ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Katherine A. Cornelius Steve Carter
Marion County Public Defender Attorney General of Indiana
Indianapolis, IN Adam M. Dulik
Deputy Attorney General
SUPREME COURT OF INDIANA
KERRIE PRICE, ) ) Appellant (Defendant Below ), ) ) v. ) No. 49S00-0006-CR-385 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
April 10, 2002
Price hid in a nearby apartment until a friend sneaked him into a
car and drove him to another location. In the succeeding days he
changed locations three more times, once in the trunk of a car, to
evade the police. On February 22
nd, a SWAT team forced Price out
of hiding with tear gas after a five-hour effort to persuade him to
voluntarily release a hostage and surrender. During the standoff Price told a
police negotiator that he was not present at the shootings, although he later
changed his story and claimed he shot Black and Northern in self-defense.
Black died from multiple gunshot wounds. Northern died after several weeks in the hospital of infection caused by multiple gunshot wounds.
The State charged Price with two counts of murder and sought the death
penalty. The jury found Price guilty on both counts and recommended a
sentence of life without parole, which the court imposed.
A. The Photographs of Price. At trial the State introduced two
photographs found at the crime scene. Each showed Price at a club
with four companions. He was gesturing in a manner that could be
interpreted as a gang sign.
The defense argued that the photographs were prejudicial and irrelevant because identification was not an issue. The State acknowledged that the defense was not contesting Prices presence at the shooting, but argued that the photographs were relevant to show the guilty knowledge of the defendant by demonstrating that he had changed his hairstyle and had gold caps removed from his teeth. See footnote (R. at 5539-40.)
Defense counsel took responsibility for advising Price to change his appearance to look
proper and dignified here in a court of law, in a death penalty
case. (R. at 5540.) Nonetheless, the court admitted the photographs as
minimally relevant, saying, [O]bviously his looks have dramatically changed. I think
its fair for the . . . jurors on their own to observe
what he looked like at that time. (R. at 5541.)
We agree with Price that the court erred in admitting the photographs.
There is no contention here that Price changed his appearance as part of
his efforts to evade capture, or to otherwise foil identification before or during
Because identification was not at issue, the photographs were irrelevant.
Evidence Rule 402. Mostly, they seemed designed as character evidence inadmissible under
Ind. Evid. R. 404(a) (Evidence of a persons character or a trait of
character is not admissible for the purpose of proving action in conformity therewith
on a particular occasion, except: (1) Character of accused. Evidence of
a pertinent trait of character offered by an accused, or by the prosecution
to rebut the same; . . . .).
A defendant does not open the door to otherwise inadmissible character evidence merely
by dressing and grooming in a manner appropriate for court. Tailoring ones
appearance to that occasion may indicate consciousness of social stereotypes as easily as
consciousness of guilt, because [f]or unnumbered ages the external appearance has been deemed
to be an index to the internal man. Henry Hardwicke, The Art
of Winning Cases or Modern Advocacy 153 (1894) (quoted in Richard H. Underwood,
Truth Verifiers: From the Hot Iron to the Lie Detector, 84 Ky.
L.J. 597, 622 (1995)).
Photographs showing how a defendant looked at the time of the crime are
frequently probative. Here, however, they largely invited jurors to evaluate guilt based
on whether the defendant looked like the type of person who would commit
this sort of crime. This is what Rule 404(a) prohibits.
Nevertheless, "[w]e disregard error in the admission of evidence unless it affects the
substantial rights of a party." Willey v. State, 712 N.E.2d 434, 444
(Ind. 1999) (citing, inter alia, Ind. Trial Rule 61). In light of
other evidence that Price shot the two security guards multiple times while receiving
no injuries himself and later confessed to two friends that he fired first
and without provocation, the erroneous admission of the two photographs was harmless.
B. The Autopsy Photographs. The State introduced seven photographs from Blacks autopsy to illustrate a pathologists testimony concerning the number and location of Blacks gunshot wounds. The defense objected to two photographs that showed wounds caused by surgical procedures performed on Black during lifesaving efforts, and one that showed an autopsy wound to Blacks head.
The court allowed all the photographs because each of the seven uniquely illustrated
Blacks wounds. The pathologist identified and explained the wounds that resulted from
surgical and autopsy procedures.
One of the challenged photographs illustrated, in perspective, a gunshot wound that struck
Black in his back. Another illustrated a chest wound Black suffered when
bent forward, if he was on his feet; or . . . already
on the ground. (R. at 6701, 6759.) Both were relevant
to Prices claim of self-defense.
The defense also objected to all three autopsy photographs of Northern that were
offered as evidence, arguing that they were irrelevant because the pathologist could not
distinguish bullet entry wounds from surgical wounds. The State countered that the
photographs supported the pathologists testimony that he found possible entry wounds consistent with
bullet holes in the shirt Northern was wearing when he was shot and
with Northerns internal gunshot injuries. The photographs also showed manifestations of sepsis
from gunshot wounds, which the pathologist testified caused Northerns death. The court
allowed all three photographs.
Although these photographs were unpleasant, all were unique and relevant to establishing cause
of death and the number and nature of wounds the victims suffered.
The trial court did not abuse its discretion in concluding that any potential
prejudice did not substantially outweigh the photographs probative value. See Evid. R.
C. Evidence of a Victims Character. Price argues that he should
have been allowed to attack Blacks character by introducing evidence that Black entered
into an illicit arrangement with the Rocky Ripple town marshal so that he
and employees of his security company could be deputized. (Appellants Br. at
9-13.) Price also challenges the exclusion of evidence that on three prior
occasions Black forced his way into apartments when he had no authority.
(Appellants Br. at 12-13.)
Price does not assert that he was aware of this information at the
time of the shooting, so he cannot claim that it was relevant to
show that he acted in self-defense because he had reason to fear Black.
Rather, he argues that repeated references to the victims as officers opened
the door to evidence of their character, because [t]he designation of police officer
carries with it a belief by most people that the [officer] will be
more calm in the face of opposition, relaxed and ready to respond in
times of danger, show more integrity and be more truthful.
(Appellants Br. at 9-10.)
He cites no authority to support this argument. He acknowledges that defense
counsel read a stipulation to the jury that neither victim had police powers.
(Appellants Br. at 10; R. at 7319.)
Indiana Evidence Rule 404 generally excludes character evidence, but provides an exception for
[e]vidence of a pertinent trait of character of the victim of the crime
offered by an accused. Evid. R. 404(a)(2). Evidence Rule 405 governs
methods of proving character. Rule 405(a) allows direct examination in the form
of testimony as to reputation or in the form of an opinion.
Inquiry into specific instances of conduct is limited to cross-examination or when character
or a trait of character is an essential element of a charge, claim,
or defense. Evid. R. 405(a), (b).
In Brooks v. State, 683 N.E.2d 574 (Ind. 1997), we discussed how these
rules operate in a situation similar to the one at hand. Brooks
fatally shot a man after an argument that began at a bar.
Id. at 575. He sought to introduce testimony that the victim had
been charged with two counts of battery three years earlier and convicted on
one of the counts. Id. at 576. We said:
Indiana Evidence Rule 405 permits proof of the violent character of the victim by reputation or opinion testimony. In this case, however, Brooks did not seek to introduce reputation or opinion testimony. Instead, he attempted to introduce direct testimony of two specific prior batteries to show [the victims] violent propensities. Evidence of specific incidents is permissible only on cross-examination of a character witness pursuant to Rule 405(a), or when character is an essential element of a charge, claim, or defense pursuant to Rule 405(b). Neither situation is presented here. In an offer to prove, defense counsel stated that he proposed to call the witness to testify about the incidents, not that he intended to cross-examine a character or opinion witness. Nor was the victims character an essential element of Brooks claim of self-defense. Whether or not [the victim] had violent propensities, the jury could still determine that Brooks did not act in self-defense.
Id. at 576-77 (citations and footnotes omitted).
The same is true here. Price sought to introduce evidence of specific
instances of Blacks prior conduct to show that Black had violent propensities.
The trial court appropriately refused to admit this evidence.
D. A Witnesss Plea Agreement. Turkessa Guthrie, Prices former girlfriend, helped
Price escape from the Meadows on the day of the shootings and hide
from police for the next three days. The State charged Guthrie with
assisting a criminal as a class C felony.
See footnote It reduced the charge
to assisting a fugitive from justice, a class A misdemeanor, in return for
Guthries guilty plea and testimony against Price.
Price argues that Ms. Guthries altered testimony was obtained through illegal conduct by
the State in the form of an illegal plea agreement. (Appellants Br.
at 24.) We need not elaborate on the reasoning behind this argument
because even if Price is correct, he lacks standing to raise this
Bedwell v. State, 481 N.E.2d 1090, 1092 (Ind. 1985), a defendant argued
without success that he should be allowed to attack the legality of a
suspended sentence offered to a States witness as part of a plea agreement.
This is, after all, an appeal of Appellant's convictions and any challenge to the legality of the plea agreement between [the State witness] and the State must be made by [that witness] in his own independent action. . . . [T]he plea agreement was relevant only with regard to [the witnesss] credibility before this jury and its legality would not affect [the witnesss] duty to testify truthfully while under oath. Moreover, Appellant was allowed to fully cross-examine [the witness] and had every opportunity to discredit or otherwise challenge [the witnesss] credibility.
Similarly, here, the circumstances of Guthries testimony were fully disclosed. The jury
heard about the plea agreement and a copy of that agreement was entered
into evidence. Guthrie testified that she was originally charged with a C
felony for assisting Price. Price therefore had a full opportunity to attack
Guthries credibility, and any challenge to the legality of her plea agreement would
be her claim, not his.
E. Other Rule 404 Challenges. Price raises four additional challenges to
evidence he claims was improperly admitted to impeach his character. (Appellants Br.
at 20-23.) He claims error in admitting evidence, first, about the history
of the gun used in the shooting and, second, about his flight and
ultimate capture. Because he made no objection at trial, he has not
preserved these claims for appeal.
Third in this list is a claim involving State witness Dorain Moore, at
whose house Price was hiding when he was finally apprehended. At trial
Moore claimed to have forgotten his activities the day those events occurred.
He contradicted his own deposition testimony by denying that he saw Price when
he arrived home the night of the standoff.
The defense stipulated to admission of Moores deposition and prior statement because hes
come really close to committing perjury . . . hes making a mockery
of this trial and we want him out of here. (R. at
6160.) The judge then pointed out for the record that Moore greeted
Price in the courtroom by saying, Hey man, whats up?, which might imply
a rapport between the two. (R. at 6160.) The defense asked
that Moore not be brought back into the courtroom based on his unpredictable
demeanor and behavior, and the court agreed.
The court allowed the State to present evidence that after Moores testimony, as
the jury exited the courtroom, Moore asked Price whether he was doing all
right and Price nodded in the affirmative, then both men laughed. (R.
at 6633.) The court reasoned that the incident was relevant to show
Price now argues that this testimony improperly highlighted irrelevant behavior and discredit[ed] Mr.
Price by drawing attention to a situation created by a witness already recognized
as uncontrollable. (Appellants Br. at 21.) We disagree. The incident
was relevant to show that Moore was biased in favor of Price, see
Evid. R. 616, which could support an inference that Moores memory lapses were
deliberate efforts to help his friend. It was not unduly prejudicial and,
as the defense pointed out, the exchange occurred in open court and may
well have been observed by some jurors. (R. at 6620.) See
Evid. R. 402, 403.
As a fourth point, Price says the court should not have allowed testimony
that Lisa Wooden, whom Price claimed was present in the apartment with him
when the shooting occurred, was arrested for assisting a criminal. The State
successfully argued that the testimony was relevant to explain why Wooden was unavailable
to testify, and because she could have been the second person a witness
saw running from the crime scene. We agree that this evidence was
relevant and not, as Price argues, an impermissible attack on his character.
A. Preliminary Self-Defense Instruction. Price claims the preliminary instruction on self-defense
denied him a fair trial. (Appellants Br. at 14.) The court
instructed the jury that self-defense was an issue in the case and gave
a definition of self-defense, but not on the burden of proof for self-defense.
The court advised the jurors, In the event self-defense is an issue
in this case, you will be informed by the Court in the Final
Instructions as to the burden of proof on this legal defense. (R.
at 2140.) Price acknowledges that the final instructions properly explained the burden
of proof. (See Appellants Br. at 14-16.)
Preliminary and final instructions are considered as a whole, not in isolation.
Bonham v. State, 644 N.E.2d 1223, 1227 (Ind. 1994). Therefore, the court
adequately instructed this jury on self-defense.
B. Lesser Included Offenses. Price also challenges the trial courts preliminary
instructions that the defendant was not on trial for any offenses not charged,
and that the charges were two counts of murder. He contends that
these instructions misstated the law and misled the jury by precluding a verdict
that Price was guilty of a lesser included offense such as voluntary manslaughter.
(Appellants Br. at 30-32.)
This ignores several final instructions on lesser included offenses.
See footnote Price does not
argue that any of these instructions misstated the law, and the instructions made
it quite clear that the jury could and should consider lesser included offenses
as part of its deliberations.
Prices argument that two preliminary instructions denied him a defense is meritless.
In Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999), the defendant said,
Im remorseful for all what happened. I was just in the wrong
place at the wrong time . . . I just dont know what
went wrong. We rejected his claim that the trial court erred by
not finding remorse as a mitigating circumstance, noting that this statement was equivocal
at best and well short of a full acceptance of responsibility. Id.
The same is true here.
The court found, however, that both the State and defense were guilty of
violating the discovery deadline, and assessed each party $2,118.60, saying, The cost to
the County of the jury selection process, to date, is $4,145.20, plus mailing
fees of $92 (400 summonses at 23 cents per summons), for a total
of $4,237.20. (R. at 1606.)
Indiana Trial Rule 37(B) authorizes trial courts to impose costs arising out of
failure to comply with a discovery order on the party that disobeyed the
order. Trial courts are granted deference in determining what constitutes substantial compliance
with discovery orders, and we will affirm their determinations as to violations and
sanctions absent clear error and resulting prejudice. Dye v. State, 717 N.E.2d
5, 11 (Ind. 1999), cert. denied, 531 U.S. 957 (2000).
Prices attorney argues that the order was improper because the State was entirely
to blame, and that the court did not adequately explain the basis for
the amount assessed. (Appellants Br. at 37-41.) We elect not to
elaborate on the contentions of the two combatants (defense noticed tardy depositions and
State wrongly delayed turning over documents (see Appellees Br. at 37-38; Appellants Br.
at 37-39)), inasmuch as we are satisfied that the trial judge was within
her discretion in finding fault on both sides.
On the other hand, Price is correct that a court imposing penalties of
$4,145.20 needs to be somewhat more descriptive about the basis for its calculation
than cost to the county of jury selection, to date. (R. at
1606-07.) It may be that this represents the cost of selecting 400
names from the prospective juror database and printing summonses, but we are left
only to guess. The court added the cost of mailing summonses (400
summonses at 23 cents per summons (Id.)), a completely adequate explanation of that
element of the penalty.
Of course, if there is more to be known about why the courts
calculation was appropriate, neither party has much incentive to document it. We
affirm the postage portion of the penalty and authorize the trial court to
enter a more particularized order concerning its penalty should it desire to do
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.