Leon H. Tyson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

FILED

this Memorandum Decision shall not be Nov 29 2017, 9:56 am

regarded as precedent or cited before any CLERK

Indiana Supreme Court

court except for the purpose of establishing Court of Appeals

and Tax Court

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Bethany Redinbo Curtis T. Hill, Jr.

Delphi, Indiana Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Leon H. Tyson, November 29, 2017

Appellant-Defendant, Court of Appeals Case No.

20A03-1704-CR-789

v. Appeal from the Elkhart Superior

Court

State of Indiana, The Honorable Teresa L. Cataldo,

Appellee-Plaintiff Judge

Trial Court Cause No.

20D03-1512-MR-3

Baker, Judge.

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[1] Leon Tyson appeals his conviction for Murder.1 Tyson argues that the trial

court erred in admitting certain evidence and that the prosecutor committed

misconduct amounting to fundamental error. Finding that the trial court did

not err and that the prosecutor did not commit misconduct, we affirm.

Facts

[2] In June 2015, Danielle Buford and Tyson were dating and Tyson lived with

Buford at her apartment in Elkhart. On June 19, 2015, Buford’s uncle, Tommie

Strowder, Buford’s mother, and a friend were sitting together outside her

apartment. Two young men briefly stopped by to speak with Buford. Later,

Buford and her mother heard four gunshots and saw the two men running

down an alley next to her apartment. Tyson arrived shortly thereafter.

[3] When Buford woke up the next day, June 20, 2015, Major Warren and William

Drake, who were friends of Tyson, were at the apartment. Strowder, who had

spent the night at the apartment, needed a ride home, and Tyson volunteered to

take him in Buford’s blue Volvo. Strowder and Tyson left together and Buford

left to run errands. Additionally, at some point that same morning, a neighbor

saw three men in a small, blue car attempting to “hide” a gun in the car’s glove

compartment. Tr. Vol. III p. 96.

1

Ind. Code § 35-42-1-1.

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[4] Later that day, Tyson called Buford. He was “upset” and told Buford that she

needed to return to the apartment immediately. Id. at 31. Warren and Drake

were waiting outside when Buford arrived. When she entered the apartment,

Tyson asked her to go to the bedroom and, as soon as she walked past him, he

shut the front door and pointed a handgun at her, saying, “‘Your uncle stole my

sh*t, and you know all about it.’” Id. at 32. Buford then went into the bedroom

and, after Tyson ordered her not to leave the bedroom, he took her phone and

left.

[5] Later, Tyson returned with Strowder and, while pointing the gun at Strowder

and Buford, ordered them to different corners of the living room. Tyson was

upset because he believed Strowder had taken another gun and ordered

Strowder to return it or pay him $300. Buford testified that Tyson repeatedly

told Strowder, “‘You did this. You’re the reason . . . your niece is going to

die.’” Id. at 35. To get the money, Tyson permitted Strowder to call Toricha

Williams, the mother of Strowder’s son. Williams testified that Strowder

seemed scared; he requested that she look for $300 hidden in a tube sock in

their basement because his “‘life depended on it.’” Id. at 134. While she was

looking, she heard a male voice arguing with Strowder. After Williams’s search

proved fruitless, Strowder went silent and Williams heard a woman screaming.

[6] Buford testified that after Williams could not find the money, Strowder stood

up and told Tyson, “‘you’re not going to kill [me].’” Id. at 36. Strowder then

opened the door to the porch and attempted to flee. He made it out of the

apartment when Tyson fired the gun at least two times. When Buford got up

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and exited the apartment, she did not see Tyson but found Strowder on the

ground outside her apartment. Several witnesses heard the shots and saw one

or two Black men exit the apartment, enter a blue car, and drive away.

[7] Immediately after witnessing the shooting, Buford was concerned that she

would be blamed, so she threw away some of the empty shell-casings. She did

not call 911; instead, she went to Tyson’s sister’s residence, where she found

Tyson and her blue Volvo. Tyson asked Buford to drive him to Chicago and

she agreed to do so out of fear.

[8] Elkhart City Police Department Sergeant Daniel Mayer was the first officer at

the scene. When he arrived, Strowder was still alive, but he died shortly

thereafter. After conducting a search, police officers found a spent .45-caliber

shell-casing under a minivan.

[9] On June 21, 2015, while in Chicago, Tyson gave Buford the key to his minivan

and instructed her to give the key to a friend and not to tell anyone about what

had happened. When Buford arrived in Elkhart, she immediately told her

family and eventually told the police about the incident, including hiding the

spent .45-caliber shell-casings in the trash.

[10] Later that day, police responded to a report that a man was removing items

from Buford’s apartment and putting them in a minivan. When police arrived,

the unidentified male fled and police pursued him. The police lost sight of the

man in an alley adjacent to or near the apartment, but uncovered a .45-caliber

Springfield semi-automatic handgun lying under a bush. A few days later,

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police officers also recovered the spent .45-caliber shell-casings in the trash and

an autopsy recovered two .45-caliber bullets from Strowder’s body. Subsequent

ballistics tests demonstrated that the two bullets recovered from Strowder’s

body and the recovered shell-casings from under the van and in the trash were

fired from the handgun.2 Appellant’s App. Vol. II p. 4-5. After comparing a

latent fingerprint on the magazine of the gun to exemplar fingerprints on file for

“Leon Tyson,” the fingerprint analyst determined that the fingerprint on the

magazine matched the exemplar prints on the card.

[11] On December 7, 2015, the State charged Tyson with murder and Level 3 felony

criminal confinement. Tyson’s jury trial took place on January 23-26, 2017,

and the jury found Tyson guilty of murder and not guilty of criminal

confinement. On March 14, 2017, the trial court sentenced Tyson to sixty-three

years imprisonment, with five years suspended to probation. Tyson now

appeals.

Discussion and Decision

I. Evidentiary Issues

[12] Tyson first argues that the trial court erroneously admitted certain evidence.

The admission and exclusion of evidence falls within the trial court’s sound

discretion, and we will reverse only if the decision is clearly against the logic

2

On January 25, 2017, the parties entered into a written agreement attesting to the accuracy of the ballistics

tests and stipulating that the reports were admissible.

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and effect of the facts and circumstances before it. Johnson v. State, 6 N.E.3d

491, 498 (Ind. Ct. App. 2014). However, even if the trial court erroneously

admits evidence, we will not reverse if the admission constituted harmless error.

Micheau v. State, 893 N.E.2d 1053, 1059 (Ind. Ct. App. 2008).

A. Evidence Concerning June 19, 2017

[13] Tyson first contends that the evidence and testimony regarding the events of

June 19, 2017, the night before the shooting, was improperly admitted for a

variety of reasons. See Appellant’s Br. p. 14-20; Ind. Evidence Rules 401, 403,

404(b)(1).

[14] We agree with the State that “[t]his evidence was a minor piece of the case.”

Appellee’s Br. p. 17. Aside from the evidence regarding June 19, there was

eyewitness testimony establishing that Tyson had a gun that he used to shoot

Strowder; further, there was an independent ballistics analysis tying the bullets

from Strowder’s body to the murder weapon and an independent fingerprint

analysis tying the murder weapon to Tyson. In other words, the conviction is

supported by such substantial independent evidence of Tyson’s guilt that there

was no likelihood that the evidence regarding June 19 contributed to the

conviction. See Meadows v. State, 785 N.E.2d 1112, 1122 (Ind. Ct. App. 2003)

(“The improper admission of evidence is harmless error when the reviewing

court is satisfied that the conviction is supported by substantial independent

evidence of guilt so that there is no substantial likelihood that the challenged

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evidence contributed to the conviction.”). Therefore, any error in the

admission of this evidence was harmless.

B. The Fingerprint Analyst’s Report

[15] Next, Tyson argues that the trial court improperly admitted the fingerprint

analyst’s certificate of analysis (report), which concluded that one of the

fingerprints on the magazine of the gun matched fingerprints on an exemplar

print card listing Tyson’s name. Only the analyst’s report was admitted into

evidence; the State did not seek to have the exemplar card admitted. 3 Tyson

contends that the report should not have been admitted because the exemplar

fingerprint card itself was never authenticated.4 He does not argue that the

report itself was not properly authenticated.

[16] Initially, we observe that certain evidence must be authenticated before being

admitted into evidence, which occurs when “the proponent . . . produce[s]

evidence sufficient to support a finding that the item is what the proponent

claims it is.” Evid. R. 901(a). Indiana Rule of Evidence 901(b) provides several

means of authentication, including the following:

3

The latent fingerprint from the magazine of the gun and the chart showing a comparison of the fingerprints

were properly admitted into evidence; neither are at issue here. See State’s Ex. 75, 301; Tr. Vol. III p. 243.

4

Tyson also suggests that the fingerprint exemplar card would be inadmissible hearsay. We decline to

address this question, or whether the card would qualify as a “record[] of a regularly conducted activity,” see

Evid. R. 803(6), because the card was never admitted into evidence and because we conclude that the

fingerprint analyst was entitled to rely on the card in forming her opinion. See also Evid. R. 703 (“Experts

may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon

by experts in the field.”).

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(b) Examples. The following are examples only, not a complete list, of

evidence that satisfies the requirement:

***

(3) Comparison by an Expert Witness or the Trier of Fact. A

comparison with an authenticated specimen by an expert

witness or the trier of fact.

(emphasis added). Tyson argues that, pursuant to Rule 901(b)(3), “the State

was attempting to admit a [report] of fingerprint comparison, and as such, the

comparison should have been done with an authenticated specimen.”

Appellant’s Br. p. 21.

[17] Tyson points to no authority, nor do we find any, suggesting that if an expert

bases his or her opinion on unadmitted evidence, then these bases must be

formally authenticated.5 Instead, the opposite is true. See, e.g., Evid. R. 703

(“Experts may testify to opinions based on inadmissible evidence, provided that

it is of the type reasonably relied upon by experts in the field.”); Faulkner v.

Markkay of Ind., Inc., 663 N.E.2d 798, 800 (Ind. Ct. App. 1996) (noting that an

expert may offer his or her opinion based in part on reports not in evidence and

inadmissible hearsay, if certain conditions are met). Tyson does not dispute

5

The only Indiana cases cited by Tyson address issues with authenticating admitted evidence, not

authenticating the unadmitted bases for an expert’s opinion. See Wininger v. State, 526 N.E.2d 1216 (Ind. Ct.

App. 1988); Richardson v. State, 486 N.E.2d 1058 (Ind. Ct. App. 1985). Similarly, United States v. Hernandez-

Herrera, 952 F.2d 342 (10th Cir. 1991), addresses the issue of authenticating an admitted photocopy of the

defendant’s fingerprint.

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that the fingerprint analyst was an expert, that a fingerprint exemplar card from

a police database is evidence normally relied upon by fingerprint analysts, or

that the report itself was properly authenticated by the analyst at trial. Thus,

the report was properly admitted; if Tyson had qualms with any of the report’s

bases, those doubts should have been flushed out through “vigorous cross-

examination, presentation of contrary evidence, [and] argument of counsel” at

trial. Bennett v. Richmond, 960 N.E.2d 782, 786-87 (Ind. 2012) (quoting Sears

Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460-61 (Ind. 2001)).

II. Prosecutorial Misconduct

[18] Finally, Tyson argues that the prosecutor committed misconduct during closing

argument in four ways: (1) alluding to unadmitted evidence, (2) vouching for

the State’s witnesses, (3) attacking the credibility of Tyson’s witnesses, and (4)

appealing to the passions and prejudices of the jury. 6

[19] In reviewing a claim of prosecutorial misconduct, we must determine whether

misconduct occurred and, if so, whether the misconduct, under all of the

circumstances, placed the defendant in a position of grave peril to which he

would not have been subjected otherwise. Ryan v. State, 9 N.E.3d 663, 667

(Ind. 2014). Where, as here, the defendant waived a prosecutorial misconduct

claim by failing to object at trial, to succeed on appeal he must also establish

6

Because we do not find any instances of misconduct, we decline to address Tyson’s final argument that “the

cumulative effect of the State’s misconduct made a fair trial for [Tyson] impossible.” Appellant’s Br. p. 38.

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that the prosecutorial misconduct constituted fundamental error. Id. at 667-68.

To make a successful claim of fundamental error, the defendant must show that

the alleged errors are so prejudicial to his rights as to make a fair trial

impossible. Id. at 668. To make this showing, the defendant must show that,

under the circumstances, the trial court erred in not sua sponte raising the issue

because the alleged errors (1) “‘constitute clearly blatant violations of basic and

elementary principles of due process’” and (2) “‘present an undeniable and

substantial potential for harm.’” Id. (quoting Benson v. State, 762 N.E.2d 748,

756 (Ind. 2002)). “In judging the propriety of a prosecutor’s remarks, we

consider statements in the context of the argument as a whole.” Seide v. State,

784 N.E.2d 974, 977 (Ind. Ct. App. 2003).

A. Alluding to Unadmitted Evidence

[20] “[C]ounsel . . . must not imply a superior personal knowledge, or otherwise

suggest to the jury that he has additional, undisclosed evidence of either guilt or

innocence, which may induce the jury to decide the case on reliance on matters

outside the evidence.” Lopez v. State, 527 N.E.2d 1119, 1125-26 (Ind. 1988).

[21] During closing argument, the prosecutor made the following statements:

• “And I would suggest to you all, the state didn’t call every witness that

the police talked to. We are trying to present the most concise, efficient

case for you all based on who the state believes can provide the best

information.” Tr. Vol. IV p. 147.

• “We tried to be as efficient and call the most credible witnesses in the

situation we could put on.” Id. at 173.

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Upon first glance, these statements might appear to imply that the prosecutor

knew of additional, unadmitted testimonial evidence. However, after reviewing

the whole record, it is apparent that the prosecutor’s statements were in

response to Tyson’s arguments that the police and the prosecution unfairly

singled out Tyson by failing to interview, more thoroughly investigate, or

otherwise seek Warren’s or Drake’s testimony. See, e.g., Tr. Vol. II p. 46-47; Tr.

Vol. IV p. 62-64, 161-62. Because the prosecutor made these comments in

response to Tyson’s arguments, the prosecutor did not act improperly. Brown v.

State, 746 N.E.2d 63, 68 (Ind. 2001) (“A prosecutor may respond to inferences

raised by the defense, even if that response would otherwise be objectionable.”).

[22] Even if the prosecutor meant to imply that he had access to additional evidence

of Tyson’s guilt, we cannot say that the statements would have made a fair trial

impossible. Absent the statements, there was compelling evidence supporting

Tyson’s guilt, including eyewitness testimony, ballistics evidence linking the

bullets in Strowder’s body to the murder weapon, and a fingerprint tying the

gun to Tyson. Considering this strong evidence, we cannot say that two

isolated statements regarding the efficiency of not calling additional

eyewitnesses had a “probable persuasive effect on the jury’s decision.”

Washington v. State, 902 N.E.2d 280, 290 (Ind. Ct. App. 2009). In short, these

statements do not amount to fundamental error.

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B. Improper Vouching

[23] A prosecutor may not state his personal opinion regarding the credibility of a

witness during trial, as such statements amount to vouching for a witness.

Thomas v. State, 965 N.E.2d 70, 77 (Ind. Ct. App. 2012). However, “a

prosecutor may comment as to witness credibility if the assertions are based on

reasons arising from the evidence presented in the trial.” Id.

[24] With respect to this argument, Tyson finds issue with the following italicized

statements:

• “I mean, if this person, based in particular part on the demeanor, was

just flat out lying—I mean, the Academy Awards are coming up. Wish

I’d had a camera in here because she would be up for the Academy

Award. Is she acting? No. Is she coming up with tears on her own, you know,

to make something up? No. This is the demeanor, the behavior on the

stand, and I would suggest the demeanor and the behavior, unfortunately

right after the shooting of somebody who’s living a real-life experience, is

trying to come in to a court of law with you folks, answer questions, face

the person that shot her uncle. This is not the demeanor of somebody who’s

getting up here and telling you all a lie.” Tr. Vol. IV p. 144-45 (emphases

added).

• “Let’s talk a little bit more—we’re talking about Danielle Buford. If you

believe her beyond a reasonable doubt—and on behalf of [the] state I would

suggest absolutely you should. If you believe her beyond a reasonable doubt

with regard to this important part, the substantive essential elements that

I think we talked about, then the defendant is guilty.” Id. at 153-54

(emphasis added).

[25] Beginning in opening statements, Tyson continuously attacked the veracity of

Buford’s testimony:

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Fool me once, shame on you. Fool me twice, shame on me.

Danielle Buford fooled investigators on at least two occasions

when she was giving her statements on this case and yet she is

the critical identification witness in your trial. She’s the only

identification witness. She admitted to lying about critical facts,

critical facts, and, yet, the State’s going to rely on her.

Tr. Vol. II p. 44-45. Later, Tyson repeatedly emphasized Buford’s previous

inconsistent statements and lies during cross-examination, see, e.g., Tr. Vol. III

p. 67-68, and reemphasized these issues during closing argument, see, e.g., Tr.

Vol. IV p. 170. Accordingly, we cannot say it was improper for the prosecutor

to rely on observable facts from Buford’s testimony, such as her demeanor and

behavior while testifying, to respond to the allegation and implication that

Buford was also lying about witnessing the murder. See Ryan, 9 N.E.3d at 670-

71 (finding prosecutor’s statements that the witness was credible and told the

truth were permissible because they were based on facts from evidence); Dumas

v. State, 803 N.E.2d 1113, 1118 (Ind. 2004) (noting that where defendant

asserted that State’s key witness was lying, the “prosecutor was entitled to

counter with argument that the witness was not lying . . . .”). In sum, the

prosecutor did not act improperly, let alone commit fundamental error, by

making these statements.

C. Attacking the Defense Witnesses’ Credibility

[26] A prosecutor may not comment on a witness’s credibility if those comments are

not based on the evidence at trial. See Cooper v. State, 854 N.E.2d 831, 836 (Ind.

2006). During the trial, Tyson called two witnesses to testify about the events

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immediately after the shooting. These witnesses offered descriptions of the

shooter that were inconsistent with Tyson. During closing argument, Tyson

emphasized these witnesses to cast doubt on the accuracy of the State’s

evidence. During rebuttal, the prosecutor made the following remarks:

I mean, God love [the two witnesses], but there’s a reason why

the state did not put them on the stand. We tried to be as

efficient and call the most credible witnesses in the situation that

we could put on. Were they consistent? Shots fired, two guys

come out; both of them are black; the guy in the back has got a

gun; the guy in the front doesn’t. One person gets into a blue

Volvo, drives down the street, and goes to the right. At the end

of the day, that’s actually pretty consistent with exactly what

happened. I mean, I’m not looking at the Coke-bottle glasses

that these guys have on; but to hang your hat somehow on

whether or not there was brown hair or some short hair, on

behalf of state, I don’t think so.

Tr. Vol. IV p. 173. Tyson contends that these statements were improper attacks

on his witnesses’ credibility, amounting to fundamental error. We disagree.

[27] First, while the State admits that the prosecutor could have been more explicit

in referring back to the testimony elicited from the witnesses, we note that there

are enough facts in the record to infer that these statements were based on

earlier evidence: the witnesses testified that they saw two Black men leaving

the scene and that the man with the gun had hair; both witnesses also wore

glasses due to poor vision. Thus, it is clear from this context that the

prosecutor’s statement was merely questioning the wisdom of calling these two

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witnesses—while generally reminding the jury of concerns in the record about

their reliability7—to testify to a narrative previously covered by other witnesses.

[28] Even if we assume solely for argument’s sake that the statements were

improper, we cannot say that they rise to the level of fundamental error. These

were isolated statements during closing argument, long after jurors had had

time to assess and weigh the credibility of these two witnesses. As discussed

above, there was compelling, independent evidence supporting Tyson’s guilt,

including eyewitness testimony, ballistics evidence linking the bullets in

Strowder’s body to the murder weapon, and a fingerprint tying the gun to

Tyson. In other words, we cannot say that a few statements relating to the

wisdom of calling two of Tyson’s witnesses produced an “undeniable and

substantial potential for harm” or otherwise made a fair trial impossible. Ryan,

9 N.E.3d at 668.

D. Appeals to the Jury’s Passions and Prejudices

[29] Finally, Tyson asserts that the prosecutor made an improper appeal to the jury’s

passions and prejudices. “We observe that ‘[i]t is misconduct for a prosecutor

to request the jury to convict a defendant for any reason other than his guilt’ or

‘to phrase final argument in a manner calculated to inflame the passions or

7

During trial, besides establishing that both witnesses wore glasses and neither saw the shooting, the

prosecutor also elicited that one witness said that he had difficulties telling Black people apart and that the

other took medication to assist her with her behavior.

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prejudice of the jury.’” Neville v. State, 976 N.E.2d 1252, 1264 (Ind. Ct. App.

2012) (quoting Johnson v. State, 453 N.E.2d 365, 369 (Ind. Ct. App. 1983)).

[30] During closing argument, Tyson’s counsel made the following statements:

And the decision that you have to make now—consider yourself

20 years down the road. You’re eating dinner with your family.

You’re enjoying your freedom, your liberty, and you think back

on this case. Are you going to be so sure on your decision that

you’re willing to take those liberties from someone else?

It’s a sad case. It’s sad what happened to Mr. Strowder. We all

want to hold someone accountable, but it’s just as sad to hold the

wrong person accountable. Mr. Strowder is dead. . . . In a sad

way, justice has been done. And to ruin [another] life just

because you want to hold someone accountable, even though the

evidence shows it’s not Mr. Tyson, that’s not what we’re here to

do.

Tr. Vol. IV p. 170. During rebuttal, the prosecutor made the following

statements at issue:

You know, we can’t put ourself in Danielle Buford’s head. Every

time we work on a case like this we deal with victims’ families.

We deal with all these witnesses. Nobody wants to be involved

in this. We’d all like to be some place else. Do you know why

Leon Tyson is in trouble? He’s in trouble because of himself.

He’s in trouble because of himself.

Twenty years from now, I would suggest you should think back

on the case and go, you know what, we did a good thing that

week. [Strowder] deserved some justice. His family deserves

some justice. The citizens of the community deserve some

justice.

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Id. at 173-74.

[31] It is clear from the context that the prosecutor’s statements were in direct

response to Tyson’s closing argument. See Ryan, 9 N.E.3d at 669. As aptly put

by the State, “it is an entirely legitimate comment in response to Defendant’s

argument, which was the first to appeal to the passions of the jurors and to ask

them to base their verdict on their own feelings of guilt at depriving a man of

his liberty.” Appellee’s Br. p. 35. Accordingly, we find Tyson’s argument

unavailing.

[32] In sum, we do not find any instances of prosecutorial misconduct, let alone any

that amount to fundamental error.

[33] The judgment of the trial court is affirmed.

Bailey, J., and Altice, J., concur.

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