MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 28 2017, 9:43 am
this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Danielle L. Gregory Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Katherine Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Billy Guyton, March 28, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1434 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Richard Appellee-Plaintiff. Hagenmaier, Commisssioner Trial Court Cause No. 49G04-1510-F3-36181
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 1 of 7 Case Summary [1] Billy Guyton appeals his convictions for Level 3 felony robbery and Level 5
felony intimidation. We affirm.
Issue [2] The sole issue is whether the trial court properly refused to allow Guyton to
show a video to the jury regarding eyewitness identification.
Facts [3] On October 8, 2015, Jorge Gutierrez stopped at a gas station convenience store
in Indianapolis to buy cigarettes while his wife and children waited in the car.
As Gutierrez was leaving the store and walking back to his car, he was
approached by two young African-American men. One of them pointed a gun
at Gutierrez, and they both demanded that he give them “everything you
have.” Tr. p. 72. Gutierrez gave them his cell phone, wallet, and cigarettes;
they took the cash from the wallet, threw the wallet back at Gutierrez, and
called him a racial slur.
[4] Gutierrez drove his wife and children home and then returned to the gas station
and called police. While Gutierrez was speaking with the dispatcher, he saw
the robbers come back to the gas station, but wearing different clothes, and then
walk toward a nearby apartment complex. Gutierrez provided a description of
the robbers to police. Police detained Guyton at the apartment complex shortly
thereafter because he matched Gutierrez’s description. Guyton had attempted
to run away from police; when they caught him and patted him down, they Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 2 of 7 discovered a cell phone and a pack of cigarettes. The cell phone belonged to
Gutierrez and the cigarettes were the same brand that he had just purchased.
Gutierrez subsequently identified Guyton as one of his robbers, the one without
the gun, in a show-up identification and in a photo array.
[5] The State charged Guyton with Level 3 felony robbery and Level 5 felony
intimidation. At Guyton’s jury trial, defense counsel requested during voir dire
and again during closing argument to show a video to the jurors. The video
was of an experiment called “The Invisible Gorilla.” Tr. p. 170. In the video,
which is titled “Selective Attention Test from Simons & Chabris (1999),” a
narrator instructs the viewer to count how many times players wearing white
shirts pass a basketball. Then, the video shows three persons wearing white
shirts and three persons wearing black shirts passing two basketballs back and
forth; while they are doing so, an individual wearing a gorilla costume walks
between them. Afterwards, the narrator states the correct number of passes by
persons wearing white shirts and then says, “But did you see the gorilla?!” Ex.
A. The apparent implication of the video is that the average person asked to
concentrate on the number of passes by persons wearing white shirts would not
have noticed the gorilla.
[6] Defense counsel submitted the video to the trial court as part of his offer to
prove and engaged in the following conversation with the trial court:
[Defense counsel]: The video is a selective authentication test. It portrays the visual kind of experiment that demonstrates the difficulty of eyewitness testimony. . . . We would just like to play
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 3 of 7 this in closing just to show the jury the difficulty of eyewitness identification. The video is not related to the case in any way. . . .
*****
THE COURT: Okay. I will accept that as part of the record for an Offer to Prove. I just want to reiterate my prior ruling that this is a test or a study that is done outside the context of the trial. It is not subject to cross exam by the other party. I think it is inappropriate to interject that to the jury. I mean, I tell the jury every night when they leave not to do experiments or consult YouTube and things like that so I think that is in that nature. We will accept that for an Offer to Prove.
[Defense counsel]: I’m sorry. One more thing. I intended to offer that only as demonstrative and not substantive.
THE COURT: Okay. Well, it has to be demonstrative of something. Okay? It is demonstrative of a test that was done outside the presence of this courtroom . . . .
Tr. pp. 170-72.
[7] The jury found Guyton guilty as charged, and he was convicted and sentenced
accordingly. He now appeals.
Analysis [8] Guyton argues the trial court erred in refusing to allow him to show the
“Invisible Gorilla” video to the jury. We will reverse a conviction based on a
trial court’s evidentiary rulings only for an abuse of discretion resulting in
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 4 of 7 prejudicial error. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). “A trial
court abuses its discretion when its ruling is either clearly against the logic and
effect of the facts and circumstances before the court, or when the court
misinterprets the law.” Id.
[9] Guyton contends the video was only demonstrative evidence and, therefore, did
not have to meet the higher standards for the admission of substantive evidence.
“Demonstrative evidence is evidence offered for purposes of illustration and
clarification.” Wise v. State, 719 N.E.2d 1192, 1196 (Ind. 1999). Such evidence
is admissible “if it sufficiently explains or illustrates relevant testimony as to be
a potential help to the trier of fact.” Dunlap v. State, 761 N.E.2d 837, 842 (Ind.
2002). Photographs and videos are treated as demonstrative evidence when
they are “‘used merely as a nonverbal method of expressing a witness’
testimony and is admissible only when a witness can testify it is a true and
accurate representation of a scene personally viewed by that witness.’” Rogers v.
State, 902 N.E.2d 871, 876 (Ind. Ct. App. 2009) (quoting Bergner v. State, 397
N.E.2d 1012, 1014 (Ind. Ct. App. 1979)). If a photo or video does not meet this
requirement, it may be admitted as substantive evidence under the “silent
witness” theory. Id. This theory applies primarily to things such as security
camera footage, and to be admissible “‘there must be a strong showing of
authenticity and competency . . . .’” Id. (quoting Edwards v. State, 762 N.E.2d
128, 136 (Ind.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 28 2017, 9:43 am
this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Danielle L. Gregory Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Katherine Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Billy Guyton, March 28, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1434 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Richard Appellee-Plaintiff. Hagenmaier, Commisssioner Trial Court Cause No. 49G04-1510-F3-36181
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 1 of 7 Case Summary [1] Billy Guyton appeals his convictions for Level 3 felony robbery and Level 5
felony intimidation. We affirm.
Issue [2] The sole issue is whether the trial court properly refused to allow Guyton to
show a video to the jury regarding eyewitness identification.
Facts [3] On October 8, 2015, Jorge Gutierrez stopped at a gas station convenience store
in Indianapolis to buy cigarettes while his wife and children waited in the car.
As Gutierrez was leaving the store and walking back to his car, he was
approached by two young African-American men. One of them pointed a gun
at Gutierrez, and they both demanded that he give them “everything you
have.” Tr. p. 72. Gutierrez gave them his cell phone, wallet, and cigarettes;
they took the cash from the wallet, threw the wallet back at Gutierrez, and
called him a racial slur.
[4] Gutierrez drove his wife and children home and then returned to the gas station
and called police. While Gutierrez was speaking with the dispatcher, he saw
the robbers come back to the gas station, but wearing different clothes, and then
walk toward a nearby apartment complex. Gutierrez provided a description of
the robbers to police. Police detained Guyton at the apartment complex shortly
thereafter because he matched Gutierrez’s description. Guyton had attempted
to run away from police; when they caught him and patted him down, they Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 2 of 7 discovered a cell phone and a pack of cigarettes. The cell phone belonged to
Gutierrez and the cigarettes were the same brand that he had just purchased.
Gutierrez subsequently identified Guyton as one of his robbers, the one without
the gun, in a show-up identification and in a photo array.
[5] The State charged Guyton with Level 3 felony robbery and Level 5 felony
intimidation. At Guyton’s jury trial, defense counsel requested during voir dire
and again during closing argument to show a video to the jurors. The video
was of an experiment called “The Invisible Gorilla.” Tr. p. 170. In the video,
which is titled “Selective Attention Test from Simons & Chabris (1999),” a
narrator instructs the viewer to count how many times players wearing white
shirts pass a basketball. Then, the video shows three persons wearing white
shirts and three persons wearing black shirts passing two basketballs back and
forth; while they are doing so, an individual wearing a gorilla costume walks
between them. Afterwards, the narrator states the correct number of passes by
persons wearing white shirts and then says, “But did you see the gorilla?!” Ex.
A. The apparent implication of the video is that the average person asked to
concentrate on the number of passes by persons wearing white shirts would not
have noticed the gorilla.
[6] Defense counsel submitted the video to the trial court as part of his offer to
prove and engaged in the following conversation with the trial court:
[Defense counsel]: The video is a selective authentication test. It portrays the visual kind of experiment that demonstrates the difficulty of eyewitness testimony. . . . We would just like to play
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 3 of 7 this in closing just to show the jury the difficulty of eyewitness identification. The video is not related to the case in any way. . . .
*****
THE COURT: Okay. I will accept that as part of the record for an Offer to Prove. I just want to reiterate my prior ruling that this is a test or a study that is done outside the context of the trial. It is not subject to cross exam by the other party. I think it is inappropriate to interject that to the jury. I mean, I tell the jury every night when they leave not to do experiments or consult YouTube and things like that so I think that is in that nature. We will accept that for an Offer to Prove.
[Defense counsel]: I’m sorry. One more thing. I intended to offer that only as demonstrative and not substantive.
THE COURT: Okay. Well, it has to be demonstrative of something. Okay? It is demonstrative of a test that was done outside the presence of this courtroom . . . .
Tr. pp. 170-72.
[7] The jury found Guyton guilty as charged, and he was convicted and sentenced
accordingly. He now appeals.
Analysis [8] Guyton argues the trial court erred in refusing to allow him to show the
“Invisible Gorilla” video to the jury. We will reverse a conviction based on a
trial court’s evidentiary rulings only for an abuse of discretion resulting in
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 4 of 7 prejudicial error. Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015). “A trial
court abuses its discretion when its ruling is either clearly against the logic and
effect of the facts and circumstances before the court, or when the court
misinterprets the law.” Id.
[9] Guyton contends the video was only demonstrative evidence and, therefore, did
not have to meet the higher standards for the admission of substantive evidence.
“Demonstrative evidence is evidence offered for purposes of illustration and
clarification.” Wise v. State, 719 N.E.2d 1192, 1196 (Ind. 1999). Such evidence
is admissible “if it sufficiently explains or illustrates relevant testimony as to be
a potential help to the trier of fact.” Dunlap v. State, 761 N.E.2d 837, 842 (Ind.
2002). Photographs and videos are treated as demonstrative evidence when
they are “‘used merely as a nonverbal method of expressing a witness’
testimony and is admissible only when a witness can testify it is a true and
accurate representation of a scene personally viewed by that witness.’” Rogers v.
State, 902 N.E.2d 871, 876 (Ind. Ct. App. 2009) (quoting Bergner v. State, 397
N.E.2d 1012, 1014 (Ind. Ct. App. 1979)). If a photo or video does not meet this
requirement, it may be admitted as substantive evidence under the “silent
witness” theory. Id. This theory applies primarily to things such as security
camera footage, and to be admissible “‘there must be a strong showing of
authenticity and competency . . . .’” Id. (quoting Edwards v. State, 762 N.E.2d
128, 136 (Ind. Ct. App. 2002), trans. denied).
[10] The video Guyton wished to enter into evidence was completely untethered to
any witness’s testimony. It did not directly connect to or explain any other
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 5 of 7 evidence or testimony, or accurately represent any scene related to the case. It
does not fit within the classic definition of demonstrative evidence. Nor is it a
“silent witness” to any fact related to the crime.
[11] Rather, it is clear Guyton wanted to introduce the video as independent
substantive evidence related to the question of the reliability of eyewitness
testimony. We are aware that question has been subject to significant scientific
testing and litigation in recent years. See generally Gorman v. State, 968 N.E.2d
845, 848-850 (Ind. Ct. App. 2012) (discussing scientific research and court cases
regarding eyewitness identification), trans. denied. Defendants certainly are
entitled to present evidence on this question, but they do not have carte blanche
to introduce evidence in any form they choose or in disregard of the rules of
evidence. There are a number of procedural safeguards against fact-finders
placing undue weight on potentially unreliable eyewitness testimony. Id. at
849-50 (citing Perry v. New Hampshire, 565 U.S. 228, 132 S. Ct. 716 (2012)).
These include “the Sixth Amendment right to confront and cross-examine
eyewitnesses, the right to the effective assistance of counsel and to present
opening and closing argument regarding eyewitness credibility, and the right to
conviction only upon proof beyond a reasonable doubt.” Id. at 850 (citing
Perry, 565 U.S. at 245-46, 132 S. Ct. at 728-29). Also, jury instructions may be
given listing factors to consider in weighing eyewitness testimony, trial courts
may exclude evidence whose probative value is substantially outweighed by the
danger of unfair prejudice, and “‘[i]n appropriate cases . . . defendants [are
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 6 of 7 allowed] to present expert testimony on the hazards of eyewitness identification
evidence.’” Id. (quoting Perry, 565 U.S. at 247, 132 S. Ct. at 729).
[12] If the video in this case was to be introduced at all, at a minimum it needed to
be accompanied by expert testimony explaining its relevance to the case. Such
testimony would have to be subject to the admissibility requirements of Indiana
Evidence Rule 702. Furthermore, the State would be entitled to cross-examine
such a witness; it could not cross-examine the video, as the trial court noted.
We cannot say for sure whether the video would be admissible even if
accompanied by such testimony. We can confidently hold, however, that it
could not be admitted into a vacuum, with no direct relevance to this case, and
no explanation or testimony as to its relevance. The trial court properly refused
to allow the video to be played to the jury.
Conclusion [13] The trial court did not abuse its discretion in refusing to play Guyton’s proffered
video to the jury. We affirm his convictions for robbery and intimidation.
[14] Kirsch, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1434 | March 28, 2017 Page 7 of 7