*1 § maintenance award. See Ind.Code 31-1-
11.5-11..
Thus, although reasoning previously Appeals Indiana
set forth recognize profes- will
indicates that Indiana goodwill as a marital
sional divisible asset any goodwill
without distinction between personal goodwill in nature and itself, business/praetiee
attributable to a I approach
disagree with such an for the rea-
sons set out above. I therefore concur with majority’s application of Indiana case-
law, urge but the Indiana Court to goodwill
refine the definition of and the cir-
cumstances under which it will be considered
as a marital asset. In all other divisible
respects majority opinion. I concur with the REED, Appellant-Defendant,
Deborah Indiana, Appellee.
STATE of
No. 49A02-9603-CR-151.
Court of of Indiana.
Oct.
Rehearing Denied Nov. *2 wearing long the store a
Someone entered hair, stocking pulled coat and a hat over .the person, standing ears and The forehead. feet, Hineman, about three from demanded money. complied. Hineman robber .The' off a then left and drove in red car. the store picture of robber Hineman the later drew six weeks later evening and about identi- Choate, Indianapolis, D. Susan T. Belle photographs fied Reed a set of six from Appellant-Defen- Burke, for Indianapolis, presented by Sergeant Herman Hum- to her dant. picked subsequently bles. She Reed out of a Modisett, General, Attorney Jeffrey A. lineup. General, Herriman, Deputy Attorney
John B.
Array
Photo
Second
Appellee.
Indianapolis, for
mentioned,
subpoena
As
Reed’s
duces
bring
requested
tecum
to
with him
Humbles
OPINION
note's,
deposition “any
reports,
the
all
to
and
summaries,
documentation,
or other
includ
SULLIVAN, Judge.
any
pictures, or
ing
photos,
photo
all
and
(Reed), appeals
Reed
Deborah
Appellant,
arrays,
by him in the
prepared
used or
inves
robbery
carrying a
and
her conviction'
robbery.”
tigation of
Record
The
the
a license.
handgun without
quash
subpoena
filed
to
the
a motion
We affirm.
requested
preventing
protective
and
a
order
reviewing,
“examining,
inquir
Reed from
or
three
for re
presents
issues
Reed
ing into the
of [the file].”
contents
Record at
view,
as follows:
we restate
which
granted
44. The
the
trial court
State’s mo
1)
deny-
trial court
the
erred
Whether
emergency
tions.
filed an
Reed also
motion
discovery requests
ac-
to have
ing Reed’s
evidence,
produce
claiming
to
order
Humbles
question
and
Officer
cess to
array
photo
given
that Humbles had a second
array
photo
not used in the
a second
about
by
to him
The
another detective.2
motion
investigation.1
granted.
was
2)
deny-
trial court
Whether
trial,
presence
At
and out of
of the
public funds
hire an
ing Reed
permission
jury,
requested
counsel for Reed
witness.
questions
of the court
ask
Humbles
3)
jury instruction
errone-
a
Whether
.was
array.
regarding
photo
the second
court
ously given.
presence
request.
denied the
Still out
Pantry
jury,
of the
made an
February
Village
Reed’s counsel
offer of
On
Indianapo-
proof
engaged
and
Humbles
was robbed in
line
convenience store
photo
working
questioning regarding
store.
the second
ar-
lis.
Hineman was
at the
Ruth
request-
evidentiary rulings
original subpoena duces
tecum
court’s various
in her
Reed’s
bring
brief,
investigating
original
officer
with him to a
ed the
these
Reed has waived
issues on
"notes,
summaries,
reports,
or oth-
deposition all
appeal.
We will therefore address
whether
documentation, including any
photos,
and all
trial,
er
ability,
improperly
Reed was
denied the
at
arrays,
pictures,
photo
prepared
used or
question
concerning
the officer
second
investigation
robbery.”
Record
him in the
photo array.
brief,
appellant’s
although
summary
argument complains
her
motion,
requested ”[a]ll
In another
video-
investigative tools
officer’s
should have .been
films,
tapes,
photographs
any
... of
still
and
her,
argument
the actual
limits
made available
robbery
suspects
any
all
cases of
in which
"Reed
a discussion about
fact that
itself to
suspect”
”[a]ny
Deborah
or is a
Reed was
question
and the
wanted access to
photo
including
arrays,
the Defendant’s
whether
photo
ar-
[about]
second
Officer Humbles
not,
any
picture or
that have been shown to
brief,
ray." Appellant's
reply
Br. at 9.
In her
any
above-mentioned robber-
witnesses in
eloquent
argument
seven-page
Reed makes an
ies." Record at 59.
evidentiary rulings. Reply Br.
about numerous
including
By
challenge
her
1-9.
eyewitness expert
her
indi-
asserts that
ray. During
questioning,
Humbles
array
photo
implications
that he used
have
as to the
cated that the
testified
broad
put together using the
that he had
the one
identification and the fact that
He claimed
“X-Image” machine.
“particularly in cross-racial
identifications
photo array
given
must have been
other
single largest
...
error is the
his own
him
another detective who did
leading
Appel-
factor
to false convictions.”
*3
array
“X-Image” machine. Re-
photo
on the
Br. at 10-11.
lant’s
only
photo array that
gardless, he
used the
photo
he created and never used the second
The trial court’s decision whether
array.3
expert
public expense
to
an
will
not be overturned absent an abuse of discre
trial court has
lati
We note
wide
(1988) Ind.,
tion. Jones v. State
524 N.E.2d
discovery
regard
tude with
to
matters. Net
upon
1284. The burden is
the defendant to
(1991) Ind.,
tles v. State
jury. necessary, trial court cide what is Eyewitness Expert Identification proposed expert’s determine whether the services would bear on an issue which is trial court
Reed asserts
generally regarded to be within the com-
grant
because it
funds in
failed
experience
average person,
mon
order to allow Reed to hire an
expert opinion
on one for which
would be
Reed concedes that
necessary.
requested
If the
services could
the decision to do so rests within the sound
counsel,
performed by
need
Hough
discretion of the trial court.
v.
provided.
State
appointed (1986) 841, 831, that which cert. 479 expert could demonstrate F.2d denied U.S. posed appointing 118, 64; desires. 93 L.Ed.2d Holland v. the defendant S.Ct. necessary pur- (1994) 77, when the Ala.Crim.App., 654 So.2d explorato- expert appears (1988) to be pose denied; cert. Garth v. State Ala.Cr. ry only. 173; App., People Gaglione 536 So.2d v. (1994) 1291, Cal.App.4th Cal.Rptr.2d for the trial court
Another consideration
denied,
169,
go
services will
to-
overruled on other
is whether the
review
(1995)
answering
question
People
a substantial
grounds,
ward
v. Martinez
905,
ancillary
example,
one. For
if
simply
Cal.Rptr.2d
Cal.4th
P.2d
(1994)
principal
linking
1037;
People Kemp
Colo.Ct.App.,
the State’s
sufficiently
denied;
tech-
to the crime
defendant
cert.
State v. Sellars
885 P.2d
*4
commonly
(1981)
380,
907,
the
of
nical that
it is
N.C.App.
re
52
278 S.E.2d
testimony,
trial
expert
denied;
the
court should
v. Abdul-Sa
view
Commonwealth
providing
(1996)
strongly
514,
342,
consider
544 Pa.
678 A.2d
cert.
laam
—(1997)
U.S. -,
1337,
117
denied
S.Ct.
omitted).
(citations
The court
Id. at 200
137 L.Ed.2d
trial
on to note that
the
court could
went
expert,
complexi-
the
consider the cost
by
These
have been influenced
decisions
provid-
ty of the case and whether the'State
Hopkins, supra,
factors.
In
582
various
expert, among other factors.
ed an
353,
Supreme
N.E.2d at
our
Court noted
out,
points
this was a remark-
As the State
against
of
additional
abundance
ably simple
The entire conviction re-
case.
provide
the defendant rendered the failure
Hineman’s identification. The
volved around
prejudicial
him with funds “not so
as to
case,
simplicity
though,
tends to indi-
of
require
Utley,
Id. Likewise in
reversal.”
help-
expert
extremely
cate that an
238-39,
supra 589 N.E.2d at
the Indiana
expert
testify
ful
An
could
to the defense.
light
Supreme Court refused to reverse
factors
to the heart
the matter —what
the fact that several "witnesses testified that
to Hineman’s identifi-
could have contributed
they
and there was other
saw the defendant
being faulty.
Reed fails to
cation
evidence which linked the defendant
.discover,
show,
single
are we able to
nor
appears
It
that this is a ease of first
crimes.
required
case in which a
court has been
trial
impression
Indiana —whether
expert
public
eyewitness
expert
defendant is entitled
funds
expense.
eyewitness
concerning
identification when
contrary,
overwhelming
To the
we note the
solely upon
testimony of
she is convicted
state and
number of decisions of both
federal
one witnéss.
Indiana;
courts,
including
hold that
at 353,
Hopkins, supra, 582 N.E.2d
In
for
providing
courts
not err in not
do
recognized
trend
Indiana
expert
appointing
such
such
assistance
recognizing
potential
the “built-in
for
of cases
(and
eyewitness
in some cases
identi
(citation
eyewitness
Id.
error
cases.”
permit
expert testimony is not even
fication
omitted).
The court also noted
the ad
ted)
Utley
State
589
See
testimony
missibility
of such
is fa
(1993)
1058,
282, cert.
506 U.S.
N.E.2d
denied
authority.
Judge
weight
vored
991,
142; Hopkins v.
113
122 L.Ed.2d
S.Ct.
denied;
(1990)
Posner,
Lilly
v. Eli
&
7th
Krist
Co.
(1991)
345,
Ind.,
reh’g
Cir.,
pointed
problems
(1996)
Although taking argu- not issue with the “was to a basis for defendant’s possible accounts are less reli ment that it prose- tion that Circuit, thought, cuting able than once the Seventh witness made a mistake in her iden- sweepingly, perhaps too noted United tification of defendant. We not do believe (1992) Cir., v. Larkin 7th 978 F.2d required pay States state (1993) 964, 971, 935, 113 cert. denied 507 U.S. witnesses whose amounts to 1323, 122 709: S.Ct. generalities L.Ed.2d speculation and to as to wheth- generalities apply specific er those to a
“[E]xpert
testimony regarding
po-
Id.,
case.”
S.E.2d
tential hazards of
identifica-
regardless
reliability
of its
tion —
—‘will
thoroughly
are not
We
convinced that the
jmy
aid the
because
addresses an issue
juror
average
is conversant with the likeli
jury already generally
of which the
frequency
hood or
with which misidentifica-
aware, and it will not contribute to their
tions are
seemingly unequivocal
made
understanding’
factual is-
eyewitnesses. As
in Gaglione,
observed
su
(citations. omitted).
posed,
sues
These
pra,
Cal.Rptr.2d
at 174:
lay
hazards are well within the ken of most
jurors,
undisputed
[defendant’s]
counsel was
“It is
testimony on
granted ample opportunity
psychological
those
affecting
discuss
factors
the reli
upon
eyewitness testimony
hazards and east doubt
the witnesses’
is admissi
*5
case,
(citation omitted).
eyewitness identification of his
in
client.”
ble
a criminal
Supreme
The
Court reasoned-that
infor
holding
“experts”
The
indicates the view that
mation now available about these factors is
nothing
highlight
do
more than
the fact that
beyond
knowledge
ju
the common
of the
individuals,
misidentify
witnesses often
a con-
per
rors:
‘It is doubtless true that from
cept
within
understanding
well
the realm of
experience
jurors
sonal
intuition all
and
average juror.
eyewitness
know that an
identification can
The Alabama
of
that
Court
noted
mistaken,
be
and also know the more obvi
unnecessary
an
was
because the “[de-
accuracy,
ous factors that can affect its
fense counsel ... was able to cross-examine
distance,
lighting,
such
and duration.
It
extensively
victims
on the issue of identi-
appears
professional literature,
from the
fication
their
to distinguish
and
one
however, that
bearing
eye
other factors
on
Garth,
person
supra,
black
from another.”
may
only
witness identification
be known
Similarly,
in
So.2d
the court
jurors, may
imperfectly
to some
or
be
un
Ylst,
v.
supra,
Jackson
careful cross-examination
jury
brought
attention of the
jury.4
can be
argument to the
the defense counsel without the aid
Jury Instruction
Too,
surrounding physical circum-
the trial court
Reed asserts
usually
experience
stances are
within
jury instruc
by giving
following
knowledge
jurors. Expert
of most
identifica-
by the
may be sustained
tion: “A conviction
sword,
testimony
edged
is a
tion
double
single eyewit
testimony of a
uncorroborated
credibility.
It
can cut or add
However, the in
Record at 399.
ness.”
beyond
explain
matters
be used to
those
state
has been held to be a correct
struction
understanding
law,
has
and our
ment of the
v.
jury
Madden
upheld similar
instructions.
(DeBruler,
(1990)Ind.,
J., dissenting); Criss v. State further contends instruction modifying in not
court erred may sustained “That conviction
to read:
single
of a
by the uncorroborated
Smith,
Alice Jean SMITH and Richard
if there is
eyewitness,
sufficient
Appellants-Plaintiffs,
support
value to
the determination
probative
Record
guilt beyond a
doubt.”
reasonable
jury instruc
defendant’s
LIFE
COMPA
STANDARD
INSURANCE
Two,
given,
which
included the
tion No.
INDIANA,
Zionsville,
NY
P.K. of
OF
language that “the state has the burden
Inc.,
Associates,
Glenn W. Foster &
beyond a
disproving [the
alibi]
defense of
*6
Gary Keller
Eaters Lawn
Grass
d/b/a
jury
at 122. The
reasonable doubt.” Record
Care,
Care, Ap
and Grass Eaters Lawn
responsibility was
aware that their
was thus
pellees-Defendants.
guilt beyond a reasonable
to determine
refusing
The trial court
not err
doubt.
did
No. 06A01-9609-CV-293.
Criss,
give Reed’s
instruction.
modified
of Indiana.
supra,
STATON, separate concurs with
opinion.
STATON, Judge, concurring. ignore
I concur. We the addi- usually weight
tional longA list of edu-
given. credentials and qualifications
cational can often overshadow layman testimony. Physical
equally credible hearing testify During motion for can as on Reed’s they’ve performed, they’ve one the trial court asked of the witnesses: tests that case studies They qualified certainly experts run. are as absolutely Margerum you say Q: Mr. when they testify essential, this area. And uh ... can what is an psychology people go whole how about mak- you ... when talk about identification ing something misidentifications. being fraught problems, with isn’t Clearly, simply attorney jury? you argue S. Record as an would placed certainly jury “evening upon a argue clothes” within A: You certainly many occasions. uh ... I have on the ken of