Dunsizer v. State, 27S00-8706-CR-575
| Decision Date | 24 May 1988 |
| Docket Number | No. 27S00-8706-CR-575,27S00-8706-CR-575 |
| Citation | 523 N.E.2d 409 |
| Parties | Douglas DUNSIZER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Charles H. Scruggs, Kokomo, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in a conviction of appellant of Robbery, a Class B felony, for which he received a ten (10) year sentence enhanced by ten (10) years for aggravating circumstances.
The facts are: On August 21, 1984, Patti Rice was working as a cashier and a clerk at the Handy Andy Convenience Store located in Marion, Indiana. At approximately 9:40 p.m., a man, later identified as appellant, came into the store and made a purchase. As Rice rang up his purchase, appellant produced a knife and robbed Rice of the cash in the register. Rice described appellant as having a big scar with stitches still in it over his right eye, wearing a white T-shirt with blue jeans and a blue jean jacket, and having a "pudgy belly."
Rice was taken to the police station and shown an array of photographs which did not include appellant. She was unable to identify the robber from those photographs. The next day Rice was asked to view a lineup of five people. She identified appellant as the man who robbed her. She particularly noted the sutured scar above his right eye.
Appellant filed notice of alibi naming other locations where he claimed to be at the approximate time of the robbery. Appellant contends trial counsel's defense did not satisfy the standards set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Appellant claims trial counsel was incompetent because he stated there would be alibi evidence yet he rested appellant's case without calling a single witness or introducing any evidence at all of alibi. Appellate counsel makes no reference to any possible evidence which was omitted by trial counsel.
Although trial counsel did file an alibi notice which stated "he was at his sister's house 1216 South Boots Street, or the Hi-Hat at 1026 South Washington Street, or in between the two stated places, or to Jonesboro and back, at the time of the robbery," there is no claim by appellant that this alibi could have been proven by any omitted witness. In the absence of such a claim, we must presume that in spite of his preliminary statement to the jury that he would prove alibi, defense counsel was unable to present a witness who could establish the alleged facts. Unless shown to the contrary, we must presume that counsel acted competently. Elliott v. State (1984), Ind., 465 N.E.2d 707.
Appellant also claims trial counsel was incompetent in that he allowed Detective David Stephenson to be questioned concerning his matching of the description given by the victim of the robbery with police record photographs. The officer testified that appellant best fit the description they had been given and that his police record indicated his height to be five eleven and his weight to be one hundred eighty pounds. Appellant argues that to allow the police officer to so testify violated State v. Clanton (1982), Ind.App., 441 N.E.2d 44, in that it is tantamount to introducing a mug shot which indicates that appellant has a prior police record. Although appellant's trial counsel might well have proposed a valid objection to such testimony, we cannot say the failure to do so was incompetent.
At that stage of the proceeding, trial counsel's strategy might well have been to ultimately place appellant on the witness stand, in which case he would of course have been faced with his prior record. For counsel to have made a big issue at that time by trying to block testimony as to his client's police record, might well have served to accentuate such record to the detriment of his client. Defe...
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Splunge v. State
...to the arrest for the crime at issue in the trial. Id.; see also Ratcliffe v. State (1990), Ind., 553 N.E.2d 1208, and Dunsizer v. State (1988), Ind., 523 N.E.2d 409. However, where a photograph has been likely to imply to the jury that the defendant has a prior record, it has been held to ......
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Sylvester v. State
...photograph was not objectionable because nothing on it indicated to the jury that he had a prior criminal record. Dunsizer v. State (1988), Ind., 523 N.E.2d 409. We find no reversible error in the admission of the photographic lineup or Bukowski's in-court identification of Appellant argues......