Court of Appeals of Indiana | Memorandum Decision 19A-CR-1488 | January 31, 2020 Page 1 of 9

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.

ATTORNEY FOR APPELLANT

Thomas P. Keller

South Bend, Indiana

ATTORNEYS FOR APPELLEE

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

DeShawn Lamont Luten,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 31, 2020

Court of Appeals Case No.

19A-CR-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.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1488 | January 31, 2020 Page 2 of 9

Statement of the Case

[1] DeShawn 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 direction. 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, Schoebrl 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, the assailant had “a specific kind of nose,” id. at 54, with 

distinctive eyes and 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] Schoebrl was surprised by being accosted, so he hesitated to respond. 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 Schoebrl’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 

subsequently spoke with several officers, including Detective Devon Gilbert of 

the South Bend Police Department (SBPD). Schoebrl described his assailant. 

At that time, he 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 phone.

[9] Later, Gilbert examined online databases where participating businesses post 

information about electronics and other items that they have purchased. A 

company named ecoATM reported that a phone with the serial number 
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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 kiosks 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 time 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 

seller of Schoebrl’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 phone.

[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 had shown to Schoebrl. In addition, Schoebrl 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 identification.
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[14] A defendant must prove two components to establish 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 defendant 

to the extent that, but for counsel’s errors, the result of the proceeding would 

have been different. Jewell v. State, 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.2d 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. To 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 to 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. Isolated mistakes, 
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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 determined: “[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 identification 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 circumstances 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 AfricanAmericans.
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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, Gilbert

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 included 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 

his 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 had 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 might not be included in the array. Even if Gilbert had told 
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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 not 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, 

even 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 the 
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witness which of the people in the lineup he should identify.” It was not error 

to admit evidence of Schoebrl’s identification of Luten at trial.

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.