UPDATE (May 11, 2017): the subject COA Opinion has been vacated on Transfer. The SCOTSI Opinion of May 11, 2017 is discussed in an Appellate Case Note.
When the challenge flag is tossed and the NFL official peers into the replay monitor, he looks for “indisputable visual evidence” contrary to the ruling on the field. Absent such “indisputable” evidence the official’s duty is to confirm the ruling on the field. For good or ill, video evidence (with or without audio) is increasingly a part of the evidence in criminal arrests, trials, and appeals. On September 8, 2016 the COA handed down a 2/1 Opinion reversing appealed convictions for resisting law enforcement and mistreatment of a law enforcement animal on the basis of a video recording from the dash cam of a police car. Defendant/Appellant Royce Love had chosen to proceed pro se before the jury that found him guilty. Notably, he was represented by counsel on appeal. This article and the case of Love v. State are about the standard of review of the evidence (on appeal) when the police account of events (supporting the conviction) seems to be contradicted by video evidence.
Royce Love was driving a van and was seen by South Bend police disregarding a red light and a stop sign. Police activated emergency lights and siren to initiate a traffic stop. Mr. Love’s election to keep driving resulted in a multi-vehicle police pursuit during which Love struck some of the vehicles with his van. Eventually, the police employed “stop sticks” to puncture the van’s tires and so to conclude the pursuit. For fleeing police in a vehicle, Love was charged and convicted of a separate count of resisting law enforcement which (wisely) was not appealed. The appeal has to do with what happened after the stop.
Police officers testified that Love failed to comply with their commands after exiting the disabled van. One officer testified that Love was tased for disregarding commands to stop walking away and to lie on the ground. When the taser was “ineffective,” a dog was used. The dog bit Love on the forearm, and Love responded by squeezing and biting the dog until it yelped and officers commenced to punch and kick Love to rescue the overmatched dog. An officer testified that Love continued to resist while on the ground.
Love testified to his compliance with police commands and to the unprovoked use of a taser and the dog, from whom he tried only to protect himself. The State introduced one dash cam recording at trial, and Love introduced another.
According to the COA majority, the defendant’s video exhibit “unambiguously” shows him exiting the vehicle, raising his hands, and lying face down on the ground in “almost immediate compliance” with the commands. Moreover (according to the majority), the video “indisputably contradicts” police testimony that Love was walking away or attempting to do so when tased.
The COA majority described the evidence as being sufficient to support the convictions but for the (indisputable) contradictory video. Moreover, the majority cited the familiar rule that the court on appeal will not reweigh the evidence or judge the credibility of witnesses. Then the majority proceeded to reweigh the evidence and judge credibility, and the CLB has high praise for their heresy. While the COA is supposed to consider only that evidence (and inferences therefrom) supporting a guilty verdict, this majority gave equal consideration to the contradictory video evidence.
After reviewing the scant Indiana precedent on review of video evidence in criminal appeals, the COA majority cited with approval an Opinion of the Court of Criminal Appeals of Texas in Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000). The issue in Carmouche was whether the defendant consented to being searched. The testimony of a Texas Ranger asserting a consent was contradicted by video (with sound). The Texas tribunal reasoned that its usual deferential standard of review (of the trial court’s finding of consent) had to yield to “indisputable visual evidence” contradicting the Ranger’s testimony.
Sooner or later the SCOTSI will have to face the issue raised in this case: whether there should be a special standard of review of the sufficiency of evidence where video evidence (police video, at least) is exculpatory. The prediction here is that the State will request Transfer from the COA reversal. Transfer should be granted.
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