*1 broadly defined as is thus under Evidence Rule Relevance inadmissible 404(b). value, and the trial court has wide probative ruling prof on the relevance of
discretion battery
fered evidence. Id. prove case was not
evidence this offered conformity
propensity to act with a charac violence,
ter trait for but rather was offered proving purpose”
for the “other Sanders’ by negating
intent his claim of self-defense. 1443;
R. at Johnson battery (Ind.Ct.App.1994). Because the PALMER, Defendant-Appellant, evidence makes Sanders’ claim of self-de likely by indicating fense less his intent victim, relevancy harm the test of Rule Indiana, Plaintiff-Appellee. STATE 401 satisfied. No. 49S00-9706-CR-00350. admissible, Relevant evidence is probative Evid.R. unless its value is Supreme Court Indiana. substantially outweighed danger 7, 1999. Jan. prejudice, unfair Evid.R. 403.9 “We review balancing act the trial court under an Hicks, abuse of discretion standard.” again
N.E.2d at 223. The trial court is af weigh probative
forded wide latitude to value
against prejudicial effect. Bacher v. paradigm of evidence inadmissible un- 404(b)
der Rule “is a crime committed day place, evidence whose
only apparent purpose prove is to the defen- is a
dant who commits crimes.”
Swanson, 666 N.E.2d at evidence
at issue here is not of that nature. The
battery just occurred moments after and away
steps from the murder. The evidence Sanders, prejudice
caused no unfair but provided highly probative
instead evidence intent to harm. We hold that the trial properly
court exercised its discretion.
Conclusion judgment affirm
We of the trial court.
SULLIVAN, SELBY, BOEHM, JJ.,
concur.
DICKSON, J., dissents, believing that the subsequent battery shooting
evidence
of Perez is not relevant to show the defen- respect Rodriguez,
dant’s intent with
404(b)
preju-
presented
9. Rule 403
than
lists factors other
undue
cases—and in this case—is
value,
weigh against probative
danger
prejudice posed by
dice to
such as
unfair
the other
issues,
crime,
Hides,
misleading
jury,
wrong,
confusion of the
un-
or act.”
When kidnap- a accomplice of a ping, kidnapper mur- does der under the Indiana murder statute? We circumstances, that, under hold these kidnapper commits defendant, Palmer, appeals his 24,1993, felony mur- convictions for the June (“Williams”), the of Robert Williams der1 attempted kidnapping2 and murder3 Offi- (“Gehrich”), conspira- and cer James Gehrich cy escape.4 These crimes during from an incident which the stemmed engaged kidnapping to aid defendant escaping from an arrest. Williams a correctional officer Williams was attempted escape. We in the course of this provision in mur- hold the affirm the defen- applies, der statute and we convictions. dant’s Williams, recently parolee, been re- had jail being apprehended after on a leased from arrested, charge. drug Expecting new to accompany asked the defendant to Williams parole At the parole him officer. to see office, attempted ar- correctional officers pursuant to a rest and handcuff Williams parole When for violation.5 warrant issued attempted escape, resisted and Williams it pulled gun, held to Officer head, said, going “I’m to blow Gehrieh’s you.” at you away. what I tell Record Do After the defendant commanded 254. go,” him at record “[l]et officers to released, then and Williams Williams Gehrich. defendant to shoot Officer told the cock, gun Geh- hearing the defendant’s Upon gun up grabbed for rich reached Laudig, Appellate Public Defend- Stephen away barrel, from his push it er, Defendant-Appellant. Indianapolis, for try- joined the defendant head. Williams General, it head. Modisett, Attorney ing point back Gehrich’s Jeffrey A. General, gun, shooting Gehrich Nemeth, fired the Attorney defendant Deputy A. Carol officer, “I’m told a fellow the hand. Gehrich Indianapolis, Plaintiff-Appellee. detail, specificity 35-42-1-1(2) (1993). Although lacks 5. the record § 1. Ind.Code recently appears been arrest- that Williams had it (1993). § Ind.Code 35-42-3-2 offense, selling possessing co- ed for caine, new when he visited was released on bond (1993); § § 35- 35-41-5-1 Ind.Code Ind.Code office, had led to parole that this arrest (1993). 42-1-1 parole violation. of a warrant for the issuance (1993); § 35- 183-84, 249, 35-41-5-2 Ind.Code and 481. See Record at 44-3-5 shot, you’ve got expose danger him.... another to the of death at already shoot felony, any nonparticipant choice.” Record at 270. hands of a in the [W]e don’t fatally This fellow officer then shot and where death fact occurs as was foreseeable, danger- ran from and the defendant the scene. creation of such a *3 intermediary, an ous situation is second- appli- In we the appeal, this direct address ary, effecting bringing or or medium statute, felony pro- cation the murder the of There, the the about death of victim. the 15(1), priety final instruction and the deni- of is a mediate contribution the situation al of a motion continuance. killing. victim’s felony charged that the murder count (Ind. State, 201, v. 684 N.E.2d Sheckles defendant, committing attempting while or (transfer denied). Ct.App.1997) deciding In (the kidnapping knowing confinement may person whether a of convicted of Gehrich with the intent to release of obtain allegedly an or murder for indirect remote detention) a Williams from lawful held hand- death, applied we the murder gun demanding while to Gehrieh’s head the designated felony when statute the was “the of final release of Williams. One the instruc- the mediate or immediate cause” of death. that, jury “if the tions informed the State State, (Ind. 847, Reaves v. 854-55 proves beyond a that reasonable doubt (bed-ridden 1992) robbery victim died of a knowingly committing the was pulmonary embolism weeks a three after co-defendant, kidnapping, alleged of and his State, 67, robbery); v. Pittman 528 N.E.2d Robert a direct was as (Ind.1988) (burglary pul victim died from proximate partic- result of Jesse Palmer’s monary resulting embolism from victim’s ipation alleged kidnapping, you in the then obesity post-operative immobility follow may felony-mur- find the defendant ing severity laparotomy to determine stab at der.” Record State, burglary); incurred in wound Sims language murder of murder 24, (Ind.1984) (victim 466 N.E.2d 25-26 died [kjills ... congestive following surgery failure heart being human while committing or for fractured in the mandible suffered beat arson, burglary, child ing during burglary). sustained See also molesting, product tampering, consumer State, 1109, Thomas v. 436 N.E.2d 1111-12 conduct, kidnapping, criminal rape, deviate (Ind.1982) (victim died of ar acute cardiac robbery, carjacking; ... rhythmia robbery); during Booker felony.”6 498, 1198, 270 Ind. 386 N.E.2d statutory language another hu- “kills (1979) (victim, arrhythmia age died being committing” man while does not re- following robbery in which was he knocked provision only strict the murder “mauled”). the floor killer, instances in which the felon the but case, In the present may apply equally when, also engaged kidnapping, of the one felonies any designated felonies, of the felon the con- designated felony-murder in the statute. He the any person. tributes to death of pointed handgun a loaded and cocked at the Appeals correctly Court of has observed: head of Officer Gehrich and thereafter fired attempts [A] who commits or it, injuring clearly the officer. Such conduct designated commit one of the offenses possibility raised the foreseeable that the felony-murder criminally the statute is re- might intended victim that resist or law en sponsible for homicide which results thereby respond, forcement would creat partici- from the act one who not a persons present. ed a risk of death to This pant original activity. in the criminal clearly felonious conduct was “the mediate or reasonably Where the accused should have immediate of Williams’s death. cause” foreseen the that commission of or attempt contemplated felony to commit the that trial The defendant also contends the likely Jury 15(1), would create a in giving situation which would court erred Instruction 35-42-1-1(2). Code Ind clearly against logic and effect “being convict- decision is the it in his resulted arguing Joyner v. caused of the facts and circumstances.” on evidence insufficient ed of Brief of fatally instruction.” by the flawed objection at trial His Appellant defen The trial court heard both the the generally asserted imprecise, but trial dant’s and his counsel’s claims about (without identi- the law misstates instruction preparation. counsel state trial Defense claim), of this explaining the basis fying or that he the court had reviewed advised jury to province determine invades witnesses, of the statements of each State’s intent, jury. Record at 438. and confuses victims, deposed of the and taken one challenges he this instruction appeal, On “sworn recorded statement” from jury to convict that it allowed basis witness, that he Record at indicated *4 despite murder for Williams’s the defendant to try the case. ordered ready was to When kill he intended to of evidence that a lack proceed, presented a defense based counsel Williams. upon inability of the to the State’s witnesses identify re State, the defendant. The defendant’s however, charge did not The heard, perceive and we abuse of quest no was knowing or intentional with a See, discretion in the denial of his motion. killing for a with murder murder but State, 447, 501 449 e.g., v. N.E.2d Little committing kidnapping. The State while (Ind.1986). kill in a prove intent not need to commit the charge, only the intent murder judgment the trial court. We affirm the of State, felony. v. 620 underlying Vance 687, (Ind.1993). 690 Because the N.E.2d BOEHM, JJ., SELBY and concur. prove that the required not was State SULLIVAN, J., part concurs in and kill this intended to defendant separate opinion in part dissents in with fails. claim SHEPARD, C.J., which concurs. that the trial court contends The defendant SULLIVAN, Justice, concurring part in for contin- denying pro in se motion erred dissenting part. in hearing in hold a on the failing uance and trial, of At the commencement the motion. gave prosecu- to this events rise the court that he himself stated to defendant partic- tion horrendous and Palmer’s were the to start because his not want trial did the sev- ipation in them warrants sanction of go attorney prepared was not to trial.7 majority’s fully concur in the erest order. I court, 143,146. however, trial Record kidnaping, for of his convictions affirmance proceed. the trial to ordered attempted conspiracy murder however, that escape. respectfully suggest, I time to Continuances for additional accomplice liability9 stat- our murder8 disfavored, generally for trial prepare are for permit utes do not conviction only grant should such motions and courts murder facts. on these such a con good cause is where shown ago, wrote Four Morris justice. in of decades Professor the interest tinuance State, (Ind. and fel- persons innocent that “for centuries v. N.E.2d 202 681 Williams justified 1997). killed as the result of ruling ons have been A trial on continuance court’s violence; only felonies of required by resistance to not statute reviewed that is sug- has even handful such cases it been of only for an abuse of discretion. Carter surviving guilty are gested An the felons legal analysis of “only murder.”10 Whether his discretion where the occurs abuse 35-41-2-4. the court for a new The defendant also asked attorney unhappy quali- with he was because denied, request ty representation. This Morris, Responsibility The Felon’s 10. Norval challenge ruling defendant not and the does Others, U. Pa. L.Rev. Acts Lethal appeal. on Ind.Code§ 35-42-1-1. accurate, point. history point was I do Each a situation which the on this not involves certainly liability physical injury such know. But has been defendant himself inflicted rejected imposed many both cases question the victim who later died. A appeared.11 since his article review of intervening each was whether an cause ab- only these to me that the Indeed, materials indicates liability. solved the defendant of proper way resolving whether an Indiana proposition which of law for these cases may guilty defendant murder stand is in one of the articulated cases as perpetrator where fellow the defendant’s injury follows: “An individual inflicts reference killed is to the lan- upon another is deemed law to be guage of our statute.12 if injury of homicide the contributed mediate- ly immediately or death of that to the other I do not believe that statutes authorize person.” Sims liability imposition for murder where (Ind.1984) Here, (emphasis supplied). co-perpetrator is the victim. defendant’s contrast, injury not inflict did upon Williams that caused Williams’s death. being who ... another human kills while I would vacate Palmer’s conviction for ... kidnaping a felo- However, would remain he convict- *5 ny.” § 35-42-1-1. Palmer here kidnaping, attempted ed of murder and con- being; did not kill human another his co- spiracy fully I escape. agree that perpetrator by a law enforcement here, justified consecutive are sentences official. Under the terms of the mur- years making eligible pris- Palmer for 108 statute, guilty der is Palmer not (compared year to the 118 sentence im- court). posed by the trial liability accomplice knowingly person intentionally SHEPARD, C.J., concurs. aids to commit an offense § offense.” Ind.Code 35-41-2- A person can liable for aiding the commission thereof. But Palmer’s co-perpetra- because
tor did not commit Palmer
cannot be in committing found to have aided
that offense. the terms of Under the accom-
plice liability statute, not
felony murder. respectfully suggest
I that none of the major-
several eases from this Court that the
ity
support
position
cites
its
are on
See,
McMahon, Annotation,
e.g.,
Ap-
liability requirement
ed
Martin J.
that the
was satisfied if
plication
Felony-Murder Doctrine Where Per-
"any person”);
by
the death was caused
State v.
Co-Felon,
§
son Killed
89
A.L.R.4th 683
Hoang,
Thai Do
(1988) ("Review
755 P.2d
Kan.
Barber,
(1991);
Annotation,
Erwin S.
Criminal
jurisdictions
of other
of case law
Liability
Killing
by
Where Act
is Done
One
(on
particularly helpful
is not
herein
issue]
Resisting Felony or Other
Act Commit-
Unlawful
by
variety
statutory
virtue of the wide
of the
Defendant,
by
ted
12. See State v.
119 N.J.
justice
utility
be that
are
social
to be served
(N.J.1990) (after
A.2d
1370-71
court held
by imposing
liability
on felons criminal
for mur-
Canola,
in State v.
N.J.