Wade v. State, 49A02-9806-CR-538.

• Citation: 718 N.E.2d 1162
• Decision Date: 05 November 1999
• Docket Number: No. 49A02-9806-CR-538.,49A02-9806-CR-538.
• Parties: Travis WADE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

718 N.E.2d 1162

Travis WADE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-9806-CR-538.

Court of Appeals of Indiana.

November 5, 1999.

Rehearing Denied December 14, 1999.

Ann M. Skinner,¹ Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, James A. Garrard, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant, Travis Wade (Wade), appeals his conviction for Robbery, a Class B felony, Ind.Code § 35-42-5-1, and two counts of confinement, Class B felonies, Ind.Code § 35-42-3-3. Wade also appeals the trial court finding him to be a habitual offender pursuant to Ind. Code § 35-50-2-8.

We affirm.

ISSUES

Wade presents three issues for our review, which we restate as follows:

1. Whether Wade's due process rights were violated when the State failed to preserve his vehicle as evidence.

2. Whether the photo array shown to the identifying witness was unduly suggestive and whether the in-court identification was improper.

3. Whether the habitual offender statute was violated when the original jury was released and whether there was sufficient evidence to find that Wade violated the habitual offender statute.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to Wade's convictions are as follows. On December 16, 1995, Wade entered the Indianapolis Treatment Center, a center which dispenses methadone to the chemically dependent, and stood in line. Upon reaching the front of the line he placed a note demanding money on the counter and drew a gun. He then kicked open a door, gaining entrance to the interior offices. Inside, Wade pointed a gun at nurse Amy Stephens and ordered her to fill a pillow case with the center's money. He threatened to shoot her if she did not comply. Wade then kicked open a door to counselor Wayne Rainey's (Rainey) office, pointed his gun at Rainey's face and demanded to be let out a side door. He then jumped in a four-door sedan and was driven across the parking lot to another car. Rainey walked out of the building and saw Wade drive off in a black Camaro.

Wade was arrested on January 17, 1996, while driving his black Camaro and the car was impounded. He was charged with robbery, a Class B felony, Ind.Code § 35-42-5-1, two counts of criminal confinement, Class B felonies, Ind.Code § 35-42-3-3, and carrying a handgun without a license, a Class A misdemeanor. He was also separately charged with carrying a handgun without a license as a Class C felony. Finally, he was charged on a separate page with being an habitual offender. Ind.Code § 35-50-28.

On March 2, 1998, he was tried on the charges of robbery, two counts of criminal confinement, and carrying a handgun without a license. He was convicted of robbery, a Class B felony, and two counts of criminal confinement, Class B felonies. He was acquitted of carrying a handgun without a license, a Class A misdemeanor, and subsequently the Class C felony enhancement was dismissed. On April 28, 1998, a new jury tried him for the habitual offender charge and found him to be an habitual offender.

Wade was sentenced to twenty years on the robbery conviction which was enhanced by thirty years due to his habitual offender status. He was sentenced to twenty years on one of the confinement convictions, to run concurrently with the robbery. He was sentenced to ten years on the other confinement conviction, to run consecutive to the robbery. Wade's total sentence was sixty years.

DISCUSSION AND DECISION

I. Failure to Preserve Evidence

Wade asserts that his due process rights were violated because the State failed to preserve his vehicle, which he claims was potentially exculpatory evidence. On January 17, 1996, Wade was arrested while in his vehicle, a black Camaro, and the car was impounded. The vehicle was subject to forfeiture proceedings which were initiated on September 3, 1996. A default judgment was entered against Wade in the forfeiture proceeding on February 6, 1997, and the vehicle was sold by the State on May 15, 1997. On November 10, 1997, Wade filed a motion for discovery requesting the State produce the vehicle for inspection. The trial court granted this motion on November 12, 1997. However, on November 21, 1997, the State responded and indicated that the vehicle had been forfeited and sold. Thereafter, on November 24, 1997, the trial court released the State from its obligation to produce the automobile concluding that the vehicle was subject to a proper forfeiture action. Wade's subsequent motion to compel was denied.

Wade claims that he needed access to the vehicle in order to have it professionally photographed and videotaped. Wade contends that this evidence was important because it would have contradicted the testimony of Rainey. Rainey described the vehicle as a black Camaro, needing a paint job around the wheel well and fender wells, with a gold racing stripe around the bottom of the car, a gold highlighted raised hood flap or inlets, and a scuff mark on the back bumper with some rust. Wade disputes that Rainey's description was of his vehicle. Wade claims that his car was a black Camaro, with t-tops, gold iron wheels, a black hood, and a bra on front covering front end damages around the headlights. Wade's description was supported by the testimony of Wade's mechanic, Larry Bowling.

Whether a defendant's due process rights have been violated by the State's failure to preserve evidence depends on whether the evidence in question was "potentially useful evidence" or "material exculpatory evidence." Samek v. State, 688 N.E.2d 1286, 1288 (Ind.Ct.App. 1997), reh'g denied, trans. denied, (citing to Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988)). In order to prove a violation of his due process rights when the evidence in question is merely potentially useful evidence, Wade must show that the State's failure to preserve the evidence was committed in bad faith. Id. However, when the evidence in question is "material exculpatory evidence," the State's good or bad faith in failing to preserve the evidence is irrelevant. Id.

Potentially useful evidence is "evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). Material exculpatory evidence has been defined as evidence which "possess[es] an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984).

Wade asserts that his black Camaro was "potentially exculpatory" evidence because if the jury had been allowed an opportunity to view the actual vehicle or allowed to view professional photographs or videotape of the vehicle, Wade would have been able to impeach Rainey's description. Wade did offer into evidence one photograph of his vehicle, which he claims was of poor quality. Assuming that the actual vehicle would have better matched the description testified to by Wade's mechanic rather than the description offered by Rainey, the evidence still would not have been exculpatory. "Exculpatory is defined as `[c]learing or tending to clear from alleged fault or guilt; excusing.' " Samek, 688 N.E.2d at 1288 (citing BLACK'S LAW DICTIONARY 566 (6th ed.1990)). Therefore, even if Wade had been able to present professional photographs or a videotape of the vehicle or if the jury was allowed to see the vehicle, at best this evidence would only discredit Rainey's description but it would not clear Wade from guilt.

Thus, the evidence at issue was at most "potentially useful evidence" and as such Wade must show that the State's failure to preserve the evidence was committed in bad faith. Id. "Bad faith is defined as being `not simply bad judgment or negligence, but rather implies the conscious doing of wrong because of dishonest purpose or moral obliquity.'" Id. at 1289 (citing BLACK'S LAW DICTIONARY 139 (6th ed.1990)). The record reveals that Wade's vehicle was subject to a forfeiture action in which a default judgment was issued against him. Wade did not even request the production or inspection of the vehicle until November 10, 1997, over nine months after the default judgment was entered. Further, the vehicle was not destroyed, rather it was sold to Top Cat Motor Company. Wade made no significant showing that he was unable to locate the new owner of the vehicle for the purposes of photographing or videotaping the vehicle. Moreover, because Wade did not request an inspection of the vehicle until almost twenty-two (22) months after his arrest, there was no way of assuring that the vehicle was in the same condition as it would have been at the time of the robbery. Any delays in requesting inspection of the vehicle or responsibility for failure to respond to the forfeiture action lie with Wade. Accordingly, there was no showing that the State's failure to preserve the vehicle was in bad faith.

II. Photo Array and In-Court Identification

Wade contends that the photo array shown to witness Amy Stephens (Stephens) was unduly suggestive because his large forehead and bushy mustache made him stand out from the others in the photo array. "Due process of law requires suppression of testimony concerning an out-of-court identification when the procedure employed was unnecessarily suggestive." Johnson v. State, 659 N.E.2d 194, 197 (Ind.Ct.App.1995). In determining whether a photo array is unduly suggestive as to create a danger of an irreparable mistaken identification, the totality of the circumstances of the case is reviewed. Id. The factors to be considered include: (1) the opportunity of the...