Eddie J. Bates v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
FILED
Memorandum Decision shall not be regarded as May 31 2018, 10:40 am
precedent or cited before any court except for the
CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Alexander L. Hoover Curtis T. Hill, Jr.
Nappanee, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eddie J. Bates, May 31, 2018
Appellant-Defendant, Court of Appeals Cause No.
20A05-1712-CR-2791
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Michael A.
Christofeno, Judge
Appellee-Plaintiff.
Trial Court Cause No. 20C01-1608-
F3-36
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Eddie Bates (Bates), appeals his conviction for robbery
while armed with a deadly weapon, a Level 3 felony, Ind. Code § 35-42-5-1(1);
and for his adjudication as a habitual offender.
[2] We affirm.
ISSUE
[3] Bates presents a single issue on appeal, which we restate as: Whether the
victim’s identification of him as the robber was incredibly dubious.
FACTS AND PROCEDURAL HISTORY
[4] On July 11, 2016, Theresa Palmer (Palmer) was working at the Dollar General
store in Elkhart County, Indiana. The manager, Becky Mathiak (Mathiak), and
another employee were present at the store that day, but were in the back of the
store pulling down some items from the shelves. There were two registers in
the front of the store, and Palmer conducted sales from the register that had
been assigned to her.
[5] At around noon that day, two men walked into the store. One of the men, later
identified as Bates, asked where he could get a certain type of pencil, and the
other man, later identified as Henry Bates (Henry), asked for cigarettes. Palmer
walked to the cigarette case, obtained the requested cigarettes, and returned to
the register. At that point, Henry had walked behind the counter and Palmer
informed Henry that he needed to go the front of the counter to pay. Instead of
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doing what Palmer had asked him to, Henry placed a knife on Palmer’s back
and ordered Palmer to “open the drawer” and that she “was being robbed.”
(Transcript Vol. II, p. 65). Henry then “reached in the drawer and took money
out of it and then just took off.” 1 (Tr. Vol. II, p. 65).
[6] While the robbery was taking place, Bates stood in the front of the counter
watching. Before Palmer could close the register, Bates stated, “[D]on’t close
that. Lift it up; I want to see what you have underneath your drawer.” (Tr.
Vol. II, pp. 65-66). Palmer lifted the drawer and showed Bates that there was
nothing underneath. Bates then instructed Palmer not to hit the panic button,
but Palmer informed Bates that there was no panic button. Bates afterward
ordered Palmer to open the other register, however, Palmer indicated that the
register had been “assigned to a different cashier” with specific “codes” and
there was no way she could “get into it.” (Tr. Vol. II, p. 67). Bates then
ordered Palmer to open a safe that was positioned between the two registers,
but Palmer expressed that she “couldn’t do that; it was on time delay.” (Tr.
Vol. II, p. 67). Bates asked Palmer if there were other employees present in the
store, and Palmer stated that her manager Mathiak and another employee were
1
Henry was subsequently charged with robbery and he pleaded “guilty in May of 2017.” (Tr. Vol. II, p.
162).
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in the back of the store. At that point, Bates ordered Palmer to take him to the
store office. Upon entering the office, Bates demanded copies of the
surveillance videos from Palmer. Palmer stated that she could not give him
copies of surveillance videos because the “corporate office” conducted the
recordings. (Tr. Vol. II, p. 68). Bates repeatedly threated Palmer by telling her
that if she failed to follow to his commands, he would “get the other man,”
presumably Henry, to come “hurt” her. (Tr. Vol. II, p. 70). While talking to
Palmer, Bates saw Mathiak’s wallet on the desk. Bates took the wallet,
rummaged through it, and retrieved some money. Before leaving the office,
Bates reached up to “an electric box on the wall” that had an “antenna” and he
“snapped the antenna off of it.” (Tr. Vol. II, p. 71). Palmer assumed that Bates
broke off the antenna to stop the surveillance cameras from recording. Before
leaving, Bates ordered Palmer to sit in the office until he was out of the
building, or he “would come back in with the other gentleman, and they would
hurt” her. (Tr. Vol. II, p. 71). As soon as Bates walked out of the store, Palmer
yelled for Mathiak. The Elkhart Police Department were immediately
contacted.
[7] The police released surveillance videos and still pictures of Henry and Bates to
news media outlets and they sought tips about their identities. Both Bates and
Henry wore hats during the robbery. The surveillance videos also appeared in
an online newspaper. Detective Kirk Maggert (Detective Maggert) of the
Goshen Police Department recognized Bates based on an encounter that
occurred six days before the robbery. Detective Maggert contacted Detective
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Scott Johnson (Detective Johnson) of the Elkhart Police Department. The
police also received the names of Henry and William Lee (Lee) as possible
suspects.
[8] Detective Johnson subsequently interviewed Palmer and he showed Palmer
three photo lineups. From the first lineup, Palmer picked out Henry. In the
second photo lineup, Palmer circled Lee’s picture, and in the third photo
lineup, Palmer circled Bates. Lee was also investigated, but when Detective
Johnson spoke with Lee, he determined that Lee was not one of the robbers
based on his facial features.
[9] About fifteen days after the robbery, Detective Johnson also spoke with Bates.
During a recorded interview, Bates was miranderized and subsequently shown
the still photograph depicting him and Henry robbing the Dollar General store.
Bates responded by stating that “I thought it was me too.” (Tr. Vol. II, p. 171).
Bates then stated, “[I]f you look at the photograph, I never paid him no
attention.” (Tr. Vol. II, p. 171). Detective Johnson then played for Bates the
surveillance video documenting the robbery. After watching the video, Bates,
referring to Henry, stated, “I didn’t know he had no knife.” (Tr. Vol. II, p.
173). Also, after interviewing Bates, Detective Johnson again watched the
surveillance video from the store and concluded that Bates was the man in the
video.
[10] On August 19, 2016, the State filed an Information, charging Bates with
robbery while armed with a deadly weapon, a Level 3 felony. On September
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22, 2016, the State amended its Information because in the original filing it had
alleged that Mathiak was the victim to the robbery. In the amended
Information, the State replaced Mathiak’s name with Palmer’s. The same day,
the State added a habitual offender charge against Bates, alleging that he had
accumulated two prior unrelated felonies.
[11] A three-day jury trial was conducted on July 17 through July 19, 2017. Palmer
again identified Bates as the robber from the same photo lineup that Detective
Johnson had revealed to her during the police investigation. That photo lineup
was admitted as Exhibit 11, and when Palmer was asked if she was sure that
Bates was the perpetrator, Palmer testified that “there is no doubt” in her mind
that Bates was the same person that robbed the store. (Tr. Vol. II, p. 104). At
the close of the evidence, the jury found Bates guilty as charged. Bates then
pleaded guilty to the habitual offender charge. On November 2, 2017, the trial
court conducted a sentencing hearing. At the end of the hearing, the trial court
sentenced Bates to serve sixteen years, and enhanced by twenty years based on
the habitual offender adjudication, for an aggregate sentence of thirty-six years.
[12] Bates now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[13] Bates argues that there is insufficient evidence to sustain his conviction for his
Level 3 felony robbery while armed with a deadly weapon because his
conviction is based on Palmer’s inherently contradictory testimony.
Specifically, he argues that Palmer’s “testimony . . . during trial was dubious”
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because Palmer misidentified him in one of the photo lineups, and “there can
be almost no question that this played a role in the jury developing
unreasonable inferences that . . . . Bates was the suspect in the video
surveillance tape.” (Appellant’s Br. p. 12).
[14] The “incredible dubiosity rule” provides that “a court may ‘impinge on the
jury’s responsibility to judge the credibility of witnesses only when confronted
with inherently improbable testimony or coerced, equivocal, wholly
uncorroborated testimony of incredible dubiosity.’” Govan v. State, 913 N.E.2d
237, 243 n. 6 (Ind. Ct. App. 2009) (quoting Murray v. State, 761 N.E.2d 406, 408
(Ind. 2002)), trans. denied. Application of this rule is rare, and “‘the standard to
be applied is whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it.’” Hampton v. State, 921
N.E.2d 27, 29 (Ind. Ct. App. 2010) (quoting Fajardo v. State, 859 N.E.2d 1201,
1208 (Ind. 2007)), trans. denied. The rule applies only when a witness
contradicts herself or himself in a single statement or while testifying, and does
not apply to conflicts between multiple statements. Manuel v. State, 971 N.E.2d
1262, 1271 (Ind. Ct. App. 2012). Cases where we have found testimony
inherently improbable have involved situations either where the facts as alleged
“could not have happened as described by the victim and be consistent with the
laws of nature or human experience,” or where the witness was so equivocal
about the act charged that his uncorroborated and coerced testimony “was
riddled with doubt about its trustworthiness.” Watkins v. State, 571 N.E.2d
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1262, 1265 (Ind. Ct. App. 1991), aff’d in relevant part, 575 N.E.2d 624 (Ind.
1991).
[15] At Bates’s jury trial, the State introduced three photo lineups. The first photo
lineup was admitted as Exhibit 9 where Palmer had circled Henry as one of the
robbers. The second photo lineup that was admitted as Exhibit 10, Palmer had
identified Lee as another perpetrator. Finally, the third photo lineup that was
admitted as Exhibit 11, Palmer had circled Bates as the other robber. During
her direct examination, Palmer testified the men who robbed the store wore
hats. She then testified that when she identified Bates in Exhibit 11, she
expressed to Detective Johnson that “[I]f you put a hat on him, that’s him right
there.” (Tr. Vol. II, p. 83). During cross-examination, and referencing both
Exhibit 10 (Lee’s picture) and Exhibit 11 (Bates’s picture), Palmer testified that
she recalled informing Detective Johnson that the other perpetrator to the
robbery would have either been “between those two.” (Tr. Vol. II, p. 96).
However, if she “had to pick,” she was certain that it was Bates and not Lee
that robbed the store with Henry. (Tr. Vol. II, p. 96).
[16] Bates contends that Palmer’s testimony on cross-examination that “it would
have been between those two,” meaning the robber was either Lee or Bates, is
inherently dubious. (Tr. Vol. II, p. 96). We disagree. Bates seems to be cherry
picking the unfavorable portions of Palmer’s testimony to support his dubiosity
claim. Even though Palmer picked two different people from the photo lineups,
Palmer’s subsequent statements in the same paragraph ousts any confusion.
Palmer stated that she remembered telling Detective Johnson that while it
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would have been “between those two,” Lee or Bates, she was “sure” that it was
Bates who robbed the store. (Tr. Vol. II. p. 96). Then during redirect
examination, the State again asked Palmer if she doubted her identification of
Bates being the other Dollar General store robber, and Palmer stated, “[N]o,
sir. There’s no doubt.” (Tr. Vol. II, p. 104).
[17] While Palmer picked two different individuals from the photo lineups, she
unequivocally testified that she was sure that it was Bates and not Lee who
robbed the store. See Manuel v. State, 971 N.E.2d at 1271. In addition, we note
that there was not a complete lack of circumstantial evidence. Detective
Maggert testified that six days before the robbery, he had an encounter with
Bates, and he recognized his picture from the online newspaper. In addition,
Palmer’s testimony was corroborated by Detective Johnson’s testimony who
testified that after he interviewed Bates, he again watched the surveillance
video, and he concluded that Bates was the other person who robbed the Dollar
General store. Furthermore, during a recorded interview, and after watching
the surveillance video, Bates implicated himself in the robbery by informing
Detective Johnson that he “didn’t know” that Henry had a “knife.” (Tr. Vol.
II, p. 173). Thus, we find that the incredible dubiosity rule is inapplicable in the
present case and cannot serve as grounds for overturning the jury’s verdict.
Accordingly, we conclude that the State presented sufficient evidence beyond a
reasonable doubt to convict Bates of Level 3 felony robbery while armed with a
deadly weapon.
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CONCLUSION
[18] Based on the foregoing, we conclude that the principles of incredible dubiosity
are inapplicable and the State presented sufficient evidence beyond a reasonable
doubt to convict Bates of Level 3 felony robbery while armed with a deadly
weapon.
[19] Affirmed.
[20] May, J. and Mathias, J. concur
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