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Pelissier v. State

Court of Appeals of Indiana

April 25, 2019

Nicholas Pelissier, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal from the Lake Superior Court The Honorable Salvador Vasquez, Judge Trial Court Cause No. 45G01-1702-MR-3

          Attorney for Appellant P. Jeffrey Schlesinger Office of the Public Defender Crown Point, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE.

         [¶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, 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 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 ...

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