________________________________________________________________________
Attorney for Appellant Attorneys for Appellee
Jeff Schlesinger Karen Wilson-Freeman
Crown Point, Indiana Attorney General of Indiana
Adam M. Dulik
Deputy Attorney General
Indianapolis, Indiana
________________________________________________________________________
IN THE INDIANA SUPREME COURT
KERRY TREMAYNE MURRAY, )
)
Appellant, ) Supreme Court No.
v. ) 45S05-0102-CR-138
)
STATE OF INDIANA, ) Court of Appeals No.
) 45A05-0002-CR-73
Appellee. )
________________________________________________________________________
ON PETITION TO TRANSFER
Lake Superior Court – The Honorable Richard W. Maroc, Judge
Cause No. 45G01-9906-CF-106
________________________________________________________________________
February 27, 2001
Per Curiam
The appellant, Kerry Tremayne Murray, pulled a handgun from the
waistband of his pants and shot a seventeen year-old female acquaintance in
the head. The shooting followed appellant’s threat that he could “do her
right now.”
A jury found appellant guilty of Attempted Murder. He was sentenced
to 38 years imprisonment for the crime. The Court of Appeals affirmed the
conviction in an unpublished memorandum decision. Murray v. State, 737
N.E.2d 1238 (Ind. Ct. App. 2000) (Table). Appellant petitioned this Court
to transfer jurisdiction pursuant to Former Appellate Rule 11(B),[1] a
petition we now grant.
A convicted felon cannot obtain a license to carry a handgun. Ind.
Code § 35-47-2-3(f)(1) (1998). To carry a gun without a license is a
crime. Ind. Code § 35-47-2-23 (1998). Appellant was a convicted felon and
was carrying a handgun without a license when he shot the victim. He
asserts the trial court erred in permitting the State to cross-examine him
about the fact that he was carrying a handgun unlawfully. The Court of
Appeals did not address this issue, finding that any claim of error was
waived because it was not preserved at trial. Memo. Dec. at 2 (citing Ind.
Evidence Rule 103). On transfer, appellant asserts that the claimed error
was preserved, and that he is therefore entitled to appellate review on
this issue.
Appellant’s trial counsel had, in fact, objected to the cross-
examination by the State concerning his unlawful possession of a handgun
during a colloquy between counsel and the court that concluded with the
trial judge advising counsel and the court reporter to “note the
objection.” R., pp. 402-411. Thus, we find that the alleged error was
preserved at trial and now address its merits.
Appellant had admitted carrying a handgun and shooting the victim.
His defense was that the shooting was accidental. Appellant asserts that
evidence of the fact he was carrying the handgun unlawfully was
inadmissible because: (1) it was irrelevant under Evidence Rule 401 and;
(2) it constituted improper impeachment under Evidence Rule 404(b).
Evidence is relevant that tends “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.” Evid. Rule 401. As
noted, appellant’s defense was that the shooting was accidental. The fact
that he was openly displaying a handgun knowing that there were penal
consequences to being caught by the police with the gun tends show that
appellant had a serious, affirmative purpose in taking the handgun from the
waistband of his pants.
In other words, a person who is unlawfully in possession of a firearm
would be expected to keep that fact concealed. Therefore, when such a
person openly brandishes a handgun, a fact-finder could conclude that the
person was highly motivated by a specific intent for doing so. Thus, the
fact that appellant’s possession of the handgun was unlawful was relevant
to his intent, and tended to negate his defense that the shooting was
accidental.
Evidence that is nevertheless relevant may by excluded “if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.” Evid. Rule
403. The decision whether to exclude otherwise relevant evidence because
of the danger of unfair prejudice or confusion is committed to the
discretion the trial court. Marcum v. State, 725 N.E.2d 852, 862 (Ind.
2000). Again, as noted, appellant admitted he was carrying a handgun. The
fact that he was not properly licensed to do so does not create an undue
suggestion of a propensity for violence. Moreover, as we have noted, the
evidence of unlawful possession was relevant to a key issue at trial –
appellant’s intent. Any purported prejudice associated with this evidence
does not substantially outweigh its probative value and we find no abuse of
discretion in its admission.
Appellant also claims the evidence of his carrying a handgun
unlawfully violated Evidence Rule 404(b), which provides, in 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 . . . .
Evidence Rule 404(b) is designed to prevent the jury from making the
forbidden inference that other wrongful conduct suggests present guilt.
Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998). In order for evidence of
other crimes, wrongs, or acts to be admissible, the trial court must
determine whether the evidence is relevant “for other purposes” than the
defendant’s propensity to commit the charged act and must balance the
probative value of the evidence against its potential prejudicial effect
pursuant to Evidence Rule 403. Evid. Rule 404(b); Barker, 695 N.E.2d at
930. We review the trial court’s decision to admit or refuse such evidence
for an abuse of discretion. Byers v. State, 709 N.E.2d 1024, 1027 (Ind.
1999).
One of the “other purposes” for which evidence of other crimes may be
admissible is to show intent. Evid. Rule 404(b). We have already stated
that appellant’s carrying and openly brandishing the handgun illegally is
relevant to his intent and that the probative value of this evidence is not
substantially outweighed by any potential prejudice. The trial court
committed no error in the admission of this evidence.
Having now provided appellate review of the substantive issue raised
by appellant but not addressed by the Court of Appeals, we summarily affirm
the remainder of the Court of Appeals’ memorandum decision. See Former
Appellate Rule 11(B)(3).[2]
All Justices concur except Boehm, J., who concurs in the result.
-----------------------
[1] For petitions filed after January 1, 2001, the applicable rule would be
Ind. Appellate Rule 57. However, the pending petition was filed before
that date and is governed by the former rule.
[2] If the petition to transfer in this cause had been filed after January
1, 2001, the applicable rule would have been Ind. Appellate Rule 58(A)(2).