A jury convicted Kenyan L. Taylor of murder. He was sentenced to sixty years imprisonment. Taylor raises four issues on appeal that we restate as follows:
I. Did the trial court err by refusing to admit evidence of witnesses’ gang activity?
II. Did the trial court err by allowing testimony of a witness whose name was not included on the State’s pretrial discovery witness list?
III. Did the trial court err by failing to give a missing witness instruction to the jury?
IV. Was the evidence sufficient to support his murder conviction?
We affirm.
Facts and Procedural History
The facts most favorable to the verdict reveal that on February 22,1993, Taylor and Mose Bowling went to Walter Anderson’s home to collect money Anderson allegedly owed Taylor from some drug transactions. After Taylor demanded money from Anderson, an argument broke out and Anderson was shot. Anderson subsequently died from a gunshot wound to the heart. Taylor was convicted of murder and sentenced to sixty years in prison. Taylor now appeals his conviction.
I. Testimony of Gang Activity
At trial, Taylor attempted to elicit testimony that two witnesses were involved in gang activity. In each case, the trial court sustained the State’s objections on grounds of relevancy or because the question assumed facts not in evidence. The trial court also sustained the State’s relevancy objection to an Indianapolis police officer’s deposition in which the officer discussed his familiarity with a particular gang and its activity. Taylor argues that the trial court committed reversible error by not admitting these items of testimony because each supported the defense’s theory that this was a gang-related crime committed by another person.
Relevant evidence means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ind. Evidence Rule 401. Taylor does not explain why any evidence tending to show that either witness was a gang member bears on any issue in the case. The best he offers is an undifferentiated suggestion that the killing was somehow gang-related. Without more, this raises no issue sufficient to support a claimed relevancy error. Fur
II.Testimony of Unlisted Witness
Taylor next alleges that the trial court erred in allowing Officer Steve Brooks to testify because Brooks did not appear on the State’s pretrial discovery witness list. The trial court has broad discretion in ruling on violations of discovery orders, and we will reverse only for abuse of that discretion.
Jenkins v. State,
When the State called Brooks to the witness stand, Taylor requested a bench conference and informed the court that Brooks was not on the witness list. The prosecutor responded that Taylor had taken Brooks’ deposition. On direct examination, Brooks testified about footprints from the victim’s apartment. Taylor did not cross-examine Brooks. After another witness testified, Taylor moved to strike Brooks’ testimony because he could not find Brooks’ deposition and the State could not produce it. Apparently, the prosecutor conceded that no deposition had been taken, but stated that he did not intend to intentionally mislead the court or Taylor and honestly believed there was a deposition. The trial court denied Taylor’s motion to strike Brooks’ testimony, but allowed Taylor the opportunity to interview Brooks prior to cross-examining him. The record is silent as to whether Taylor interviewed Brooks. However, Taylor did not recall Brooks for cross-examination. There is no evidence in the record, nor does Taylor argue, that the prosecutor deliberately or intentionally avoided telling Taylor about the witness. Therefore, the trial court was well within its discretion in ruling that Taylor was entitled to no more than a continuance. The trial court effectively gave Taylor that relief by allowing him to interview and cross-examine the witness.
McDonald v. State,
III. Missing Witness Instruction
Taylor next contends that the trial court committed reversible error by refusing Taylor’s tendered instruction no. 16, which instructed the jury that because the State failed to produce the State’s chief investigator of the case, the jury could infer that his testimony would have been unfavorable to the State. The tendered instruction, commonly referred to as a missing witness instruction, is not generally favored in Indiana.
Gossmeyer v. State,
IV. Sufficiency of the Evidence
Finally, Taylor contends there was insufficient evidence to support his murder conviction. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses.
Jordan v. State,
Taylor alleges his conviction should be reversed because there was no direct evidence that he or Bowling discharged the gun. It is well settled that a conviction for murder may be sustained on circumstantial evidence alone.
Green v. State,
Taylor further argues that the evidence was insufficient because seven jurors signed affidavits stating that Taylor did not commit the murder. However, in those affidavits, each of the seven jurors stated that he or she found Taylor guilty based upon the trial court’s instructions regarding accomplice liability. Assuming
arguendo
that Taylor did not fire the fatal shot, the jury could nevertheless find Taylor guilty as an accomplice consistent with the trial court’s instructions. An accomplice who acts in concert with another who actually committed the direct acts constituting the elements of the crime is equally as liable as a principal for all natural and probable consequences of the plan.
Tynes v. State,
Conclusion
Taylor’s conviction for the murder of Walter Anderson is affirmed.