Farris v. State

• Decision Date: 22 November 2004
• Docket Number: No. 30A04-0402-CR-69.,30A04-0402-CR-69.
• Citation: 818 N.E.2d 63
• Parties: Troy S. FARRIS, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

818 N.E.2d 63

Troy S. FARRIS, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 30A04-0402-CR-69.

Court of Appeals of Indiana.

November 22, 2004.

Transfer Denied January 27, 2005.

Nicole A. Zelin, Greenfield, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Daniel Jason Kopp, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Judge.

Troy S. Farris was found guilty of robbery, a Class C felony, following a jury trial. Farris now appeals. We affirm.

Issues

Farris raises three issues for our review, which we consolidate and restate as:

1. Whether the trial court properly excluded two of Farris' witnesses from testifying at his trial; and

2. Whether the trial court properly admitted into evidence three photo arrays that had been used to identify Farris as the offender.

Facts and Procedural History

On October 31, 2002, sometime around 11:45 p.m., Farris entered the Wood's Citgo gas station located in Hancock County, Indiana. The only employee working that night was Traci Guzman. With Traci was her daughter, Alicia Guzman, who was also an employee but was not working that night. Traci was standing at the cash register and Alicia was sitting behind Traci facing the counter when Farris entered the store. Farris approached the cash register and attempted to purchase some gum. Farris was wearing a baseball cap and a red, hooded sweatshirt with the hood pulled up over the baseball cap. Farris demanded that Traci give him the money in the cash register. Traci at first thought Farris was joking and refused. Farris then put his hand into the front pocket of his sweatshirt and pointed what appeared to be a gun at Traci. Farris more forcefully stated to Traci, "Give me your money, bitch." Transcript at 36. Traci opened the cash register and gave Farris the money. Farris then exited the gas station. All of these events were captured on the gas station's surveillance cameras. Traci called the police, but they were unable to find Farris. Farris was later arrested in Marion County for another unrelated crime.

Early in the morning on November 1, 2002, both Traci and Alicia provided the police with tape-recorded statements of what transpired. Their descriptions of the offender and the robbery itself were substantially similar. On November 7, 2002, Traci and Alicia went to the Hancock County Sheriff's Department and separately identified Farris from a photographic array as the man who robbed the Wood's Citgo on October 31. Farris was subsequently charged with robbery, a Class C felony.

At Farris' trial, Traci and Alicia both testified to the foregoing facts and identified Farris in court as the offender. Traci and Alicia's testimony was supported by the gas station's surveillance video, which the State compiled into a DVD and showed to the jury. Farris' counsel thoroughly cross-examined both Traci and Alicia. During Traci's testimony, the State sought to have admitted into evidence the photo arrays that had been used on November 7 to identify Farris. In the corner of these photo arrays was printed the words "Indianapolis Police Department." The State had apparently attempted to redact these words by whiting them out, but the words could still be read from the back of the documents. Farris' counsel had filed a motion in limine prior to trial that sought to bar any mention of the fact that the photo arrays had been obtained from the Indianapolis Police Department. Based on this, Farris' counsel objected to the admission of the photo arrays, but the trial court overruled the objection and the jury was allowed to keep the photo arrays during their deliberations.

During the presentation of Farris' case, he presented an alibi defense. His counsel also sought to have Dr. Roger Terry testify as an expert witness on eyewitness identification. The State objected to Dr. Terry's testimony, arguing it was inadmissible under Indiana Evidence Rules 702 through 704. Farris made an offer to prove, but the trial court excluded Dr. Terry from testifying pursuant to Indiana Evidence Rule 704(b).

On the last day of trial, Farris' counsel attempted to call Floyd Meeks, the owner of Wood's Citgo, to testify. Meeks had not been listed on either Farris' or the State's witness lists, but had been listed as a material witness on the State's charging information. The State objected to having Meeks testify, arguing that his testimony was not relevant and that he had been present in the courtroom throughout the trial while a separation of witnesses order was in place. Farris again made an offer to prove, but the trial court excluded Meeks because his testimony would violate the separation of witnesses order and because he had not been listed on Farris' witness list.

The jury found Farris guilty of robbery, and the trial court sentenced him to eight years. This appeal ensued.

Discussion and Decision

I. Standard of Review

Farris argues that the trial court abused its discretion when it excluded two of his witnesses from testifying and when it admitted into evidence the photo arrays that had been used to identify him as the offender. The admission or exclusion of evidence is a determination entrusted to the discretion of the trial court. Turner v. Board of Aviation Comm'rs, 743 N.E.2d 1153, 1165 (Ind.Ct.App.2001), trans. denied. We will reverse a trial court's decision only for an abuse of discretion. Id. An abuse of discretion occurs when the trial court's action is clearly erroneous and against the logic and effect of the facts and circumstances before it. Id. When evidence is erroneously excluded, reversal is only required if the error relates to a material matter or substantially affects the rights of the parties. Id.

II. Exclusion of Witnesses

Farris first contends that the trial court abused its discretion when it excluded Dr. Roger Terry and Floyd Meeks from testifying. We disagree.

A. Dr. Roger Terry

Farris attempted to call Dr. Terry to testify as an expert witness on eyewitness identification. The State objected to Dr. Terry's testimony, arguing that it was inadmissible under Indiana Evidence Rules 702 through 704. Farris made an offer to prove. Without the jury present, Dr. Terry testified to various psychological phenomena that might cause an eyewitness to misidentify a suspect. The trial court found that Dr. Terry was qualified to testify as an expert, but ruled that his testimony was inadmissible under the Indiana Rules of Evidence.

Indiana Evidence Rule 704(b) provides that "[w]itnesses may not testify to opinions concerning ... whether a witness has testified truthfully...." During Farris' offer to prove, Dr. Terry concluded, "[w]ell my opinion is that there are enough potential sources of error, either obvious or implied in those witnesses['] statements to make me question the veracity of those statements...." Tr. at 202. This testimony by Dr. Terry was his opinion as to whether Traci and Alicia testified truthfully. The trial court did not abuse its discretion by finding testimony of this nature inadmissible under Indiana Evidence Rule 704(b).

The trial court also properly found that Dr. Terry's testimony was inadmissible under Indiana Evidence Rule 702. Indiana Evidence Rule 702(a) provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Although the trial court did not explicitly state that Dr. Terry's testimony was inadmissible under Indiana Evidence Rule 702, it did at length state:

In reviewing the matter the jury has before it two eyewitnesses who observed the acts of the night in question face to face. There is an independent video tape that corroborates the witnesses proximity to the person that they claim to identify. Both witnesses have independently viewed a photo lineup provided by the police and picked out the Defendant. At least one of the witnesses has viewed a photo array provided to her by one of the defense attorneys and she identified the Defendant in that photo array. Then both witnesses identified the Defendant in open Court and the Court had instructed the jurors that when they review this evidence that the witnesses have, that the jury should consider the testimony of any witness. They should take into account her ability and opportunity to observe, manner and conduct of the witness while testifying, any interest, bias or prejudice the witness may have, any relationship with other witnesses or interested parties and the reasonableness of the testimony considered in light of all of the evidence in the case.

Tr. at 202-03. Based on this statement, the trial court appears to have found that, pursuant to Indiana Evidence Rule 702, Dr. Terry's testimony would not assist the jury in considering the evidence already presented. We have previously stated that "[w]hile expert testimony is surely helpful in many cases, it will be truly necessary in far fewer instances." Reed v. State, 687 N.E.2d 209, 213 (Ind.Ct.App.1997). We concluded that "[t]he concept that eyewitness identification is flawed or subject to serious question in a particular instance may be placed within the jury's realm of understanding by careful cross-examination and by counsel's argument to the jury." Id. at 213-214. The trial court here found that based on the evidence presented and Farris' cross-examination of Traci and Alicia, Dr. Terry's testimony was not necessary to place the concept of eyewitness misidentification within the jury's realm of understanding. This was a valid ground for excluding Dr. Terry from testifying.

However, our supreme court has determined that eyewitness identification expert testimony is admissible in certain circumstances. The court has stated that "the circumstances under which expert eyewitness...