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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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