Gibson v. State

• Decision Date: 12 April 1999
• Docket Number: No. 27A02-9802-CR-162,27A02-9802-CR-162
• Citation: 709 N.E.2d 11
• Parties: David W. GIBSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 11

709 N.E.2d 11

David W. GIBSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 27A02-9802-CR-162.

Court of Appeals of Indiana.

April 12, 1999.

Eugene C. Hollander, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Chris Worden, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RATLIFF, Senior Judge

STATEMENT OF THE CASE

Defendant-Appellant David W. Gibson ("Gibson") was tried by jury and appeals his conviction of robbery while armed with a deadly weapon, a Class B felony. Ind.Code § 35-42-5-1(2).

We affirm.

ISSUE

Gibson raises the following restated issue: whether he received ineffective assistance of trial counsel because his counsel failed to object to certain identification testimony and failed to object to references to Gibson's prior criminal record.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to the verdict reveal that on March 31, 1997, Benjamin Williams of the Marion Police Department was working security at the Marion Public Library when he saw Gibson, a black male, heading south through the library parking lot at 9:00 p.m. Williams was walking outside with members of the library staff at closing time when he observed Gibson, who was wearing a red jacket, pass within five feet of Williams.

At approximately 9:00 p.m. a black male entered the Handy Andy convenience mart, which was located south of the Marion Public Library. As the black male paid for his soda, Scott Hargrave, the clerk, asked the man if he wanting anything else. The man replied that he wanted the money in the register. Hargrave asked the man if he was joking, and the man showed him a foot-long knife. The man, who was wearing a gray sweatshirt with a hood and a red jacket over it, repeated his demand for the money in the register. Because of the way 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 robbery.

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.

At trial Gibson presented the testimony of Anthony Dewayne Smith to support his alibi defense. Smith testified that Gibson was at Smith's apartment watching the final game of the NCAA basketball tournament at the time of the robbery.

DISCUSSION AND DECISION

I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Claims involving an allegation of the denial of the Sixth Amendment right to effective assistance of counsel are evaluated by using the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999). An appellant must show both deficient performance and resulting prejudice in order to prevail on an ineffective assistance of counsel claim. Id. A deficient performance is a performance that falls below an objective standard of reasonableness. Id. Prejudice exists when a defendant shows there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.

Even if the defendant succeeds in showing a reasonable probability the results would have been different, he also must show that his conviction was fundamentally unfair or unreliable. See Williams v. State, 706 N.E.2d 149, 154 (Ind.1999). A fair trial has been denied a defendant when his conviction or sentence has resulted from a breakdown in the adversarial process which rendered the result unreliable. Id.

There is a strong presumption that counsel rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment, and the burden falls 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.

A. IDENTIFICATION TESTIMONY

Gibson contends that his trial counsel was ineffective because he did not object to the identification testimony of Investigator Johnson. Prior to trial Gibson's attorney filed a motion in limine seeking to prevent the testimony of police officers who had viewed the videotape of the suspect and who believed that Gibson was the person who robbed Handy Andy's.

Gibson's attorney had argued in his motion that once the videotape was admitted, it became substantive evidence, a silent witness, and that a police officer's testimony concerning what was depicted in the videotape would be inappropriate. He cited to Groves v. State, 456 N.E.2d 720 (Ind.1983) in support of that argument. ¹ Gibson argued that the jury should decide if the person depicted in the videotape and Gibson were the same person. The State argued that under Ind.Evidence Rule 701 the officer's testimony was permissible as opinion testimony by a lay witness. The trial court denied Gibson's motion in limine. Gibson's attorney did not object at trial when the police officer's identification testimony was presented.

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...