d 870, 874 (Ind.Ct.App. 2001),trans. denied. Glotzbach argues that the admission of the identification...

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