ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM C. MENGES, JR. KAREN M. FREEMAN-WILSON
Howard County Public Defender Attorney General of Indiana
Kokomo, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
UNDRAY D. WILSON, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 34S00-0006-CR-391
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable Stephen M. Jessup, Judge
Cause No. 34D02-0003-CF-95
ON DIRECT APPEAL
June 28, 2002
RUCKER, Justice
Undray Wilson appeals his conviction for murder contending the
evidence was not sufficient to negate his claim of self-defense and that
the trial court erred in admitting a photograph into evidence. We affirm.
Facts
The facts most favorable to the judgment show that shortly before noon
on February 27, 2000, Wilson was standing on the front porch of his house
when Richard Listenbee and his brother David Nesbitt drove by in a car.
Listenbee was driving, and Nesbitt was seated in the passenger seat. The
three men had been involved in a physical altercation two days earlier.
The record shows the car drove past the house and turned into an alley.
Intending to back up and confront Wilson, Listenbee removed a handgun from
the glove compartment of the car. At that point, Wilson went into the
house, retrieved his own weapon, returned to the porch, and began shooting
at the car before it left the alley. Nesbitt then exited the car, fired
one or two shots, and got back in the car. As the car sped away, Wilson
ran off the porch into the middle of the street and fired several more
shots. One of the bullets struck Nesbitt in the chest, and he died as a
result.
Wilson was arrested and charged with murder. After a jury trial, he
was convicted as charged. The trial court sentenced Wilson to fifty-five
years imprisonment. This direct appeal followed.
Discussion
I.
Wilson challenges the sufficiency of the evidence contending the State
failed to rebut his claim of self-defense. Specifically, Wilson points to
conflicting evidence concerning who first began shooting. According to
Wilson, he merely returned fire after he and other residents of the house
were first fired upon.
A valid claim of defense of oneself or another person is legal
justification for an otherwise criminal act. Ind. Code § 35-41-3-2(a);
Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). In order to prevail on
such a claim, the defendant must show that he: (1) was in a place where he
had a right to be; (2) did not provoke, instigate, or participate willingly
in the violence; and (3) had a reasonable fear of death or great bodily
harm. McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998). When a claim of
self-defense is raised and finds support in the evidence, the State has the
burden of negating at least one of the necessary elements. Id. If a
defendant is convicted despite his claim of self-defense, this Court will
reverse only if no reasonable person could say that self-defense was
negated by the State beyond a reasonable doubt. Taylor v. State, 710
N.E.2d 921, 924 (Ind. 1999). In any event, a mutual combatant, whether or
not the initial aggressor, must declare an armistice before he or she may
claim self-defense. Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999); see
I.C. § 35-41-3-2(e)(3) (2002) (“[A] person is not justified in using force
if: . . . the person has entered into combat with another person or is the
initial aggressor, unless the person withdraws from the encounter and
communicates to the other person the intent to do so and the other person
nevertheless continues or threatens to continue unlawful action.”). The
standard of review for a challenge to the sufficiency of evidence to rebut
a claim of self-defense is the same as the standard for any sufficiency of
the evidence claim. Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999). We
neither reweigh the evidence nor judge the credibility of witnesses. Id.
If there is sufficient evidence of probative value to support the
conclusion of the trier of fact, then the verdict will not be disturbed.
Id.
Wilson concedes that he knowingly or intentionally killed David
Nesbitt. He insists however that he did so in self-defense. According to
Wilson, he was in a place where he had a right to be, he did nothing to
provoke the attack, and was justified in believing that “the hail of
bullets being directed toward [other residents of the house] and himself
created a reasonable apprehension of death or serious bodily injury.” Br.
of Appellant at 8. Wilson’s argument fails. The record shows that Wilson
was a willing participant in the shooting. On this ground alone the State
successfully rebutted his self-defense claim. Further, even assuming for
the sake of argument that Wilson was not the initial aggressor and was only
“returning fire,” the record shows he continued shooting after Nesbitt had
ceased firing and the car was attempting to leave the area. At that point,
Wilson could not have been laboring under a reasonable fear of death or
great bodily harm. See Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct.
App. 1999) (finding sufficient evidence to rebut self-defense claim when
defendant stabbed and continued to pursue initial aggressor with a knife
after initial aggressor retreated). Rather, the reasonable inference was
that he was retaliating for the initial assault. Further, the record is
clear that at no time did Wilson withdraw from the encounter. He was
required to do so as a precondition for a claim of self-defense. We
conclude the evidence was sufficient to rebut Wilson’s self-defense claim.
II.
Over Wilson’s timely objection, the trial court admitted into
evidence a photograph offered by the State depicting Wilson and several
other males brandishing various firearms and flashing what appear to be
gang signs. In this appeal, Wilson contends the trial court erred in
admitting the exhibit into evidence because it was not relevant and, even
if relevant, its prejudicial impact outweighed its probative value.
Relevant evidence is “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. In this case, the State argues the
evidence was relevant because two shell casings recovered from the crime
scene were fired from a 9-millimeter handgun, a weapon similar to the type
of weapon that Wilson was brandishing in the photograph. The argument
continues that the photograph was thus relevant because it tended to show
that Wilson possessed the murder weapon at the time of the shooting. We
disagree. Even if the weapon that Wilson was depicted as holding was in
fact the same weapon used in the crime, the photograph would have supported
only a slight tendency that Wilson was the gunman in this case. We have
held:
The fact that a person has in his possession the same instrumentality
as that used in a crime has only the slightest tendency to support an
inference that the person committed the crime. That is especially so
where possession of the instrumentality is remote in time from the
date the crime occurred.
Pope v. State, 737 N.E.2d 374, 378 (Ind. 2000) (rejecting on relevancy
grounds a claim that bullets recovered at the crime scene looked similar to
bullets found in a witness’ possession a week earlier).
In this case, we do not view the photograph as having any relevance
whatsoever. First, because no weapon was introduced at trial, there was no
comparison between the shell casings found at the scene and the weapon
depicted in the photograph. Second, the record shows Wilson possessed the
weapon in the photograph two months before Nesbitt was murdered. There is
no link between the shell casings recovered at the crime scene and the
photograph the State introduced at trial. In sum, the photograph did not
make more or less probable any issue before the jury. We conclude
therefore that the trial court erred by admitting it into evidence.
However, errors in the admission or exclusion of evidence are to be
disregarded as harmless unless the errors affect the substantial rights of
the party. Ind. Trial Rule 61; Turben v. State, 726 N.E.2d 1245, 1247
(Ind. 2000). To determine whether an error in the introduction of evidence
affected a defendant’s substantial rights, this Court considers the
probable impact of that evidence upon the jury. Id. Here, there was never
any doubt that Wilson fatally wounded Nesbitt. In this appeal, Wilson has
conceded as much. The only question was whether he acted in self-defense.
As can be seen by the discussion infra, evidence that Wilson did not act in
self-defense was overwhelming. Thus, it is unlikely that the inadmissible
photograph had an impact on the jury’s verdict. Although the trial court
erred in admitting the photograph into evidence, the error was harmless.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.