Berry v. State, No. 45S00-9610-CR-632

• Docket Nº: No. 45S00-9610-CR-632
• Citation: 704 N.E.2d 462
• Case Date: December 30, 1998
• Court: Supreme Court of Indiana

Page 462

704 N.E.2d 462 Ronald Michael BERRY, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 45S00-9610-CR-632. Supreme Court of Indiana. Dec. 30, 1998.

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Mark A. Bates, Appellate Public Defender, Crown Point, for Appellant.

Jeffrey A. Modisett, Attorney General, Suzann Weber Lupton, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

Defendant Ronald Michael Berry appeals his convictions and sentence imposed for the killing of his mother, father and grandmother. He contends that testimony that he had threatened to kill his parents and evidence seized from his van and backpack were improperly admitted at trial. He also contends that his sentence is manifestly unreasonable. Because we find the testimony and evidence was admitted in accordance with applicable constitutional and evidentiary requirements and that the sentence was not manifestly unreasonable, we affirm.

We have jurisdiction over this direct appeal because the longest single sentence exceeds fifty years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).

Background

On July 30, 1995, a van similar to the one driven by defendant was seen driving at a high rate of speed away from the Lake County home defendant shared with his grandmother, parents and brother. Several hours later, the bodies of the grandmother and parents were found inside, killed by multiple gunshot wounds.

Five days later, defendant was observed by police driving his van in Jasper County. A high speed, multi-county chase ensued, ending in a wreck. Defendant managed to escape on foot.

Two weeks later, defendant had an encounter with local police in Illinois who were unaware of his identity. After some discussion, defendant's backpack was searched and a handgun discovered. Defendant was arrested

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on a weapons charge and ultimately returned to Indiana for trial for the three murders.

At trial, evidence discovered in the search of the wrecked van and the handgun discovered in the search of the backpack were admitted over defendant's objection. Defendant was found guilty of the three murders. He was sentenced to 55 years for the murder of each parent, to be served concurrently, and 65 years for the murder of his grandmother, to be served consecutively to the first term.

I

At trial, defendant's brother testified about the relationship among defendant and the other members of his family prior to the murders. According to the brother, there had been an argument between the defendant and his parents approximately six months prior to the murders, in which defendant had said, "I will kill you all and then leave." The brother's testimony as to this statement was admitted over defense objection at trial. Defendant argues that the trial court committed reversible error because the statement's probative value was substantially outweighed by the danger of unfair prejudice.

Indiana Evidence Rule 404(b) proscribes the use of evidence of wrongs or acts to prove the character of a person in order to show action in conformity therewith. Evidence Rule 403 authorizes the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice. While defendant mentions Rule 404(b), he makes his principal argument on this issue under Rule 403. He contends his "I will kill you and then leave" statement was just an episode of momentary anger that did not constitute a real threat. Indeed, his brother testified that he thought defendant was just "blowing off steam," not actually threatening their parents. Because the statement was not a real threat, defendant maintains, its relevance was slight. But because the jury might well have drawn an inference of bad character from the evidence of the threat, defendant argues, it caused him substantial unfair prejudice.

We recently faced the question of the admissibility of evidence of threats of violence by a defendant against his eventual victim made two months before a murder. Ross v. State, 676 N.E.2d 339 (Ind.1996). We held that the trial court did not abuse its discretion in finding the threats admissible. Specifically, we found that the danger of unfair prejudice from the threats in that case did not outweigh their probative value. Id. at 346.

We reach the same result here. While the threat was admittedly more remote in time than that in Ross (six months here vs. two months in Ross ) and perhaps more equivocal ("blowing off steam"), this evidence was presented as part of more general testimony about the relationship between the defendant and the rest of his family. This testimony indicated that relations were strained and that the defendant often argued with his parents about his lifestyle, particularly his failure or refusal to find employment. There was no objection to this more general testimony of strained relations, only to the specific threat. For the same reasons we did so in Ross, we find that the trial court did not abuse its discretion in admitting the specific threat. It showed the degree to which relations had become strained. And as to the seriousness of the threat, that was a matter of weight for the jury to decide.

II

Following the high speed chase of defendant's van and his escape, the police impounded the van and searched it. Later, when the Illinois police confronted defendant, they searched his backpack. Evidence...