MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 25 2018, 10:11 am
court except for the purpose of CLERK Indiana Supreme Court establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Lisa M. Johnson Curtis T. Hill, Jr. Brownsburg, Indiana Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cory Lee Woody, May 25, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1710-CR-2423 v. Appeal from the Marion Superior Court State of Indiana The Honorable Lisa F. Borges, Appellee-Plaintiff. Judge Trial Court Cause No. 49G04-1607-MR-28708
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 1 of 16 [1] Cory Lee Woody appeals his convictions for murder and robbery as a level 5
felony. Woody raises two issues which we revise and restate as:
I. Whether the admission of certain testimony resulted in fundamental error; and
II. Whether the evidence is sufficient to sustain his convictions.
We affirm.
Facts and Procedural History
[2] Woody previously worked in the same building as Joshua Thomas and his wife
Ashley Thomas, and Woody purchased drugs from Joshua. Joshua sold drugs,
namely heroin, and used a particular phone for that purpose. He also drove a
burgundy Chevy Tahoe and carried a gun. Woody lived with girlfriend Lula
Dawson and drove a gold Ford Taurus which had a paper plate and was
registered in the name of Dawson.
[3] At some point on September 25, 2015, Joshua told Ashley that he was leaving
to make a drug transaction, left home, and later returned. Later that evening,
Joshua told Ashley that he had to meet Woody, and at around 11:00 p.m., he
told Ashley that he would be right back and left the house. Also on September
25, 2015, Woody was at his residence with Dawson, her son, and Woody’s
long-time friend Ned Casteel. At about 11:00 p.m., Woody asked Casteel to
take a ride with him. Woody drove his gold Taurus and took a cell phone with
him which was registered to Dawson. Woody traveled to an area near 42nd
Street, noted a red Tahoe, and told Casteel “[t]here he is.” Transcript Volume
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 2 of 16 II at 40. Woody opened the door of his vehicle and told Casteel, “[w]hatever
you do, don’t get out of the car.” Id. Woody walked up to the window of the
Tahoe, returned to his Taurus, and told Casteel “this wasn’t a good spot” and
that they were going to follow the Tahoe up the road. Id. at 41. Before they
left, Woody realized that he had lost his phone, had the person in the Tahoe
call his phone so he could locate it, and located his phone on the ground
outside of the Taurus.
[4] Woody followed the Tahoe onto Crestview Avenue and parked about fifteen
feet behind the Tahoe. Woody opened the door of his car, leaned down and
looked at Casteel and said “no matter what, do not get out of the car” and that
he would be right back, and then walked up to the passenger side of the Tahoe.
Id. at 42. The next thing Casteel observed was: “Pop. A flash.” Id. Casteel
saw a “tussling action” and that Woody was in the Tahoe. Id. at 43. Woody
then ran back to the driver’s door of the Taurus, and Casteel saw that he was
soaked in blood. When Woody entered his vehicle, he had a necklace, heroin,
Joshua’s cell phone, a shell casing, and two guns, one of which was his own
and the other was Joshua’s. Casteel said “[m]an, what did you do,” and
Woody replied, “I robbed that n-----.” Id. at 45. Woody told Casteel that
Joshua did not have any money and had only the heroin, a necklace, and the
gun. Woody said “[m]an, ain’t nobody going to miss that n-----.” Id. Woody
and Casteel returned to Woody’s residence, Casteel heard Woody tell Dawson
that “[h]e had to kill the n-----,” and Woody started to clean off his shoes and
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 3 of 16 took a shower. Id. at 47. Woody said there was nothing to worry about, no
one had seen anything, and he had taken the shell casing.
[5] Indianapolis Metropolitan Police Officer Darrell Miller was dispatched to
Crestview Avenue in response to a report of a suspicious vehicle identified as a
red SUV. Officer Miller arrived at the location within two or three minutes,
approached the Chevy Tahoe, discovered Joshua in the driver’s seat, and
requested a medic. Medics arrived and confirmed that Joshua was deceased.
He had sustained a single gunshot wound with two skin defects, and the bullet
had entered the right side of his forehead and exited on the left side of his head.
Police discovered a fired bullet on the floorboard of the Tahoe near the driver’s
seat.
[6] When Joshua did not return home by close to midnight, Ashley called his
phone a number of times but he did not answer. The second time she called
Joshua’s phone, there “was like a rustling noise” like the call had been
answered, and then she heard the call hang up. Id. at 117. Joshua’s phone rang
in Woody’s vehicle, and Woody told Casteel that he had taken Joshua’s phone.
Ashley left home to look for Joshua, eventually found his Tahoe and police
vehicles near it, and was later informed that he had been killed. Ashley gave a
statement to a detective and said that Woody should be investigated. On
October 17, 2015, police came into contact with Woody and Casteel, and
Woody was in possession of a nine-millimeter pistol.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 4 of 16 [7] The State charged Woody with Count I, murder; Count II, felony murder; and
Count III, robbery resulting in serious bodily injury as a level 2 felony. At trial
on August 28 and 29, 2017, the State presented the testimony of, among others,
Casteel, Ashley, several police investigators, and witnesses who lived on the
block where the shooting and robbery occurred. Casteel testified that, several
weeks after the shooting and robbery, he had some involvement with the police
and provided them with information in the hopes of receiving a deal in that
case. When asked if he was given a deal in exchange for his testimony in this
case, he testified: “Not even a consideration. It wasn’t even took it into factor.
Nothing.” Id. at 49. On cross-examination, Casteel agreed that, when he said
he did not receive a deal from the State, he was referring to a case in another
courtroom. He indicated that he was present at the sentencing hearing in that
other case and that his attorney had raised the fact that he was cooperating in
this case. When asked “your hope in so doing was that the judge would show
you leniency based on that; is that right,” Casteel answered “[y]es, but they
wouldn’t accept it. They said, the State said there was no consideration to be –
that was it.” Id. at 61. When asked “[y]ou’re saying that the State never . . .
made you a promise that you were going to get a deal; right,” he replied
“[n]ever,” and when asked “at your sentencing hearing, you did bring up the
fact that you were cooperating in another case as a mitigating circumstance;
your attorney did,” Casteel answered “[t]he words wasn’t cooperating. The
word was testifying.” Id. On redirect examination, Casteel indicated that he
had reached out to a detective and asked to speak to him and that the detective
had told him that he was not going to be charged with anything. At one point, Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 5 of 16 the prosecutor asked Casteel about Woody’s demeanor after Woody returned to
the Taurus following the shooting, and Casteel replied, “[h]e looked at me,
man, like it was, it was like, he went and bought a loaf of bread. He looks at
me and says, ‘man, you ain’t never done that before?’,” and Woody did not
object. Id. at 45.
[8] Dorothy Kouroupis testified that, on September 25, 2015, she lived on
Crestview Avenue, heard a popping sound, immediately jumped to her feet and
looked out the window, and observed two vehicles parked in front of her house.
She testified “[o]ne was a Chevy Blazer,” and when asked “when you say
Chevy Blazer, what type of vehicle,” she said “[i]t was an SUV” and “I just
specifically recall that SUV.” Id. at 85. She testified the vehicle parked behind
the SUV was a tan sedan, there were two people in the sedan, the tan sedan
slowly backed up into a neighbor’s driveway without its lights on, and she
called the police. Marquetta Johnson testified that, on September 25, 2015, she
lived on Crestview Avenue and observed a dark red or burgundy Tahoe driving
slowly with a tan Taurus that had a paper plate following right behind it and
that two people were in the tan car. She testified that she observed someone
exit the tan car, that she saw a male figure stand outside the Tahoe, that she
heard a gunshot and fell to the floor, and that the tan car backed up into a
driveway of a neighbor with its lights off and then pulled away with its lights
on. Richard Amberger, a forensic scientist with the Indianapolis Marion
County Crime Lab, testified that he examined the bullet recovered from the
floorboard of Joshua’s Tahoe and the firearm later recovered from Woody and
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 6 of 16 determined that the bullet had been fired from Woody’s firearm. The State also
presented evidence regarding phone calls between Joshua’s cell phone and the
cell phone registered to Dawson and the general locations of the phone
registered to Dawson on the night of September 25, 2015. The phone records
show a call between the phones at 11:01 p.m. associated with one cell tower
and additional calls between the phones at 11:34, 11:35, and 11:36 p.m.
associated with another cell tower showing that the phone registered to Dawson
was used in the general area of the murder on Crestview Avenue.
[9] The jury found Woody guilty as charged. The trial court, due to double
jeopardy concerns, vacated the count for felony murder and entered the
conviction for robbery as a level 5 felony. The court sentenced Woody to
consecutive terms of sixty years for the murder conviction and five years for the
robbery conviction.
Discussion
I.
[10] The first issue is whether the admission of certain testimony resulted in
fundamental error. Specifically, Woody asserts the admission of certain
testimony elicited from Casteel violated Ind. Evidence Rule 404(b). Generally,
we review the trial court’s ruling on the admission of evidence for an abuse of
discretion. Whatley v. State, 908 N.E.2d 276, 280 (Ind. Ct. App. 2009), trans.
denied. Woody failed to object to the admission of the testimony at issue here.
Failure to object to the admission of evidence at trial normally results in waiver
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 7 of 16 and precludes appellate review unless its admission constitutes fundamental
error. Id. (citing Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000), reh’g denied).
Woody argues that the admission of the testimony was fundamental error. To
rise to the level of fundamental error, an error “must constitute a blatant
violation of basic principles, the harm or potential for harm must be substantial,
and the resulting error must deny the defendant fundamental due process.” Id.
(citing Maul v. State, 731 N.E.2d 438, 440 (Ind. 2000) (citations omitted)). The
standard for fundamental error is whether the error was so prejudicial to the
rights of the defendant that a fair trial was impossible. Id. (citing Boatright v.
State, 759 N.E.2d 1038, 1042 (Ind. 2001)).
[11] On appeal, Woody asserts that Casteel’s testimony that, after returning to the
Taurus, Woody asked “man, you ain’t never done that before,” violated Ind.
Evidence 404(b) and “implied that Woody admitted to committing murder in
the past.” Appellant’s Brief at 20. He argues he was prejudiced by this
testimony. The State responds that the prosecutor did not intend to elicit any
statements from Casteel about any potential prior crimes but rather wished to
elicit testimony about Woody’s careless and callous attitude toward the victim
and the crimes he had just committed which is not forbidden by Ind. Evidence
Rule 404(b). It also argues that no substantial harm to Woody resulted and that
the challenged statement was one single sentence during a two-day jury trial.
[12] Ind. Evidence Rule 404(b) provides:
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 8 of 16 person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
[13] Ind. Evidence Rule 403 provides that “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, or needlessly presenting cumulative evidence.”
[14] The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the
court must determine that the evidence of other crimes, wrongs, or acts is
relevant to a matter at issue other than the defendant’s propensity to commit the
charged act; and (2) the court must balance the probative value of the evidence
against its prejudicial effect pursuant to Rule 403. Whatley, 908 N.E.2d at 281
(citing Boone v. State, 728 N.E.2d 135, 137-138 (Ind. 2000), reh’g denied; Hicks v.
State, 690 N.E.2d 215, 221 (Ind. 1997)). The evidence is inadmissible when the
State offers it only to produce the “forbidden inference” that the defendant has
engaged in other, uncharged misconduct and the charged conduct was in
conformity with the uncharged misconduct. Id. (citing Crain v. State, 736
N.E.2d 1223, 1235 (Ind. 2000)). The trial court has wide latitude, however, in
weighing the probative value of the evidence against the possible prejudice of its
admission. Id. If evidence has some purpose besides behavior in conformity
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 9 of 16 with a character trait and the balancing test is favorable, the trial court can elect
to admit the evidence. Id. (citing Boone, 728 N.E.2d at 138). For instance,
evidence which is necessary for the jury to understand the relationships between
the victim, various witnesses, and the defendant may be admissible. Id. (citing
Wilson v. State, 765 N.E.2d 1265, 1270-1271 (Ind. 2002)).
[15] At trial, the prosecutor elicited testimony from Casteel regarding the interaction
between Casteel and Woody after Woody returned to the Taurus as follows:
Q. Did he say anything to you when he got back into the car?
A. Yes. I’m screaming, I’m freaking out, I’m like, “What are you doing? What’s going on, man.” I mean, I’m just, I’m going frantic.
Q. You initially thought he had been shot, right? That’s what you said?
A. Yes. Yes.
Q. Okay. So you’re, as you asking him what had happened in order to figure out what was going on?
A. Yeah, I said, “Man, what did you do? What happened?” He said, “I robbed that n-----.” Excuse my language, but that’s what he said.
Q. Did he indicate whether or not that person, the person that he said he just robbed had any money on him?
A. He said he didn’t have no money. All he had was the heroin, and a necklace, and the pistol. At that point, I didn’t realize he had had something else, till on the drive back.
Q. Okay.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 10 of 16 A. Which was a cell phone.
Q. Okay. We’ll get there. Um. So you’re freaking out. What’s [Woody’s] demeanor?
A. He looked at me, man, like it was, it was like, he went and bought a loaf of bread. He looks at me and says, “man, you ain’t never done that before?”
Q. Well, let me, let me ask you this. Does he say anything about, um, his feelings toward the person in the other vehicle?
A. He said, “Man, ain’t nobody going to miss that n-----. Didn’t nobody care about him.” And that’s when I proceed to say, “Man, he’s got to have a family, at least a mom, children.”
A. I mean.
Q. Did you express to him, to him any concerns about potential forensic evidence against him? Anything like that, that maybe he would get caught?
A. Yeah, because he was soaked in blood. And there had to be fingerprints all over that. I mean.
Q. What was his response to that?
A. Bullshit. That was the, uh, that’s all he needed.
Transcript Volume 2 at 44-46 (emphasis added).
[16] The challenged testimony was not introduced to show Woody’s propensity to
engage in crime or that his behavior was in conformity with a character trait.
Casteel provided the testimony in response to the prosecutor’s question about
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 11 of 16 Woody’s demeanor after he returned to the vehicle, and the prosecutor then
asked Casteel if Woody said anything about his feelings toward Joshua. The
prosecutor did not ask Casteel about Woody’s prior conduct, crimes, or
character. The exchange regarding Woody’s demeanor and disposition showed
the relationship between Woody, Joshua, and Casteel and the context of the
events which culminated in Joshua’s death. Further, Casteel’s responses were
relevant to the plan and motive of Woody as the person who shot Joshua and
relevant to whether the shooting was a mistake or accident. The admission of
the challenged response by Casteel did not violate Evidence Rule 404(b).
Similarly, the probative value of the evidence was not substantially outweighed
by the danger of unfair prejudice.
[17] Even assuming Casteel’s statement that Woody asked him “man, you ain’t
never done that before” was inadmissible, evidence admitted in violation of
Evidence Rules 403 or 404 does not require a conviction to be reversed “if its
probable impact on the jury, in light of all the evidence in the case, is
sufficiently minor so as not to affect a party’s substantial rights.” Houser v. State,
823 N.E.2d 693, 698 (Ind. 2005) (citations omitted). In light of the overall
strength of the State’s case and the context of the challenged testimony we
conclude that the probable impact on the jury was minor.
[18] Based upon the record, we conclude that any error was not so prejudicial to the
rights of Woody that a fair trial was impossible. The admission of Casteel’s
testimony challenged by Woody did not constitute fundamental error.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 12 of 16 II.
[19] The next issue is whether the evidence is sufficient to sustain Woody’s
convictions. When reviewing claims of insufficiency of the evidence, we do not
reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656
N.E.2d 816, 817 (Ind. 1995), reh’g denied. We look to the evidence and the
reasonable inferences therefrom that support the verdict. Id. The conviction
will be affirmed if there exists evidence of probative value from which a
reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.
[20] Ind. Code § 35-42-1-1 governs the crime of murder and provides that a person
who knowingly or intentionally kills another human being commits murder, a
felony. Ind. Code § 35-42-5-1 governs the crime of robbery and provides in part
that a person who knowingly or intentionally takes property from another
person or from the presence of another person by using or threatening the use of
force on any person or by putting any person in fear commits robbery as a level
5 felony.
[21] Woody argues there is no DNA or fingerprint evidence connecting him to the
offense. He states “[t]he record indicates that [he] was probably at the scene of
the offense” and argues that his “presence at the crime scene suggests he could
have robbed and murdered [Joshua], but it does not show beyond a reasonable
doubt that he committed the offense.” Appellant’s Brief at 15-16. He argues
that “it is at least equally likely that Casteel killed [Joshua],” that “[l]ike
Woody, Casteel was a heroin addict” and “had just as much motive as Woody
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 13 of 16 to kill [Joshua] and steal his heroin,” and that, although the State did not give
Casteel any consideration for his testimony, Casteel’s motive for contacting the
police and testifying against Woody raises serious questions about Casteel’s
credibility. Id. at 16. He also argues that there is no evidence that Casteel’s
telephone records were ever checked.
[22] The State maintains that the evidence is more than sufficient to sustain
Woody’s convictions and points to the testimony of Casteel as well as the
witnesses who observed the Taurus driven by Woody at the scene of the murder
and robbery, the multiple calls between Joshua’s phone and the phone
registered to Woody’s girlfriend at the time of the murder, Woody’s statements
to Casteel and Dawson following the shooting, and the fact the bullet recovered
from Joshua’s vehicle was fired from the firearm later discovered in Woody’s
possession. It also argues that Casteel admitted that his initial motive was to
obtain a favorable deal, that Casteel’s motive does not mean that the
information he gave police was not true, and that the jury was able to judge
Casteel’s credibility.
[23] To the extent Woody argues that Casteel was not credible, we note that, if there
is an existing agreement between the State and one of its witnesses, a prosecutor
has a duty to reveal it. See Whatley, 908 N.E.2d at 283 (citing Rubalcada v. State,
731 N.E.2d 1015, 1024 (Ind. 2000) (“A prosecutor must disclose to the jury any
agreement made with the State’s witness, such as promises, grants of immunity,
or reward offered in return for testimony.”)). The purpose of this rule is to
assist the jury in assessing the witness’s credibility. Id. (citation omitted). On
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 14 of 16 the other hand, the State is not required to disclose a witness’s hope of leniency.
Id. (citing Seketa v. State, 817 N.E.2d 690, 694 (Ind. Ct. App. 2004) (“An express
agreement requiring disclosure does not exist if a witness testifies favorably in
the hope of leniency, and the State neither confirms nor denies leniency to the
witness.”)).
[24] Here, the State disclosed to the jury the extent to which it had any agreement
with Casteel in this or another case, and Woody’s counsel cross-examined
Casteel before the jury regarding any agreement or hope or expectation for
leniency he may have had. The jury was able to assess Casteel’s credibility.
Woody’s arguments as to why Casteel should not be believed amount to an
invitation that we reweigh the evidence, which we cannot do. See Jordan, 656
N.E.2d at 817.
[25] The jury was able to weigh the credibility of Casteel and the other witnesses and
reasonably infer that Woody had shot Joshua and taken a gun, necklace,
heroin, and cell phone from him. Based upon the record, we conclude that the
State presented evidence of probative value from which a reasonable trier of fact
could have found Woody guilty beyond a reasonable doubt of murder and
robbery as a level 5 felony.
Conclusion
[26] For the foregoing reasons, we affirm Woody’s murder and robbery convictions.
[27] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 15 of 16 Bailey, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018 Page 16 of 16