MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                         Jun 12 2017, 9:21 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lamar Wooden,                                            June 12, 2017
Appellant-Defendant,                                     49A02-1611-CR-2561
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Grant W.
State of Indiana,                                        Hawkins, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G05-1510-MR-37109



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2561 | June 12, 2017      Page 1 of 9
                                          Case Summary
[1]   Lamar Wooden (“Wooden”) appeals his conviction for Murder, a felony. 1 He

      presents the sole issue of whether there was prosecutorial misconduct

      amounting to fundamental error because in rebuttal closing argument the

      prosecutor suggested that Wooden had a burden of proof or that the State was

      required to present exculpatory evidence. We affirm.



                                   Facts and Procedural History
[2]   On October 16, 2015, relatives of Lorirell Wooden (“Lorirell”) gathered at

      Lorirell’s Indianapolis residence to celebrate her birthday. Lorirell’s sister,

      Latasha Eldridge (“Latasha”) was among the guests. Latasha’s husband,

      Gerald Eldridge (“Gerald”) showed up unexpectedly and shortly thereafter,

      Wooden, who is a cousin to Lorirell and Latasha, showed up. He was

      accompanied by his friend, Adrian Riggs (“Riggs”). Latasha and Gerald

      immediately decided to leave the party and Gerald stepped outside.


[3]   Wooden hugged his cousin Lakisha Wooden (“Lakisha”) and she observed the

      handle of a gun protruding from the front pocket of Wooden’s hoodie. Lakisha

      warned Wooden not to start trouble, as children were present. Wooden asked

      for Lorirell and, when she appeared, gave her a hug. Lorirell also observed that




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2561 | June 12, 2017   Page 2 of 9
      Wooden “had a gun hanging out.” (Tr. Vol. II pg. 119.) Wooden then quickly

      went outside. Within one minute, the women inside the house heard gunshots.


[4]   Gerald’s and Latasha’s daughter, Lydia Dukes (“Dukes”) ran outside at the

      sound of the gunshots. She observed Wooden shooting at Gerald’s van as he

      drove away. She then saw Riggs toss keys to Wooden and he ran off in the

      direction where Riggs’ girlfriend’s vehicle had been parked. Dukes began

      beating Riggs on his head. Lorirell ran outside to find that Wooden was gone

      and Riggs was being beaten. Latasha saw her husband’s van drive away and

      she followed in another vehicle.


[5]   At a gas station near 30th Street and College Avenue, Ronald Smith (“Smith”)

      stood waiting for a ride. He saw a man driving a gray Camaro with a black top

      approach a van and fire multiple shots through the passenger side window. He

      then observed the driver of the van clutch his chest. Smith called 9-1-1 and ran

      toward the shooting victim. Gerald died at the scene. When Lorirell arrived

      and identified herself to police officers as the victim’s wife, Smith told her the

      shooter was “a guy in a gray Camaro with a black top” and Lorirell responded

      that it was her cousin. (Tr. Vol. II pg. 245.) Smith later examined a

      photographic array and identified Wooden as the shooter.


[6]   Wooden was arrested and charged with Murder. On October 3, 2016, his jury

      trial commenced. During the presentation of evidence, Leroy Sargent

      (“Sargent”), who is Lorirell’s boyfriend, provided somewhat equivocal

      testimony as to what he observed as he returned home from work on October


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2561 | June 12, 2017   Page 3 of 9
      16, 2015. His equivocation as to who was in the vehicle he passed, which was

      not a Camaro, became a focus during the defense closing argument and rebuttal

      closing argument. However, no contemporaneous objection was lodged by

      Wooden.


[7]   When the trial concluded, the jury found Wooden guilty as charged. He was

      sentenced to a term of sixty years of imprisonment. He now appeals.



                                 Discussion and Decision
[8]   Wooden alleges that the prosecutor engaged in misconduct during the

      presentation of rebuttal closing argument. The Indiana Supreme Court has set

      forth the legal standards under which we review a claim of prosecutorial

      misconduct:


              In reviewing a claim of prosecutorial misconduct properly raised
              in the trial court, we determine (1) whether misconduct occurred,
              and if so, (2) “whether the misconduct, under all of the
              circumstances, placed the defendant in a position of grave peril to
              which he or she would not have been subjected” otherwise.
              Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo
              v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the
              duty to present a persuasive final argument and thus placing a
              defendant in grave peril, by itself, is not misconduct. Mahla v.
              State, 496 N.E.2d 568, 572 (Ind. 1986). “Whether a prosecutor’s
              argument constitutes misconduct is measured by reference to
              case law and the Rules of Professional Conduct. The gravity of
              peril is measured by the probable persuasive effect of the misconduct
              on the jury’s decision, rather than the degree of impropriety of the
              conduct.” Cooper, 854 N.E.2d at 835 (emphasis added) (citations
              omitted). To preserve a claim of prosecutorial misconduct, the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2561 | June 12, 2017   Page 4 of 9
               defendant must – at the time the alleged misconduct occurs –
               request an admonishment to the jury, and if further relief is
               desired, move for a mistrial. Id.; see also Maldonado v. State, 265
               Ind. 492, 498, 355 N.E.2d 843, 848 (1976).


       Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014).


[9]    Wooden did not object, request an admonishment to the jury, or move for a

       mistrial. Thus, appellate review of a claim of prosecutorial misconduct is

       waived for failure to preserve the claim of error. Id. When a defendant has

       waived review of a claim of prosecutorial misconduct for appellate review, he

       “must establish not only the grounds for prosecutorial misconduct but must also

       establish that the prosecutorial misconduct constituted fundamental error.” Id.

       at 667-68. Fundamental error is an extremely narrow exception to the waiver

       rule, and exists only when the trial court’s errors are so prejudicial that a fair

       trial was made impossible. Id. at 667-68.


[10]   During closing argument, the State urged the jury to convict Wooden based

       upon eyewitness testimony from Smith, circumstantial evidence from the party-

       goers, and physical evidence including ballistics test results. In response,

       defense counsel argued in closing that the evidence pointed “just as directly to

       Adrian Riggs as it does to Mr. Wooden.” (Tr. Vol. IV. pg 36.) Defense counsel

       described an excerpt from Sargent’s deposition arguably suggesting that Riggs

       drove a Camaro and Wooden drove another vehicle on the day of the shooting.

       Counsel claimed:




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2561 | June 12, 2017   Page 5 of 9
               Again, [the] State still doesn’t want you to hear this evidence. …
               We have no burden. They should have done all these things. …
               Anyway, the State spent so much time arguing and trying [to]
               prevent you from seeing evidence that they knew or should have
               known was going to come into evidence.


       (Tr. Vol. IV pg. 37, 44.)


[11]   After pointing to alleged evidentiary gaps – potential witness Derek Caruthers,

       the 9-1-1 call, a photograph of Riggs, DNA test results from Riggs – defense

       counsel continued:


               Again, there is no question that a black male in that Camaro shot
               and killed Gerald Eldridge. The question is who it was. And I
               say again that the evidence points just as directly to Mr. Riggs as
               it does to Mr. Wooden. And the fact that you don’t have all the
               evidence is their fault. All the other things that could of and
               should have [been] done, all the things you would have wanted
               done, if one of your loved ones was on trial, if your son or
               daughter or a husband was on trial and you learned that the State
               didn’t do all these things you’d be outraged.


       (Tr. Vol. IV. pgs 51-52.)


[12]   Wooden claims that the prosecutor committed misconduct by arguing, in

       rebuttal, as follows:


               Now the defense wants to say that we’re preventing you from
               seeing evidence, preventing you from hearing from [sic] to use
               the example, the other 9-1-1 caller. Let me make it clear, the
               State has the burden of proof in this case. It’s also true that the
               defense has the same subpoena powers as the State has. And
               they can use those just as much as we do. We’re not preventing

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2561 | June 12, 2017   Page 6 of 9
               you from hearing testimony. Why would I ever have called
               Leroy Sargent, I wasn’t hiding him. Honestly we have to tell you
               what he told us. And that was that he was changing his story.


       (Tr. Vol. IV. pgs. 55-56.)


[13]   Wooden challenges two sections of the foregoing argument. First, he contends

       that referring to defense subpoena powers is an improper comment upon

       Wooden’s decision not to call witnesses and suggests to the jury that Wooden

       bore a burden of proof. It is improper for a prosecutor to suggest that a

       defendant shoulders the burden of proof in a criminal case. Dobbins v. State, 721

       N.E.2d 867, 874 (Ind. 1999). Here, however, the challenged language did not

       directly or indirectly suggest that Wooden bore a burden of proof. Indeed, the

       prosecutor informed the jury that the State alone had the burden of proof.


[14]   Moreover, “[p]rosecutors are entitled to respond to allegations and inferences

       raised by the defense even if the prosecutor’s response would otherwise be

       objectionable.” Cooper, 854 N.E.2d at 836. Although the reference to subpoena

       powers may have highlighted Wooden’s lack of witnesses, the prosecutor was

       responding to Wooden’s accusation that the State had engaged in outrageous

       behavior by failing to present evidence implicating Riggs. In these

       circumstances, it did not constitute misconduct.


[15]   Second, Wooden argues that the prosecutor misled the jury by claiming “we

       have to tell you what he told us.” (Tr. Vol. IV, pg. 56.) Wooden observes that,

       pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the State has a duty to notify

       the defense of exculpatory evidence. He further observes, and we agree, that
       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2561 | June 12, 2017   Page 7 of 9
       this duty does not extend to the actual presentation of exculpatory evidence to

       the jury. See Craig v. State, 370 N.E.2d 880, 884 (Ind. 1977) (recognizing that

       “[the] assertion that the prosecution has a duty to present to the jury evidence

       favorable to the accused is incorrect and misleading.”) Too, we agree with

       Wooden that the prosecutor’s claim of an obligation “to tell you what he told us

       … changing his story,” (Tr. Vol. IV. pg. 56), suggests that the State must

       present exculpatory evidence to the jury.


[16]   The inquiry then is whether the comment amounts to fundamental error. In

       evaluating the issue of fundamental error, the task of the reviewing court is to

       look at the alleged misconduct in the context of all that happened and all

       relevant information given to the jury. Ryan, 9 N.E.3d at 668. This includes

       the evidence admitted at trial, closing argument, and jury instructions. Id. We

       then determine whether the misconduct had such an undeniable and substantial

       effect on the jury’s decision that a fair trial was impossible. Id.


[17]   The evidence of Wooden’s guilt was overwhelming. Lakisha and Lorirell

       testified that Wooden had a gun in his pocket at the party. Several witnesses

       testified that they heard gunshots almost immediately after Wooden followed

       Gerald outside. Dukes testified that she saw Wooden shooting at her father’s

       van; she then saw Riggs toss keys to Wooden and he drove away. Other

       witnesses saw that Riggs remained outside Lorirell’s house for some time after

       Wooden began pursuit of Gerald; during this time Riggs was beaten and then

       appeared to search for something. Smith, a bystander and eyewitness to

       Gerald’s shooting, identified Wooden from a photographic array. He again

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2561 | June 12, 2017   Page 8 of 9
       identified Wooden in open court. The Camaro described by witnesses was

       found near Wooden’s residence. Inside the vehicle was a pistol and a spent

       bullet; ballistics testing matched that pistol with a bullet recovered from

       Gerald’s body. We conclude that the prosecutor’s isolated reference to the

       State’s obligation under the law did not affect the jury’s decision such that a fair

       trial was impossible.



                                               Conclusion
[18]   The prosecutor did not make comments in closing rebuttal argument

       amounting to fundamental error.


[19]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2561 | June 12, 2017   Page 9 of 9
