ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Katherine A. Cornelius Steve Carter
Marion County Public Defender Attorney General of Indiana
Office
Indianapolis, IN Adam M. Dulik
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
KERRIE PRICE, )
)
Appellant (Defendant Below), )
)
v. ) No. 49S00-0006-CR-385
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robyn Moberly, Judge
Cause No. 49G02-9702-CF-028645
April 10, 2002
SHEPARD, Chief Justice.
Appellant Kerrie Price fatally shot two security guards at an
apartment in an Indianapolis neighborhood called the Meadows, and his trial
eventually led to a sentence of life without parole. We affirm.
Facts & Procedural History
On the afternoon of February 19, 1997, security guards Robert Black
and Bryan Northern heard someone making loud “weird” noises at an apartment
complex where they worked on the northeast side of the city. They told the
offender to quiet down, but he made the noise again and added an obscenity.
The noisemaker and his cousin then ran into an apartment building at 4138
Edgemere Court.
Black and Northern pursued the two young men into the building and
began knocking on doors to locate them. The guards asked the occupant of
apartment D2 if she had seen anyone wearing a white t-shirt enter the
building, but she had not. She heard the guards go next door and knock at
William Colquit’s apartment.
Price, wanted on an outstanding warrant for failure to appear in
court on a probation violation charge, was in that apartment. He later
told a friend that two security guards knocked on the door, asked whether
he lived there, and requested identification. He went to a closet,
purportedly to retrieve his identification, but instead grabbed a gun and
fired at the guards.[1]
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 22nd, 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.[2]
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.
I. Evidentiary Challenges
Decisions to admit or exclude evidence are matters for the trial
court’s discretion. See Minnick v. State, 544 N.E.2d 471 (Ind. 1989). We
afford these decisions great deference on appeal, reversing only when a
manifest abuse of discretion denies the defendant a fair trial. Id.
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 Price’s 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.[3] (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 it’s 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 trial.
Because identification was not at issue, the photographs were
irrelevant. See Ind. Evidence Rule 402. Mostly, they seemed designed as
character evidence inadmissible under Ind. Evid. R. 404(a) (“Evidence of a
person’s 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 one’s 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 Black’s autopsy to illustrate a pathologist’s testimony concerning the
number and location of Black’s 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
Black’s head.
The court allowed all the photographs because each of the seven
uniquely illustrated Black’s 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
Price’s 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
pathologist’s testimony that he found possible entry wounds consistent with
bullet holes in the shirt Northern was wearing when he was shot and with
Northern’s internal gunshot injuries. The photographs also showed
manifestations of sepsis from gunshot wounds, which the pathologist
testified caused Northern’s 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. 403.
C. Evidence of a Victim’s Character. Price argues that he should
have been allowed to attack Black’s 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. (Appellant’s 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.” (Appellant’s 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.” (Appellant’s 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. (Appellant’s 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 victim’s] 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 victim’s 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 Black’s prior conduct to show that Black had violent
propensities. The trial court appropriately refused to admit this
evidence.[4]
D. A Witness’s Plea Agreement. Turkessa Guthrie, Price’s 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.[5] It reduced the
charge to assisting a fugitive from justice, a class A misdemeanor, in
return for Guthrie’s guilty plea and testimony against Price.
Price argues that “Ms. Guthrie’s altered testimony was obtained
through illegal conduct by the State in the form of an illegal plea
agreement.” (Appellant’s 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 issue.
In 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 State’s witness as part of a plea
agreement. We said:
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 witness’s] credibility before this jury and its
legality would not affect [the witness’s] 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 witness’s] credibility.
Id.
Similarly, here, the circumstances of Guthrie’s 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 Guthrie’s 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. (Appellant’s 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 Moore’s deposition and prior
statement because “he’s come really close to committing perjury . . . he’s
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, what’s 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 Moore’s
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 Moore’s bias.
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.”
(Appellant’s 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 Moore’s 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.
II. Claims About Jury Instruction
Price raises two challenges to the court’s instructions. Jury
instructions, like evidentiary issues, lie within the trial court’s
discretion, and we reverse only when the instructions considered in their
entirety misstate the law or otherwise mislead the jury. Travis v. State,
488 N.E.2d 342, 345 (Ind. 1986).
A. Preliminary Self-Defense Instruction. Price claims the
preliminary instruction on self-defense denied him a fair trial.
(Appellant’s 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 Appellant’s 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.[6]
B. Lesser Included Offenses. Price also challenges the trial court’s
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. (Appellant’s Br. at 30-32.)
This ignores several final instructions on lesser included
offenses.[7] 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.
Price’s argument that two preliminary instructions denied him a
defense is meritless.
III. Remorse as a Mitigator
Price argues, “The trial court failed to recognize Mr. Price’s genuine
remorse regarding the deaths of Mssrs. Black and Northern.” (Appellant’s
Br. at 42.) Price expressed his remorse by saying he knew how it felt to
lose a loved one, because his own mother died of natural causes, and that
he was “very sorry about what happened.” (R. at 7566-67.)
In Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999), the defendant
said, “I’m remorseful for all what happened. I was just in the wrong place
at the wrong time . . . I just don’t 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.
IV. Order to Pay Fees
In January 1998, the defense moved for a continuance so it could
depose additional potential witnesses. The court postponed the trial from
April 6, 1998, to October 5, 1998, and ordered all discovery completed by
July 27, 1998. On September 30, 1998, the defense again requested a
continuance, which the court again granted.
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).
Price’s 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. (Appellant’s 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
Appellee’s Br. at 37-38; Appellant’s 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 court’s
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 so.
Conclusion
We affirm Price’s conviction and sentence, and the court’s assessment
of costs, with the exception noted immediately above.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] At trial Price claimed that the guards broke into the apartment and
fired first, forcing Price to return the fire in self-defense as he fled to
the back of the apartment, then out the front door. (R. at 6962-72.) On
appeal, however, we do not weigh evidence or judge credibility of
witnesses, and we look only to evidence favorable to the judgment. Hatton
v. State, 626 N.E.2d 442 (Ind. 1993).
[2] Price also gave a television interview after his arrest, in which he
said, “They know I wasn’t there. They know for a fact I wasn’t nowhere
inside that apartment complex at the time of that shooting. . . . I didn’t
fire nothing. . . . I don’t know what happened that day. . . I wasn’t there
when the shooting happened. . . . I didn’t do nothing.” (R. at 6781,
State’s Exh. 271.) At trial he claimed he lied only because jail personnel
had threatened him, although he did not mention these threats during the
interview and appeared quite calm and unhurried on camera. (Id., R. at
7051-53.)
[3] The State also argued that the photos proved that Price met another
witness at this particular club, but the defense pointed out that where the
two met was minimally relevant and offered a stipulation. (R. at 5539-40.)
The State acknowledged that it did not intend to try to argue or prove
gang affiliation. (R. at 5541.)
[4] We note that the defense was allowed to introduce evidence that Black
was carrying a gun the day of the shootings although in 1987, after an
Indiana State Police administrative hearing, he was deemed “not a proper
person to be licensed” to carry a handgun and his license was revoked. (R.
at 7190, 7298, 7303, 7386.)
[5] Indiana Code Ann. § 35-44-3-2 (West 1998) says:
A person not standing in the relation of parent, child, or spouse to
another person who has committed a crime or is a fugitive from justice
who, with intent to hinder the apprehension or punishment of the other
person, harbors, conceals, or otherwise assists the person commits
assisting a criminal, a Class A misdemeanor. However, the offense is
. . .
(2) a Class C felony if the person assisted has committed murder
or a Class A felony, or if the assistance was providing a deadly
weapon.
[6] The defense invoked the Sixth and Fourteenth Amendments when objecting
to the instruction. (R. at 5007.) Price does not argue a federal
constitutional claim on appeal, however, so we do not address such a claim.
[7] Final Instruction Five defined “included offense” and listed voluntary
manslaughter and reckless homicide as offenses included in murder. (R. at
2169.) Final Instructions Six and Seven explained the elements of both
murder and voluntary manslaughter and said that if “the State failed to
prove beyond a reasonable doubt that the Defendant was not acting under
sudden heat, you may find the Defendant guilty of Voluntary Manslaughter, a
Class A felony.” (R. at 2170-71.)
Final Instructions Eight and Nine described reckless homicide as an
included offense of murder, defined reckless homicide and listed its
required elements, and concluded, “If the State did prove each of these
elements beyond a reasonable doubt, you may find the Defendant guilty of
Reckless Homicide, a Class C felony.” (R. at 2174-75.) Final Instruction
Ten instructed the jury to deliberate on the mitigating factor of sudden
heat if it found the essential elements of murder proven, and to deliberate
on the offense of reckless homicide if it did not. (R. at 2176.) It
specifically said, “If the State has proven each of the essential elements
of a lesser included offense beyond a reasonable doubt, you may find the
Defendant guilty of the lesser included offense.” (Id.)