Lottie v. State

• Decision Date: 10 June 1974
• Docket Number: No. 1173S243,1173S243
• Parties: Robert Earl LOTTIE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 800

311 N.E.2d 800

262 Ind. 124

Robert Earl LOTTIE, Appellant, v. STATE of Indiana, Appellee.

No. 1173S243.

Supreme Court of Indiana.

June 10, 1974.

John J. Roper, Chapleau, Roper, McInerny & Farabaugh, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

The defendant (appellant) was convicted of armed robbery ¹ in a trial to the court. He was sentenced to imprisonment for a period of twenty-five years. His appeal to this Court challenges the sufficiency of the evidence and the admission of evidence of a pre-trial photographic identification. It is not necessary for us to discuss the pre-trial identification issue, as we reverse the trial court by reason of the insufficiency of the evidence.

When the sufficiency of the evidence is the issue presented upon appeal, we look only to the evidence favorable to the State and all reasonable inferences to be drawn therefrom. Brown v. State (1974), Ind., 308 N.E.2d 699, Turner v. State (1972), Ind., 287 N.E.2d 339, Gibson v. State (1971), 257 Ind. 23, 271 N.E.2d 706, Fuller v. State (1971), 256 Ind. 681, 271 N.E.2d 720. Neither do we judge the weight of the evidence nor the credibility of the witnesses. Brown v. State (supra), Turner v. State (supra), Gibson v. State (supra), Fuller v. State (supra). However, every criminal conviction must be supported by evidence upon each material element of the crime charged, and that evidence must be such as will support the essential conclusions beyond a reasonable doubt. Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641, Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6, Vuncannon v. State (1970), 254 Ind. 206, 258 N.E.2d 639, Spears v. State (1970), 253 Ind. 370, 254 N.E.2d 203, Tom v. State (1973), Ind.,302 N.E.2d 494. We do not substitute our judgment for that of the trier of facts, if it can be said that the essential conclusions drawn were reasonable. But, if we determine that a reasonable man could not have drawn those essential conclusions from the evidence presented, then the evidence is insufficient as a matter of law, and under such circumstances it is our duty to reverse the judgment. Baker v. State (supra), Easton v. State (supra), Vuncannon v. State (supra).

The defendant, a young black male approximately five feet eight inches tall, was seen approximately fifteen minutes before the robbery took place. He was with three black companions at a high school in South Bend situated approximately four miles from the scene of the crime. He had a toothpick in his mouth, and one of his companions was wearing a brown checked shirt.

The victims of the robbery were Mr. and Mrs. Nowak, who operated a grocery store in South Bend. The robbers were three young black men. They entered the store, and as Mrs. Nowak began to serve them, one said 'Just hold it right where you are,' and the one alleged to be the defendant brandished a gun. Another forced Mr. Nowak to lie on the floor, while the armed one walked around the meat counter, had Mrs. Nowak show him how the cash register operated and proceeded to empty it. One of the robbers ordered Mr. and Mrs. Nowak to the basement, but before they reached the bottom of the steps, the armed one escorted Mrs. Nowak back upstairs to open the safe. She opened it and observed him empty it.

Altogether the robbers were in the Nowak store and their attached residence for about twenty minutes. Unfortunately, only Mrs. Nowak had an opportunity to observe them. She was in their presence during a substantial portion of that time. She testified at the trial that during the robbery she concentrated upon the one robber who had the gun and upon being able to identify him, to the exclusion of the other two. Immediately following the robbery, she described him as being black, about eighteen to twenty-one years old, about her height, which was five feet five inches, or a little shorter and as having a toothpick in his mouth during the robbery.

At a photographis identification session, she selected a photograph of the defendant from among five and said that it looked like him, 'except for the mouth.'

Mrs. Nowak's identifying testimony at the trial was also qualified. When asked if she saw in the courtroom the individual who had displayed the gun, she responded: 'Well in my opinion it is the individual sitting with Mr. Roper.' (Indicating the defendant.) The defendant was then required to stand close to Mrs. Nowak, and she was then asked if she was certain that he was the man who robbed her. Her reply was: 'Well the way he looks and everything he certainly does. His actions, his eyes and all, he does appear to be the same individual. However in standing up near him he looks a little taller than he did on the other side of the counter.' A little later in her interrogation, she was asked 'And then is it your opinion then that this defendant here appears to be the same man that robbed you on September 28, 1972?' She replied: 'Well he certainly does. Like I said he had a toothpick in his mouth, whether that made a difference in his lips. In just looking at him right now the upper lip looks like it goes out a little more than it did when he was standing there with a toothpick. And when I stood up to him there he appears to be a little taller but the eyes and nose looks to me like the same individual.' Mrs. Nowak then stated that she thought holding the toothpick in his mouth made his lips look a little different.

Mrs. Nowak further testified that another of the robbers was dressed in a green, brown and white plaid shirt. Conceivably, this could be a reference to the same shirt described by another witness as a brown checked shirt worn by one of the defendant's companions when seen at the school. Such a conclusion can be drawn, however, only by conjecture and speculation.

The evidence boils down to grounds for suspicion only. The defendant was seen at a time and location which would have permitted him to have traveled by automobile to the scene of the crime at the time of its occurrence. He was a black man in the company of other young black men. The only identifying testimony was equivocal and qualified. The witness was giving her opinion and this is all any identifying witness can do....