MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jan 31 2020, 7:06 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Thomas P. Keller                                         Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

DeShawn Lamont Luten,                                    January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1488
        v.
                                                         Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,
                                                         The Honorable Elizabeth C.
Appellee-Plaintiff.                                      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 1 of 9
                                          Statement of the Case
[1]   DeShawn Luten appeals his conviction by jury of armed robbery, a Level 3
                 1
      felony. 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).


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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1488 | January 31, 2020   Page 3 of 9
       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.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1488 | January 31, 2020   Page 4 of 9
[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,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1488 | January 31, 2020   Page 5 of 9
       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 African-

       Americans.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1488 | January 31, 2020   Page 6 of 9
[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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1488 | January 31, 2020   Page 7 of 9
       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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1488 | January 31, 2020   Page 8 of 9
       witness which of the people in the lineup he should identify.” It was not error
                                                                                             2
       to admit evidence of Schoebrl’s identification of Luten at trial.


[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.

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