BROWN, Judge.
Gary Sistrunk appeals his convictions for robbery and criminal confinement as class B felonies.
We affirm in part, reverse in part, and remand.
At approximately 7:00 p.m. on February 5, 2012, Sistrunk entered a gas station in Marion County, Indiana, where Christina Busch was working alone in the store. Sistrunk asked Busch for "a black [inaudible] cigar," and Busch handed him the cigar. Transcript at 25. Sistrunk placed a one-dollar bill on the counter, Busch told him that the cigar was $1.17, and he "threw out a quarter out of his pocket." Id. Busch opened the cash register and placed the cash in the drawer, looked up before handing the change back to Sistrunk, and observed that "he had a gun sitting at me." Id. Sistrunk leaned over the counter closer to Busch, pointed the gun at her, and ordered her to give him all of the money in the drawer. Busch asked "are you serious," and Sistrunk said "I'm not playing with you." Id. Busch handed all of the money in the cash drawer to him. He ordered her to give him the money out of the safe, and Busch told him that she was unable to open the safe, that she "had 2 safe drops sitting there that he could have," that "[i]f he wanted to come back there he could look," and that she "didn't want him shooting [her]." Id. Sistrunk took the two safe drops. As Busch was giving Sistrunk the money, he "kept telling [her] not to press the button," which she took to mean the emergency button for the store. Id. at 26. Sistrunk "told [Busch] to sit on the ground and [she] sat on the
On February 14, 2012, the State charged Sistrunk with robbery and criminal confinement as class B felonies. On March 9 and March 23, 2012, represented by private counsel, Sistrunk filed motions which requested the court to order the County Public Defender's Office to pay for the reasonable expenses of an expert witness on the issue of eyewitness identification.
Id. at 65. The court found Sistrunk guilty of robbery and criminal confinement as charged and later sentenced Sistrunk to six years for each conviction to be served concurrently with each other and consecutive to his sentence under Cause No. 61.
The first issue is whether Sistrunk's convictions for robbery and criminal confinement as class B felonies violate Indiana's prohibition against double jeopardy. The Indiana Constitution provides that "[n]o person shall be put in jeopardy twice for the same offense." Ind. Const. art. 1, § 14. The Indiana Supreme Court has held that "two or more offenses are the `same offense' in violation of Article I, Section 14 of the Indiana Constitution, if,
Sistrunk argues that his convictions for robbery and criminal confinement violate Indiana's prohibition against double jeopardy based upon the actual evidence test.
Application of this test requires the court to identify the essential elements of each of the challenged crimes and to evaluate the evidence from the fact-finder's perspective. Lee, 892 N.E.2d at 1234. "[U]nder the ... actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense." Spivey v. State, 761 N.E.2d 831, 832-833 (Ind.2002). In determining the facts used by the fact-finder to establish the elements of each offense, it is appropriate to consider the charging information, jury instructions, and arguments of counsel. Lee, 892 N.E.2d at 1234; Spivey, 761 N.E.2d at 832. Generally, double jeopardy does not prohibit convictions of confinement and robbery when the facts indicate that the confinement was more extensive than that necessary to commit the robbery. Merriweather v. State, 778 N.E.2d 449, 454 (Ind.Ct.App.2002) (citing Hopkins, 759 N.E.2d at 639; Thy Ho v. State, 725 N.E.2d 988, 993 (Ind.Ct.App. 2000)).
Sistrunk specifically argues that he ordered an employee to sit on the floor, paused for a moment, and then walked out the door, that every act of robbery will, of necessity, involve some amount of confinement, and that there was a reasonable possibility that the trial judge used the same evidence to convict him of both robbery and criminal confinement. The State argues that Sistrunk did not give the order for Busch to sit down on the floor until he had committed all the elements of robbery by taking the safe drops from Busch's presence, that the confinement charge was drafted to ensure that only interference with Busch's liberty occurring independently of the robbery could be used to convict Sistrunk of confinement, and thus that Sistrunk's convictions do not violate Indiana's prohibition against double jeopardy.
The evidence presented at trial shows that Sistrunk's confinement of Busch extended beyond what was necessary to rob her. The evidence shows that Sistrunk held a gun to Busch and ordered her to hand over all the money in the cash drawer, that he ordered her to retrieve the money from the safe, and that, after she explained that she could not access the safe but that he could take the safe drops, Sistrunk took the safe drops. As Busch was giving Sistrunk the money, he "kept telling [her] not to press the button." Transcript at 26. After he had taken the safe drops, Sistrunk "told [Busch] to sit on the ground," she "sat on the ground," Sistrunk "stood there for a minute," and then he walked out the door. Id. In light of Sistrunk's actions of threatening Busch by pointing a handgun at her, of taking the cash from the register drawer and the safe drops, and by instructing her not to press the emergency button, it was not necessary for Sistrunk to further require Busch to sit down on the floor in order to rob her. His actions to effectuate the robbery and that of ordering Busch to sit on the floor were separate criminal transgressions.
Under the circumstances, we find no sufficient substantial likelihood, and thus cannot say that Sistrunk has demonstrated a reasonable possibility, that the trial court based its determination of guilt on the criminal confinement count upon the evidence used to find him guilty of robbery. Accordingly, Sistrunk's convictions do not violate his right against double jeopardy. See Hopkins, 759 N.E.2d at 640 (holding that the defendant's confinement of his victims extended beyond what was necessary to rob them and noting that it was not necessary to force the victims into the basement or later to stay in the basement to rob them and that the confinement was a separate criminal transgression from the robberies themselves).
In Miller v. State, the defendant placed a knife to the victim's throat and then later pressed the knife on her back while he committed various offenses. 790 N.E.2d 437, 438 (Ind.2003). The defendant was convicted of burglary as a class A felony, two counts of criminal deviate conduct as class A felonies, criminal confinement as a class B felony, robbery as a class B felony, resisting law enforcement as a class A misdemeanor, and battery as a class A misdemeanor. Id. On appeal, the defendant claimed a violation of the double jeopardy provision of the Indiana Constitution because his use of a single weapon was used to elevate the sentencing classification of several of his convictions. Id. The Indiana Supreme Court observed that "[a]lthough not raised by the parties, we have recognized a series of rules of statutory construction and common law that supplements the constitutional protections afforded by the Indiana Double Jeopardy Clause," id. at 439 (citing Pierce v. State, 761 N.E.2d 826, 830 (Ind.2002); Spivey, 761 N.E.2d at 834), that "Pierce applied the rule that two crimes may not be enhanced by the same bodily injury," and that "[t]his was an application of the broader rule previously expressed by Justice Sullivan prohibiting conviction and punishment `for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished.'" Id. (citing Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)). The Court held that "[t]he repeated use of a weapon to commit multiple separate crimes is not `the very same behavior' precluding its use to separately enhance the resulting convictions" and that "[r]ather, the use of a `single deadly weapon during the commission of separate offenses may enhance the level of each offense.'" Id. (citing Gates v. State, 759 N.E.2d 631, 633 n. 2 (Ind.2001)). The Court thus declined to find error in the defendant's enhanced sentences. Id.
In his concurring opinion, Justice Sullivan noted that "[w]hat justifies the multiple enhancements here is the repeated use of the knife by the defendant in committing crimes for which he was convicted," that "[h]ad the defendant merely been armed with the weapon while committing multiple crimes, and not actually used it (or used it only once), I think it would be improper to impose more than one enhancement," and that, "[i]n such a circumstance, the multiple enhancements would be for the `very same behavior' and thus violate the rule against multiple enhancements to which this Court subscribed in Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002) (citing Pierce [], 761 N.E.2d [at] 830[], citing in turn Richardson [], 717 N.E.2d [at] 55 [] (Sullivan, J., concurring); id. at 57 (Boehm, J., concurring in result))." Id. (Sullivan, J., concurring).
The next issue is whether the trial court abused its discretion in denying Sistrunk's request for funds for an expert witness. Sistrunk's March 23, 2012 motion states that, in each of the four cases against him, the State's evidence would rest largely on eyewitness testimony, that none of the witnesses recognized the robber from previous interactions, that it was defense counsel's understanding that nothing that was found during the search of Sistrunk's house had been linked to any of the crimes, and that some of the witnesses stated that they were close to one hundred percent certain that the picture of Sistrunk is of the same man that robbed them. The motion states:
Appellant's Appendix at 61-62. The motion further stated that eyewitness testimony will be the only real substantive evidence of guilt, that according to the Department of Correction ("DOC") it costs $20,000 to incarcerate a person for a period of one year, and that if he were sentenced to the absolute minimum and received good credit time the cost of incarceration would be $60,000. The motion also stated that the hourly rate of Dr.
At the pretrial conference on July 23, 2012, the court noted that Sistrunk requested the court to order the MCPD to expend budgeted funds on his behalf and that it was the understanding of the court that there was a protocol or process that the MCPD followed in determining whether such a request would be granted. The court asked the MCPD, represented by Robert Hill, to help with the record. Hill testified that the MCPD requires a defendant to show a legitimate need for the requested service and that budgeted funds must be available. Hill further testified that the MCPD did not have any funds remaining in its budget for the request and that he did not believe there had been an adequate showing of need and a demonstration that the requested funds would in fact be beneficial to the case. Hill indicated that an eyewitness expert is a legitimate area of inquiry in the right case but that he did not think this was the right case. The court then stated a familiarity with some literature that experts in this area "will not say the witness is right or wrong" and "[t]hey'll simply highlight the possibility of mistake." Supplemental Transcript at 70. Sistrunk's counsel agreed that the expert "raises his answers in terms of these are potential problems because he can't offer an opinion on whether or not a witness has testified truthfully." Id. The court denied Sistrunk's request for public funds.
Sistrunk contends that the court abused its discretion and violated his right to a fundamentally fair trial in denying his application for public funds. He submits that the only contested issue was the identity of the perpetrator of the robbery, that the court concluded it was only the combination of the video and eyewitness identification that allowed the finding of guilt, that had he been provided the benefit of an expert to discredit the eyewitness's identification, the only remaining evidence of identity would have been the recording, which by the court's admission would not have been sufficient to support his conviction. Sistrunk asserts that he demonstrated an expert was necessary pursuant to the factors set forth in Scott v. State, 593 N.E.2d 198, 199 (Ind.1992), that the expert's services would be directed to a substantial question, and that the expert's testimony would be admissible at trial. He argues that the severity of the possible penalty militates in favor of an expert, which suggests that a defendant with means facing the possibility of lengthy incarceration would be willing to spend a great deal on an expert. He notes that his proposed expert would have charged an hourly fee of $100 or a single flat fee of $10,000 to prepare for and testify at trials in all four cases, that neither the trial court nor the MCPD suggested that those fees were excessive, and that the amount is a fraction of what it would cost to incarcerate him for one year. He also argues that, without an identification expert, it was virtually impossible for him to attack the testimony of Busch and that "[t]he help of an expert who could have illuminated what is counterintuitive but true — that eyewitnesses, even when they report being `certain,' are often mistaken — would have been
The State maintains that the court did not abuse its discretion and argues that Sistrunk misunderstands a number of the factors in Scott "by conflating all of them into a hypothetical discussion of the significance of an issue to a defendant's case." Appellee's Brief at 10-11. The State argues that an application for an expert identification witness raises particular concerns under Scott's criteria regarding "whether the requested expert services could nonetheless be performed by counsel" through cross-examination. Id. at 11-12 (citation omitted). The State further argues that, when records such as photographs or video recordings "are present, the utility of opinion testimony regarding other eyewitness identification is greatly lessened, or even eliminated." Id. at 13. The State additionally contends that Sistrunk's proposed expert did not appear to be qualified to testify to the matters identified by his motion, that the proposed expert's resume "contains virtually no indication that he was qualified to offer expert evidence on the issue of eyewitness identification," and that the resume did not identify any scholarly work or publications in the areas of identification, memory processes, or stress or adrenaline reactions. Id. at 17. The State argues that it did not rely on an expert and this fact does not favor Sistrunk's request. The State further contends that Sistrunk argues only that no one claimed the proposed expert's fee was excessive, but that his burden was to affirmatively show the fee was reasonable and that he did not do so by comparing the fee to the costs of incarceration. The State notes that defense counsel cross-examined Busch as to aspects of the robbery which could be used to impeach her identification of him and that the record does not support his assertion that an expert witness would have made an error in Busch's identification more or less likely. The State also argues that Sistrunk's claims regarding the practice of involving the public defender in the appointment of experts for indigent defendants are waived because Sistrunk and his private counsel never objected or presented arguments against the procedure to the trial court and that, even if not waived, there is no basis for Sistrunk's claim that the MCPD did not review his request for an expert witness under the relevant standard.
Indiana Evidence Rule 702 permits expert witness testimony "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." The appointment of experts for indigent defendants is left to the trial court's sound discretion. McConniel v. State, 974 N.E.2d 543, 558 (Ind.Ct.App. 2012) (citing Beauchamp v. State, 788 N.E.2d 881, 888 (Ind.Ct.App.2003) (citing Jones v. State, 524 N.E.2d 1284, 1286 (Ind.1988))), trans. denied. It is within the trial court's discretion to determine whether the requested service would be needless, wasteful or extravagant. Id. The trial court is not required to appoint at public expense any expert that the defendant might find helpful. Id. The defendant requesting the appointment of an expert bears the burden of demonstrating the need for the appointment. Id.
In Reed v. State, the defendant wished to present expert testimony on the subject of the reliability of eyewitness identification, and the trial court refused. 687 N.E.2d 209, 211 (Ind.Ct.App.1997), reh'g denied. On appeal, the court noted that the defendant was convicted solely upon the testimony of one witness. Id. at 212. The court then stated:
Id. at 212-213. After reviewing several opinions in other states, the court held that "we suggest that trial courts might be well advised to permit such expert testimony in order to assist the jury in its evaluation of the evidence," that "[n]evertheless we are reminded that, at least with regard to experts paid from public funds, [the] defendant has the burden of demonstrating that
In Cook, the defendant wished to present the testimony of Dr. Terry as an expert on the subject of the reliability of eyewitness identification, and the trial court did not permit Dr. Terry to testify before the jury. 734 N.E.2d at 569. The Court noted that none of the witnesses who identified the defendant was equivocal in his or her testimony and held that the trial court did not abuse its discretion in refusing to allow the expert testimony. Id. at 571.
In Farris v. State, the defendant sought to present the testimony of Dr. Terry as an expert on the subject of the reliability of eyewitness identification, and the trial court refused. 818 N.E.2d 63, 67 (Ind.Ct. App.2004), trans. denied. The Court initially noted that Indiana Evidence Rule 704(b) provides that "[w]itnesses may not testify to opinions concerning ... whether a witness has testified truthfully...." Id. The Court then held that the trial court had found that, based on the evidence presented and Farris's cross-examination of the witnesses, Dr. Terry's testimony was not necessary to place the concept of eyewitness misidentification within the jury's realm of understanding and that "[t]his was a valid ground for excluding Dr. Terry from testifying." Id. at 68. The Court found that there were two eyewitnesses and that "[t]heir accounts of the robbery were consistent and supported by the gas station's surveillance video" and held the trial court did not abuse its discretion by excluding Dr. Terry from testifying. Id.
In this case, as noted by Sistrunk, Busch was the sole eyewitness to the armed robbery. However, the record reveals that Sistrunk's counsel was able to thoroughly cross-examine Busch regarding her memory of the robbery and her identification of Sistrunk as the robber. Specifically, Sistrunk's counsel questioned her regarding her vision, the fact that she felt scared and was worried she would be shot at the time of the robbery, the trauma of experiencing the robbery and the fact that she quit her job a few days afterwards, the jacket and hat worn by the person who robbed her, the eyebrows of the person, the reason she picked the photograph of Sistrunk from the array, the fact that she looked at the photographs closely, that at that time she was seventy or eighty percent sure that Sistrunk was the person who robbed her, that after she signed the array and the detective had stated she picked the right guy she became one hundred percent sure, and that Sistrunk had a scar above his right eyebrow and Busch did not remember seeing the scar at the time of the robbery. Busch also indicated that she was in shock when the robbery happened, and when asked if "[i]t's hard to remember exactly what you saw during the robbery," she replied "[i]t's hard, it is, yes." Transcript at 47. In addition, the State admitted two versions of a video recording taken from a camera at the gas station showing the robbery, which at a minimum favors a finding that the trial court did not abuse its discretion in determining that Dr. Terry's testimony was not necessary under the circumstances. See Farris, 818 N.E.2d at 68 (noting that the eyewitness accounts of the robbery were supported by the gas station's surveillance video). In closing arguments, Sistrunk's defense
We also note that this case was tried to the court as the trier of fact, that judges are presumed to know the law, that the concept that eyewitness identifications may be mistaken or questionable in certain circumstances is within the realm of understanding of the court, and that additional testimony related to that concept in certain circumstances, such as here where the court was able to assess Busch's testimony and the video recording, may be of limited utility.
Based upon the record, Sistrunk failed to meet his burden of demonstrating that the testimony of his proposed expert was necessary to assure an adequate defense, and we cannot say the trial court abused its discretion in denying his request for public funds to pay for the fees of the proposed expert. See Reed, 687 N.E.2d at 211-214 (noting the defendant was convicted solely upon the testimony of one witness and holding that the defendant did not meet his burden of demonstrating that the expert testimony regarding the subject of the reliability of eyewitness identification was necessary to assure an adequate defense and that the concept that eyewitness identification is flawed or subject to serious question in a particular instance may be placed within the jury's realm of understanding by careful cross-examination and by counsel's argument to the jury).
To the extent that Sistrunk asserts the court erred in involving the MCPD or Hill in the process of determining whether to grant his request for funds for an expert, Sistrunk, who was represented by private counsel, did not raise the issue before the trial court and thus waived the issue. See In re Larry L. Thompson Revocable Trust, 954 N.E.2d 1056, 1061 (Ind.Ct.App.2011) ("A party must show that it gave the trial court a bona fide opportunity to pass upon the merits of a claim before seeking an opinion on appeal."). Waiver notwithstanding, Sistrunk does not demonstrate that the recommendation of the MCPD was based solely on budgetary grounds, that the trial court relied exclusively on the MCPD's statement and failed to evaluate the necessity of the requested expert, or that he was prejudiced by the court taking into consideration the statements made by Hill. Sistrunk is not entitled to reversal of his convictions on this basis.
For the foregoing reasons, we remand with instructions to enter Sistrunk's conviction for criminal confinement as a class D felony and to impose a sentence consistent therewith to be served concurrent with his sentence for robbery, and in all other respects we affirm.
Affirmed in part, reversed in part, and remanded.
ROBB, J., concurs.
BARNES, J., concurs in part and dissents in part with separate opinion.
Although I agree with the majority's conclusion that the trial court did not abuse its discretion in denying Sistrunk's request for expert witness funds, I respectfully dissent from its conclusion that the robbery and confinement were separate criminal transgressions. Ordering Busch to sit on the floor after Sistrunk took the money was inherently part of the robbery because it effectuated his getaway. This is not to say I view all actions that effectuate a getaway as inherently part of a robbery. But here, where Sistrunk did not order Busch to another location or otherwise restrain her and only ordered her to sit behind the counter while he left the store, does not, in my view, rise to the level of a separate crime. This was something that simply was needed to carry out the original robbery. Sistrunk has demonstrated that the confinement was not greater than what was needed to carry out the robbery. Accordingly, I would vacate the confinement conviction entirely.