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.)