A man who was charged in the robbery of a Greenwood gas station pleaded guilty to a misdemeanor and served no additional jail time after a judge barred a key piece of evidence in the case.
A person convicted of armed robbery could be sentenced to six to 20 years in prison. Joshua Allen, 28, Indianapolis, was charged with that felony after police said he robbed a Speedway station at gunpoint. But he pleaded guilty to a misdemeanor charge and was sentenced to 122 days, equal to the time he already had served in the jail.
The reason: A judge determined police acted improperly by showing Allen to the clerk who was robbed and then asking if he was the man who held up the store with a handgun.
Johnson Superior 2 Judge Cynthia Emkes wouldn’t allow prosecutors to use the evidence from when the clerk identified Allen because Greenwood police did not conduct a photo lineup.
Police brought the clerk from the Speedway store, 1291 N. Madison Ave., to the police station and showed him Allen through a window and said they arrested him after the robbery, according to court documents. The clerk then told police Allen was the man who robbed the store, according to court documents.
The judge cited U.S. Supreme Court and Indiana Appellate Court cases that have stated that type of one-on-one identification is highly suggestive to the victim and not usable as evidence in court, according to court documents.
What must be proved
To convict someone of robbery, a prosecutor needs to prove a person intentionally takes property from another person by using force or fear. The charge is more severe if that person uses a deadly weapon or injures the victim.
In 2013, the county prosecutor’s office filed 20 robbery charges total, which included 13 armed robbery charges and four cases in which a person was injured.
“They brought the store clerk to the cell in the police station and essentially said, ‘We caught this guy. Is that him?’ They’re not allowed to do that, and they should have all known better,” Allen’s attorney Carrie Miles said.
Preparing a lineup would have been difficult because Greenwood did not have any recent photos of Allen and would have had to use an old driver’s license photo, said Greenwood Detective Rex Saltsgaver, who investigated the incident. The clerk might not have recognized the photo if Allen’s appearance had changed considerably since the photo, Saltsgaver said.
Greenwood police have identified suspects in other cases this way before without any issues in court, he said.
Greenwood police plan to share the police report and judge’s ruling on the case with officers and investigators in order to prevent a similar situation in the future, Saltsgaver said. The case will be a reminder for police to be careful about what they say before a lineup to avoid leading a witness into identifying a specific person, he said.
Police said a man went into the gas station and pointed a handgun at the clerk on Jan. 24. He then took energy drinks, cigarettes, cellphones and $464 in cash, according to a police report. He ordered the clerk outside at gunpoint and told him to lay in the grass and count to 30 or he would shoot him, the report said. The robber got into a car with three other people and threatened to burn down the station if the driver didn’t drive away, the report said.
Greenwood officers arrested Allen a short time later after talking with other men who were in the car at the gas station, the report said. When Allen was arrested, police found the items that were reported stolen from the gas station but did not find a handgun.
Greenwood police had other evidence, including statements from the other people in the car and two people from a nearby apartment complex who spoke with the people from the car, Saltsgaver said. Officers also had surveillance video that showed the car pulling up, a person going into the store and them coming back out and the vehicle leaving, which matched witnesses’ statements, he said.
But the definition of robbery in state law requires the prosecutor to prove that one person took something by force from another person, Johnson County Prosecutor Brad Cooper said. Since the judge blocked the identification by the clerk, Cooper said none of that other evidence would support a robbery charge.
Police had security video from the gas station, but the video was not clear and the robber was wearing a hooded sweatshirt that covered his head, Cooper said. The other people in the car wouldn’t have been reliable witnesses since they drove away with Allen after the robbery, Cooper said. Since they did not go into the store, they also did not actually see the robbery occur, he said.
Allen pleaded guilty to a theft charge offered by the prosecutor’s officer because he did not want to spend more time in jail or risk going to trial, Miles said.
“I had no evidence to proceed on. The judge suppressed the victim’s identification of the suspect. There is absolutely no excuse for what they (Greenwood police) did, and they have a lot more experience than that,” Cooper said.
Since the robbery occurred quickly and the robber’s head was covered, officers should have made sure to give an unbiased lineup, Cooper said. Being robbed is a high-stress event; and if police present only one person, the victim is more likely to trust that police arrested the right person even if they’re not sure, Cooper said.
“The suspect had a hoodie on over their head and that starts to make the lineup difficult to make, and that’s why it becomes important to make an honest lineup,” Cooper said.