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Boone v. State

Court: Indiana Supreme Court
Date filed: 2000-05-12
Citations: 728 N.E.2d 135
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ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Jeff Schlesinger                  Jeffrey A. Modisett
Appellate Public Defender         Attorney General of Indiana
Crown Point, Indiana
                                        Arthur Thaddeus Perry
                                        Deputy Attorney General
                                        Indianapolis, Indiana



                                   IN THE

                          SUPREME COURT OF INDIANA



SHIRWANDA SHERI BOONE,            )
                                        )
      Appellant (Defendant Below),      )
                                        )
            v.                          )  No. 45S00-9903-CR-155
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )






                     APPEAL FROM THE LAKE SUPERIOR COURT
                     The Honorable Richard Maroc, Judge
                         Cause No. 45G01-9802-CF-40



                                May 12, 2000


SHEPARD, Chief Justice.

      Following a jury  trial,  Shirwanda  S.  Boone  was  found  guilty  of
murder. The court sentenced her to a term of fifty-five years.

      Boone presents three issues in this direct appeal:
      I.        Whether     the     trial     court     wrongly     admitted

                                 evidence  of  a  prior  automobile   chase
           involving Boone and the victim when there was no  evidence  that
           Boone was in control of the vehicle;


      II.   Whether the State met its burden of proving beyond a  reasonable
           doubt that Boone did not act under sudden heat at  the  time  of
           the kill; and


      III.   Whether  the  trial  court  properly  overruled         defense
           objections to aggressive questions the  prosecutor  asked  Boone
           during cross-examination.



                        Facts and Procedural History

      Kenneth Sutton and Shirwanda Boone had a  turbulent  relationship  for
five years; Sutton is the father  of  her  son.    Toward  the  end  of  the
relationship, Boone had a growing suspicion that Sutton  was  involved  with
the victim, Cashmere Quinyette Campbell.


      On December 1, 1997, Kenneth Sutton was shot and went to the hospital.
 Boone took on the responsibility of bathing  Sutton  before  going  to  her
work, but soon stopped doing so due to Campbell’s  disapproval.   Boone  had
several encounters with Campbell during Sutton’s stay at the  hospital,  one
of which resulted in a verbal  altercation.   At  one  point,  the  argument
became so heated that the  nurse  asked  Boone  and  Ronda  Sutton,  Kenneth
Sutton’s sister, to leave.

      Sutton permitted Campbell to use his white  Cadillac.    Boone  fought
with Campbell over the vehicle and once even had it towed.  On  February  5,
1998, Campbell left the hospital and went  to  Sutton’s  home  to  get  some
things he needed.  When Campbell  arrived,  she  argued  with  Boone,  Ronda
Sutton and two other women.  When Campbell got into the Cadillac  and  left,
Boone said to the others, “Let’s get that bitch.”  (R. at 335.)   Boone  got
a bat out of her vehicle, and the four ladies  pursued  Campbell.   A  high-
speed chase ensued.  Officer David Calarie testified  that  at  about  10:33
a.m. in the 800 block of Kennedy Avenue he  heard  the  “sound  of  braking,
brakes squealing or tires  squealing”  and  observed  a  young  black  woman
exiting a white Cadillac yelling “Help me, help  me.”   (R.  at  227.)   The
officer could not determine who the actual driver was.

      On the morning of February 14, 1998, police were  called  to  Sutton’s
residence at 861 Carolina Street on dispatch of a  disturbance  involving  a
fight and handgun.  Later in the evening, between 5:30 and  6  p.m.,  police
went again to the same  address  for  the  same  reason.   Sutton,  who  was
paralyzed, was upstairs yelling at Boone and Ronda Sutton, telling  them  to
leave Campbell alone.   Campbell  later  told  the  police  that  Boone  had
pointed a gun at her.  The police searched  the  home  for  the  gun,  after
obtaining consent from the grandmother who owned the home, to no avail.

      The same day, Boone showed Ronda Sutton a .45  caliber  handgun  in  a
diaper bag and stated, “I’m go[ing to] get ‘em.”   (R.  at  299,  301.)   In
early February, Boone had illegally purchased a handgun from Darnell  Hodge,
allegedly to protect herself.

      The next day, on February 15, 1998, Boone called  Sutton’s  house  and
asked where her son was.  Sutton stated “he was right there,”  but  abruptly
hung up.  (R. at 849.)  Boone became upset.    She went to Campbell’s  house
with a loaded gun and found Campbell on her way out the door.   An  argument
erupted, and Boone shot Campbell.


                  I.  Evidence about the Earlier Auto Chase

      Boone contends the trial court erred in admitting the auto chase  into
evidence,  asserting  that  this  past  behavior  was  introduced  to   show
character in conformity with the  charged  offense.   Evidence  Rule  404(b)
provides in relevant part:
      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.

      Our standard for assessing the admissibility of  404(b)  evidence  is:
(1) the court must determine that the evidence of other crimes,  wrongs,  or
acts is relevant to a matter at issue other than the defendant’s  propensity
to commit the charged act; and (2) the  court  must  balance  the  probative
value of the evidence against its prejudicial effect pursuant to  Rule  403.
Spencer v. State, 703 N.E.2d 1053 (Ind. 1999).  The  trial  court  has  wide
discretion in ruling on relevancy of evidence.  Hicks v. State,  690  N.E.2d
215  (Ind.  1997).   If  evidence  has  some  purpose  besides  behavior  in
conformity with a character trait and the balancing test is  favorable,  the
trial court can elect to admit the evidence.

      The State’s contention is that the car chase  was  not  introduced  to
show  conformity,  but  rather  to  show  motive  and  intent.   The  intent
exception in Evidence Rule 404(b) is available when a defendant goes  beyond
merely denying the charged culpability and affirmatively  presents  a  claim
of particular contrary intent.  Wickizer v.  State,  626  N.E.2d  797  (Ind.
1993); Evid. R. 403.   When  a  defendant  alleges  in  trial  a  particular
contrary intent, whether in opening statement, by cross-examination  of  the
State’s witnesses, or by presentation of his own  case-in-chief,  the  State
may respond by offering evidence of prior crimes, wrongs,  or  acts  to  the
extent genuinely relevant to prove the defendant’s intent  at  the  time  of
the charged offense.  The trial court must then determine whether  to  admit
or exclude such evidence depending upon  whether  “its  probative  value  is
substantially outweighed by the danger of  unfair  prejudice,  confusion  of
the issues, or misleading the jury, or by considerations of undue delay,  or
needless presentation of cumulative evidence.” Wickizer, 626 N.E.2d at  799.



      A leading ground for Boone’s defense was her claim  that  the  killing
arose out of sudden heat, thus reducing the crime from murder  to  voluntary
manslaughter.  In light of Boone’s decision to defend  herself  by  claiming
the killing occurred due to the heat of the moment, the State  was  entitled
to submit evidence that tended to show that Boone’s intent to inflict  fatal
harm was one of longer standing.


                        II.  Evidence of Sudden Heat

      During  the  trial,  Boone  attempted  to  show  a  growing  trend  of
frustration, anger and confrontation on the  part  of  Boone  and  Campbell.
Boone testified that, before going over to Campbell’s house, she  was  upset
because Sutton hung the telephone up on her.  She then drove  to  Campbell’s
home where an argument erupted and Campbell was shot.  Boone  contends  that
her angry state of mind can be  characterized  as  sudden  heat,  which  the
State must disprove beyond a reasonable doubt.

      Sudden heat is a mitigating factor that  reduces  otherwise  murderous
conduct to voluntary manslaughter,  but  is  not  an  element  of  voluntary
manslaughter.[1]  Furthermore, sudden heat requires  sufficient  provocation
to  engender  passion,  which  is  demonstrated  by  anger,   rage,   sudden
resentment, or terror that  is  sufficient  to  obscure  the  reason  of  an
ordinary person, prevent deliberation  and  premeditation,  and  render  the
defendant incapable of cool reflection.  Horan  v.  State,  682  N.E.2d  502
(Ind. 1997).

       On February  14,  1998,  an  altercation  ensued  between  Boone  and
Campbell at Sutton’s  house  that  was  defused  by  officers.   The  record
indicates that Boone spent the night at a friend’s house where she got  some
sleep, giving her time  to  cool  off.   The  next  morning  she  telephoned
Sutton, and he hung up on her.  Boone then drove to Campbell’s home  with  a
gun, and shot her.


      Even if she woke up on February 15th still angry,  and  the  telephone
call made her more angry, the ride  over  to  Campbell’s  home  should  have
given Boone ample opportunity to think about the action  she  was  about  to
undertake.  The jury could  have  concluded  that  sufficient  time  elapsed
affording Boone time for cool reflection.  Furthermore, the jury could  have
concluded that Boone was making good on  her  earlier  declaration  to  “get
that bitch.”

       “Existence of sudden heat  is  a  classic  question  of  fact  to  be
determined by the jury.”  Fisher v. State, 671 N.E.2d 119, 121 (Ind.  1996).
 Enough evidence was introduced for the jury to infer that sudden  heat  was
not present.





                   III. The Prosecutor’s Cross-Examination


      Boone contends that two questions presented to her were  not  intended
to elicit relevant testimony,  but  merely  to  make  a  highly  prejudicial
statement to the jury.  The two questions were about the same, for  example:
“But you shot her, knowing that that shot would drain the life right out  of
her; isn’t that correct?”  (See R. at 914.)


      Boone may well be correct, but this is the sort of call  we  place  in
the hands of the judges who try cases day by day.  Moreover, not  all  trial
errors provide grounds for reversal.   Monegan  v.  State,  721  N.E.2d  243
(Ind. 1999).  An error is not ground for setting aside a  conviction  unless
such error affects the substantial rights of the parties.   See  Ind.  Trial
Rule 61; Fleener v. State, 656 N.E.2d 1140 (Ind. 1995).

      If an error occurred it was harmless at  best  and  does  not  warrant
setting aside the verdict.




                                 Conclusion

      For all that appears, Boone received a fair trial, so we affirm.


Dickson, Sullivan, Boehm, and Rucker, JJ., concur.


-----------------------
[1] See Ind. Code Ann. § 35-42-1-3(b) (West Supp. 1999).