Dunlap v. State

However, today's charge, with act glary). consistent overt for which Spivey has Pierce, holding in this Court has not al already punished been by reason of the conspiracy lowed to stand a conviction for felony murder conviction. If not under the act that constitutes an where the overt test,2 Richardson jeopardy double then un is the act conspiracy element of same der this Court's traditional law common as another crime for which the defendant scheme, the convictions for both felony See, e.g., already has been convicted. conspiracy murder and cannot stand. I State, Morgan v. would therefore vacate Spivey's conviction (Ind.1996) that the defendant's (agreeing conspiracy for burglary. to commit In all conspiracy for both to deal in convictions respects other majority. concur with the violated dealing cocaine and cocaine jeopardy "the

principles of double because SULLIVAN, J., concurs. of the conspiracy

overt act furtherance required

could have been the same act as dealing

to convict [the defendant]

cocaine."); Buie v. 633 N.E.2d (Ind.1994)1 (holding where charge

overt act element of a conspiracy offense, underlying convictions on both underlying and can conspiracy offense Stephanie DUNLAP, Defendant- stand); Thompson v. 259 Ind. Appellant, (1972) 724, 727 (holding 290 N.E.2d may judgment "that before the court enter counts, impose upon multiple sentence Indiana, Plaintiff-Appellee. STATE giving the facts rise to the various offenses independently sepa must be supportable, No. 49S00-0002-CR-104. distinct."). rate and Supreme Court of Indiana. In this case with Spivey charged burglary, felony burglary murder-with Jan. 2002. alleged underlying felony, as the and con- spiracy burglary. to commit The evidence only

shows and the State concedes that the supporting

overt act conspiracy charge burglary Although itself. burglary

court entered no on the sentence

conviction, that in my was not sufficient standing

view. Left the conspiracy Although explicitly Compare, example, Lundberg 1. Buie was said to be su- Richardson, perceded 717 N.E.2d at 49 n. (Ind.2000) (applying 36, only Justice Dickson Chief Justice reversing Richardson and the defendant's Shepard appear to have taken view. Jus- conspiracy conviction for to commit murder tice Sullivan concurred in Richardson but au- "reasonably possible" where it was separate opinion ap- thored a that cited Bute jury evidence the relied on for murder-the (Sullivan, parently approval. Id. at 57 defendant shot the victim-was the same evi J., concurring). did other Justices jury upon dence the relied to establish the approval not comment on Buie but cited with conspiracy). overt act of the following other cases additional common law doctrines. witnesses, we conclude that no reason- able fact-finder could find the elements of proven the crime beyond a reasonable doubt. Jenkins v. (Ind.2000); State,

270 Webster 699 (Ind.1998); N.E.2d 268 Hodge v. person "A in engages conduct 'knowingly' if, conduct, engages [she the [she high probability is aware of a [she 35-41-2-2(b). doing § so." Ind.Code A knowing killing may be inferred from the deadly use of a likely a manner to cause death. Hawkins (Ind.2001)("Evidence pointed [the defendant] and fired a shot- gun at striking him in [the victim] the neck Richmond, Milan, Indiana, Terrance W. and chest is sufficient to sustain mur- the Attorney Appellant. conviction."); der Cook v. Freeman-Wilson, Attorney Karen Gen- (Ind.1996)("Firing three Indiana, Fossum, eral of Priscilla shots in the direction of Depu- J. the victim un- General, Indiana, ty Attorney doubtedly using a Indianapolis, deadly weap- constitutes death."). Attorneys Appellee. likely a manner to cause judgment facts favorable to the DICKSON, Justice. that, incident, show at the time of the The defendant was convicted of murder defendant, Stephanie Dunlap, living 23, 1998, January killing for the of Tamika Cole, with Terrell and that Tamika Bal- in Indianapolis. Ballard The defendant lard, Cole, pregnant by living appeals claiming insufficieney of the evi mother, Cole's Tina Westbrook. On the dence, erroneous admission of incident, day of the the defendant came to photograph, erroneous admission evi engaged the Westbrook home and in an dence related to a that was not the argument with Ballard. The defendant weapon, murder and erroneous exclusion returned, left and armed with an assault a transcript of a witness's inconsis rifle. She then fired the rifle into onee tent statement. affirm We the trial court. air outside the home. Westbrook and Bal- Sufficiency Evidence lard rushed the front door to find the The defendant claims there was defendant in yard pointing the front insufficient evidence to show that she rifle toward them. stayed Ballard on the In knowingly reviewing porch, killed. a claim of jumped and Westbrook off the porch and went around behind the defen- evidence, insufficient we will affirm the unless, considering only conviction the evi dant attempted persuade her to dence and reasonable inferences favorable leave. At some point after Westbrook judgment reweighing and neither defendant, reached the defendant fired judging credibility evidence nor or two three shots toward the screen door § Ind.Code 35-42-1-1. gun, fired the Tami- A. She-After she standing. One of these Ballard was where Ballard, gets ran in the house and she eventually killing ka bullets struck off, goes the van and takes And her. said back in the house and Tamika contends that Westbrook The defendant had been-she had been shot. she around "at spun her grabbed her Q. actually your have hands on Did gun discharged point which firing as she's [the defendant] somehow, times, bullets three one of the gun? ricochet, Br. striking Ballard." probably firing I was ask- A. Before she started argues at 18. She Defendant-Appellant her, know, trying to turn ing you acci- discharge of the was van, go asking to to her dental, her around and that the evidence fails estab- her, shoot," you know. Ballard. "Don't "knowingly" that she killed lish my "Don't shoot at house. Don't testi- direct examination On Westbrook's up porch," you there at the shoot following description the mony included. And when she started shoot- know. the incident: ing, away. I kind-of backed Q. you get [the ... out to where When away? You kind-of backed is, jury tell the what defendant] Yes. happens. Q. you your Do think hands were on I in of her and I ask get

A. the back actually fired the her when she van, in get her would she the don't of the house? the direction my and she had shoot at house A,. shooting. started I'm sure. not Q. you [the How close are defen- examination, 245-47. eross Record at On happening? when this is dant] testimony included: her P> her, right up right I'm behind Now, Pitzer, Q. you I think told Mr.

back of her. Westbrook, you're Miss gun point- you grabbing And what direction is if de- © [the sure were ed? shooting. while she was Is fendant] p> today? you're telling that what us porch. Towards the Yes, A. I am. I don't-I don't-I don't the porch? Towards © p Yes, toward the sereen door where if I All I holding know her. I said I was know I-when standing Tamika at. [Ballard] go turn her trying to around to gun? © Does she fire van, got shooting. then her she p Yes. Record at 252-583. many About how times do think & that, From the evidence after an earlier gun? she fires the Ballard, argument with the defendant re- te Approximately three times. turned to the Westbrook home armed with fir- you doing What are while she's © rifle, it an assault and thereafter fired ing gun, Miss Westbrook? at or three times the sereen door where just standing A. I'm back there. standing, jury Ballard reasonable nothing There wasn't could do. beyond a could have found reasonable Q. knowingly gun, hap- After she fires the what doubt that defendant killed

pens? Ballard.

Photograph of Victim proving identity alleged of the victim. Photographs of a corpse victim's in a homi The defendant contends that cide prove case are relevant to identity Ex admitting trial court erred State's victim.2 Butler v. 647N.E.2d photograph hibit (Ind.1995); Hughes v. victim, photograph's prejudi because the (Ind.1989); 546 N.E.2d Brown cial outweighed probative effect its value. argues stipulated The defendant that she The photograph was relevant to show the death, identity to the victim's and cause of identity of the victim. The relevance of photograph and that the the victim shows the exhibit only part is of the inquiry, in an challenged altered condition. The however. Rule permits the exclusion photograph portrays the face of the victim of relevant if probative evidence its value extending tubes from the victim's substantially outweighed by danger mouth and nose. of unfair prejudice. The admission and exclusion evi The defendant refers us to cases dence falls within the sound discretion of which we have found the danger preju of court, the trial and only is reviewed dicial effect high in photographs State, Byers abuse of discretion. v. 709 body where the depicted has been altered 1024, (Ind.1999); Amburgey N.E.2d 1028 See, way. State, some e.g., Turben v. State, 44, (Ind.1998). v. 696 N.E.2d 45 1245, 726 N.E.2d 1247 (Ind.2000)(finding evidence, Relevant including photographs, photograph showing gloved manipu hands may probative be excluded if its value is lating a bloody mass with a probe inadmis substantially outweighed by danger the of sible); State, 760, Allen v. 686 N.E.2d 776 403; unfair prejudice. Ind.Evidence Rule photographs are Byers, 709 N.E.2d at 1028. generally they inadmissible if show the The defendant first that argues the body condition."); in an altered Loy v. photograph any was not relevant to issue State, 1125, (Ind.1982); 436 N.E.2d 1128 at trial because dispute there was no about State, 572, Warrenburg 574, v. 260 Ind. 298 identity the of living 434, the victim or that a (1973)(finding N.E.2d 435 it error to person was killed. The autopsy report autopsy admit photograph which showed a regarding Ballard two autopsy photo partially corpse, resewn nude from the graphs by stipulation were admitted of up, right the waist with the arm corpse parties. This occurred at completely the end the severed and the left arm re But, case. sutures); State's Record at 488-40. at gaping attached with v. Kiefer State, point 103, 111-12, the trial when Exhibit 15 was 239 Ind. 153 N.E.2d admitted, 899, the State still had the burden of (1958)(finding 904-05 it reversible er (Ind.1987); State, 671, 2. As there were no wounds to the victim's Heald v. 492 N.E.2d face, photograph in this case is not (Ind.1986), unlike grounds 682-83 overruled on other State, using photograph (Ind. they ap a a Spradlin victim as v. 569 N.E.2d 948 death, peared shortly before we 1991); State, which have 738, Shelton 490 N.E.2d 742- (Ind.1986)("perpetrators State, 43 of such acts are held to be admissible. See Evans v. 563 (Ind.1990), reh'g grant N.E.2d completely not entitled to have their deeds (Ind.1992); sanitized when evidence is submitted to a part, ed in 598 N.E.2d 516 Min State, nick jury"); 544 N.E.2d 478 Averhart v. 685 (Ind.1984)(finding picture (Ind.1989)(finding of victim with pictures admissible granddaughter identification of victim ap witnesses who had was relevant to show his day pearance day observed victim's movements on of murder claim that waived). photograph murder); unduly prejudicial Raub v. dan against value showing weighing probative photographs to admit ror and we review that prejudice, of unfair ger inside surgeon hands and instruments discretion. for abuse of determination victim). chest Houston v. the exhibit's of whether Evaluation substantially outweighed value is probative weapon murder Emphasizing that is a danger prejudice of unfair by the that the defendant not found and by the discretionary performed task best accidental, shooting that claimed persuaded court. We are not argues that this demonstrative the State admitting its discretion court abused jury that important evidence was so exhibit. weapon a similar to the one could view told "about how killing in the and be used Evidence Similar Gun deter- weapon works order to such The defendant contends knowingly defendant] [the mine whether allowing erred in the State trial court at 9. Appellee Br. of [the viectim]." killed a 7.62 rifle and demonstrate assault show agree significant that the exhibit has We weapon that no was found despite the fact of accident. probative value on the issue gunshot fatal wound. related to the victim's danger that this exhibit potential The a demonstra offered the rifle as State low, jury particularly could mislead testimony during expert from tive exhibit the court admon considering marks and firearm examiner. a tool jury, "There was no ished the is evi "Demonstrative evidence weapon m[aly case. The that found this purposes of illustration dence offered exhibit displayed be is a demonstrative going by that to be used the State to is and clarification." Wise v. you 1192, 1196 or show what a similar demonstrate Demonstra if it suffi may be admissible weapon tive evidence could or should look like." type ciently or illustrates relevant tes explains probative value of the Record at 416. timony potential help a to the trier as to be of accident sufficient exhibit on the issue is admissibility demons of fact. Id. The of to ad support to the trial court's decision evidence, meet the re especially light trative evidence must also mit the of the 408, Rule which balances decline to find quirements given.4 admonishment We against prejudicial effect. that the trial court abused its discretion probative value admitting the evidence.5 given Trial are wide latitude Id. courts testimony when it similar at from David within its discretion admitted 3. Ballistics although shotgun as used in crime because Brundage, a tool and firearm examiner marks relevant, marginally prejudice given Indianapolis County also low for the Marion Forensic jury). that the court had admonished the Agency, concerning spent Services shell fragments casings jacket two bullet found challenges Brundage's 5. The defendant also victim at the murder scene revealed that the "trigger pull" testimony lacking as foundation SKS, by an was shot either an AK-47 or gun used in the incident because "he had no names for a 7.62 assault rifle. Rec- common Defendant-Appel- or test." Br. of examine Also, descrip- at 412-414. Westbrook's ord trial, lodged lant at At the defendant this 13. carrying as tion of the the defendant was asked, objection Brundage defen- a rifle with a belt that went around the trigger pull there be a that "[WJould consistent with an AK-47 or dant's neck is weapon type with that would associate at SKS. Id. 239-40. {referring assault rifle semi-automatic prosecution for demonstrative used Berry v. 4. See purposes]?" at After the defen- Record (Ind.1999)(holding the trial court was pursuant mitted to Indiana Evidence Rule Prior Inconsistent Statement 613(b), provides which in relevant part: The defendant contends that the Extrinsic prior evidence of a inconsis- excluding transcrip trial court erred in a tent statement a witness is not ad- a tape-recorded tion of statement West- missible unless the witness is afforded gave police. brook The defendant an opportunity to explain deny or sought to admit a transeription of the same opposite and the party is afforded prior statement into evidence as a inconsis opportunity to interrogate the wit- objected tent statement. The State to the thereon, ness or the justice interests of on grounds testimony exhibit require.... otherwise at trial was not inconsistent with previ 618(b). Evid. R. The issue presented is ous statement. The defendant contends whether prior statement is inconsistent that the statement should have been ad- with the witness'strial testimony.6 overruled, objection Brundage range dant's tes- of discretion must be accorded the trial weapon type being tified that a of the judge."). demon- Notwithstanding the inherent ambi strated "has somewhere between a five and guity inquiry, attempts have been made pound eight pound trigger seven or five and put a degree definition on the exact pull." explained Record at 422. He then inconsistency required to meet the threshold among types guns, trigger various See, impeachment. e.g., United States v. pull pounds than less one and one half Winchenbach, (1st 197 F.3d "extremely light" barely considered such that odds"); Cir.1999)("irreconcilably at United touching trigger "might trigger set the (8th Cody, States v. 114 F.3d 776-77 off," 423; trigger pull id. at that a of two and Cir.1997); Trzaska, United States v. 111 F.3d pounds "very light" a half and the mini- (2d Cir.1997)(finding state matches, 422; pistol mum allowable in id. at need diametrically opposed ments not be but trigger pull and that a above ten or eleven at least do need to reveal variance that has pounds "quite heavy." is considered Id. at bearing credibility); reasonable United testimony purport 423. This did not (4th Gravely, States 840 F.2d any based on test of the used in the Cir.1988)(''To be received aas inconsis killing only provided general trigger pull but statement, tent the contradiction need not be regarding type information plain enough 'proffered terms. It is if the produce casings 'that would the shell and but- whole, testimony, by taken as a either what it jacket fragments let found at the murder says by say' or what it omits to affords some scene. The trial court did not err in overrul- indication that the fact was different from the ing objection asserting the defendant's lack of testimony sought of the witness whom it to foundation. contradict."); Abdul-Wadood v. 521 1299, (Ind.1988)("[S]light 1301 dis Comparing by two statements a witness to crepancy in the two [the statements wit inconsistency test for is not an exact science. importance is not ness] of fundamental nor varying Given the nuances that arise in a inconsistent.") Bacon, necessarily Sanger v. events, person's account of historical the trial 322, 328, 1001, 180 Ind. 101 N.E. 1003 judge given must be wide discretion in deter- (1913)("[Clontradiction appear must after the mining whether two statements are sufficient- favorably evidence is construed most to the ly Higa, inconsistent. See United States v. 55 sought impeached."); Myers witness v. 448, (9th Cir.1995)("The F.3d judge 453 trial Manlove, 128, 131, 893, 164 Ind. N.E. 71 894 'high degree flexibility' has a deciding (1904)('The inconsistency contradiction need not be in enough permit how much to terms, impeaching prior use a but impeachment."); statement for declaration must testimony be inconsistent with the of the wit McCrady, United States v. 774 F.2d 873 (8th Cir.1985)('The particular."); Wagner v. ness in some material judge trial has considera- 181, 184, determining ble discretion in whether trial 116 Ind. N.E. 18 835 (1888)("If testimony prior is inconsistent the two statements are consistent state- Evipence other, ments."); § 1 McCormick on 34 and reconcilable with each the state (John ed., 1999)("[A] ment made out of court will not be received Strong W. ed. 5th fair van and she slowly go to into the

At trial testified Westbrook it, around but tried to turn the defendant shoots then. she holding on whether she was was not sure you got a hold Q. Did she shoot before. touching the defendant when to or of her? then con fired. The defense shots were One, A. first one was. from a tran excerpts her with fronted replied: "I Record at 257. Westbrook police to the scription of her statement this." Id. Then saying don't remember year and a half earlier

when interviewed a later attention to directing Westbrook's it. regarding her and cross-examined statement, of her the defendant's part making the acknowledged Westbrook "fair to counsel asked whether it would be the fol The defense then read statement. certainly the state say ... that at least asked transcript lowing from page ments on 15 where told Detective saying if this she remembered Westbrook you grabbed Burks her while [defendant] police: to shooting,7 that's different from what today, Id. you're telling right?" [defendant], us West- Q. where was Where was answered, "Yes, you saw ex standing when brook because don't [defendant] the time I made gun? actly remember it from her with thereafter, Shortly Id. this statement." yard. A. She was the entire the defense offered as an exhibit Q. Okay, yard? front transcript into evi page typewritten tryI run at as a yard, purpose impeachment A. The front so to dence for the like on the side inconsistent statement. The State there to make one objected, that it not inconsis point arguing where tent, and the trial court refused to admit turn her around make-make her Jenkins, witness."); expressions appear impeach inconsistent? Do the two Seller produced by (1884)("material have been inconsistent be 1884 WL 5434 97 Ind. partic inconsistency" and "differs material Hale, liefs?"); Impeachment William G. Pickles, ular"); Statements, 364 Mass. Commonwealth Inconsistent Witnesses Prior 395, 402, (Mass. (1937)(suggesting need S.CaL.L.Rev. 1973)("[A] 'prior inconsistent statement' need only infer find one inconsistent reasonable testimony directly contradict (out possible infer ence of two or more enough implications witness. It is if its tend ences)). direction."); supra, at in different ("The pretrial 'only § 34 statement need bend referring question apparently 7. This in a different than the trial testimo direction' following colloquy: FrannEry, (quoting ny." McNavont & MassacHu- Q. OK, happened, did and then what Evipence: setts A Courtroom Rererence 13-5 [defendant], actually get grabbed hold of Feperar EvipencE (1988))); 4 Wemstem's her? ed., (Joseph McLaughlin § 2d M. 613.04[1] Yeah, A. because- 2001)("Any ed. statement is inconsistent if shooting? Q. While she was any theory might any under rational it lead to ah, guess of one of it any other A. Yeah cause one relevant conclusion different from shell, me, resulting anything was a cause that what scared relevant conclusion from (unknown), pull away EvipENcE made leave her said."); the witness 3A WicmorE her, had, ed., 1040(1) (James from is one of the shells § H. Chadbourn rev. ed. 1970)("As general principle, it is to be un cut she shot had came back on me it (unknown) inconsistency deter derstood that this be I didn't have no car and mined, my just done touch arm and I moved on phrases not individual words or alone, back, impression but or whole so then when she- effect compari On a what has been said or done. (page the interview tran- Record at 281 15 of script). utterances, they in effect son of the two are the exhibit. Record at 265. pur- For the admissible."), relevant is not the trial court 613(b), abused its discretion in allowing it. poses of Rule a statement at trial of "I am not sure" or "I don't remember" is Finally, I disagree with the majority not necessarily inconsistent with an earlier that it proper for a police officer to statement that provides the answer to the testify as to "trigger pull" on the weap- question being asked. We consider the on the defendant fired. There was literal- differences between Westbrook's trial tes- ly no foundation whatsoever for this testi- timony and her statements the tran- mony-the weapon was never found. police scribed interview to be within the foundation, any Without allowing this testi- ambit the trial court's discretion to de- mony highly improper given that the inconsistency. termine We decline to find defense here was accident and the officer's that the trial court erred sustaining the testimony on "trigger pull" was effectively objection State's asserting that opinion on the likelihood of accident. statements were not inconsistent. Without the weapon, he did not have the requisite "facts or data" give such an

Conclusion opinion. See Evid. R. 708. judgment of the trial court is af- firmed.

SHEPARD, C.J., and BOEHM and

RUCKER, JJ., concur.

SULLIVAN, J., dissents separate opinion. Anthony HERNANDEZ, Appellant G. (Defendant Below),

SULLIVAN, Justice, dissenting. I respectfully dissent. It seems to me

that the testimony of Indiana, Westbrook does Appellee STATE of (Plaintiff support Below). a reasonable inference that defendant was aware of a high probability No. 68S00-0009-CR-563. that Tamika Ballard would be killed as a result of Supreme her conduct. Court of Indiana.

Even if I were to conclude that this Jan.

evidence was support sufficient to such an

inference, the inference would be so weak

that at least one of I perceive what

three trial court errors require would re-

versal. See Fleener v. (trial (Ind.1995) court error as-

sessed on basis probable of "its impact on jury, light of all of the evidence in case"). relevance, first, see no or, second, photograph the assault

rifle demonstration. Because this evi-

dence was admitted violation of Indiana ("Evidence

Evidence Rule 402 which is not

Case Details

Case Name: Dunlap v. State

Court Name: Indiana Supreme Court

Date Published: Jan 29, 2002

Citation: 761 N.E.2d 837

Docket Number: 49S00-0002-CR-104

Court Abbreviation: Ind.