Court of Appeals of Indiana | Memorandum Decision 19A

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### MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D) , this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Thomas P. Keller South Bend, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

De S hawn Lamont Luten , Appellant

- Defendant , v. 

### State of Indiana , Appellee

- Plaintiff

. January 31, 2020 Court of Appeals Ca se No. 19A

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- 1488 Appeal from the St. Joseph Superior Court The Honorable Elizabeth C. Hurley, Judge Trial Court Cause No. 71D08

- 1811

- F3

- 84

Barteau , Senior Judge
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## Statement of the Case

[1] De S hawn Luten appeals his conviction by jury of armed robbery, a Level 3 felony. 1 We affirm.


## Issue

[2] Luten raises one issue, which we restate as: whether Luten received ineffective assistance of trial counsel.



## Facts and Procedural History

[3] On the night of November 19, 2018, Markus Schoebrl was walking home after going out for dinner. As he walked toward his apartment, a person passed him going in the other direct ion. Next, Schoebrl felt someone shove him on his backpack and the back of his head. He turned around and saw the person who had just walked by him. The person told Schoebrl, “Give me everything what [sic] you have.” Tr. Vol. 2, p. 53.

[4] At trial, Schoeb rl described his assailant as a man wearing pants, a hooded sweatshirt, and a jacket, with the hood pulled up. All of his clothes were dark. Furthermore, t he assailant had “a specific kind of nose , ” i d. at 54, with distinctive eyes a n d a beard. In court, Schoebrl identified Luten as the man that

1 Ind. Code § 35

- 42

- 5

- 1 ( 2017 )

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detained him , explaining that he was “always looking” at Luten’s face during their encounter, except when he was looking at his wallet. Tr. Vol. 2, p. 76.

[5] Scho ebrl was surprised by being accosted , so he hesitated to respon d

. Next , Luten pulled out a handgun and pointed it at Schoebrl. The gun was a revolver and shined in the light.

[6] Schoebrl took out his wallet, but before handing it over he removed his ID and credit card, leaving about fifty dollars inside. Next, a car drove by, and Luten turned away from the street to hide his gun. After the car passed by, Luten turned back to Schoebrl and demanded his mobile phone. Schoebrl complied.

[7] Luten also demanded Sc hoebrl’s backpack. Another car drove by, and Luten turned away from the street and Schoebrl. Schoebrl took the opportunity to run
away , dodging between parked cars as he went home

.

[8] When Schoebrl arrived at his apartment , he contacted the police. He subs equently spoke with several officers, including Detective Devon Gilbert of the South Bend Police Department (SBPD)

. Schoebrl described his assailant. At that time, h e described Luten as “white” because Luten had light skin. As Schoebrl later explained, “I was thinking about just giving color and not the ethnicity.” Id. at 58. He also gave the officers the serial number for his ph o ne.

[9] L ater, Gilbert exam ined online databases where participating businesses post information about electronics and other items that they have purchase d . A
company named ecoATM reported that a phone with the serial numberCourt of Appeals of Indiana | Memorandum Decision 19A

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identified by Schoebrl had been sold at one of its kiosks in Saint Joseph County on the morning of November 20 , 2018.

[10] EcoATM’s kiosk s are fully automated , and they give customers money in exchange for cellular phones. The kiosk at issue in this case takes photographs of the purchased phones and notes the date and t ime of each transaction . In addition, the kiosk takes photographs of phone sellers and requires them to provide their name, date of birth, address , and a thumbprint.

[11] Gilbert contacted ecoATM , and the company sent him information about the

s eller of Schoeb rl’s phone. EcoATM’s information demonstrated that Luten was the seller. Next, the police asked Schoebrl to review a photographic array. We discuss the process in more detail below, but Schoebrl identified Luten as the person who took his wallet and pho ne.

[12] On November 29, 2018, the State charged Luten with armed robbery, a Level 3 felony. The trial court presided over a jury trial on March 26, 2019. Among other evidence presented at trial , the State discussed the photographic line

- up that the police ha d shown to Schoebrl. In addition, Scho e brl identified Luten in
court as the man who robbed him. The jury determined Luten was guilty. The court subsequently imposed a sentence, and this appeal followed.



## Discussion and Decision

[13] Luten argues he received ineffective assistance of counsel, and is entitled to a new trial, because counsel failed to object to the admission into evidence of a photographic line

- up and an in

- court identi ficatio n
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[14] A defendant must prove two components t o e stablish a violation of the Sixth Amendment right to effective assistance of counsel: (1) counsel ’ s performance fell below an objective standard of reasonableness based on prevailing professional norms; and (2) the deficient performance prejudiced the def endant to the extent that, but for counsel’s errors, the result of the proceeding would have been different. Jewell v. St ate , 887 N.E.2d 939, 941 (Ind. 2008)

. Prejudice occurs when the defendant demonstrates that there is a reasonable probability that, if not for counsel’s unprofessional errors, the result of the proceeding would have been different. West v. State , 938 N.E.2 d 305, 309 (Ind. Ct. App. 2010) , trans. denied

.

[15] Failure to satisfy either component of the two

- part test will cause the defendant ’ s claim to fail. Id. If we can dispose of an ineffective assistance claim based upon the prejudice component, we may do so without addressing whether counsel ’ s performance was deficient. Id. T o succeed on a claim that trial counsel was ineffective for failure to raise an objection, the defendant must demonstrate that if an objection had been made, the trial court would have had no choice but t o sustain it. Little v. State , 819 N.E.2d 496, 506 (Ind. Ct. App. 2004) , trans. denied

.

[16] There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment

. Stevens v. State , 770 N.E.2d 739, 746 (Ind. 2002)

. Counsel is afforded considerable discretion in choosing strategy and tactics, and these decisions are entitled to deferential review

. Id. at 746

- 47

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poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective

. Id. at 747

.

[17] In Simmons v. U.S. , 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968) , the Supreme Court noted that a victim’s identification of a suspect by photograph presents certain “hazards,” but the Court was unwilling to prohibit the technique. Instead, the Court determine d: “ [W] e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identif ication by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. ” Id. The Indiana Supreme Court has stated, “ In order to determine whether evidence of a pre

- trial identification should have been excluded, this court looks to the totality of the circumstanc es to determine whether the identification process was conducted in such a way that it created a substantial likelihood of irreparable misidentification

. ” Heiman v. State , 511 N.E.2d 458, 459 (Ind. 1987)

.

[18] In this case, on November 21, 2018 , two days after the robbery, detectives asked Schoebrl to examine a photographic array. Schoebrl had previously described his assailant as white, which he meant as describing skin color rather than identifying ethnicity. Gilbert subsequently received information from ecoATM about Luten and prepared a photographic array consisting of African

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[19] Gilbert explained at trial that the SBPD ’s process for photographic arrays is intended “to eliminate any kind of bias or any kind of persuasion” by officers directed at witnesses. Tr. Vol. 2, p. 91. Officers give witnesses a standard sheet of instructions, which includes a statement that the “person you saw may or may not be in the photographs you’re about to view.” Id.

[20] Before the presenting the array , police officers gave the standard instructions to Schoebrl. Gilbert further told Schoebrl that if he did not recognize anyone in the array, he needed to inform the officers accordingly. In addition, Gil bert told Schoebrl that the police had found his phone and “they had found a suspect.” Tr. Vol. 2, p. 68 , 93. Schoebrl understood that statement to mean that the suspect would be included in the lineup , but Gilbert did not tell Schoebrl the suspect was i ncluded in the lineup.

[21] An officer showed Schoebrl six eight

- by

- ten photographs. Gilbert observed Schoebrl from another room. Schoebrl identified Luten in the lineup, stating h is degree of certainty was “7” out of ten. Id. at 72. Next, the officer left the room, and Gilbert entered. He told Schoebrl , “Nice job,” and “You did well.” Tr. Vol. 2, p. 109.

[22] Luten argues that Gilbert should not have told Schoebrl that the police ha d a suspect . But we note that , regardless of how Schoebrl interpreted Gilbert’s statement, Gilbert did not tell Schoebrl that the suspect would be included in the array . Further, the standard instructions informed Schoebrl that the person he had seen mig ht not be included in the array. Even if Gilbert had toldCourt of Appeals of Indiana | Memorandum Decision 19A

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Schoebrl that a photograph of the suspect would be included in the array, that factor is insufficient to establish undue suggestibility. See Petro v. State , 455 N.E.2d 332, 334 (Ind. 1983) ( officer informing victim that a suspect was included in an array did n ot demonstrate the process led to irreparable misidentification).

[23] In addition, Gilbert instructed Schoebrl that if he did not recognize anyone in the array, Schoebrl had to inform the officers. Finally, even though Gilbert congratulated Schoebrl after the fact, he did not specifically tell Schoebrl that he had identified Luten. Under the totality of the circumstances, the photographic
array procedure did not create a substantial likelihood of irreparable misidentification

. See Hollonquest v. State , 272 Ind. 380, 383, 398 N.E.2d 655, 657 (1979) (no error in admitting evidence from photographic identification,

eve n though the officer told the witness, “see if you recognize [the suspect] ” while handing the witness an array of photographs)

.

[24] As for the discrepancy between Schoebrl’s initial identification of his assailant as white, and Gilbert’s photographic array of African

- American men, in Parsley v. State , 557 N.E.2d 1331, 1334 (Ind. 1990) , the Indiana Supreme Court stated:

“ [W] hen the individuals in a lineup resemble each other[,] the fact that the witness’ initial description was somewhat different does not suggest to theCourt of Appeals of Indiana | Memorandum Decision 19A

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witness which of the people in the lineup he should identify .” It was not error to admit evidence of Schoe brl’s identification of Luten at tri al

. 2

[25] If Luten had objected to the admission of evidence related to the photographic array and Schoebrl’s in

- court identification, the objection would not have been sustained under the Indiana Supreme Court ’s precedent

. Having failed to show prejudice resulting from counsel’s failure to object, we conclude Luten’s claim of ineffective assistance of trial counsel must fail.



## Conclusion

[26] For the reasons stated above, we affirm the judgment of the trial court.

[27] Affirmed.
Baker, J., and Vaidik, J., concur.

2 The parties dispute whether , even if the photographic array process was impermissibly suggestive, there was sufficient independent evidence to support the admission into evidence of Schoebrl’s in

- court identification of Luten. We need not address this issue.