Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2561 | June 12, 2017 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Victoria L. Bailey

Marion County Public Defender Agency

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Lamar Wooden,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 12, 2017

49A02-1611-CR-2561

Appeal from the Marion Superior 

Court

The Honorable Grant W. 

Hawkins, Judge

Trial Court Cause No.

49G05-1510-MR-37109

Bailey, Judge.
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Case Summary

[1] Lamar Wooden (“Wooden”) appeals his conviction for Murder, a felony.1 He 

presents the sole issue of whether there was prosecutorial misconduct 

amounting to fundamental error because in rebuttal closing argument the 

prosecutor suggested that Wooden had a burden of proof or that the State was 

required to present exculpatory evidence. We affirm.

Facts and Procedural History

[2] On October 16, 2015, relatives of Lorirell Wooden (“Lorirell”) gathered at 

Lorirell’s Indianapolis residence to celebrate her birthday. Lorirell’s sister, 

Latasha Eldridge (“Latasha”) was among the guests. Latasha’s husband, 

Gerald Eldridge (“Gerald”) showed up unexpectedly and shortly thereafter, 

Wooden, who is a cousin to Lorirell and Latasha, showed up. He was 

accompanied by his friend, Adrian Riggs (“Riggs”). Latasha and Gerald 

immediately decided to leave the party and Gerald stepped outside.

[3] Wooden hugged his cousin Lakisha Wooden (“Lakisha”) and she observed the 

handle of a gun protruding from the front pocket of Wooden’s hoodie. Lakisha 

warned Wooden not to start trouble, as children were present. Wooden asked 

for Lorirell and, when she appeared, gave her a hug. Lorirell also observed that 

 

1

Ind. Code § 35-42-1-1.
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Wooden “had a gun hanging out.” (Tr. Vol. II pg. 119.) Wooden then quickly 

went outside. Within one minute, the women inside the house heard gunshots.

[4] Gerald’s and Latasha’s daughter, Lydia Dukes (“Dukes”) ran outside at the 

sound of the gunshots. She observed Wooden shooting at Gerald’s van as he 

drove away. She then saw Riggs toss keys to Wooden and he ran off in the 

direction where Riggs’ girlfriend’s vehicle had been parked. Dukes began 

beating Riggs on his head. Lorirell ran outside to find that Wooden was gone 

and Riggs was being beaten. Latasha saw her husband’s van drive away and 

she followed in another vehicle.

[5] At a gas station near 30th Street and College Avenue, Ronald Smith (“Smith”) 

stood waiting for a ride. He saw a man driving a gray Camaro with a black top 

approach a van and fire multiple shots through the passenger side window. He 

then observed the driver of the van clutch his chest. Smith called 9-1-1 and ran 

toward the shooting victim. Gerald died at the scene. When Lorirell arrived 

and identified herself to police officers as the victim’s wife, Smith told her the 

shooter was “a guy in a gray Camaro with a black top” and Lorirell responded 

that it was her cousin. (Tr. Vol. II pg. 245.) Smith later examined a 

photographic array and identified Wooden as the shooter.

[6] Wooden was arrested and charged with Murder. On October 3, 2016, his jury 

trial commenced. During the presentation of evidence, Leroy Sargent 

(“Sargent”), who is Lorirell’s boyfriend, provided somewhat equivocal 

testimony as to what he observed as he returned home from work on October 
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16, 2015. His equivocation as to who was in the vehicle he passed, which was 

not a Camaro, became a focus during the defense closing argument and rebuttal 

closing argument. However, no contemporaneous objection was lodged by 

Wooden. 

[7] When the trial concluded, the jury found Wooden guilty as charged. He was 

sentenced to a term of sixty years of imprisonment. He now appeals.

Discussion and Decision

[8] Wooden alleges that the prosecutor engaged in misconduct during the 

presentation of rebuttal closing argument. The Indiana Supreme Court has set 

forth the legal standards under which we review a claim of prosecutorial 

misconduct:

In reviewing a claim of prosecutorial misconduct properly raised 

in the trial court, we determine (1) whether misconduct occurred, 

and if so, (2) “whether the misconduct, under all of the 

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

which he or she would not have been subjected” otherwise. 

Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo 

v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the 

duty to present a persuasive final argument and thus placing a 

defendant in grave peril, by itself, is not misconduct. Mahla v. 

State, 496 N.E.2d 568, 572 (Ind. 1986). “Whether a prosecutor’s 

argument constitutes misconduct is measured by reference to 

case law and the Rules of Professional Conduct. The gravity of 

peril is measured by the probable persuasive effect of the misconduct 

on the jury’s decision, rather than the degree of impropriety of the 

conduct.” Cooper, 854 N.E.2d at 835 (emphasis added) (citations 

omitted). To preserve a claim of prosecutorial misconduct, the 
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defendant must – at the time the alleged misconduct occurs –

request an admonishment to the jury, and if further relief is 

desired, move for a mistrial. Id.; see also Maldonado v. State, 265 

Ind. 492, 498, 355 N.E.2d 843, 848 (1976).

Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014).

[9] Wooden did not object, request an admonishment to the jury, or move for a 

mistrial. Thus, appellate review of a claim of prosecutorial misconduct is 

waived for failure to preserve the claim of error. Id. When a defendant has 

waived review of a claim of prosecutorial misconduct for appellate review, he 

“must establish not only the grounds for prosecutorial misconduct but must also 

establish that the prosecutorial misconduct constituted fundamental error.” Id.

at 667-68. Fundamental error is an extremely narrow exception to the waiver 

rule, and exists only when the trial court’s errors are so prejudicial that a fair 

trial was made impossible. Id. at 667-68.

[10] During closing argument, the State urged the jury to convict Wooden based 

upon eyewitness testimony from Smith, circumstantial evidence from the partygoers, and physical evidence including ballistics test results. In response, 

defense counsel argued in closing that the evidence pointed “just as directly to 

Adrian Riggs as it does to Mr. Wooden.” (Tr. Vol. IV. pg 36.) Defense counsel 

described an excerpt from Sargent’s deposition arguably suggesting that Riggs 

drove a Camaro and Wooden drove another vehicle on the day of the shooting. 

Counsel claimed: 
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Again, [the] State still doesn’t want you to hear this evidence. ... 

We have no burden. They should have done all these things. ... 

Anyway, the State spent so much time arguing and trying [to] 

prevent you from seeing evidence that they knew or should have 

known was going to come into evidence. 

(Tr. Vol. IV pg. 37, 44.) 

[11] After pointing to alleged evidentiary gaps – potential witness Derek Caruthers, 

the 9-1-1 call, a photograph of Riggs, DNA test results from Riggs – defense 

counsel continued:

Again, there is no question that a black male in that Camaro shot 

and killed Gerald Eldridge. The question is who it was. And I 

say again that the evidence points just as directly to Mr. Riggs as 

it does to Mr. Wooden. And the fact that you don’t have all the 

evidence is their fault. All the other things that could of and 

should have [been] done, all the things you would have wanted 

done, if one of your loved ones was on trial, if your son or 

daughter or a husband was on trial and you learned that the State 

didn’t do all these things you’d be outraged.

(Tr. Vol. IV. pgs 51-52.)

[12] Wooden claims that the prosecutor committed misconduct by arguing, in 

rebuttal, as follows:

Now the defense wants to say that we’re preventing you from 

seeing evidence, preventing you from hearing from [sic] to use 

the example, the other 9-1-1 caller. Let me make it clear, the 

State has the burden of proof in this case. It’s also true that the 

defense has the same subpoena powers as the State has. And 

they can use those just as much as we do. We’re not preventing 
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you from hearing testimony. Why would I ever have called 

Leroy Sargent, I wasn’t hiding him. Honestly we have to tell you 

what he told us. And that was that he was changing his story.

(Tr. Vol. IV. pgs. 55-56.)

[13] Wooden challenges two sections of the foregoing argument. First, he contends 

that referring to defense subpoena powers is an improper comment upon 

Wooden’s decision not to call witnesses and suggests to the jury that Wooden 

bore a burden of proof. It is improper for a prosecutor to suggest that a 

defendant shoulders the burden of proof in a criminal case. Dobbins v. State, 721 

N.E.2d 867, 874 (Ind. 1999). Here, however, the challenged language did not 

directly or indirectly suggest that Wooden bore a burden of proof. Indeed, the 

prosecutor informed the jury that the State alone had the burden of proof.

[14] Moreover, “[p]rosecutors are entitled to respond to allegations and inferences 

raised by the defense even if the prosecutor’s response would otherwise be 

objectionable.” Cooper, 854 N.E.2d at 836. Although the reference to subpoena 

powers may have highlighted Wooden’s lack of witnesses, the prosecutor was 

responding to Wooden’s accusation that the State had engaged in outrageous 

behavior by failing to present evidence implicating Riggs. In these 

circumstances, it did not constitute misconduct. 

[15] Second, Wooden argues that the prosecutor misled the jury by claiming “we 

have to tell you what he told us.” (Tr. Vol. IV, pg. 56.) Wooden observes that, 

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the State has a duty to notify 

the defense of exculpatory evidence. He further observes, and we agree, that
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this duty does not extend to the actual presentation of exculpatory evidence to 

the jury. See Craig v. State, 370 N.E.2d 880, 884 (Ind. 1977) (recognizing that 

“[the] assertion that the prosecution has a duty to present to the jury evidence 

favorable to the accused is incorrect and misleading.”) Too, we agree with 

Wooden that the prosecutor’s claim of an obligation “to tell you what he told us 

... changing his story,” (Tr. Vol. IV. pg. 56), suggests that the State must 

present exculpatory evidence to the jury. 

[16] The inquiry then is whether the comment amounts to fundamental error. In 

evaluating the issue of fundamental error, the task of the reviewing court is to 

look at the alleged misconduct in the context of all that happened and all 

relevant information given to the jury. Ryan, 9 N.E.3d at 668. This includes 

the evidence admitted at trial, closing argument, and jury instructions. Id. We 

then determine whether the misconduct had such an undeniable and substantial 

effect on the jury’s decision that a fair trial was impossible. Id.

[17] The evidence of Wooden’s guilt was overwhelming. Lakisha and Lorirell 

testified that Wooden had a gun in his pocket at the party. Several witnesses 

testified that they heard gunshots almost immediately after Wooden followed 

Gerald outside. Dukes testified that she saw Wooden shooting at her father’s 

van; she then saw Riggs toss keys to Wooden and he drove away. Other 

witnesses saw that Riggs remained outside Lorirell’s house for some time after 

Wooden began pursuit of Gerald; during this time Riggs was beaten and then 

appeared to search for something. Smith, a bystander and eyewitness to 

Gerald’s shooting, identified Wooden from a photographic array. He again 
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identified Wooden in open court. The Camaro described by witnesses was 

found near Wooden’s residence. Inside the vehicle was a pistol and a spent 

bullet; ballistics testing matched that pistol with a bullet recovered from 

Gerald’s body. We conclude that the prosecutor’s isolated reference to the 

State’s obligation under the law did not affect the jury’s decision such that a fair 

trial was impossible.

Conclusion

[18] The prosecutor did not make comments in closing rebuttal argument 

amounting to fundamental error.

[19] Affirmed. 

Vaidik, C.J., and Robb, J., concur.