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Appellate court upholds murder conviction

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Although the trial court erred in finding a police officer was a skilled witness uniquely qualified to assess a murder victim's truthfulness, it was a harmless error because his testimony was an admissible lay observation, the Indiana Court of Appeals concluded today.

In Theotis Tolliver v. State of Indiana, No. 45A03-0906-CR-250, Theotis Tolliver appealed his murder conviction and habitual offender enhancement resulting in 90-year sentence for shooting Benjamin Woodward Jr. Tolliver claimed the trial court erred by letting a police officer testify, based on Woodward's body language, about the "truthful" nature of certain statements made by the victim; by allowing into evidence some of Woodward's statements to his family as statements against interest under Indiana Evidence Rule 804(b)(3); by denying his motion for a continuance when a defense witness didn't appear at trial; and by prohibiting defense counsel from inquiring into certain state's witnesses' possible bias on cross-examination.

Tolliver and Woodward got into an argument after a dice game, which led to Tolliver shooting Woodward in front of several witnesses. Woodward told his family in the hospital Tolliver shot him but that he would take care of it and he wasn't a snitch. He didn't cooperate with police during the investigation. Woodward eventually died of his injuries.

The Court of Appeals agreed with Tolliver that the trial court erred by allowing a police officer to testify as a skilled witness regarding Woodward's body language at the time he made certain statements. The trial court allowed the officer to testify based on his interrogation training. Other jurisdictions have disapproved of body language testimony, and the appellate court was similarly skeptical of the testimony. Because the officer didn't testify regarding Woodward's specific truthfulness but just observed that Woodward was uncooperative, was angry, and didn't want to talk, that testimony is admissible pursuant to Evid. R. 701 as a lay opinion, wrote Judge Cale Bradford. As a result, it was a harmless error.

The Court of Appeals ruled the testimony by Woodward's family members that he told them Tolliver shot him and he would take care of it, shouldn't have been admitted into evidence as an admission against interest. The statements were merely a statement of intent. Given the independent eyewitness testimony identifying Tolliver as the shooter and the gun used to kill Woodward, the introduction of the family's testimony wasn't prejudicial enough to deny Tolliver a fair trial, wrote the judge.

The refusal to grant Tolliver a continuance to locate a defense witness wasn't an abuse of discretion because he had other witnesses testify on his behalf as alibi witnesses. In addition, there was difficulty locating the witness, who was likely uncooperative because he had three active warrants and was being investigated in connection with a murder case.

Finally the Court of Appeals found no error in limiting Tolliver's attorney's cross-examination of state witnesses about possible deals they would receive in exchange for testifying. The purported deals were purely speculative and unsupported by evidence.

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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