Wallace v. State
| Decision Date | 08 November 2005 |
| Docket Number | No. 45A03-0401-PC-40.,45A03-0401-PC-40. |
| Citation | 836 N.E.2d 985 |
| Parties | Willie T. WALLACE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Supreme Court |
Jeffrey Schlesinger, Appellate Public Defender, Crown Point, for Appellant.
Steve Carter, Attorney General of Indiana, Stephen Tesmer, Deputy Attorney General, Indianapolis, for Appellee.
In this combined appeal, Willie T. Wallace (hereinafter "Wallace"), after a trial by jury, challenges on direct appeal his conviction and sentence for voluntary manslaughter, as a class A felony. He also appeals the denial of his petition for post-conviction relief.
We affirm Wallace's conviction for voluntary manslaughter, and the denial of his petition for post-conviction relief.
3. Whether Wallace's sentence violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) because the aggravating factors used to enhance his sentence were not found by a jury, beyond a reasonable doubt.
4. Whether Wallace received ineffective assistance of trial counsel.
Whether the trial court properly denied Wallace's petition for post-conviction relief based upon newly discovered evidence.
On September 14, 1999, Gerald Wrice (hereinafter "Wrice") left his home at approximately 11:30 p.m. Wrice and Wallace encountered each other near the corner of Tapper and Drackert streets in Hammond. There had been a history of animosity between the two men. Wrice and Wallace got into an argument that escalated into a fist-fight. Moments after the fight began, several gunshots rang out in the vicinity of where they were fighting. Immediately after the gunshots, a male voice was heard to say, "[M]an, you didn't have to shoot me." (Tr. 270).
Ethelyn Hardy, a nearby resident, and others found Wrice lying in the grass near where he had been fighting with Wallace. Wrice told them "Will Squill"2 shot him. (Tr. 277). At 11:40 p.m., Hammond Fire Department's emergency medical technicians (EMTs) were dispatched to the scene. The Hammond Police Department also arrived. The EMTs arrived at approximately 11:42 p.m. and administered emergency treatment to Wrice. They noted Wrice was conscious and that he had been shot several times and complained of pain. His vital signs were taken and his condition was described as being weak and deteriorating. Michael Brooks, the EMT who rode in the rear of the ambulance with Wrice, asked Wrice if he knew who shot him. Wrice answered, "Skrilla." (Tr. 350).
The ambulance arrived at the hospital at 11:52 p.m. Wrice "was in extremis," a condition described as being the (Tr. 441).
In the emergency room, Nathalee Kresich (hereinafter "Kresich") was the primary nurse for Wrice. Wrice was able to answer her questions regarding his name and medical history. Near midnight, she asked Wrice if he knew who shot him. She heard him say the first name of "Will" and "a last name starting with an S." (Tr. 391). Karen Greinke, the charge nurse of the unit was also present and standing beside Kresich. She heard Wrice say "Will Scrilla" in answer to the question, who shot him. (Tr. 402). Anthony Adams, a Hammond Police Detective, was present with the nurses and heard Wrice answer that Will Scrilla shot him. Shortly thereafter, Wrice died.
After the fight with Wrice, Wallace returned to his home in South Holland, Illinois. On the morning of September 15, 1999, Wallace called Thomas Haynie (hereinafter "Haynie") and asked him to come to South Holland and drive him back to the scene of the fight. Wallace told Haynie what had occurred during the fight and shooting of Wrice. Haynie drove Wallace to the corner of Tapper and Drackert streets and dropped him off while Wallace searched for his keys and gun. Haynie picked up Wallace and they were later stopped by the Hammond Police. Wallace was charged with murder.
Wallace was tried by a jury from February 25 thru March 5, 2002. On March 5, 2002, the jury found him guilty of voluntary manslaughter, and he was sentenced to thirty-five (35) years in prison on April 11, 2002.
On May 13, 2002, Wallace filed a notice of appeal. Subsequently, on October 22, 2002, this court granted Wallace's request to stay his direct appeal and to allow him to file a petition for post-conviction relief on the grounds of newly discovered evidence that was not available for trial. He filed his petition on November 25, 2002.
On July 11, 2003, an evidentiary hearing was held on the petition. Wallace presented testimony from Lakisha Brooks (hereinafter "Brooks"), who had been identified in the probable cause affidavit as an eyewitness to the crime, and Charles Graddick (hereinafter "Graddick"), Wallace's trial counsel. Brooks did not appear to testify at Wallace's trial. Graddick testified to his diligent, yet failed, attempts to locate Brooks before and during Wallace's trial.
Brooks testified at the post-conviction relief hearing that she was looking at Wrice and Wallace fighting when she heard gunshots, but she did not see Wallace with a gun. This was at least the fourth version Brooks had given regarding the incident. Prior to her testimony on July 11, 2003, Brooks had given three statements to the police. On September 23, 1999, she gave two statements to the police. In the first, she stated that her grandmother told her someone was on the ground and had been shot; that Brooks approached the victim, discovered it was Wrice, and that Wrice repeatedly said "it was a car." (State's Exh. 2 PCR hearing). Before giving her second statement, she admitted that she lied in her first statement because she was afraid, but she now wanted to tell the truth. In her second statement, Brooks stated that she saw Wrice and Wallace fighting; she heard gunshots; she saw Wallace run; and she heard a companion of Wallace's ask him "why he did it." (State's Exh. 3 PCR hearing). On February 9, 2000, she gave a third statement to police. In that statement, she identified Wallace through a photo array as the man fighting with Wrice and as the man she saw standing over Wrice when she saw several flashes from a handgun.
According to the probable cause affidavit,:
[Brooks] stated that on September 14, 1999 at approximately 11:00 p.m. she was at the corner of Drackert and Tapper in Hammond, Indiana together with several people including a person she knew as `Will Scrilla.' She further stated that Gerald Wrice was walking down Tapper Street and he spoke with them and that `Will Scrilla' punched him in the face and that Gerald and `Will Scrilla' got into a fist fight and they were both fighting on the ground when she heard what sounded like a gunshot and she heard Gerald say, `Will Scrilla is it like that.' She further stated that `Scrilla' got up and she heard several more shots. She further stated that she saw `Will Scrilla' standing over Gerald and saw `several gun flashes going off.' She further stated that after that she saw `Will Scrilla' run away.
(App.10).
On cross examination, Brooks denied giving more than one statement to the police, although she acknowledged her signature on all three of the statements presented in evidence. She further denied being hand-served with subpoenas to testify at trial. At that point, the State entered into evidence three subpoenas, designated as hand-delivered with a signature that appeared to be Brooks' signature. Additionally, Brooks denied having been convicted of the crime of conversion, but was later impeached with her criminal history evidencing that she had been convicted of conversion.
It appears that both the State and defense counsel tried to secure Brooks' testimony before and during the trial. Defense counsel testified that he had subpoenaed Brooks for depositions prior to trial. When Brooks did not appear for the depositions, defense counsel testified that he personally visited several addresses he had obtained for Brooks, but could not find her. The State had served her three times with a subpoena to testify at trial and she failed to appear. The trial court had even issued a body attachment for Brooks during the trial, but it was never served on her.
Wallace argues the trial court abused its discretion when it admitted hearsay testimony from the EMT, emergency room staff, and the police detective who testified that Wrice identified Wallace as the person that shot him. Wallace concedes that Wrice's first statement, made to Ethelyn Hardy at the scene was properly admitted as an excited utterance pursuant to Indiana Evidence Rule 803(2); but, he maintains Wrice's subsequent statements made in the ambulance and at the hospital, wherein Wallace was identified as the shooter, satisfy neither the excited utterance nor the dying declaration exception to the admissibility of hearsay.3
Hearsay is recognized as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind. Evidence Rule 801(c). Hearsay is admissible under the excited utterance exception to hearsay when the statement relates "to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition." Evid. R. 803(2). "The amount of time that has passed between the event and the statement is not dispositive." Taylor v. State, 697 N.E.2d 51, 52 (Ind.1998). The issue is "whether the declarant was still under the stress of excitement caused by the startling event when the statement was made." Id.
Hearsay is also admissible under the dying...
To continue reading
Request your trial
-
State v. Williamson
...263, 265-66 (2004) ; People v. Gilmore, 356 Ill.App.3d 1023, 293 Ill.Dec. 323, 828 N.E.2d 293, 302 (2005) ; Wallace v. State, 836 N.E.2d 985, 993-96 (Ind. Ct. App. 2005) ; Jones, 197 P.3d at 821-22 ; Commonwealth v. Nesbitt, 452 Mass. 236, 892 N.E.2d 299, 310-11 (2008) ; People v. Taylor, 2......
-
State v. Beauchamp
...So.3d 207, 212 (Fla.App.2009); People v. Gilmore, 356 Ill.App.3d 1023, 293 Ill.Dec. 323, 828 N.E.2d 293, 302 (2005); Wallace v. State, 836 N.E.2d 985, 996 (Ind.Ct.App.2005); State v. Jones, 287 Kan. 559, 197 P.3d 815, 822 (2008); Commonwealth v. Nesbitt, 452 Mass. 236, 892 N.E.2d 299, 310–1......
-
State v. Mizenko, 04-488.
...had been holding her hostage at gunpoint held nontestimonial "[e]ven under the broadest reading of Crawford"); Wallace v. State (Ind.Ct.App.2005), 836 N.E.2d 985, 996 (statements by murder victim identifying his killer in response to questions posed by an unknown civilian, EMT, and a nurse ......
-
State v. Kirby
...is testimonial is whether "such statements ... accuse or identify the perpetrator of the assault." Id.; but see Wallace v. State, 836 N.E.2d 985, 996 (Ind.App.2005) (dying victim's statements to emergency medical technician and emergency room nurse identifying defendant as shooter not testi......
-
Hearsay
...statement must be made while the declarant is conscious of impending death and believes he has no hope of recovery. Wallace v. State , 836 N.E.2d 985 (Ind. App. 2005). Under the dying declaration exception, the fact that the victim ultimately dies does not make the statement admissible; rat......
-
Hearsay
...statement must be made while the declarant is conscious of impending death and believes he has no hope of recovery. Wallace v. State , 836 N.E.2d 985 (Ind. App. 2005). Under the dying declaration exception, the fact that the victim ultimately dies does not make the statement admissible; rat......
-
Hearsay
...statement must be made while the declarant is conscious of impending death and believes he has no hope of recovery. Wallace v. State , 836 N.E.2d 985 (Ind. App. 2005). Under the dying declaration exception, the fact that the victim ultimately dies does not make the statement admissible; rat......
-
Hearsay
...statement must be made while the declarant is conscious of impending death and believes he has no hope of recovery. Wallace v. State , 836 N.E.2d 985 (Ind. App. 2005). Under the dying declaration exception, the fact that the victim ultimately dies does not make the statement admissible; rat......