ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas J. LaFountain Jeffrey A. Modisett
South Bend, Indiana Attorney General of Indiana
Suzann Weber Lupton
Deputy Attorney General
SUPREME COURT OF INDIANA
CHARLES RICHMOND, ) ) Appellant (Defendant Below ), ) ) v. ) 71S00-9702-CR-141 ) STATE OF INDIANA, ) ) Appellee (Petitioner Below ). )
SHEPARD, Chief Justice.
A jury found appellant Charles Richmond guilty of murder, Ind. Code Ann. § 35-42-1-1 (West Supp. 1996), for the killing of Myron Moran.
The evidence was that Richmond and several others confronted
two men on the street. Richmond pulled out a gun, so the victims
turned and ran. Both were shot, one fatally. Richmond fled to the
home of a friend, told her he shot some guys who were selling drugs
on territory claimed by his allies. He gave her the gun for
At trial, several witnesses made brief references to
Richmond's street gang, the "Southside Dawgs." Richmond contends
these references were inadmissible under Indiana Rule of Evidence
404(b). He objected at various points during the trial when a
reference to "dawgs" was mentioned.
Evidence Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
It is difficult to see how the few, brief references to "dawgs" could have been excluded by application of this rule. These references were few and tangential; they could hardly be considered elicited "to prove the character of [Richmond] in order to show
action in conformity therewith." Evid.R. 404(b).
objection to these references, therefore, is grounded in rules
regarding relevance. See United States v. Butler, 71 F.3d 243,
250-52 (7th Cir. 1995) (gang membership may be relevant as direct
evidence of guilt). And, undoubtedly, gang membership may be
unfairly prejudicial in a criminal prosecution, though that is a
question under Evidence Rule 403. Id.
As our Court of Appeals noted in Cadiz v. State, 1997 WL
405129 (Ind. Ct. App. Feb. 20, 1997) (to be reported at 683 N.E.2d
597), all relevant evidence is "inherently prejudicial" in a
criminal prosecution, so the inquiry boils down to a balance of
probative value against the likely unfair prejudicial impact the
evidence may have on the jury. Id. at *3. Here, the references to
"dawgs" came from witnesses reciting the defendant's own
statements. Richmond had stated he was going to "get his dawgs" in
an effort to intimidate a woman and a child whom he had directed to
conceal his gun. When one witness was asked what Richmond meant by
"getting his dawgs," she merely replied, "his friends." At no time
during the trial did the prosecution dwell upon the fact that the
"Southside Dawgs" is a street gang.
In this light, the evidence pertaining to the "dawgs," which
was clearly relevant to defendant's guilty conduct and his
ownership and possession of the murder weapon, was not introduced
or exploited to inflame the jury or to prove the defendant's
criminal conduct. The trial court did not abuse its discretion to
permit these references.
Accordingly, the trial court is affirmed.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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