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Court agrees on ID standard, split on 'injury'

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Requiring police identifications to be recorded isn't a standard the Indiana Court of Appeals is willing to adopt at the moment.

A three-judge appellate panel agrees on that issue, but in a ruling today those judges disagree on a separate appeal claim about a victim's punch to the face.

In Henry Lewis v. State,  No. 49A04-0804-CR-218, the judges found that Marion Superior Special Judge Mark Renner didn't abuse his discretion in admitting photo array evidence during Lewis' jury trial on burglary and robbery charges in February 2008. A witness Lewis was accused of punching in the face identified Lewis and testified about the injury he'd suffered during the incident.

Along with claims that the trial court wrongly refused to tender jury instructions about eyewitness credibility and that the evidence was sufficient to prove a Class B felony robbery that involved "bodily injury," Lewis urged the appellate court to find inadmissible the out-of-court photo arrays used to identify him because they weren't recorded in some manner - written, videotaped, or audio recorded. He cited a New Jersey Supreme Court case of State v. Delgado, 902 A.2d 888, 897 (N.J. 2006), where that court exercised its supervisory powers to require a written record of any out-of-court identification procedure.

"He believes that Indiana courts should adopt this procedure because if the identifications had been recorded, there could be more confidence in the accuracy and integrity of the witnesses' identifications of him," Judge Nancy Vaidik wrote. "We decline Lewis's request to adopt such a procedure."

The court wrote that Lewis offered no Indiana statutory or constitutional provision requiring a recording, and it's not bound by New Jersey law.

While all three judges on the appellate panel agreed with that aspect of the ruling, Judges James Kirsch and Terry Crone wrote separate opinions dissenting with the parts involving the evidence sufficiency as it relates to "bodily injury."

State law defines that phrase as "any impairment of physical condition, including physical pain."

Judge Crone concurred in result and noted that the witness's testimony at trial that he was punched in the face pretty hard was sufficient to establish "bodily injury," but the judge disagreed with the lead opinion's analysis in interpreting state statute defining that phrase. He wrote that it suggests "any degree of pain, no matter how slight, is sufficient to constitute an 'impairment of physical conditions' and therefore constitute 'bodily injury' for purposes of Indiana Code 35-41-1-4. I believe that something more than the mere sensation of pain is required; to hold otherwise is to read 'impairment' out of the statute."

Judge Kirsch took on the same issue, but found the evidence was insufficient.

"The trier of fact could only speculate as to whether the punch amounted to pain," he wrote. "Such speculation is not a reasonable inference drawn from the evidence presented and does not constitute proof beyond a reasonable doubt that the touching by Lewis resulted in bodily injury... in the form of pain. It is reasonable to speculate that (his) adrenaline rush blocked any sensation of pain and this is what he testified."

He would have opted to vacate Lewis's conviction for Class B felony robbery and remand with instructions to enter it as a lesser felony, with the necessary resentencing after that.

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