Timberlake v. State
| Decision Date | 30 December 1997 |
| Docket Number | No. 49S00-9305-DP-577,49S00-9305-DP-577 |
| Citation | 690 N.E.2d 243 |
| Court | Indiana Supreme Court |
| Parties | Norman TIMBERLAKE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Judith G. Menadue, Norman, for Appellant.
Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.
On July 20, 1995, Norman Timberlake ("defendant") was convicted of the murder of an Indiana State Police officer. On July 21, 1995, the jury recommended that death be imposed, and, on August 11, 1995, defendant was sentenced to death. In this direct appeal, defendant raises seven issues: 1) Whether there was insufficient evidence to sustain the verdict? 2) Whether prosecutorial misconduct denied him a fair trial? 3) Whether the trial court's actions denied defendant a fair trial? 4) Whether defendant received ineffective assistance of counsel? 5) Whether defendant was denied a fair and impartial jury? 6) Whether the sentencing order requires reversal? and 7) Whether defendant's sentence is inappropriate? Because we answer each question in the negative, we affirm the conviction and sentence.
In the early morning of February 3, 1993, defendant and Gerald Hill drove from New Albany, Indiana to Indianapolis in a dark Chrysler which belonged to a friend of defendant. While Hill was out of the car to make a phone call, defendant took Hill's .25 caliber gun from Hill's coat pocket and would not give it back. Defendant and Hill spent that day and night in Indianapolis. On February At around 1:30 p.m., defendant and McElroy pulled over to the side of I-65 south so that McElroy could urinate. At the same time, Master Trooper Michael Greene, of the Indiana State Police, was driving north on I-65 and saw defendant and McElroy pulled over. Trooper Greene radioed his dispatch that he was going to check on two subjects stopped on the side of the road.
4, 1993, defendant and Hill met Tommy McElroy in a bar. The three of them spent the day drinking and then drove to Lafayette, Indiana. On the morning of February 5, 1993, the three of them decided to drive back to Indianapolis. At some point during the drive, Hill separated from defendant and McElroy. Defendant, a tall and slender man, and McElroy, a slightly shorter and heavyset man, continued driving together.
Defendant saw the police car and told McElroy that the police were coming. Shortly thereafter, Trooper Greene parked his car behind the Chrysler and approached McElroy. Trooper Greene asked defendant and McElroy for their driver's licenses and then had McElroy sit with him in the police car while he ran a license check. Defendant leaned on the car door and listened.
At 1:36 p.m., Trooper Greene called in for a driver's license check on the two subjects. At 1:38, the dispatcher radioed, in code, that defendant was not wanted. At 1:43, the dispatcher radioed, in code, that McElroy was wanted by the police. At 1:45, Trooper Greene radioed dispatch that he would be out of the car securing a subject who did not yet know that he was wanted. At 1:47, a woman's voice called dispatch from Trooper Greene's car and said, "Help an officer's been hurt, help." (R. at 3043.)
According to McElroy, Trooper Greene informed him that he would have to be arrested and told defendant that he was free to go. While Trooper Greene was handcuffing McElroy, defendant was sitting on the trunk of the Chrysler. Trooper Greene placed a cuff on McElroy's left hand and, as Trooper Green was bringing McElroy's right hand down to cuff, McElroy saw defendant come off the trunk, heard a "pop," and saw Trooper Greene slump down. McElroy saw a gun in defendant's hand. Defendant and McElroy ran to the car and drove off. Numerous passersby witnessed parts of the event.
McElroy drove them to a grocery store. McElroy entered the store and defendant ran off. McElroy, still with the handcuffs on his left arm, was arrested at the store. Defendant was arrested at a nearby lounge after a telephone operator, who had heard about the episode during her break, recognized his name when defendant tried to make a collect call for someone to come to pick him up. The police who arrested defendant found a gun in defendant's coat pocket. The gun in defendant's pocket was Hill's and was the gun that killed Trooper Greene.
Defendant first argues that the evidence given at trial was insufficient to support his conviction. Defendant contends that the eyewitness testimony is not sufficiently conclusive to prove beyond a reasonable doubt that defendant was the person who shot Trooper Greene. Defendant further contends that the testimony of McElroy is "incredibly dubious" and cannot support a finding that defendant shot Trooper Greene.
Appellate review of a sufficiency of the evidence claim is well-established. As an appellate court, we will neither reweigh the evidence nor judge the credibility of the witnesses, as those are matters exclusively within the province of the jury. Tillman v. State, 642 N.E.2d 221, 223 (Ind.1994). Instead, we consider the evidence most favorable to the verdict, along with all reasonable inferences to be drawn therefrom, in order to determine whether a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id. If substantial evidence of probative value exists to support each element of the crime, then we will not disturb the conviction. Id.
It is also well-established that the testimony of an accomplice, though subject to much scrutiny by the trier of fact, is alone enough to support a conviction. See Garrison v. State, 589 N.E.2d 1156, 1159 (Ind.1992); Pike v. State, 532 N.E.2d 3, 5 (Ind.1989) In the present case, though McElroy is not, strictly speaking, an accomplice, his potentially self-serving testimony is similar to that of one accomplice testifying against another. Both situations contain the same credibility concerns. As defendant strenuously argues, the jury had to decide whether defendant or McElroy shot Trooper Greene, and a major piece of evidence against defendant was the testimony of McElroy. However, McElroy clearly testified that, as he was being handcuffed, he saw defendant get off the trunk of the Chrysler and walk up to Trooper Greene. Then McElroy heard a "pop," saw Trooper Greene go down, and saw defendant with a gun in his hand. The jury was aware that by believing McElroy it had to disbelieve defendant's innocence, but that decision is purely within the prerogative of the jury. Furthermore, McElroy's testimony is not uncorroborated. For example, two eyewitnesses testified that they saw the skinnier man (defendant) lunge at the officer and that, right after the movement, they saw the officer fall down. Also, the conviction is supported by circumstantial evidence in that defendant had possession of the murder weapon before the shooting and at the time of his arrest. While it is true that the various eyewitness testimonies contain inconsistencies, the resolution of those inconsistencies is for the jury, and not this Court, to decide.
; Douglas v. State, 520 N.E.2d 427, 428 (Ind.1988). The fact that the accomplice may not be completely trustworthy goes to the weight and credibility of the witness' testimony, something that is completely within the province of the trier of fact and cannot be reviewed on appeal. See Garrison, 589 N.E.2d at 1159; Douglas, 520 N.E.2d at 428.
Defendant argues, however, that McElroy's testimony is the lynchpin of the State's case and that we should invade the province of the jury because McElroy's testimony, under the "incredible dubiosity" rule, cannot be given any weight. Defendant correctly notes that an appellate court may infringe upon the jury's purview and reverse a trial court decision when confronted with " 'inherently improbable' testimony or coerced, equivocal, wholly uncorroborated testimony of 'incredible dubiosity.' " Tillman, 642 N.E.2d at 223. However, an appellate court takes this step only in situations "where a sole witness presents inherently contradictory testimony which is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the appellant's guilt." Id. As noted above, McElroy did not waver in his identification of defendant as the shooter, nor was his testimony unsupported by other witnesses or circumstantial evidence. The jury was aware of the inconsistencies and was faced with the responsibility of judging the credibility of the witnesses and determining what occurred. We find no reason to impinge upon their decision, nor do we believe that there was insufficient evidence to support the conviction.
Defendant next argues that he was denied due process and a fair trial due to prosecutorial misconduct. Defendant contends that the prosecutor committed misconduct by knowingly using false testimony, by misleading defendant as to when a key witness would testify, and by making improper arguments.
The determination of whether a conviction should be reversed due to alleged instances of prosecutorial misconduct rests upon the resolution of several questions. First, this Court must determine whether the prosecutor engaged in misconduct. If so, this Court must next determine "whether that misconduct, under the circumstances, placed the defendant in a position of 'grave peril.' " Kent v. State, 675 N.E.2d 332, 335 (Ind.1996). Grave peril is measured by the probable persuasive effect on the jury's decision, not by the degree of impropriety of the conduct. Id. Furthermore, "[e]ven if an isolated instance of misconduct does not establish grave peril, if repeated instances evidence a deliberate attempt to improperly prejudice the defendant, a reversal may still result." Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 848 (1976).
Defendant contends that the prosecutor committed misconduct by knowingly using While the knowing use of perjured...
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