122 N.E.3d 983
Ind. Ct. App.2019Background
- On Nov. 12, 2016, Timothy Fryerson and Jondell Golinda were followed by a red Dodge Durango after leaving a gas station; both were shot—Golinda died and Fryerson was seriously injured.
- Officers recovered multiple shell casings from different-caliber firearms at the scene; surveillance video showed occupants exiting the vehicle from rear doors.
- Police located the Durango nearby; Pelissier’s fingerprint was on a rear passenger door. Tammarshea Jones (in the SUV) identified Pelissier at trial as the “light-skinned” shooter she named in her statement.
- Kendall Vaughn (also in the vehicle) gave recorded statements to police in Nov. 2016 and Jan. 2017 identifying Pelissier and Galloway as shooters, but at trial claimed he did not remember the events or his prior statements.
- Pelissier was charged with murder and Level 1 attempted murder; the trial court admitted Vaughn’s videotaped prior statements and a photo array (with writing “Number 4 is the man how killed the boy”) over defense objections.
- A jury convicted Pelissier on both counts; he received consecutive advisory sentences (55 years for murder + 30 years for attempted murder = 85 years). The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Vaughn’s videotaped prior statements (Recorded recollection under Evid. R. 803(5)) | State: statements admissible as recorded recollection—witness once knew facts, recorded when fresh, and the recording reflects his knowledge. | Pelissier: Vaughn couldn’t vouch for accuracy or recall making statements; foundational requirement not met (Ballard). | Court: Admission not reversible error; even if erroneous, admission was harmless/cumulative of other evidence (Jones’s statement, fingerprint). |
| Admissibility of photo array markings and Minchuk’s testimony about Vaughn’s handwritten note | State: foundation laid—Vaughn recognized the array; detective present and prepared it; video shows Vaughn marking it. | Pelissier: No direct authentication Vaughn wrote the prejudicial language; prejudicial beyond circled identification. | Court: Admission allowed; any error harmless because the writing was cumulative of other properly admitted evidence. |
| Appropriateness of aggregate 85‑year sentence | State: advisory consecutive sentences appropriate given unprovoked, multiple-shot murder/attempt, and seriousness. | Pelissier: Sentence inappropriate given disputed culpability, youth, difficult upbringing, limited mitigating factors. | Court: Sentence affirmed as not inappropriate in light of offense and offender; advisory terms were within discretion. |
Key Cases Cited
- Pavlovich v. State, 6 N.E.3d 969 (Ind. Ct. App. 2014) (standard of review for evidentiary rulings)
- Williams v. State, 698 N.E.2d 848 (Ind. Ct. App. 1998) (foundational requirements for recorded recollection)
- Ballard v. State, 877 N.E.2d 860 (Ind. Ct. App. 2007) (recorded recollection not admissible when declarant cannot vouch for accuracy)
- Stewart v. State, 754 N.E.2d 492 (Ind. 2001) (harmless error standard for evidentiary rulings)
- Barker v. State, 695 N.E.2d 925 (Ind. 1998) (when erroneous evidence admission is harmless)
- Donaldson v. Indianapolis Pub. Transp. Corp., 632 N.E.2d 1167 (Ind. Ct. App. 1994) (cumulative evidence doctrine)
- Tobar v. State, 740 N.E.2d 106 (Ind. 2000) (cumulative evidence not grounds for reversal)
- Leonard v. State, 86 N.E.3d 406 (Ind. Ct. App. 2017) (harmless error when evidence cumulative)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (appellate review of sentence appropriateness under Ind. Appellate Rule 7(B))
- Johnson v. State, 986 N.E.2d 852 (Ind. Ct. App. 2013) (consideration of offender’s criminal history in sentencing review)
- Conley v. State, 972 N.E.2d 864 (Ind. 2012) (deference to trial court in sentencing; appellate goal is to assess inappropriateness)
- Childress v. State, 848 N.E.2d 1073 (Ind. 2006) (burden on appellant to show sentence inappropriate)
- Monegan v. State, 756 N.E.2d 499 (Ind. 2001) (youth not automatically a significant mitigator in serious sentences)
- Spears v. State, 735 N.E.2d 1161 (Ind. 2000) (young adult defendants not entitled to special sentencing treatment solely for age)
- Bryant v. State, 802 N.E.2d 486 (Ind. Ct. App. 2004) (youthful age not necessarily significant mitigation)
- Coleman v. State, 741 N.E.2d 697 (Ind. 2000) (difficult childhood has little mitigating weight)
- Newsome v. State, 797 N.E.2d 293 (Ind. Ct. App. 2003) (employment not necessarily a mitigating factor)
- Reese v. State, 939 N.E.2d 695 (Ind. Ct. App. 2010) (support of children without court-ordered obligation is weak mitigation)
- Connor v. State, 58 N.E.3d 215 (Ind. Ct. App. 2016) (affirming heavy sentence despite youth and difficult background)