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).