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. Paul Ogden doing a fine job of remembering his peer Gary Welsh with the post below and a call for an Indy gettogether to celebrate Gary .... http://www.ogdenonpolitics.com/2016/05/indiana-loses-citizen-journalist-giant.html Castaways of Indiana, unite!

  2. It's unfortunate that someone has attempted to hijack the comments to promote his own business. This is not an article discussing the means of preserving the record; no matter how it's accomplished, ethics and impartiality are paramount concerns. When a party to litigation contracts directly with a reporting firm, it creates, at the very least, the appearance of a conflict of interest. Court reporters, attorneys and judges are officers of the court and must abide by court rules as well as state and federal laws. Parties to litigation have no such ethical responsibilities. Would we accept insurance companies contracting with judges? This practice effectively shifts costs to the party who can least afford it while reducing costs for the party with the most resources. The success of our justice system depends on equal access for all, not just for those who have the deepest pockets.

  3. As a licensed court reporter in California, I have to say that I'm sure that at some point we will be replaced by speech recognition. However, from what I've seen of it so far, it's a lot farther away than three years. It doesn't sound like Mr. Hubbard has ever sat in a courtroom or a deposition room where testimony is being given. Not all procedures are the same, and often they become quite heated with the ends of question and beginning of answers overlapping. The human mind can discern the words to a certain extent in those cases, but I doubt very much that a computer can yet. There is also the issue of very heavy accents and mumbling. People speak very fast nowadays, and in order to do that, they generally slur everything together, they drop or swallow words like "the" and "and." Voice recognition might be able to produce some form of a transcript, but I'd be very surprised if it produces an accurate or verbatim transcript, as is required in the legal world.

  4. Really enjoyed the profile. Congratulations to Craig on living the dream, and kudos to the pros who got involved to help him realize the vision.

  5. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

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