ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Olivero Steve Carter
Fort Wayne, Indiana Attorney General of Indiana
Joseph A. Samreta
Deputy Attorney General
SUPREME COURT OF INDIANA
THOMAS IVAN GREEN, ) ) Appellant (Defendant Below ), ) ) v. ) No. 02S00-0011-CR-707 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
October 16, 2001
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, Greens 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.
Green complains that the States 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, States Exh. 3), and the
physicians report regarding the examination of Douglas wounds, (R. at 474, States Exh.
The jury was fully aware of Ezells 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.
Greens counsel sought to examine Ezells truthfulness by saying, Now Malinda, your mother
believes that youre 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
See footnote and Rule 608(a) permits presenting opinion or reputation evidence to refer to
character for truthfulness. This argument overlooks the fact that Greens 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 Greens
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 Ezells truthfulness through opinion or
reputation evidence required that Green call a
witness (for example, Ezells mother) to
provide such testimony. Greens counsel could not supply it himself. The
court actually invited Greens counsel to call Ezells mother to testify as to
her opinion, which counsel chose not to do.
Contrary to Greens assertion, he was not denied the opportunity to cross-examine Ezell.
Both before and after the impermissible statement, Greens counsel questioned Ezell repeatedly
about inconsistent statements.
The trial court correctly sustained the States objection to counsels declaration.
Dickson, Sullivan, Boehm, Rucker, JJ., concur.