Lee v. State

ATTORNEY FOR APPELLANT

Ernest P. Galos
South Bend, Indiana

ATTORNEYS FOR APPELLEE

Karen Freeman-Wilson
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

SHEMIKA LEE, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 71S00-0002-CR-44
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D02-9806-CF-267
__________________________________________________________________

ON DIRECT APPEAL

__________________________________________________________________

October 6, 2000

BOEHM, Justice.
Shemika Lee was convicted of felony murder for the death of Kevin
McLoughlin and sentenced to sixty years imprisonment. On direct appeal,
Lee presents three issues for review: (1) whether the trial court erred in
denying a change of judge based on the judge’s having presided over
hearings dealing with a plea agreement by an accomplice; (2) whether the
trial court abused its discretion by admitting allegedly prejudicial
photographic evidence; and (3) whether the felony murder conviction was
based on sufficient evidence. We affirm the trial court.
Factual and Procedural Background
In the early morning hours of May 30, 1998, Kevin McLoughlin and his
wife Jennifer drove to the six hundred block of Cottage Grove Avenue in
South Bend to pick up a friend. The friend was not at home when they
arrived and they decided to wait in the car for his return. Kevin then
noticed another acquaintance and left the car to chat with her. Jennifer
remained in the car and, after a few minutes, saw Kevin walk down the
street to talk with a group of ten to fifteen people.
Meanwhile, DeCarlos Avance, a neighborhood resident, approached
Janice Boyd and Shemika Lee in Boyd’s yard and announced his plan to rob a
man down the street. Avance was an acquaintance of both women. Lee had
told Boyd earlier that day that Avance had given Lee a gun. Avance asked
Lee if she had “that” and if she would “walk with him.” Lee agreed.
Avance and Lee approached Kevin on the street and Avance grabbed Kevin’s
wrist and attempted to steal his wallet. As they struggled, Kevin was shot
once. The bullet pierced his heart and he died at the scene.
Avance was taken into custody a few days after the shooting and told
police that Lee was the shooter. Police contacted Lee’s sister and Boyd in
an effort to reach Lee. In response, Lee voluntarily went to the police
station accompanied by Boyd, Lee’s sister, and another acquaintance.
Lieutenant William Thompson conducted an unrecorded interview with Lee.
According to Thompson, Lee told him that the gun was in her hand when it
discharged and killed Kevin. Lee was allowed to leave the police station
immediately after the interview, but she was later arrested and charged
with conspiracy to commit robbery, robbery, and felony murder.
In the meantime, Avance entered into an agreement to plead guilty to
robbery with a recommendation of an executed sentence of twenty years. He
also agreed to testify at Lee’s trial, but, for reasons not apparent from
the record, he did not do so. Judge Jerome Frese presided at Avance’s plea
hearing and elicited the factual basis of the guilty plea, including
Avance’s repeated claim that Lee fired the gun that killed Kevin. The plea
was accepted, but a few months later, Avance sent the judge a handwritten
note asking to withdraw his guilty plea. Judge Frese held a hearing,
expressed his belief that Avance had been offered a good deal by the State,
and indicated that he was not inclined to allow Avance to withdraw his
plea. Avance then withdrew his pro se motion.
Judge Frese also presided over Lee’s jury trial. After each of the
two hearings related to Avance’s plea agreement, Lee filed a motion for a
change of judge on the ground that Judge Frese presided over the hearing
and thereby acquired information bearing on Lee’s trial. The judge denied
both motions, finding that there was no showing of actual bias against Lee.
During trial, the State dismissed the charges of conspiracy to commit
robbery and robbery against Lee and added a charge of attempted robbery.
Lee was convicted by a jury of felony murder and attempted robbery. The
latter was dismissed by the trial court as a lesser included offense of the
former and Lee was sentenced to sixty years for felony murder.
I. Motion for Change of Judge
Lee asserts that the trial court erred by refusing to grant her
motions for a change of judge under Indiana Criminal Rule 12(B). Lee
argues that by presiding over the hearings related to Avance’s plea
agreement, Judge Frese acquired knowledge of Lee’s case that required his
recusal under Canon 3(E)(1)(a) of the Code of Judicial Conduct. That canon
provides, in relevant part:
(1) A judge shall disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be questioned,
including but not limited to instances where:

(a) the judge has . . . personal knowledge of disputed evidentiary
facts concerning the proceeding.

The personal knowledge that requires recusal is knowledge acquired
from extrajudicial sources. Jones v. State, 416 N.E.2d 880, 881 (Ind. Ct.
App. 1981). It is obvious in this case that Judge Frese was acting in his
official capacity during both hearings dealing with Avance’s plea
agreement. Any knowledge he gained through his service as a sitting judge
is not “personal” within the established meaning of the canon. Although
this Court has not addressed the specific points Lee raises, the Court of
Appeals has previously held that a judge need not disqualify himself merely
because he has made an adverse ruling against a defendant in a related
action, Stanger v. State, 545 N.E.2d 1105, 1118 (Ind. Ct. App. 1989), or
because he has presided over the trial of a co-defendant, Jones, 416
N.E.2d at 882.
Further, the law presumes that a judge is unbiased and unprejudiced in
the matters before him. Clemens v. State, 610 N.E.2d 236, 244 (Ind. 1993).
The record must show actual bias or prejudice of the judge against the
defendant before a conviction will be reversed on the ground that the trial
judge should have disqualified himself. Sturgeon v. State, 719 N.E.2d
1173, 1181-82 (1999). Lee alleges that Judge Frese demonstrated bias by
peremptorily denying a defense counsel objection during the cross-
examination of Officer Thompson. As we read the record, it shows only that
the judge denied defense counsel’s request to go off the record. This is
clearly within the trial court’s discretion. We find no indication that
Judge Frese demonstrated any actual bias or prejudice against Lee.
Accordingly, the trial court did not err in denying the motions for a
change of judge.
II. Photographic Evidence
Lee claims that the trial court abused its discretion by admitting a
photograph of Kevin’s body at the crime scene. Lee argues that the
relevance of the photograph, which shows Jennifer kneeling over her
husband’s bloody body, was clearly outweighed by the likelihood that it
would inflame the jury.
This Court reviews the trial court's decision to admit photographic
evidence for an abuse of discretion. Cutter v. State, 725 N.E.2d 401, 406
(Ind. 2000). Although a photograph may arouse the passions of the jurors,
it is admissible unless “its probative value is substantially outweighed by
the danger of unfair prejudice.” Ind. Evidence Rule 403; accord Cutter,
725 N.E.2d at 406. Photographs depicting matters that a witness describes
in testimony are generally admissible, and photographs depicting the crime
scene are admissible as long as they are relevant and competent aids to the
jury. Woods v. State, 677 N.E.2d 499, 504 (Ind. 1997). The fact that a
photograph or videotape may depict gruesome details of a crime is not a
sufficient basis for exclusion. Isaacs v. State, 659 N.E.2d 1036, 1043
(Ind. 1995).
The photograph here offered probative value by accurately depicting
the crime scene as described in the testimony of an officer who arrived at
the scene shortly after Kevin was shot. Lee claims that Jennifer’s
presence in the photograph serves only to “harden the jury” against Lee and
suggests that the prejudice inspired by sympathy for the victim’s wife
outweighs any probative value. The scene is sad and disturbing, but
Jennifer’s face is largely blocked and any expression of grief or shock is
hidden in the photograph. The most striking feature of the photograph is
Kevin’s bloody corpse, and, although the victim’s death mask and the pool
of blood are unpleasant to view, the photograph is not so gruesome as to be
unduly prejudicial. It does not show a graphic close-up of the wound or
the victim’s body in an altered state. Because the probative value was not
substantially outweighed by the danger of unfair prejudice, the trial court
did not abuse its discretion in admitting this exhibit.
III. Sufficiency of Evidence
Finally, Lee argues that there was insufficient evidence to support
her conviction for felony murder. Specifically, she claims that the “sole
basis of the conviction appears to be Lt. Thompson’s testimony” that Lee
confessed to him and that his testimony invokes the “incredible dubiosity
doctrine.”
Lee’s reliance on “incredible dubiosity” is misplaced. That doctrine
is limited to cases where a sole witness presents inherently contradictory
testimony that is equivocal or the result of coercion and there is a
complete lack of circumstantial evidence of the appellant's guilt. Tillman
v. State, 642 N.E.2d 221, 223 (Ind. 1994). Although Thompson was the only
testifying witness to Lee’s confession while in police custody, he was not
the only witness to testify against her. His testimony was uncorroborated,
but it was not inherently improbable. Nor was there a lack of
circumstantial evidence of Lee’s guilt.
Our standard of review for sufficiency claims is well settled. We
will not reweigh the evidence or assess the credibility of witnesses.
Rather, we look to the evidence and reasonable inferences drawn therefrom
that support the verdict and will affirm the conviction if there is
probative evidence from which a reasonable jury could have found the
defendant guilty beyond a reasonable doubt. Carr v. State, 728 N.E.2d 125,
129 (Ind. 2000). In addition to Thompson’s testimony concerning Lee’s
confession, Boyd’s testimony concerning Lee’s and Avance’s behavior
immediately before Kevin’s death, and Boyd’s limited eyewitness account of
the shooting corroborated the State’s view of the crime. The credibility
of these two witnesses was for the jury to determine. We cannot conclude
that there was insufficient evidence for the jury to convict Lee of felony
murder.
Conclusion
The judgment of the trial court is affirmed.

SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.