Neville v. State

• Decision Date: 19 October 2012
• Docket Number: No. 49A05–1201–CR–9.,49A05–1201–CR–9.
• Citation: 976 N.E.2d 1252
• Parties: Alton NEVILLE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

976 N.E.2d 1252

Alton NEVILLE, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 49A05–1201–CR–9.

Court of Appeals of Indiana.

Oct. 19, 2012.

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Mary Spears, Gilroy Kammen Maryan & Moudy, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION
CRONE, Judge.
Case Summary

Alton Neville appeals his convictions and sentences for murder and carrying a handgun without a license. On appeal, Neville argues that fundamental error requiring reversal of his convictions occurred due to prosecutorial misconduct (1) during voir dire when the prosecutor commented on the possibility of a false conviction, and during closing argument when the prosecutor (2) vouched for the witnesses; (3) mischaracterized the evidence; (4) argued inconsistent facts; (5) presented facts not in evidence; and (6) inflamed the passions and prejudices of the jury. He also asserts that fundamental error occurred due to the improper admission of certain evidence. Finally, he contends that his fifty-five year aggregate sentence is inappropriate.

We conclude that the prosecutor improperly presented facts not in evidence and improperly inflamed the passions and prejudices of the jury, but that the improper comments did not rise to the level of fundamental error. We further conclude that certain evidence was improperly admitted but did not result in fundamental error. Finally, we conclude that Neville has failed to carry his burden of persuading us that his sentence is inappropriate. Accordingly, we affirm.

Facts and Procedural History

On March 23, 2011, Dawn Lane and Linda Wilburn lived together in a house on West 31st Street in Indianapolis. An alley lies north of West 31st Street at the back of the house. Many people used the alley. Lane and Wilburn were both familiar with Neville, as they saw him in the neighborhood nearly every day. That afternoon, Wilburn was sitting on the front porch of the house, and she saw Neville walking westbound in front of the house. She saw the handle of a gun in his waistband. Tr. at 193, 220. She spoke to him, but he did not hear her. Shortly thereafter, she saw him across the street walking eastbound. She spoke to him, and he nodded his head at her.

In the late afternoon, Lane was “getting high and drinking” and walking around her neighborhood. Id. at 139. She was near the New Dew barbershop when she saw Neville in his red truck. The New Dew barbershop is on Clifton Street, which runs perpendicular to West 31st Street. Specifically, the New Dew is located at the east end of the alley, just north of and around the corner from Lane and Wilburn's house. Neville asked Lane if she was going to the New Dew and if Jamal Hood was in there to “tell him to come out and meet him in the alley.” Id. at 141. Lane went into the New Dew, saw Hood, and told him that Neville wanted to meet him in the alley. She saw Hood go to Neville's red truck and get in the passenger side.

Lane walked home and sat on the front porch with Wilburn. About five to ten minutes after Lane saw Hood get into Neville's truck, Lane and Wilburn heard

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gunshots. Lane went to the side of her porch and looked in the alley. She saw Neville standing outside the truck. She saw Hood fall to the ground and remain there. Id. at 145, 160. Lane testified that she saw Neville get in his truck and drive westbound down the alley. Id. at 145. Wilburn ran to the back of the house, and from the laundry room window, she testified that she saw a body on the ground and a truck speeding eastbound down the alley. Id. at 200.

Other people in the neighborhood heard the gunshots, too. Tamara Williams, Lane's niece, who also lived on West 31st Street, “heard what sounded like firecrackers.” Id. at 167. Hood's aunt and uncle, Deborah and Kenneth Hood, lived on West Congress Avenue, the next road north of and parallel to West 31st Street. The back of their house was on the alley opposite the back of Lane and Wilburn's house. Deborah and Kenneth heard approximately five gunshots. Deborah ran to the door on the east side of her home and looked back toward the alley. She testified that she saw Neville speed eastbound and turn north onto Clifton Street. From Clifton, he turned west onto Congress and stopped two houses west of Deborah and Kenneth's house. Deborah saw Neville get out of the truck and enter that house.

Deborah, Kenneth, Lane, Wilburn, and Williams all ran to the alley and saw Hood lying on the ground behind the house immediately west of Lane and Wilburn's house. Indianapolis Metropolitan Police Officer Jason Norman was patrolling in the area when he was dispatched to a disturbance at 3500 Clifton Avenue. As he neared the location, he was flagged down by Lane, who told him that someone was shot in the alley. Officer Norman pulled into the alley and discovered Hood's body. He contacted the paramedics and the homicide unit. The paramedics arrived and pronounced Hood dead. The homicide detective, Tom Tudor, arrived a little after 5:00 p.m. and began his investigation.

At trial, Wilburn testified that later that evening, Neville called her cell phone and hung up. Wilburn called him back, but there was no answer. Wilburn had another cell phone number for Neville, so she tried that one, and Neville answered.¹ Wilburn testified to the content of their conversation as follows:

I asked him why was he calling. I said, you know they looking for you. You killed that little boy, why? He said, he knew it, he said to do him a favor and say he was with me. And I told him I didn't want to have no part of that, and I'm not going to say that. And don't call me no more and I hung up the phone.
Id. at 208.²

Detective Tudor interviewed Lane on April 7, 2011. At trial, she testified that

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the statement she gave at that time was “something that was less than the truth,” because she did not want be involved. Id. at 148. Approximately three weeks later, Lane contacted the police and this time she told Detective Tudor what she actually saw. Lane identified Neville in two different photographic lineups as the person she saw standing in the alley when Hood was shot. Wilburn also identified Neville in a photographic lineup.

A forensic pathologist found six gunshot wounds in Hood's body from .38 caliber bullets that had been fired from the same firearm. No spent shell casings were found at the scene and no gun was ever recovered. The investigation revealed that Neville's cell phone records show that he was in the area of the murder at the time it was committed. State's Ex. 51–A.

The State charged Neville with murder and class A misdemeanor carrying a handgun without a license. On June 17, 2011, Neville was arrested. Detective Tudor conducted an interview of Neville, which was recorded. A jury trial was held on December 5 through 7, 2011. The jury found Neville guilty as charged. The trial court sentenced him to fifty-five years for his murder conviction and one year for his carrying a handgun conviction, to be served concurrently. Neville appeals. Additional facts will be provided as necessary.

Discussion and Decision I. Prosecutorial Misconduct

Neville argues that the prosecutor made multiple statements that constitute misconduct. Generally, in order to properly preserve a claim of prosecutorial misconduct for appeal, a defendant must not only raise a contemporaneous objection but must also request an admonishment; if the admonishment is not given or is insufficient to cure the error, then the defendant must request a mistrial. Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). Neville concedes that he did not object to the prosecutor's comments and therefore did not properly preserve his claims.

To prevail on a claim of prosecutorial misconduct that has been procedurally defaulted, the defendant must establish not only the grounds for the prosecutorial misconduct, but also the additional grounds for fundamental error. Id. In reviewing a claim of prosecutorial misconduct, we “determine (1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected.” Booher v. State, 773 N.E.2d 814, 817 (Ind.2002) (citation and quotation marks omitted). “Whether a prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct.” Cooper, 854 N.E.2d at 835. “The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct.” Id.

Fundamental error is an “extremely narrow exception” to the contemporaneous objection rule that allows a defendant to avoid waiver of an issue. Id. For a claim of prosecutorial misconduct to

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rise to the level of fundamental error, it must “make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process and present an undeniable and substantial potential for harm.” Booher, 773 N.E.2d at 817 (citation, quotation marks, and brackets omitted). “The element of harm is not shown by the fact that a defendant was ultimately convicted.” Davis v. State, 835 N.E.2d 1102, 1107 (Ind.Ct.App.2005), trans. denied (2006). “Rather, it depends upon whether the defendant's right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled.” Id. at 1107–08.

Specifically, Neville argues that the prosecutor engaged in misconduct (1) during voir dire by commenting on the possibility of a false conviction, and during closing argument by (2) vouching for the witnesses; (3) mischaracterizing the evidence; (4) arguing inconsistent facts; (5) presenting facts not in...