Tolliver v. State
| Decision Date | 18 March 2010 |
| Docket Number | No. 45A03-0906-CR-250.,45A03-0906-CR-250. |
| Citation | 922 N.E.2d 1272 |
| Parties | Theotis TOLLIVER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
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Charles E. Stewart, Jr., Appellate Public Defender, Crown Point, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Nicole Dongieux Wiggins, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant Theotis Tolliver appeals his conviction, following a jury trial, for Murder, a felony,1 and the finding that he is a Habitual Offender.2 Upon appeal, Tolliver challenges his conviction and habitual offender status by claiming the trial court erred on the following grounds: (1) by permitting a police officer to testify, based upon the victim's body language, about what Tolliver alleges to be the "cooperative and truthful" nature of certain statements by the victim; (2) by allowing into evidence certain victim statements as statements against interest pursuant to Indiana Evidence Rule 804(b)(3); (3) by denying his motion for a continuance when a defense witness failed to appear at trial; and (4) by prohibiting defense counsel from inquiring into certain State's witnesses' possible bias or ulterior motives on cross-examination. We affirm.
At some point after noon on September 15, 2008, Benjamin Woodard, Jr. and two other individuals named Jontae Smith and Jeremy, happened upon Vondell Henry, who was having car trouble at the intersection of 16th and Broadway Streets in Gary. Woodard and his companions approached Henry and waited with him until the car was fixed. The group then went to Jeremy's home at 13th and Pennsylvania Streets, by Washington Park, where they gambled with dice. Tolliver and another individual named Mike later joined them. Tolliver pulled out the gun he was carrying and placed it on the floor. According to Henry, the gun looked like a ".25 or .32" and appeared to be semiautomatic. Tr. p. 351. During the dice game, Tolliver and Woodard exchanged heated words, causing Tolliver to leave the game twice.
After leaving the dice game the second time, Tolliver went to Gerald Bailey Jr.'s home on Connecticut Street and indicated that he was angry at Woodard. Between 7:00 and 9:00 p.m., Bailey and Tolliver returned to the home at the intersection of 13th and Pennsylvania Street in an attempt to resolve the argument. Woodard and the others were still playing their dice game there. Woodard came to the door, where he and Tolliver, who were both angry, exchanged loud words on the porch, and also on the street in front of the house. Bailey, who accompanied Woodard and Tolliver to the street, tried to dissuade them from arguing. The three were joined by Henry, who remained on the sidewalk near the house and did not enter the street. At some point, Bailey heard Tolliver, who was standing behind him, fire gunshots. Henry similarly saw Tolliver fire his gun multiple times in rapid succession. According to both Bailey and Henry, Woodard, who had been standing approximately five feet from Tolliver, took off running. Shortly thereafter, Smith asked Tolliver for his gun and threw it into the yard. Tolliver retrieved the gun and took off running in the opposite direction.
At approximately 9:00 or 9:30 p.m. the evening of September 15, 2008, Gary Police Officer John Artibey was dispatched to a Citgo gas station at the corner of 15th and Broadway Streets in Gary to render assistance to Woodard, who was suffering from gunshot wounds. Upon arriving Officer Artibey found Woodard holding his bleeding side with his hand. According to Officer Artibey, Woodard was nervous and uncooperative and asked for medical attention. Medical personnel arrived within three to five minutes and transported Woodard to the hospital. Officer Artibey followed.
Upon arriving at the hospital, by which point Woodard had calmed down somewhat, Officer Artibey spoke to Woodard and was able to ascertain that the location of the shooting was in the vicinity of 1300 Pennsylvania Street. According to Officer Artibey, Woodard was "very uncooperative" and his demeanor suggested that he was trying to hide something.
Gary Police Officer Jeffrey Hornyak was similarly dispatched to the hospital. Officer Hornyak questioned Woodard, who said that he had been shot in the area of 13th and Pennsylvania Streets and that he did not know who had shot him. Woodard did indicate that he had seen the shooter before, but declined to identify him on the grounds that he was "not a snitch" and would "take care of it himself in the street." Tr. p. 233. According to Officer Hornyak, Woodard, who was lying on a stretcher at the time, rolled away from Officer Hornyak as he spoke. It was Officer Hornyak's view that Woodard was "uncooperative" and "didn't want to have anything to do with speaking" to him. Tr. p. 242.
Woodard's mother, Dessie Lewis, his father, Benjamin Woodard, Sr., his sister, Shawntia Woodard, and his girlfriend, LaToya Mask, went to the hospital upon hearing Woodard had been shot. According to Lewis, Woodard told her that he had been shot by Tolliver and that Woodard was therefore "going to get" Tolliver. Tr. p. 116. Woodard similarly told his father, Benjamin Woodard, Sr., that Tolliver had shot him. According to Shawntia, Woodard told her that he was not going to tell who had shot him, but that when she said Mask had told her Tolliver had shot him, Woodard confirmed that Tolliver had shot him and stated the following: Tr. p. 474. Woodard also stated, Tr. pp. 478.
Several hours after arriving at the hospital, Woodard died as a result of two gunshot wounds, one to the back and the other to the abdomen. The entry point for these wounds was in Woodard's right back and right buttock areas.
Lake County Police Department Captain and firearms examiner Kevin Judge concluded that the bullets found inside Woodard's body were consistent with automatic ammunition from a .32 caliber handgun. Authorities checked the 1300 block of Pennsylvania Street but found no spent casings.
In Tolliver's defense, Michael Tolliver and Montrell Jolly contended that Tolliver was at Michael's house on the evening in question changing the rims on Michael's tires. Tolliver's girlfriend, Alexis Harris, similarly contended that Tolliver was at her house in the afternoon and early evening of the day in question, before he left to help Michael and Jolly with their car.
On September 19, 2008, the State charged Tolliver with murder. On October 20, 2008, the State amended its information by alleging Tolliver to be a habitual offender on the basis of his claimed March 2002 conviction for Class D felony Auto Theft and his claimed September 2006 conviction for Class D felony Intimidation.
Prior to trial, the State filed motions in limine seeking to exclude any reference by defense counsel to witness Henry's arrests and witness Bailey's convictions and arrests. Defense counsel objected on the grounds that the defendant was entitled to inquire into these witnesses' potential motivations for testifying, especially given both witnesses' July 21, 2008 arrests and the possibility of an accompanying deal for testifying. The trial court granted the State's motions on the grounds that there was no indication that charges against either witness were being withheld pursuant to a deal for testifying.
Also prior to trial, the State sought the court's permission to introduce into evidence Woodard's statements to his father, mother, and sister identifying Tolliver as the shooter. On January 28, 2009, the trial court concluded that the statements were admissible as statements against interest pursuant to Indiana Evidence Rule 804(b)(3) because they were accompanied by Woodard's statement that he would "take care of it." At trial, defense counsel did not lodge a contemporaneous objection to Woodard's mother's or father's testimony regarding Woodard's statements to them, but defense counsel did re-object to his sister Shawntia's testimony on this point and asked that the objection apply to all of Woodard's statements of identification already introduced.
Also at trial, Officer Hornyak testified as a skilled witness that, based upon Woodard's body language, Woodard appeared to be uncooperative and "closed up." Tr. p. 242. Defense counsel objected to this testimony on the grounds that Officer Hornyak's testimony was an impermissible opinion regarding Woodard's truthfulness.
During trial and after the presentation of the State's case, defense counsel sought a continuance when he was unable to locate defense witness Smith. The trial court denied the continuance on the basis that efforts at locating Smith had been unsuccessful for a period of time, and there was little promise that he would be found if the court were to grant the continuance.
Following trial, the jury found Tolliver guilty of murder, and in a second phase, found him to be a habitual offender. Prior to sentencing, defense counsel moved for a new trial on the grounds that, inter alia, Smith had been found and placed into custody. The defense claimed that Smith's testimony constituted newly discovered evidence warranting a new trial. The trial court denied Tolliver's motion. At the March 17, 2009 sentencing hearing, the trial court sentenced Tolliver to sixty years for his murder conviction, enhanced by thirty years due to his habitual offender status, for a total sentence of ninety years in the Department of Correction. This appeal follows.
We first address Tolliver's claim that the trial court abused its discretion in permitting Officer Hornyak to testify as a skilled...
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