Cohen v. State

Citation714 N.E.2d 1168
Decision Date05 August 1999
Docket NumberNo. 45A04-9809-CR-467.,45A04-9809-CR-467.
PartiesDaniel Joshua COHEN, Andre Dwight Glenn, and Nathan Randell Glenn, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana

Jeff Schlesinger, Appellate Public Defender, Crown Point, Indiana, Attorney for Appellant Daniel Joshua Cohen.

Charles E. Stewart, Appellate Public Defender, Crown Point, Indiana, Attorney for Appellant Andre Dwight Glenn.

Mark A. Bates, Appellate Public Defender, Crown Point, Indiana, Attorney for Appellant Nathan Randell Glenn.

Jeffrey A. Modisett, Attorney General of Indiana, Michael R. McLaughlin, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BROOK, Judge.

Case Summary

Appellants-defendants Daniel Joshua Cohen ("Cohen"), Andre Dwight Glenn ("Andre"), and Nathan Randell Glenn ("Nathan") appeal from their convictions for attempted murder, a Class A felony,1 and battery as a Class C felony.2

Issues

Nathan presents two issues for review, which we restate as follows:

(1) whether the trial court erred in admitting into evidence a copy of State's Exhibit B ("Exhibit B"), the photographic lineup containing Nathan's picture, used by the victim to identify him; and
(2) whether the trial court committed fundamental error in instructing the jury on accomplice liability and intent to kill.

Cohen presents one issue for review: whether the trial court erred in admitting into evidence a copy of State's Exhibit C ("Exhibit C"), the photographic lineup containing Cohen's picture, used by the victim to identify him.

Andre presents a single issue for our review: whether the State presented sufficient evidence to sustain his conviction for attempted murder and battery.

We raise one issue sua sponte: whether the trial court properly merged the Defendants' convictions of the lesser included offense of battery with their convictions of and sentences for the greater offense of attempted murder.

Facts and Procedural History

The facts most favorable to the judgment reveal that on the evening of May 9, 1998, Johnny Thomas ("Thomas") was working as a security guard for a gas station/mini mart located in Gary, Indiana. After his shift ended at approximately 12:20 a.m. on May 10, 1998, Thomas returned to his apartment building. Upon arriving home, Thomas went to Cohen's first-floor apartment and purchased $10.00 worth of crack cocaine from Cohen. Andre and Nathan were in Cohen's apartment during the purchase. After purchasing the crack cocaine, Thomas left Cohen's apartment, returned to his own apartment on the third floor, and smoked the cocaine. Afterwards, he returned to Cohen's apartment to purchase more cocaine.

After smoking the second batch of crack cocaine, Thomas left the apartment building to purchase some cigarettes. Upon returning to the apartment building, Thomas overheard Cohen tell Andre and Nathan, "That guy [Thomas] is snitching, I heard him talking with the landlord." As Thomas entered Cohen's apartment, Cohen came at him with a gun, causing Thomas to flee the apartment building. As Cohen chased Thomas, he fired a number of shots at him, yelling, "[D]ie motherfucker die."

Apparently, the Defendants ran to Cohen's car to chase after Thomas. Thomas ran to the gas station/mini mart where he worked and begged the night attendant to let him in. As he was pounding on the door, Thomas saw Andre and Nathan run a red light and pull into the gas station. Andre jumped out of the car, chased Thomas, grabbed him, pulled him to the side of the gas station, and held him down. Thomas broke free, but was tackled from behind by Cohen and Andre. After a struggle, Thomas was on his knees with Cohen holding one of his arms and Andre holding the other. Nathan, then standing in front of Thomas, placed the gun on the back of Thomas's head and fired. As Nathan pulled the trigger, Thomas moved forward, causing the bullet to strike him in the neck. He slumped to the ground as the Defendants ran off. After the police arrived, Thomas spoke with Officer Keith A. Eller ("Officer Eller") of the Gary Police Department ("GPD") until the ambulance arrived. Thomas informed the officer that "Bones, Jay, and Dre"3 had shot him.

On May 13, 1998, the State charged each of the Defendants by information as follows: Count I, attempted murder, a Class A felony, and Count II, battery as a Class C felony. On July 23, 1998, the State filed a motion to join Cohen's case with Andre's and Nathan's for trial. On August 3, 1998, the trial court granted the State's motion and consolidated the Defendants' cases.4

On August 3, 1998, a jury trial commenced. At trial, Thomas testified that while he was in the hospital, Sergeant Detective Phillip Pastoret ("Sgt.Pastoret") of the GPD had shown him two photographic lineups containing Nathan's and Andre's picture on May 12, 1998. Thomas testified that Exhibits A and B were in the same or similar condition to those that he had been shown in the hospital. Prior to the admission of Exhibits A and B, Nathan's asked Thomas preliminary questions, during which time he asked Thomas to describe the person in the bottom right corner of Exhibit A and to describe the person in the bottom left corner of Exhibit B. Thomas stated that he was unable to identify the persons because he had not memorized each individual in the photographic lineup. Nathan then objected to the admission of the photographic lineups, asserting that there was insufficient authentication. The trial court overruled this objection and admitted the photographs into evidence. Thomas then identified Andre from Exhibit A and Nathan from Exhibit B while looking at the photographic lineup.

The State then asked Thomas if he had been shown another group of photographs. Thomas testified that he viewed other photographs at his home after he was released from the hospital on June 12, 1998. Thomas was then shown Exhibit C, which he testified was in the same or similar condition to that which he had been shown at his home. Prior to the admission of Exhibit C, Cohen's counsel asked Thomas some preliminary questions about his signature on a June 12 statement, the day he viewed the photographic lineup. The signed statement indicated that Thomas had been shown the photographic array at the GPD. Thomas testified that he signed a statement at the time of viewing, but reaffirmed that he had never been to the GPD to view any of the photographic lineups. Cohen objected to Exhibit C being introduced into evidence on the basis of insufficient foundation. The trial court overruled the objection and admitted the photographic lineup into evidence. Thomas identified Cohen as one of the assailants from Exhibit C and also identified the Defendants in court as the assailants involved in his attack. At the conclusion of the State's case-in-chief, the Defendants moved for a directed verdict, arguing that the State had failed to carry its burden of proof. The trial court denied their motion. The trial court then discussed the final instructions. Nathan objected to the accomplice liability instruction because it did not state that the accomplices had to share the necessary mens rea to support a conviction for attempted murder. Nathan also objected to the intent-to-kill instruction, arguing that the instruction unduly emphasized the brutality of the attack. Although Nathan objected to the instructions, he did not have any suggested alternative written instructions to present to the trial court. The trial court overruled his objection.

On August 5, 1998, the jury returned guilty verdicts on Counts I and II against the Defendants. The trial court entered judgments of conviction upon both offenses; however, it merged the battery counts with the attempted murder counts, sentencing the Defendants only on the attempted murder counts. The trial court sentenced the Defendants as follows: on August 31, 1998, Andre was sentenced to twenty-five years; on September 2, 1998, Nathan was sentenced to thirty years; and on September 3, 1998, Cohen was sentenced to twenty-five years.

Discussion and Decision
I. Admissibility of the Photographic Lineup

A trial judge has broad discretion to determine the admissibility of photographic evidence, and we will not reverse the trial court's decision to admit such evidence absent an abuse of discretion. Salone v. State, 652 N.E.2d 552, 556 (Ind.Ct.App.1995), trans. denied. Under Ind. Evidence Rule 901, exhibits must be authenticated or identified prior to their admission into evidence. To establish a proper foundation for the admission of exhibits, there must be a "reasonable probability that the exhibit is what it purports to be and that its condition is substantially unchanged as to any material feature." Newman v. State, 675 N.E.2d 1109, 1111 (Ind.Ct.App.1996). Absolute proof of authenticity is not required. Id. A proper foundation for the introduction of physical evidence is laid if a witness is able to identify the item and the item is relevant to the disposition of the case. Bell v. State, 610 N.E.2d 229, 233 (Ind.1993).

A. Sufficiency of the Authentication of Exhibit B

Nathan asserts that the trial court committed reversible error in allowing Exhibit B into evidence because the State failed to lay an adequate foundation for its admission. In particular, Nathan argues that Thomas's testimony failed to sufficiently authenticate Exhibit B because he had not memorized all the faces of the individuals in the lineup and because he could not say that Exhibit B was the same or in substantially the same condition as it was when he first saw the lineup.

When the testimony of a witness is used to authenticate a photograph, the witness's failure to identify specific details or items in the photograph does not render it inadmissible. Hutchinson v. State, 515 N.E.2d 514, 515 (Ind.1987). Instead, a witness's uncertainty as to the specific details and items in the photograph goes...

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