Nicholas Pelissier v. State of Indiana
Nicholas Pelissier v. State of Indiana
Opinion
[1] Nicholas Pelissier appeals his convictions of and sentences for murder 1 and Level 1 felony attempted murder. 2 He raises three issues, which we restate as:
1. Whether the trial court abused its discretion when it admitted into evidence videotaped recordings of witness Kendall Vaughn's prior statements to police;
2. Whether the trial court abused its discretion when it admitted into evidence the photo array from which Detective Jeffrey Minchuck testified Vaughn identified Pelissier as one of the shooters; and
3. Whether Pelissier's aggregate sentence of eighty-five years is inappropriate based on the nature of the offense and Pelissier's character.
We affirm.
Facts and Procedural History 3
[2] On November 12, 2016, Timothy Fryerson and his friend, Jondell Golinda, walked to a gas station near Golinda's house and purchased cigarettes and snacks. As they left the gas station and were walking across the parking lot, a red Dodge Durango SUV was at one of the gas pumps. Someone in the SUV said something to Fryerson and Golinda, to which they did not respond. The rear door of the SUV opened, and William Galloway exited the SUV and displayed a gun. Golinda and Fryerson continued walking.
[3] Fryerson called his father and told him to "be looking out for [him,] at least they'll know if anything happen[ed] to [him]." (Tr. Vol. II at 157.) As Fryerson and Golinda turned the corner to walk down another street, they noticed the SUV was following them. The SUV stopped, and the two back doors opened. Fryerson and Golinda ran away from the SUV, towards Fryerson's house. As he was running, Fryerson was shot once in the back, "had a stroke and ... blacked out." ( Id. at 163.)
[4] Fryerson's mother, who was at the family home, heard gunshots and ran outside. She ran down the street and found Fryerson in the gutter. Fryerson's brother called the police. An ambulance transported Fryerson to a hospital in Chicago, *986 where he remained for about a month. Fryerson was placed in a medically-induced coma for a period of time and experienced partial paralysis as a result of his injuries. The doctor who treated Fryerson testified that without medical intervention "it's very likely he would have died." (Tr. Vol. III at 178.)
[5] Officers found Golinda further down the street from where Fryerson fell. Golinda had been shot ten times and died as a result of his wounds. Police found eight 10-millimeter cartridge cases at the scene of the shooting, all of which had been fired from the same gun. The police also found three 45-caliber cartridge cases that also had been fired from a single gun. Police also located a mutilated spent bullet from a 40-caliber firearm that did not match the firearm associated with the other shell casings found at the scene.
[6] Gary Police Officer Marcus Harris viewed the surveillance footage from the gas station and watched the interaction between the SUV and the victims. After viewing the video, Officer Harris drove around the neighborhood looking for the SUV. He located the SUV in front of a residence about five to six blocks away from the gas station. Another officer arrived on the scene with his K-9 partner, and the dog led the officers to the front door of a nearby house. After speaking with the owner of the SUV and obtaining consent, police towed the SUV to the crime lab for investigation. In the SUV, officers found Pelissier's fingerprint on one of the rear passenger doors.
[7] During the investigation, police interviewed Tammarshea Jones after connecting her to the SUV. Jones told police she was in the SUV at the time of the shooting. She said the other occupants of the SUV were her boyfriend, Kendall Vaughn, William Galloway, and a "light-skinned dude." (State's Ex. 8.) Jones told police Galloway and the "light-skinned dude" were the shooters. ( Id. ) Jones knew the "light-skinned guy" as "Freaky" and she reported Freaky returned to the SUV after the shooting and said, "I got his ass." ( Id. ) At trial, Jones identified Pelissier as the "light-skinned dude" she referred to during her interview with police. (Tr. Vol. V at 96.)
[8] Police interviewed Jones' boyfriend, Vaughn, on November 13, 2016, and January 27, 2017. During those interviews, Vaughn identified Pelissier and Galloway as the shooters. During the second interview, Vaughn looked at a photo array and identified a person he knew as "Freaky" as one of the shooters. He wrote on the photo array, next to Pelissier's picture, "kill[ed] the boy." (State's Ex. 107.) During trial, Vaughn identified Pelissier as the person he knew as "Freaky." ( Id. at 198.)
[9] On February 1, 2017, the State charged Pelissier with murder and Level 1 felony attempted murder. The trial court held a jury trial from January 8 to January 16, 2018. At trial, Vaughn claimed he did not remember what he was doing on the day of the shooting, he did not remember what he said when he gave statements to the police in November 2016 and January 2017, and he did not remember anything related to the shooting. Over Pelissier's objection, the trial court admitted the video recordings of his statements to police in November 2016 and January 2017. At trial, when asked if Pelissier was in the SUV on the date of the shooting, Vaughn answered, "Not sure. No." (Tr. Vol. V at 203.) During Vaughn's testimony, Pelissier moved for a mistrial, moved to exclude evidence, and asked to be able to depose Vaughn. The trial court denied all three requests.
[10] The trial court also admitted, over Pelissier's objection, the photo array with Pelissier in it, and Detective Jeffrey Minchuk was permitted to testify that Vaughn *987 wrote on the photo array next to Pelissier's picture, "kill[ed] the boy." (Tr. Vol. VI at 20.) Detective Minchuk also identified Pelissier as an "individual near the vehicle" on the gas station surveillance tape. ( Id. at 24.)
[11] The jury returned guilty verdicts for Pelissier on both counts. On February 15, 2018, the trial court sentenced Pelissier to fifty-five years for murder, to be served consecutive to a sentence of thirty years for Level 1 felony attempted murder, for an aggregate sentence of eighty-five years incarcerated.
Discussion and Decision
Admission of Evidence
[12] We review evidentiary rulings for an abuse of discretion.
Pavlovich v. State
,
Recordings of Vaughn
[13] At trial, Vaughn testified he could not remember the events of the night of the shooting or any details of the subsequent statements he made to police in November 2016 and January 2017. Thus, the State sought to admit those statements via Indiana Evidence Rule 803(5), which provides for various exceptions to the rule against hearsay. The Rule states, in relevant part:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
* * * * *
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and
(C) accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
Indiana Evidence Rule 803(5). The parties appear to agree that the first two requirements for admission under Indiana Evidence Rule 803(5) were satisfied, but they disagree about the third requirement, that the recorded recollection accurately reflects the witness's knowledge.
[14] "[B]efore a statement can be admitted under the recorded recollection hearsay exception, certain foundational requirements must be met, including some acknowledgment that the statement was accurate when it was made."
Williams v. State
,
[15] Pelissier argues our holding in
Ballard
controls. In that case, the trial court convicted Ballard of Class C felony battery based in part on the testimony of the victim, Alisa Hatchett. During Ballard's bench trial, the State called Hatchett to testify. Hatchett "claimed to have no memory of the night in question."
[16] On appeal, Ballard argued, like Pelissier does here, that "the State failed to
*988
lay a proper foundation for the introduction of the prior recorded statement pursuant to Evid. R. 803(5)."
[17] The facts in
Ballard
are distinguishable. First, the inadmissible statement in Ballard was written and here the statement was recorded on video. Additionally, in
Ballard
, Hatchett "denied knowing whether she had spoken to a detective" about the night in question, and asserted "that she probably said a lot of things ... that were not true."
Ballard
,
[18] An error in admitting evidence does not require reversal unless it affects the substantial rights of a party.
Stewart v. State
,
[19] In her video-recorded interview with police, the admission of which Pelissier does not challenge, Jones stated one of the shooters was a "light skinned dude." (State's Ex. 108.) At trial, Jones identified Pelissier as the "light skinned dude." (Tr. Vol. V at 96.) Additionally, Pelissier's fingerprint was found on one of the rear doors of the SUV, and one of the victims testified that the shooters both came out the rear doors of the SUV. Based thereon, we conclude that any error in the admission of Vaughn's videotaped statements was harmless because the evidence in question was cumulative of other properly-admitted evidence.
See
Tobar v. State
,
Photo Array
[20] Relatedly, Pelissier argues the trial court abused its discretion when it admitted the photo array with "kill[ed] the boy" written next to Pelissier's picture and Detective Minchuk's testimony that Vaughn wrote that on the photo array. When the photo array was admitted, Pelissier objected, stating:
[Pelissier]: On State's Number 107 [the photo array], I would object in that we've had [Vaughn] testify as to he circled a picture and he acknowledged signing it. I don't recall [Vaughn] testifying that he, in fact, wrote these words on here, number 4 is the man how kill the boy [sic].
[State]: Your Honor, Mr. Vaughn testified that he recognized that document as *989 the photographic lineup that he reviewed during that second interview. Further, Detective Minchuk was present during this interview. He was the one who prepared it and showed it to Mr. Vaughn. And, therefore, I believe sufficient foundation has been laid for the admission of State's Exhibit 107.
[Pelissier]: I think identifying the person as number 4 is different than adding the subsequent statement that is very prejudicial to the defendant without authentication by Mr. Vaughn of that statement.
[Court]: It's true that Vaughn never identified that extra language. Foundation has been met to allow 107 to be admitted.
[State]: Your Honor, once more I would note that we watched today an interview where it's -- you can clearly see Kendall Vaughn making those notes on that document.
[Pelissier]: We don't know what Kendall Vaughn is stating -- writing on the document. We hear him say write your name and date it. We don't know what words are being written. The camera is not on his handwriting at that time. And to admit this additional language is more prejudicial than probative. He acknowledges that he circled the -- the picture. He acknowledged that he said that was Freaky. He acknowledged that he dated and signed. But that exact language, we don't have that -- that verification.
[State]: This fails to mention that the detective also instructed Kendall Vaughn to write on that piece of paper how he knows or recognizes the individual.
[Court]: That did come out during that tape. Okay. Your objection is noted and it's overruled.
(Tr. Vol. VI at 14-6.)
Regarding the markings on the photo array, Detective Minchuk testified:
[State]: And to the best of your knowledge did [Vaughn] also make the markings on the upper right-hand portion of State's Exhibit 107 [the photo array]?
[Minchuk]: Yes, sir.
[State]: Did he make those in your presence?
[Minchuk]: Yes, sir.
[State]: And what does that indicate?
[Minchuk]: "Number 4 is the man --" it appears, "how killed the boy," or now killed the boy.
( Id. at 20.) Detective Minchuk then testified that "Number 4" was Pelissier. ( Id. )
[21] Pelissier contends on appeal, as he did before the trial court, that the State did not provide sufficient foundation to prove that Vaughn wrote "Number 4 is the man how kill[ed] the boy[,]" (State's Ex. 107) (errors in original), because Vaughn never testified that he wrote those words on the photo array. Pelissier reiterates his argument regarding the inadmissibility of Vaughn's videotaped statements. Additionally, Pelissier directs us to inconsistencies in Vaughn's testimony such as Vaughn saying that Pelissier was never in the SUV, ( see Tr. Vol. V at 203), that Vaughn testified he did not know Freaky, and that when Vaughn identified Pelissier in the photo array he did so because "[s]omebody that I asked somebody else who was Freaky and they said that -- they showed me a picture of that face right there. ... They showed me a picture of this man right here, so I circled the picture." ( Id. at 170) (errors in original).
[22] However, as was the case with the admission of Vaughn's videotaped statements, any error in the admission of the writing on the photo array is harmless because it is cumulative of evidence properly admitted including Jones' testimony and fingerprint evidence indicating Pelissier was present in the rear of the vehicle
*990
involved in the shooting.
See
Leonard v. State
,
Inappropriate Sentence
[23] Under Ind. Appellate Rule 7(B), we may revise a sentence if, after due consideration of the trial court's decision, we find the sentence inappropriate in light of the nature of the offense and the character of the offender.
Anglemyer v. State
,
[24] When considering the nature of the offense, the advisory sentence is the starting point for determining the appropriateness of a sentence.
Anglemyer
,
[25] Regarding the nature of the offense, Pelissier argues the evidence was not clear regarding what level of culpability was attributable to Pelissier because shell casings from multiple firearms were found at the scene and no one saw who shot the victims. However, the State presented evidence that Pelissier and Galloway opened fire on Fryerson and Golinda, who were unarmed; the attack was unprovoked; and the multitude of shots increased the possibility others besides the intended victims could have been harmed. Based on the nature of the offenses, the trial court "would have been within its discretion to impose terms above the advisory sentence." (Br. of Appellee at 18.) We cannot hold Pelissier's sentence inappropriate based on the nature of the offense.
See
Birdsong v. State
,
[26] When considering the character of the offender, one relevant fact is the defendant's criminal history.
Johnson
,
[27] Pelissier also emphasizes the fact that he was twenty years old when sentenced, and an eighty-five year sentence would mean he would be incarcerated for the majority of his life. However, there are a multitude of cases in which our appellate courts have affirmed similar sentences for
*991
offenders younger than Pelissier.
See
Monegan v. State
,
[28] Pelissier also requests that we consider that he was raised without a father, was adjudicated a child in need of services, and had to quit school at sixteen years old to work to support his family. We have consistently held that "evidence of a difficult childhood warrants little, if any, mitigating weight.
Coleman v. State
,
Conclusion
[29] If the trial court erred in the admission of Vaughn's videotaped statement and his notation on the photo array, any error was harmless because those pieces of evidence were cumulative of other properly-admitted evidence. Additionally, Pelissier's sentence was not inappropriate based on the nature of the crime or his character. Accordingly, we affirm.
[30] Affirmed.
Robb, J., and Tavitas, J., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.