ILNews

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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  1. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

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