Nicholas Pelissier v. State of Indiana , 122 N.E.3d 983 ( 2019 )

FILED
Apr 25 2019, 5:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholas Pelissier, April 25, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-710
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff Judge
Trial Court Cause No.
45G01-1702-MR-3
May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-710 | April 25, 2019 Page 1 of 16
[1] Nicholas Pelissier appeals his convictions of and sentences for murder 1 and
Level 1 felony attempted murder. 2 He raises three issues, which we restate as:
1. Whether the trial court abused its discretion when it admitted
into evidence videotaped recordings of witness Kendall Vaughn’s
prior statements to police;
2. Whether the trial court abused its discretion when it admitted
into evidence the photo array from which Detective Jeffrey
Minchuck testified Vaughn identified Pelissier as one of the
shooters; and
3. Whether Pelissier’s aggregate sentence of eighty-five years is
inappropriate based on the nature of the offense and Pelissier’s
character.
We affirm.
Facts and Procedural History 3
[2] On November 12, 2016, Timothy Fryerson and his friend, Jondell Golinda,
walked to a gas station near Golinda’s house and purchased cigarettes and
snacks. As they left the gas station and were walking across the parking lot, a
red Dodge Durango SUV was at one of the gas pumps. Someone in the SUV
1
Ind. Code § 35-42-1-1 (2014).
2
Ind. Code § 35-42-1-1 (2014) (murder); Ind. Code § 35-41-5-1 (2014) (attempt).
3
We held oral argument in this case on March 7, 2019, at Valparaiso High School. We thank administration
for their hospitality and counsel for their able presentations.
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said something to Fryerson and Golinda, to which they did not respond. The
rear door of the SUV opened, and William Galloway exited the SUV and
displayed a gun. Golinda and Fryerson continued walking.
[3] Fryerson called his father and told him to “be looking out for [him,] at least
they’ll know if anything happen[ed] to [him].” (Tr. Vol. II at 157.) As
Fryerson and Golinda turned the corner to walk down another street, they
noticed the SUV was following them. The SUV stopped, and the two back
doors opened. Fryerson and Golinda ran away from the SUV, towards
Fryerson’s house. As he was running, Fryerson was shot once in the back,
“had a stroke and . . . blacked out.” (Id. at 163.)
[4] Fryerson’s mother, who was at the family home, heard gunshots and ran
outside. She ran down the street and found Fryerson in the gutter. Fryerson’s
brother called the police. An ambulance transported Fryerson to a hospital in
Chicago, where he remained for about a month. Fryerson was placed in a
medically-induced coma for a period of time and experienced partial paralysis
as a result of his injuries. The doctor who treated Fryerson testified that
without medical intervention “it’s very likely he would have died.” (Tr. Vol. III
at 178.)
[5] Officers found Golinda further down the street from where Fryerson fell.
Golinda had been shot ten times and died as a result of his wounds. Police
found eight 10-millimeter cartridge cases at the scene of the shooting, all of
which had been fired from the same gun. The police also found three 45-caliber
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cartridge cases that also had been fired from a single gun. Police also located a
mutilated spent bullet from a 40-caliber firearm that did not match the firearm
associated with the other shell casings found at the scene.
[6] Gary Police Officer Marcus Harris viewed the surveillance footage from the gas
station and watched the interaction between the SUV and the victims. After
viewing the video, Officer Harris drove around the neighborhood looking for
the SUV. He located the SUV in front of a residence about five to six blocks
away from the gas station. Another officer arrived on the scene with his K-9
partner, and the dog led the officers to the front door of a nearby house. After
speaking with the owner of the SUV and obtaining consent, police towed the
SUV to the crime lab for investigation. In the SUV, officers found Pelissier’s
fingerprint on one of the rear passenger doors.
[7] During the investigation, police interviewed Tammarshea Jones after
connecting her to the SUV. Jones told police she was in the SUV at the time of
the shooting. She said the other occupants of the SUV were her boyfriend,
Kendall Vaughn, William Galloway, and a “light-skinned dude.” (State’s Ex.
8.) Jones told police Galloway and the “light-skinned dude” were the shooters.
(Id.) Jones knew the “light-skinned guy” as “Freaky” and she reported Freaky
returned to the SUV after the shooting and said, “I got his ass.” (Id.) At trial,
Jones identified Pelissier as the “light-skinned dude” she referred to during her
interview with police. (Tr. Vol. V at 96.)
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[8] Police interviewed Jones’ boyfriend, Vaughn, on November 13, 2016, and
January 27, 2017. During those interviews, Vaughn identified Pelissier and
Galloway as the shooters. During the second interview, Vaughn looked at a
photo array and identified a person he knew as “Freaky” as one of the shooters.
He wrote on the photo array, next to Pelissier’s picture, “kill[ed] the boy.”
(State’s Ex. 107.) During trial, Vaughn identified Pelissier as the person he
knew as “Freaky.” (Id. at 198.)
[9] On February 1, 2017, the State charged Pelissier with murder and Level 1
felony attempted murder. The trial court held a jury trial from January 8 to
January 16, 2018. At trial, Vaughn claimed he did not remember what he was
doing on the day of the shooting, he did not remember what he said when he
gave statements to the police in November 2016 and January 2017, and he did
not remember anything related to the shooting. Over Pelissier’s objection, the
trial court admitted the video recordings of his statements to police in
November 2016 and January 2017. At trial, when asked if Pelissier was in the
SUV on the date of the shooting, Vaughn answered, “Not sure. No.” (Tr. Vol.
V at 203.) During Vaughn’s testimony, Pelissier moved for a mistrial, moved to
exclude evidence, and asked to be able to depose Vaughn. The trial court
denied all three requests.
[10] The trial court also admitted, over Pelissier’s objection, the photo array with
Pelissier in it, and Detective Jeffrey Minchuk was permitted to testify that
Vaughn wrote on the photo array next to Pelissier’s picture, “kill[ed] the boy.”
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(Tr. Vol. VI at 20.) Detective Minchuk also identified Pelissier as an
“individual near the vehicle” on the gas station surveillance tape. (Id. at 24.)
[11] The jury returned guilty verdicts for Pelissier on both counts. On February 15,
2018, the trial court sentenced Pelissier to fifty-five years for murder, to be
served consecutive to a sentence of thirty years for Level 1 felony attempted
murder, for an aggregate sentence of eighty-five years incarcerated.
Discussion and Decision
Admission of Evidence
[12] We review evidentiary rulings for an abuse of discretion. Pavlovich v. State, 6
N.E.3d 969, 975 (Ind. Ct. App. 2014), trans. denied. An abuse of discretion
occurs if the trial court misinterpreted the law or if its decision was clearly
against the logic and effect of the facts and circumstances before it. Id.
Recordings of Vaughn
[13] At trial, Vaughn testified he could not remember the events of the night of the
shooting or any details of the subsequent statements he made to police in
November 2016 and January 2017. Thus, the State sought to admit those
statements via Indiana Evidence Rule 803(5), which provides for various
exceptions to the rule against hearsay. The Rule states, in relevant part:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
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*****
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now
cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter
was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be
received as an exhibit only if offered by an adverse party.
Indiana Evidence Rule 803(5). The parties appear to agree that the first two
requirements for admission under Indiana Evidence Rule 803(5) were satisfied,
but they disagree about the third requirement, that the recorded recollection
accurately reflects the witness’s knowledge.
[14] “[B]efore a statement can be admitted under the recorded recollection hearsay
exception, certain foundational requirements must be met, including some
acknowledgment that the statement was accurate when it was made.” Williams
v. State, 698 N.E.2d 848, 850 n.4 (Ind. Ct. App. 1998), reh’g denied, trans. denied.
“A trial court should not admit a witness’s statement into evidence when the
witness cannot vouch for the accuracy of the statement nor remember having
made the statement.” Ballard v. State, 877 N.E.2d 860, 862 (Ind. Ct. App.
2007).
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[15] Pelissier argues our holding in Ballard controls. In that case, the trial court
convicted Ballard of Class C felony battery based in part on the testimony of the
victim, Alisa Hatchett. During Ballard’s bench trial, the State called Hatchett
to testify. Hatchett “claimed to have no memory of the night in question.” Id.
at 861. Over Ballard’s objection, the trial court permitted the State to read,
pursuant to Indiana Evidence Rule 803(5), the recorded recollection hearsay
exception, excerpts of an earlier interview Hatchett had given shortly after the
incident to Detective Douglas Wright. Id.
[16] On appeal, Ballard argued, like Pelissier does here, that “the State failed to lay a
proper foundation for the introduction of the prior recorded statement pursuant
to Evid. R. 803(5).” Id. at 863. Our court determined the State did not lay a
sufficient foundation for the admission of the evidence, because Hatchett
repeatedly testified she did not remember the incident and she did not
remember what she said to Detective Wright. Id. As she did not “vouch for the
accuracy of the statement to Detective Wright - a statement that she did not
remember making . . . the excerpts from the transcribed statement should not
have been admitted under Evid. R. 803(5).” Id.
[17] The facts in Ballard are distinguishable. First, the inadmissible statement in
Ballard was written and here the statement was recorded on video.
Additionally, in Ballard, Hatchett “denied knowing whether she had spoken to
a detective” about the night in question, and asserted “that she probably said a
lot of things . . . that were not true.” Ballard, 877 N.E.2d at 863. Here, Vaughn
never indicated what he said was not true, and “repeatedly stated that he had
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already answered the questions and referred the questioner to the video[.]” (Br.
of Appellee at 12.) Finally, Hatchett testified “that her daily habit of drinking
gin caused her memory to lapse” and she might have given “an inaccurate
account of the evening in question.” Id. However, as part of his statement on
November 2016, Vaughn indicated he was telling the truth. (State’s Ex. 111.)
[18] An error in admitting evidence does not require reversal unless it affects the
substantial rights of a party. Stewart v. State, 754 N.E.2d 492, 496 (Ind. 2001).
“The improper admission of evidence is harmless error when the conviction is
supported by such substantial independent evidence of guilt as to satisfy the
reviewing court that there is no substantial likelihood that the questioned
evidence contributed to the conviction.” Barker v. State, 695 N.E.2d 925, 931
(Ind. 1998), reh’g denied. The erroneous admission of evidence may also be
harmless if that evidence is cumulative of other evidence admitted. Donaldson v.
Indianapolis Pub. Transp. Corp., 632 N.E.2d 1167, 1172 (Ind. Ct. App. 1994).
[19] In her video-recorded interview with police, the admission of which Pelissier
does not challenge, Jones stated one of the shooters was a “light skinned dude.”
(State’s Ex. 108.) At trial, Jones identified Pelissier as the “light skinned dude.”
(Tr. Vol. V at 96.) Additionally, Pelissier’s fingerprint was found on one of the
rear doors of the SUV, and one of the victims testified that the shooters both
came out the rear doors of the SUV. Based thereon, we conclude that any error
in the admission of Vaughn’s videotaped statements was harmless because the
evidence in question was cumulative of other properly-admitted evidence. See
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Tobar v. State, 740 N.E.2d 106, 108 (Ind. 2000) (“Evidence that is merely
cumulative is not grounds for reversal.”).
Photo Array
[20] Relatedly, Pelissier argues the trial court abused its discretion when it admitted
the photo array with “kill[ed] the boy” written next to Pelissier’s picture and
Detective Minchuk’s testimony that Vaughn wrote that on the photo array.
When the photo array was admitted, Pelissier objected, stating:
[Pelissier]: On State’s Number 107 [the photo array], I would
object in that we’ve had [Vaughn] testify as to he circled a picture
and he acknowledged signing it. I don’t recall [Vaughn]
testifying that he, in fact, wrote these words on here, number 4 is
the man how kill the boy [sic].
[State]: Your Honor, Mr. Vaughn testified that he
recognized that document as the photographic lineup that he
reviewed during that second interview. Further, Detective
Minchuk was present during this interview. He was the one who
prepared it and showed it to Mr. Vaughn. And, therefore, I
believe sufficient foundation has been laid for the admission of
State’s Exhibit 107.
[Pelissier]: I think identifying the person as number 4 is
different than adding the subsequent statement that is very
prejudicial to the defendant without authentication by Mr.
Vaughn of that statement.
[Court]: It’s true that Vaughn never identified that extra
language. Foundation has been met to allow 107 to be admitted.
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[State]: Your Honor, once more I would note that we
watched today an interview where it’s -- you can clearly see
Kendall Vaughn making those notes on that document.
[Pelissier]: We don’t know what Kendall Vaughn is stating --
writing on the document. We hear him say write your name and
date it. We don’t know what words are being written. The
camera is not on his handwriting at that time. And to admit this
additional language is more prejudicial than probative. He
acknowledges that he circled the -- the picture. He acknowledged
that he said that was Freaky. He acknowledged that he dated
and signed. But that exact language, we don’t have that -- that
verification.
[State]: This fails to mention that the detective also
instructed Kendall Vaughn to write on that piece of paper how he
knows or recognizes the individual.
[Court]: That did come out during that tape. Okay. Your
objection is noted and it’s overruled.
(Tr. Vol. VI at 14-6.)
Regarding the markings on the photo array, Detective Minchuk testified:
[State]: And to the best of your knowledge did [Vaughn]
also make the markings on the upper right-hand portion of
State’s Exhibit 107 [the photo array]?
[Minchuk]: Yes, sir.
[State]: Did he make those in your presence?
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[Minchuk]: Yes, sir.
[State]: And what does that indicate?
[Minchuk]: “Number 4 is the man --” it appears, “how killed the
boy,” or now killed the boy.
(Id. at 20.) Detective Minchuk then testified that “Number 4” was Pelissier.
(Id.)
[21] Pelissier contends on appeal, as he did before the trial court, that the State did
not provide sufficient foundation to prove that Vaughn wrote “Number 4 is the
man how kill[ed] the boy[,]” (State’s Ex. 107) (errors in original), because
Vaughn never testified that he wrote those words on the photo array. Pelissier
reiterates his argument regarding the inadmissibility of Vaughn’s videotaped
statements. Additionally, Pelissier directs us to inconsistencies in Vaughn’s
testimony such as Vaughn saying that Pelissier was never in the SUV, (see Tr.
Vol. V at 203), that Vaughn testified he did not know Freaky, and that when
Vaughn identified Pelissier in the photo array he did so because “[s]omebody
that I asked somebody else who was Freaky and they said that -- they showed
me a picture of that face right there. . . . They showed me a picture of this man
right here, so I circled the picture.” (Id. at 170) (errors in original).
[22] However, as was the case with the admission of Vaughn’s videotaped
statements, any error in the admission of the writing on the photo array is
harmless because it is cumulative of evidence properly admitted including
Jones’ testimony and fingerprint evidence indicating Pelissier was present in the
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rear of the vehicle involved in the shooting. See Leonard v. State, 86 N.E.3d 406,
413 (Ind. Ct. App. 2017) (error in the admission of evidence is harmless if
cumulative of other properly admitted evidence), trans. denied.
Inappropriate Sentence
[23] Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due
consideration of the trial court’s decision, we find the sentence inappropriate in
light of the nature of the offense and the character of the offender. Anglemyer v.
State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind.
2007). We consider not only the aggravators and mitigators found by the trial
court, but also any other factors appearing in the record. Johnson v. State, 986
N.E.2d 852, 856 (Ind. Ct. App. 2013). We defer to the trial court’s decision,
and our goal is to determine whether the defendant’s sentence is inappropriate,
not whether some other sentence would be more appropriate. Conley v. State,
972 N.E.2d 864, 876 (Ind. 2012), reh’g denied. Pelissier, as the appellant, bears
the burden of demonstrating his sentence is inappropriate. See Childress v. State,
848 N.E.2d 1073, 1080 (Ind. 2006) (appellant bears burden of demonstrating
sentence is inappropriate).
[24] When considering the nature of the offense, the advisory sentence is the starting
point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d
at 494. The advisory sentence for Level 1 felony attempted murder is thirty
years, with a sentencing range of twenty to forty years. Ind. Code § 35-50-2-
4(b) (2014). The advisory sentence for murder is fifty-five years, with a
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sentencing range of forty-five to sixty-five years. Ind. Code § 35-50-2-3(a)
(2015). The trial court sentenced Pelissier to the advisory sentence for each
crime, thirty and fifty-five years respectively, to be served consecutively for an
aggregate sentence of eighty-five years. Pelissier argues his sentence is
inappropriate based on the nature of the offense and his character.
[25] Regarding the nature of the offense, Pelissier argues the evidence was not clear
regarding what level of culpability was attributable to Pelissier because shell
casings from multiple firearms were found at the scene and no one saw who
shot the victims. However, the State presented evidence that Pelissier and
Galloway opened fire on Fryerson and Golinda, who were unarmed; the attack
was unprovoked; and the multitude of shots increased the possibility others
besides the intended victims could have been harmed. Based on the nature of
the offenses, the trial court “would have been within its discretion to impose
terms above the advisory sentence.” (Br. of Appellee at 18.) We cannot hold
Pelissier’s sentence inappropriate based on the nature of the offense. See
Birdsong v. State, 685 N.E.2d 42, 48 (Ind. 1997) (advisory sentence appropriate
for unprovoked murder).
[26] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Johnson, 986 N.E.2d at 857. The significance of
criminal history varies based on the gravity, nature, and number of prior
offenses in relation to the current offense. Id. Pelissier also asserts he has no
criminal record; however, at the sentencing hearing, the parties discussed
Pelissier’s pre-sentence investigation report, which indicated Pelissier had
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“juvenile adjudications” and was “on bond for two cases[.]” (Tr. Vol. VI at
226.)
[27] Pelissier also emphasizes the fact that he was twenty years old when sentenced,
and an eighty-five year sentence would mean he would be incarcerated for the
majority of his life. However, there are a multitude of cases in which our
appellate courts have affirmed similar sentences for offenders younger than
Pelissier. See Monegan v. State, 756 N.E.2d 499, 504-5 (Ind. 2001) (refusing to
consider Monegan’s age of seventeen years and eleven months as a mitigator in
sixty-year sentence for murder); also see Spears v. State, 735 N.E.2d 1161, 1167
(Ind. 2000) (holding an eighteen year old defendant was “beyond the age at
which the law commands special treatment by virtue of youth”), reh’g denied;
and see Bryant v. State, 802 N.E.2d 486, 502 (Ind. Ct. App. 2004) (noting
“youthful age does not ‘automatically’ qualify as a significant mitigator” in
sentence for eighteen-year-old convicted of murder), trans. denied.
[28] Pelissier also requests that we consider that he was raised without a father, was
adjudicated a child in need of services, and had to quit school at sixteen years
old to work to support his family. We have consistently held that “evidence of
a difficult childhood warrants little, if any, mitigating weight. Coleman v. State,
741 N.E.2d 697, 703 (Ind. 2000). Finally, Pelissier notes he had been regularly
employed and financially supported his three children; however employment is
not necessarily mitigating. See Newsome v. State, 797 N.E.2d 293, 301 (Ind. Ct.
App. 2003) (“Many people are gainfully employment such that this would not
require the trial court to note it as a mitigating factor or afford it the same
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weight as Newsome proposes”), trans. denied. Additionally, two of Pelissier’s
children were living with their respective mothers and there were no child
support orders in place for those children, and thus no mitigating weight should
be afforded to Pelissier’s claim that he provided financial support to his three
children. See Reese v. State, 939 N.E.2d 695, 703 (Ind. Ct. App. 2011)
(defendant’s support of children not considered a mitigating circumstance when
the defendant “had no court-ordered child support obligation for his children”),
trans. denied. Based thereon, we cannot say Pelissier’s sentence is inappropriate
based on his character. See Connor v. State, 58 N.E.3d 215, 221 (Ind. Ct. App.
2016) (sentence not inappropriate despite arguments regarding Connor’s young
age and difficult childhood).
Conclusion
[29] If the trial court erred in the admission of Vaughn’s videotaped statement and
his notation on the photo array, any error was harmless because those pieces of
evidence were cumulative of other properly-admitted evidence. Additionally,
Pelissier’s sentence was not inappropriate based on the nature of the crime or
his character. Accordingly, we affirm.
[30] Affirmed.
Robb, J., and Tavitas, J., concur.
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