Marco Webster v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Feb 26 2015, 9:18 am 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 ATTORNEYS FOR APPELLEE Mark Small Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marco Webster, February 26, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1404-CR-253 v. Appeal from the Marion Superior Court. State of Indiana, The Honorable Mark D. Stoner, Judge. Appellee-Plaintiff. Cause No. 49G06-1301-FB-6

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015 Page 1 of 14

STATEMENT OF THE CASE

[1] Appellant-Defendant, Marco L. Webster (Webster), appeals his conviction of

four Counts of robbery while armed with a deadly weapon, Class B felonies,

Ind. Code § 35-42-5-1 (2013); and one Count of robbery resulting in serious

bodily injury, a Class A felony, I.C. § 35-42-5-1 (2013). [2] We affirm.

ISSUES

[3] Webster raises three issues on appeal, two of which we find dispositive and

restate as follows:

(1) Whether the trial court abused its discretion in admitting evidence resulting

from six show-up identifications; and

(2) Whether the State presented sufficient evidence to uphold Webster’s

conviction of robbery beyond a reasonable doubt.

FACTS AND PROCEDURAL HISTORY

[4] On New Year’s Eve of 2012, around 12:30 p.m., construction worker Randall

Crouch (Crouch) had completed a job on the northwest side of Indianapolis,

Indiana, and was loading tools into his 2004 Ford Econoline work van. A

black male wearing a brown coat, a hoodie, and a mask over his face

approached Crouch, pointed a semi-automatic pistol at his face, and ordered

him to unlock the van and start the ignition. Crouch complied, and after the

robber had driven out of sight, he reported the carjacking to the Indianapolis

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Metropolitan Police Department (IMPD), describing the van as half blue and

half white, with ladders on the roof rack. [5] Later that day, shortly before 3:00 p.m., a man armed with a semi-automatic

handgun walked into the International Parts Store, located at 5360 N. Tacoma

Avenue in Indianapolis, and yelled for everyone to get down on the floor. At

that time, three employees were in the building: Todd Norris (Norris), Brian

Smith (Smith), and Eric Thompson (Thompson). At the gunman’s command,

Smith removed the cash from the register, and all three gave him the cash from

their wallets. After the gunman ran out of the store, Smith called 9-1-1 and

reported that the store had been robbed at gunpoint by “a black male wearing a

blue and white plaid jacket with a dark hoodie.” (Transcript p. 197). [6] Minutes later, a black male “wearing dark pants, . . . a bluish-black plaid jacket

with a hoodie on, and with a scarf on his face[,]” entered the Harris Tire &

Automotive Service, located across the street from the International Parts Store

at 5425 N. Keystone Avenue. (Tr. p. 218). The man aimed a semi-automatic

handgun at an employee, Danny Stumm (Stumm), and instructed him to empty

the cash drawer. As Stumm was unlocking the register, the robber noticed a

customer, Kenneth Rush (Rush), and demanded his wallet. When the

perpetrator detected movement by another employee, Joshua Scholl (Scholl), he

immediately turned and shot Scholl in the hip. Scholl retreated to the garage

bays, where the company’s owner, William Harris (Harris), was servicing a

vehicle. Scholl, in the midst of calling 9-1-1, alerted Harris to the fact that he

had been shot. Due to the noise of the compressor, Harris was unaware of the

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ongoing robbery. When Harris opened the door to the showroom to

investigate, the robber fired a second shot in Harris’ direction. Although the

bullet missed Harris, shrapnel hit him on the side of his face. The gunman

exited the store, and Harris and Scholl observed through the window as he

entered the driver-side door of a Ford service van, half white and half blue, with

ladders on top. Harris noted that the license plate number was 1562534. [7] Within minutes of the robberies, IMPD officers responded to both locations

and commenced investigations. The witnesses were all separated for

interviews, and Scholl was transported to the hospital. In general, they

described the suspect as a black male in his twenties or thirties and of “average”

or “medium” height and build. (Tr. pp. 160, 257). The witnesses also

confirmed that the suspect was wearing a very distinctive blue and white plaid

coat, dark pants, a dark hoodie that was pulled over his head, and a dark-

colored scarf that left only his eyes exposed. Norris, Thompson, and Stumm

described the scarf as having a camouflage pattern. In addition, while ordered

to lie on the ground, Norris and Thompson observed that the suspect wore

brand new tennis shoes that “were black and what I remember distinctly was

the very clean white edges, around the bottom.” (Tr. p. 259). Thompson

identified the brand of shoes as “Jordans” and further noted that the suspect

had facial hair “around his nose.” (Tr. pp. 303-04). [8] On that same afternoon, IMPD Officer Gary Toms (Officer Toms) was working

an off-duty security job at Inverness Apartments, located on the northwest side

of Indianapolis, about a fifteen-to-twenty-minute drive from the International

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Parts Store and the Harris Tire & Automotive Service. At approximately 3:15

p.m., a blue and white Ford Econoline van pulled into the parking lot. When it

passed by Officer Toms’ squad car, he observed that the driver, later identified

as Webster, was the sole occupant of the van. Immediately recognizing the van

as the one described in the carjacking reported earlier that day, Officer Toms

radioed for assistance. Officer Michael Roach (Officer Roach) was in the area

and arrived moments later. They followed the van’s route to the rear of the

apartment complex and observed Webster walking on the sidewalk, wearing a

dark-colored hoodie and carrying a “plaid flannel looking coat or jacket.” (Tr.

p. 361). When they instructed him to stop, Webster took off running. [9] As the officers pursued him on foot, they saw Webster throw the coat and

several other items down. Officer Roach apprehended Webster, placed him in

handcuffs, and escorted him to his squad car. Retracing Webster’s steps, the

officers found a black nine-millimeter handgun and $682 in cash strewn

throughout the snow, along with the blue and white plaid jacket. Inside the

jacket pocket was a camouflage-patterned scarf and Rush’s wallet. The van was

registered to Crouch and had the license plate number 1562534. [10] In the midst of his investigation at the International Parts Store, Detective Brent

Hendricks (Detective Hendricks) received a report that Webster had been

stopped with a van matching the one described by the Harris Tire &

Automotive Service employees. Detective Hendricks told the witnesses that

IMPD “had a person stopped that I wanted them to look at. . . . I specifically

informed them that it may or may not be the person that robbed them but I did

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want them to take a look.” (Tr. p. 487). Between 4:00 p.m. and 5:15 p.m.,

Norris, Smith, Thompson, Harris, Stumm, and Rush were separately

transported to Inverness Apartments in order to identify whether Webster was

the robbery suspect. [11] Because Webster had discarded the plaid coat when he fled, Officer Roach held

the coat up near Webster for the first witness and subsequently draped it over

Webster’s shoulders for the rest. Each of the six witnesses unequivocally

identified the jacket as being the same one worn by the robber. In addition to

the jacket and hoodie, Harris immediately identified the van as the one used by

the robber, and Rush noted that Webster’s “build and everything seemed to be

the same.” (Tr. pp. 162-63). Norris also indicated that Webster’s “shoes were

the dead giveaway.” (Tr. p. 265). Finally, Thompson stated that he “was a

hundred percent positive that the clothes and the shoes were the same. And I

could tell from the upper half of [Webster’s] face that it was the same facial

features as the guy who came and robbed us.” (Tr. p. 303). [12] On January 2, 2013, the State filed an Information charging Webster with

Count I, carjacking, a Class B felony, I.C. § 35-42-5-2 (repealed 2014); Counts

II through V, criminal confinement, Class B felonies, I.C. § 35-42-3-

3(a),(b)(2)(A) (2013); Counts VI through IX and Count XI, robbery while

armed with a deadly weapon, Class B felonies, I.C. § 35-42-5-1 (2013); Count

X, battery, a Class C felony, I.C. § 35-42-2-1(a)(3) (2013); and Count XII,

unlawful possession of a firearm by a serious violent felon, a Class B felony,

I.C. § 35-47-4-5 (2013). On January 11, 2013, the State amended the

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Information by adding Count XIII, robbery resulting in serious bodily injury, a

Class A felony, I.C. § 35-42-5-1 (2013). On March 14, 2013, the State filed an

Information alleging Webster to be a habitual offender. On December 9, 2013,

Webster filed a motion to suppress the evidence of the show-up identifications.

At the suppression hearing on January 10, 2014, Webster withdrew his motion. [13] On February 24 and 25, 2014, the first phase of the bifurcated jury trial was

conducted. Prior to the introduction of evidence, Webster reinstated his motion

to suppress the evidence resulting from the show-up identifications. The trial

court held a hearing outside of the jury’s presence and granted the suppression

motion to the extent that the witnesses were precluded from making in-court

identifications of Webster. However, the trial court ruled that the witnesses

would “be allowed to make identification[s] of the clothing but only if . . . there

is a clear independent basis for being able to identify the clothing.” (Tr. p. 103).

At the close of the evidence, the jury returned a guilty verdict on Counts III

through XI and Count XIII. Webster was found not guilty of Counts I and II.

Following the verdict, Webster waived his right to a jury for the second phase

of his trial concerning his charge as a serious violent felon (Count XII) and his

habitual offender enhancement. [14] On March 18, 2014, the trial court held a bench trial, at which time the State

dismissed Count XII, and Webster stipulated to the habitual offender charge.

The trial court adjudicated Webster to be a habitual offender and proceeded to

the sentencing hearing. Based on double jeopardy considerations, the trial

court merged Counts III, IV, and V into Counts VI, VII, and VIII, respectively,

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and merged Counts IX and X into Count XIII. A judgment of conviction was

entered on Counts VI, VII, VIII, and XI, Class B felony robberies of Smith,

Thompson, Norris, and Rush; and Count XIII, Class A felony robbery of

Stumm resulting in serious bodily injury to Scholl. The trial court imposed

concurrent fifteen-year sentences on Counts VI, VII, and VIII; fifteen years on

Count XI; and seventy years on Count XIII. The trial court ordered the

sentence on Count XIII to run concurrently with Count XI and consecutively to

Counts VI, VII, and VIII, for an aggregate, executed term of eighty-five years. [15] Webster now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Admissibility of Identification Evidence

[16] Webster claims that the trial court abused its discretion in admitting evidence of

the identifications because the one-on-one show-ups were “overly suggestive.”

(Appellant’s Br. p. 14). Decisions regarding the admission or exclusion of

evidence are left to the trial court’s sound discretion and are subject to review

only for an abuse of that discretion. Hale v. State, 976 N.E.2d 119, 123 (Ind. Ct.

App. 2012). Our court will find an abuse of discretion where “the trial court’s

decision is clearly against the logic and effect of the facts and circumstances

before the court.” Id. [17] The due process guaranteed by the Fourteenth Amendment to the United States

Constitution requires the suppression of evidence if “the procedure used during

a pretrial identification is impermissibly suggestive.” Id. It is well established

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that one-on-one show-up identifications are inherently suggestive. Wethington v.

State, 560 N.E.2d 496, 501 (Ind. 1990). Nevertheless, evidence acquired from a

show-up confrontation “is not subject to a per se rule of exclusion.” Mitchell v.

State, 690 N.E.2d 1200, 1203 (Ind. Ct. App. 1998), reh’g denied; trans. denied.

Instead, “the admissibility of a show-up identification turns on an evaluation of

the totality of the circumstances and whether they lead to the conclusion that

the confrontation was conducted in a manner that could guide a witness into

making a mistaken identification.” Hale, 976 N.E.2d at 123-24. [18] When reviewing the totality of the circumstances surrounding an identification,

we consider:

(1) the opportunity of the witness to view the offender at the time of the crime; (2) the witness’s degree of attention while observing the offender; (3) the accuracy of the witness’s prior description of the offender; (4) the level of certainty demonstrated by the witness at the identification; and (5) the length of time between the crime and the identification. Rasnick v. State, 2 N.E.3d 17, 23 (Ind. Ct. App. 2013), trans. denied. Although

inherently suspect, one-on-one confrontations have been found proper where

they occurred “shortly after the commission of the crime ‘because of the value

of permitting a witness to view a suspect while the image of the perpetrator is

fresh in the witness’s mind.’” Hubbell v. State, 754 N.E.2d 884, 892 (Ind. 2001)

(quoting Head v. State, 443 N.E.2d 44, 55 (Ind. 1982)). [19] In the present case, Webster contends that the one-on-one show-ups were

impermissibly suggestive because the police officers wrapped the plaid jacket

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around him after he was detained. According to Webster, the witnesses based

their identifications on the jacket, so an “[i]dentification . . . would not have

been made but for police holding apparel up next to [him].” (Appellant’s Br. p.

19). We disagree.1 [20] It is evident that the witnesses identified Webster at the show-ups based, in

significant part, on the plaid jacket. See Williams v. State, 398 N.E.2d 674, 678

(Ind. Ct. App. 1979) (“The fact that the clerk based her identification on the

clothes worn by the suspects rather than any distinguishing physical

characteristics affects the credibility of her identification but not its

admissibility.”). However, at trial, each witness testified that the jacket that

was displayed at the show-up was the same one worn by the robber, but—as the

State posits—the witnesses did not positively identify Webster as the perpetrator

of the robberies. Rather, to link the jacket to Webster, Officer Toms and Officer

Roach testified that they observed the jacket in Webster’s possession and that

he threw it onto the ground when he tried to flee. Thus, we find that whether

the police officers held the jacket up next to Webster, wrapped it around him, or

left it laying in the snow is irrelevant because the witnesses recognized the

jacket itself with a high degree of certainty.

1 The State argues that Webster failed to properly preserve his claim that “the ‘show-up’ identification of the clothing was impermissible” because his motion to suppress “was aimed squarely at the witness[es’] ability to identify [Webster]—not the clothing.” (State’s Br. p. 8). Because arguments concerning the identification of Webster himself, the clothing in isolation, and the clothing on Webster’s person were intermingled during the suppression hearing, we will address Webster’s claim.

Court of Appeals of Indiana | Memorandum Decision | 49A02-1404-CR-253| February 26, 2015 Page 10 of 14 [21] Furthermore, looking to the totality of the circumstances, we cannot say that

the show-ups were unduly suggestive. The evidence establishes that, prior to

the show-ups, Norris, Smith, Thompson, Harris, Stumm, and Rush each

provided consistent and accurate accounts of the suspect’s clothing. See

Dishman v. State, 525 N.E.2d 284, 285 (Ind. 1988). Additionally, the robberies

occurred in broad daylight, and even though the robber wore a mask, the

witnesses had ample opportunity to discern very specific details about the

suspect, including that his mask had a camouflage pattern and that his gun was

black and had a “square” front. (Tr. p. 293). Norris and Thompson had a clear

view of the robber’s feet when forced to lie on the ground, and they described

both the brand and the style of his shoes. [22] Within two hours of the robberies, each of the six witnesses identified Webster’s

jacket and hoodie as being the same worn by the perpetrator, and they

confirmed that the camouflage scarf found in Webster’s pocket was the same

one used by the robber. See Lyles v. State, 834 N.E.2d 1035, 1045 (Ind. Ct. App.

2005) (noting that an identification occurring several hours after the crime may

be permissible), trans. denied. Norris and Thompson identified Webster’s shoes

without hesitation, and—without any prompts from the officers—Harris

noticed the van in the parking lot and confirmed that it was the same one used

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in the robbery. See Rasnick, 2 N.E.3d at 24-25. Therefore, we find that the trial

court did not abuse its discretion by admitting evidence from the show-ups.2

II. Sufficiency of the Evidence

[23] Webster also claims that the State presented insufficient evidence to support his

conviction. When reviewing a sufficiency claim, our standard of review is well

settled. We do not reweigh evidence or assess witness credibility, and we will

consider only the evidence and any reasonable inferences that support the

verdict. Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009). Our court will affirm

the conviction so long as “there is probative evidence from which a reasonable

jury could have found the defendant guilty beyond a reasonable doubt.” Id. [24] In order to uphold Webster’s conviction of robbery as a Class A felony, the

State was required to prove that Webster knowingly or intentionally took

property from Stumm by either using or threatening the use of force or by

putting any person in fear, the commission of which resulted in serious bodily

injury to Scholl. I.C. § 35-42-5-1 (2013). As for his conviction of four Counts

of robbery as Class B felonies, the State had to establish that Webster, while

armed with a deadly weapon, knowingly or intentionally took property from

Norris, Smith, Thompson, and Rush by either using or threatening the use of

force or by putting any person in fear. I.C. § 35-42-5-1 (2013). Webster does

2 Webster next claims that his conviction of both Count X, battery as a Class C felony, and Count XIII, robbery as a Class A felony, violates his constitutional rights against double jeopardy. During the sentencing hearing, the trial court merged Count X into Count XIII in order to avoid double jeopardy implications, entering a judgment of conviction solely on Count XIII. Thus, we find no merit in Webster’s argument.

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not dispute that these crimes occurred; rather he argues that “[n]o witness could

positively identify [him] as the robber. The only reference the witnesses had

was to clothing Webster had in his possession when he was taken into

custody.” (Appellant’s Br. p. 22). Again, we disagree. [25] In addition to the descriptions provided by the witnesses, the armed robbery at

the Harris Tire & Automotive Service was recorded by video surveillance. As

such, the jury was able to clearly view that the perpetrator wore a blue and

white plaid jacket, a dark-colored hoodie and dark pants, black shoes with

white edges, and a camouflage-patterned scarf over his face. An exterior

camera captured an image of the blue and white van, and Harris recorded the

license plate number. Approximately fifteen minutes after the second robbery,

Officer Toms observed Webster driving a blue and white van with the same

license plate number. [26] When Webster exited the van, he was wearing a dark hoodie and was carrying

a blue and white plaid jacket, which he threw on the ground in the officers’

presence. The officers discovered that the jacket had been concealing a nine-

millimeter handgun, a camouflage-patterned scarf, Rush’s wallet, and $682 in

cash. During the trial, Harris testified that the standard practice at Harris Tire

& Automotive Service for counting the cash drawer is to bundle the one-dollar

bills in groups of twenty, securing each bundle with a staple and a post-it note.

Among the cash that Webster had dropped during the foot chase, the officers

found two bundles of twenty one-dollar bills that were secured with a staple and

a post-it note. Moreover, the nine-millimeter gun found in Webster’s

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possession had a magazine with the capacity to hold fifteen bullets. When the

evidence technician collected the gun, there were twelve bullets in the magazine

and one in the chamber. Two nine-millimeter shell casings were found at the

Harris Tire & Automotive Service. [27] Webster further argues that the evidence was insufficient to establish his

identity because the witnesses did not provide a precise height estimate of the

perpetrator and because there were no fingerprints linking Webster to the

robbery. While we first note that the surveillance footage clearly reveals that

the robber wore gloves, thereby reducing the likelihood of leaving a fingerprint,

we find that Webster’s arguments amount to a request that we reweigh

evidence, which we decline to do. Taken together, the evidence establishes

beyond a reasonable doubt that it was Webster who perpetrated the robberies.

CONCLUSION

[28] Based on the foregoing, we conclude that the trial court acted within its

discretion in admitting evidence regarding the pre-trial identification of

clothing. We further conclude that the State presented sufficient evidence to

support Webster’s conviction of one Count of Class A felony robbery and four

Counts of Class B felony robbery beyond a reasonable doubt. [29] Affirmed. [30] Vaidik, C. J. and Baker, J. concur

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