Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited May 15 2014, 6:13 am
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY OF APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS P. KELLER GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RAYTERRION WHEELER, )
)
Appellant-Defendant, )
)
vs. ) No. 71A03-1310-CR-391
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D03-1211-MR-14
May 15, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Judge
Case Summary and Issue
Rayterrion Wheeler appeals his conviction for murder, raising a single issue for our
review: whether the trial court abused its discretion by preventing Wheeler from impeaching a
witness with evidence of convictions that were more than ten years old. Concluding the trial
court’s decision was not an abuse of discretion, we affirm.
Facts and Procedural History
The facts most favorable to Wheeler’s conviction are as follows. On November 9, 2012,
Wheeler and Herbert Brown went to the residence of Angela Turner for the purpose of
purchasing drugs. While in the living room, a verbal altercation ensued between Wheeler and
another man, Mack Caldwell. Wheeler then pulled a gun and shot Caldwell in the chest, killing
Caldwell. Wheeler and Brown immediately left the residence and fled down an alley. As they
ran, Wheeler and Brown discarded several articles of clothing. One witness saw Wheeler fleeing
the residence and believed Wheeler looked to be concealing something under his jacket.
On November 11, 2012, Wheeler was charged with murder. A four-day jury trial was
held in June 2013. Turner testified that she witnessed Wheeler shoot Caldwell. Among the
State’s other witnesses was Byron Canada. Canada was Wheeler’s cellmate in the St. Joseph
County jail. Canada testified that Wheeler confessed to the murder for which he was charged.
At that time, Canada was serving an eleven-and-one-half year prison sentence after pleading
guilty to approximately thirty counts of mail fraud, wire fraud, and money laundering, which
were based on conduct that occurred from 2004 through 2009. Wheeler was permitted to
impeach Canada with evidence of those convictions. However, the trial court refused to let
Wheeler impeach Canada with additional fraud convictions from 1994, 1990, and 1978.
The jury found Wheeler guilty of murder. On September 18, 2013, the trial court
sentenced Wheeler to sixty years, with fifty years executed in the Indiana Department of
Correction and ten years suspended to probation. Wheeler now brings this appeal.
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Discussion and Decision
I. Standard of Review
Wheeler argues the trial court erred by denying his request to impeach Canada with
evidence of convictions that were more than ten years old. A trial court’s ruling to admit or
exclude evidence under Indiana Evidence Rule 609(b) is reviewed for an abuse of discretion.
Scalissi v. State, 759 N.E.2d 618, 624 (Ind. 2001). An abuse of discretion occurs when the trial
court’s decision is clearly against the logic and effect of the facts and circumstances. Hale v.
State, 976 N.E.2d 119, 123 (Ind. Ct. App. 2012).
II. Impeachment by Evidence of a Criminal Conviction
For the purpose of impeaching a witness, “evidence that the witness has been convicted
of a crime or an attempt of a crime shall be admitted but only if the crime committed or
attempted is (1) . . . or (2) a crime involving dishonesty or false statement.” Ind. Evidence Rule
609(a) (2013). However, if a witness’s conviction is more than ten years old, evidence of the
conviction is admissible only if “the probative value of the conviction supported by specific facts
and circumstances substantially outweighs its prejudicial effect” and “the proponent gives to the
adverse party sufficient advance written notice of intent to use such evidence . . . .” Ind.
Evidence Rule 609(b) (2013). Generally, Rule 609(b) “presumes the exclusion of convictions
more than ten years old.” Scalissi, 759 N.E.2d at 624.
Here, Wheeler failed to provide the State with written notice of his intent to use Canada’s
older convictions for impeachment purposes. That failure alone is sufficient grounds to deny
Wheeler’s use of the convictions in question. See Ind. Evidence Rule 609(b). Wheeler asks that
we overlook this shortcoming and consider Wheeler’s reference to Canada’s convictions during
opening statements as sufficient notice under the rule. But Rule 609(b)’s requirement of written
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notice is explicit; the trial court did not excuse Wheeler’s failure, nor did the State. We must
decline Wheeler’s invitation to ignore the rule’s requirement of written notice.
Even setting aside Wheeler’s failure to provide notice, we would not conclude the trial
court’s decision to disallow use of Canada’s additional convictions was an abuse of discretion.
Convictions more than ten years old are presumed inadmissible and may be admitted only where
there is a finding that their probative value substantially outweighs any prejudice. There would
have been little probative value to evidence of Canada’s convictions from 1994, 1990, and 1978.
Wheeler was able to impeach Canada with evidence of numerous recent convictions for
fraudulent acts occurring between 2004 and 2009 and for which Canada was currently
incarcerated. Those convictions alone demonstrated a pattern of dishonest conduct over an
extended period of time, which Wheeler stated on appeal was his goal. We cannot find the trial
court’s decision was an abuse of discretion.
Conclusion
Concluding the trial court’s decision to prohibit Wheeler’s use of convictions more than
ten years old for impeachment purposes was not an abuse of discretion, we affirm.
Affirmed.
RILEY, J., and BRADFORD, J., concur.
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