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COA rejects missing witnesses argument in murder appeal

April 12, 2018

A man convicted in a Marion County drug-related murder has lost his appeal of his conviction after the Indiana Court of Appeals determined the trial judge was not required to admonish the jury about the absence of two witnesses without a request from the parties.

In Antonio M. Merritt v. State of Indiana, 49A02-1708-CR-1736, Jordan White and Elizie Wombles were at Antonio Merritt’s “drug house” in October 2015 when Merritt told White to give him some of the cocaine he had been selling. When White refused, Merritt located White’s gun and began an argument. Wombles left the room but later heard a gunshot.

Wombles fled, but Merritt pursued her with the gun and threatened to kill her and her children. White was later found dead, and Merritt was observed selling the revolver on the street.

Merritt was eventually charged with White’s murder, but his first trial ended in a hung jury. While awaiting his retrial, Merritt offered Ryan Ivy, another prisoner, $1,000 to kill Wombles. The case then proceeded to a retrial, but neither Wombles nor Rusell Church – who observed Merritt selling the gun – could be located.

Instead, the Marion Superior Court admitted their testimony from the first trial, and Ivy then testified about his jailhouse conversation with Merritt. After Merritt was found guilty, he appealed, arguing the trial court committed fundamental error by failing to sua sponte admonish the jury not to speculate about the reasons why Wombles and Church were unavailable.

But the Indiana Court of Appeals disagreed, with Judge Edward Najam writing that Merritt did not claim the evidence against him was misleading in any way. Thus, any error did not rise to the level of fundamental error, Najam said.

“The trial court may well have determined that Merritt’s attorney thought an admonishment with respect to the unavailability of both Wombles and Church was not worth the risk of drawing unnecessary attention to their absences,” Najam wrote. “We decline to say that the trial court here was obliged to interject itself in that assessment on Merritt’s behalf.”

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