ROBERT EARL LOTTIE v. STATE OF INDIANA.
No. 1173S243
Supreme Court of Indiana
June 10, 1974
311 N.E.2d 800
4. The amount of money damages due the aggrieved client from the attorney cannot constitutionally be determined in a disciplinary proceeding, in that to do so would deny the attorney the right to trial by jury.
5. There is no necessary nexus demonstrated in the record of this proceeding, between the ability of this respondent to make restitution and his ability to re-assume the fiduciary role of lawyer following the one year period оf suspension.
I am authorized to state that Justice Givan agrees that the order for restitution in this case is inappropriate.
NOTE.—Reported at 311 N.E.2d 797.
Theodore L. Sendak, Attorney General, A. Frank Gleaves, III, Deputy Attorney General, for appellee.
PRENTICE, J.—The defendant (appellant) was convicted of armed robbery1 in a trial to the court. He was sentenced to
When the sufficiency of the evidence is the issue presented upon appeal, we look only to the evidence favоrable to the State and all reasonable inferences to be drawn therefrom. Brown v. State (1974), 261 Ind. 619, 308 N.E.2d 699, Turner v. State (1972), 259 Ind. 344, 287 N.E.2d 339, Gibson v. State (1971), 257 Ind. 23, 271 N.E.2d 706, Fuller v. State (1971), 256 Ind. 681, 271 N.E.2d 720. Neither do we judge the weight of the evidence nor the credibility of the witnesses. Brown v. State, supra; Turner v. State, supra; Gibson v. State, supra; Fuller v. State, supra. However, every criminal conviction must be supported by evidence upon each material element of the crime charged, and that evidence must be such as will support the essential conclusions beyond a reasonable doubt. Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641, Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6, Vuncannon v. State (1970), 254 Ind. 206, 258 N.E.2d 639, Spears v. State (1970), 253 Ind. 370, 254 N.E.2d 203, Tom v. State (1973), 261 Ind. 295, 302 N.E.2d 494. We do not substitute our judgment for that of the trier of facts, if it can be said that the essential conclusions drawn were reasonable. But, if we determine that
The defendant, a young black male approximately five feet eight inches tall, was seen approximately fifteen minutes before the robbery took place. He was with three black companiоns at a high school in South Bend situated approximately four miles from the scene of the crime. He had a toothpick in his mouth, and one of his companions was wearing a brown checked shirt.
The viсtims of the robbery were Mr. and Mrs. Nowak, who operated a grocery store in South Bend. The robbers were three young black men. They entered the store, and as Mrs. Nowak began to serve them, one sаid “Just hold it right where you are,” and the one alleged to be the defendant brandished a gun. Another forced Mr. Nowak to lie on the floor, while the armed one walked around the meat counter, had Mrs. Nowak show him how the cash register operated and proceeded to empty it. One of the robbers ordered Mr. and Mrs. Nowak to the basement, but before they reached the bottom of the steps, the armed one escorted Mrs. Nowak back upstairs to open the safe. She opened it and observed him empty it.
Altogether the robbers were in the Nowak store and their attached residenсe for about twenty minutes. Unfortunately, only Mrs. Nowak had an opportunity to observe them. She was in their presence during a substantial portion of that time. She testified at the trial that during the robbery she concentrated upon the one robber who had the gun and upon being able to identify him, to the exclusion of the other two. Immediately following the robbery, she described him as being black, about eighteen to twеnty-one years old, about her height, which was five feet five inches, or a little shorter and as having a toothpick in his mouth during the robbery.
Mrs. Nowak‘s identifying testimony at the trial was also qualified. When asked if she saw in the courtroom the individual who hаd displayed the gun, she responded: “Well in my opinion it is the individual sitting with Mr. Roper.” (Indicating the defendant.) The defendant was then required to stand close to Mrs. Nowak, and she was then asked if she was certain that he wаs the man who robbed her. Her reply was: “Well the way he looks and everything he certainly does. His actions, his eyes and all, he does appear to be the same individual. However in standing up near him he looks a little taller than he did on the other side of the counter.” A little later in her interrogation, she was asked “And then is it your opinion then that this defendant here appears to be the same man thаt robbed you on September 28, 1972?” She replied: “Well he certainly does. Like I said he had a toothpick in his mouth, whether that made a difference in his lips. In just looking at him right now the upper lip looks like it goеs out a little more than it did when he was standing there with a toothpick. And when I stood up to him there he appears to be a little taller but the eyes and nose looks to me like the same individual.” Mrs. Nowak thеn stated that she thought holding the toothpick in his mouth made his lips look a little different.
Mrs. Nowak further testified that another of the robbers was dressed in a green, brown and white plaid shirt. Conceivably, this could be a rеference to the same shirt described by another witness as a brown checked shirt worn by one of the defendant‘s companions when seen at the school. Such a conclusion can be drawn, hоwever, only by conjecture and speculation.
The evidence boils down to grounds for suspicion only. The defendant was seen at a time and location which would have permitted him to have trаveled by automobile to the scene
Coupled with other cirсumstantial evidence, the foregoing evidence might be very persuasive. Identifying testimony need not necessarily be unequivocal. Indeed, many convictions are predicated upon circumstantial evidence without any identifying testimony; but the totality of the evidence in all cases must be such as will permit the trier of facts, as reasonable men, to find guilt beyond a reasonable doubt. With circumstantiаl evidence of guilt against the defendant no greater than was presented in this case, the identifying testimony of Mrs. Nowak was crucial. If we discard the other evidence, we could not say that her identifying testimony alone would suffice. In this light, can we say that the evidence that the defendant had a toothpick in his mouth twenty minutes earlier and could have traversed the distance from the school to the sсene of the crime in the elapsed time, supplies the weight necessary to move the balance from the point of mere suspicion to the point of belief beyond a reasonable doubt?
The evidence in this case tends to support a conclusion of guilt, but it does not rise to the minimum standards set forth in Baker v. State, supra; Easton v. State, supra; Vuncannon v. State, supra; Spears v. State, supra; Tom v. State, supra.
The judgment of the trial court is reversed; and there being nothing in the record to indicate thаt the evidential
DeBruler and Hunter, JJ., concur; Arterburn, C.J., dissents with opinion in which Givan, J., concurs.
DISSENTING OPINION
ARTERBURN, C.J.—I dissent from the majority opinion because I feel it in effect usurps the fact-finding prerogatives of the jury or the trial court. The Constitution gives the fact-finding duties to them and the trial court, not to us as a court of appeals. Whethеr or not the evidence is believable or is circumstantial which we would not believe is not for us to determine, but rather for those who saw the witnesses, their demeanor on the witness stand and heard the tonе of voice in which they made their answers. Identity is a question of fact. We, on appeal, have no right to substitute our opinion as to a fact for that of the jury or the trial court.
Givan, J., concurs.
NOTE.—Reported at 311 N.E.2d 800.