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Green v. State

Court: Indiana Supreme Court
Date filed: 2001-10-16
Citations: 756 N.E.2d 496
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9 Citing Cases

ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Mark Olivero                            Steve Carter
Fort Wayne, Indiana                     Attorney General of Indiana

                                        Joseph A. Samreta
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



THOMAS IVAN GREEN,                      )
                                        )
      Appellant (Defendant Below),      )
                                        )
            v.                          )  No. 02S00-0011-CR-707
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )










                    APPEAL FROM THE ALLEN SUPERIOR COURT
                  The Honorable John F. Surbeck, Jr., Judge
                         Cause No. 02D04-9909-CF-482



                              October 16, 2001

SHEPARD, Chief Justice.



      Appellant Thomas Ivan Green was convicted and sentenced for  murdering
Mark Douglas.  In this direct appeal, Green challenges  the  sufficiency  of
the evidence and a trial  court  ruling  on  his  effort  to  challenge  the
credibility of the leading eyewitness.  We affirm.






                        Facts and Procedural History


      On September 5, 1999, Malinda Ezell and Mark  Douglas  spent  the  day
together driving around in Douglas’ car  and  drinking  alcohol.   From  the
car, Ezell saw her boyfriend, Green,  standing  near  an  alley.   She  told
Douglas “to keep on driving because he’s going to shoot you.”  (R. at 291.)

      Douglas drove off and then parked  in  a  lot  to  use  a  nearby  pay
telephone.  While waiting in the car alone, Ezell again  saw  Green.   Green
walked to the car and told Ezell to  get  out  of  the  vehicle.   As  Ezell
exited the vehicle, she kicked off her sandals and stood with the  car  door
open.  Green pulled a gun out of the front of his pants and  fired  the  gun
towards Ezell.  The bullet grazed her.


      Ezell ran away when Green bent down to pick up the clip that fell  out
of the gun.  She entered a nearby house and stood at a window where she  saw
Green shoot Douglas several times.  When Ezell saw Green approach the  house
where she hid, she left the house and headed toward the field  where  police
gathered around Douglas’ body.


      Ezell spoke to two  officers  indicating  that  she  saw  Green  shoot
Douglas and that Green had tried to shoot her, too.  When questioned,  Ezell
denied having knowledge about Douglas’ car or the  shoes  found  inside  it.
She later told the police that she had been in the car before  the  shooting
and that the shoes were hers.


      Douglas died from gunshot wounds to the head and chest.


      The State charged Green with murdering Douglas, and the jury found him
guilty of doing so.  Green was also charged with  the  attempted  murder  of
“Mark Douglas and/or Malinda Ezell.”  (R.  at  13.)   The  jury  instruction
regarding this charge also listed the target of the murder attempt as  “Mark
Douglas and/or Malinda Ezell.” (R. at 86.)  The jury found Green  guilty  of
attempted murder.


      At sentencing,  Green’s  counsel  argued  that  the  jury  might  have
considered the attempt charge only  as  to  Douglas  and  that  the  attempt
should merge with the murder conviction.  The trial court agreed and  merged
the convictions.  It sentenced Green to fifty-five years for murder.




                       I. Sufficiency of the Evidence

      Green first argues that  the  State’s  evidence  was  insufficient  to
convict him of murder and attempted murder.  (Appellant’s Br.  at  13.)   In
light of the trial court’s decision about merger, we see no need to  examine
the evidence on attempt.


      Green complains that the State’s  case  was  based  primarily  on  the
testimony of Ezell who “lied repeatedly to police  when  questioned  at  the
scene of the shooting.”  (Id. at 15.)   He calls her  testimony  “inherently
unreliable.”  (Id. at 16.)  We disagree.


      When reviewing a sufficiency of the evidence claim, we  consider  only
the evidence most favorable to the judgment and  all  reasonable  inferences
to be drawn from that evidence.  Wright v.  State,  690  N.E.2d  1098  (Ind.
1997).  We neither reweigh the evidence nor judge  the  credibility  of  the
witnesses.  Id.  We  will  affirm  a  conviction  upon  finding  substantial
evidence of probative value from which the jury  could  find  the  defendant
guilty beyond a reasonable doubt.  Harris v. State,  480  N.E.2d  932  (Ind.
1985).


      To convict Green of murder as charged,  the  State  must  have  proven
beyond  a  reasonable  doubt  that  he  knowingly  or  intentionally  killed
Douglas.  Ind. Code Ann. § 35-42-1-1(1) (West 1998).   The  testimony  of  a
single eyewitness to a crime is sufficient to sustain a  murder  conviction.
 See, e.g., Hood v. State, 561 N.E.2d 494 (Ind. 1990).


      Ezell testified at trial that Douglas parked his car in order to place
a call at a phone booth.  While Ezell waited at the car, Green  shot  a  gun
in her direction causing the bullet to graze her face.  She  also  testified
that she ran and hid in a nearby home where,  from  a  window,  she  watched
Green shoot Douglas several times.


      Ezell had previously made certain  statements  inconsistent  with  her
trial  testimony,  but  said  nothing  to  demonstrate  her  testimony   was
inherently  unreliable.    Her   inconsistent   statements   concerned   her
association with the victim and not the essential  elements  of  the  crime.
Moreover, her trial  testimony  was  corroborated  by  testimony  of  police
officers who spoke to Ezell at the crime scene, (R. at  259-60,  305,  443),
telephone records for the phone booth, (R. at 353-54, State’s Exh.  3),  and
the physician’s report regarding the examination of Douglas’ wounds, (R.  at
474, State’s Exh. 35).


      The jury was fully aware of Ezell’s inconsistencies and that  she  was
offered a probation recommendation for a dealing  cocaine  charge.   It  was
well within the province of the jury to believe her.  We conclude  that  the
State presented substantial evidence of probative value from which the  jury
could determine Green was guilty beyond a reasonable doubt.




                     II. Challenging Ezell’s Credibility

      Green next argues that the court erred in denying his trial counsel an
opportunity to cross-examine Ezell  about  her  truthfulness.   (Appellant’s
Br. at 17.)


      Green’s counsel sought to examine Ezell’s truthfulness by saying, “Now
Malinda, your mother believes that you’re a stone cold liar.”  (Id.,  R.  at
323.)  The State objected  to  this  statement.   The  court  sustained  the
objection and directed the jury to disregard it.


     Green relies on Ind. Evidence Rules 607 and 608 to support his  claimed
error.  Rule 607 allows Green to attack the  credibility  of  Ezell,[1]  and
Rule 608(a) permits presenting opinion or reputation evidence  to  refer  to
character for truthfulness.  This argument overlooks the fact  that  Green’s
lawyer did not pose an answerable question to  the  witness.   Instead,  the
statement was an assertion  of  fact,  and  the  trial  court  appropriately
declined to permit  Green’s  lawyer  to  testify  in  the  guise  of  asking
questions.

      Evidence Rule 608(a) states, “The credibility  of  a  witness  may  be
attacked or supported by evidence in the form of opinion or reputation,  but
. . . may refer only to character for  truthfulness  .  .  .  .”   As  Judge
Surbeck correctly noted, proper  assault  on  Ezell’s  truthfulness  through
opinion or reputation evidence required  that  Green  call  a  witness  (for
example, Ezell’s mother) to provide such testimony.  Green’s  counsel  could
not supply it himself.  The court actually invited Green’s counsel  to  call
Ezell’s mother to testify as to her opinion, which counsel chose not to  do.
[2]


      Contrary to Green’s assertion, he was not denied  the  opportunity  to
cross-examine Ezell.  Both before and  after  the  impermissible  statement,
Green’s counsel questioned Ezell repeatedly about  inconsistent  statements.



      The trial court correctly sustained the State’s objection to counsel’s
declaration.




                                 Conclusion


      We affirm the judgment of the trial court.

Dickson, Sullivan, Boehm, Rucker, JJ., concur.
-----------------------
[1] Evidence Rule 607 states, “The credibility of a witness may be attacked
by any party, including the party calling the witness.”

[2] Judge Surbek stated:  “Now if you want to bring mother in here and say
that she, in her opinion, she’s not honest, she’s not truthful, then
according to [Rule 608], you can do that. . . .  But the manner in which
you did this is absolutely wrong.  Not only is it wrong, I believe that it
was done that way for the sole purpose of unduly prejudicing this witness.”
 (R. at 328.)