Bishop v. State, 49A02–1409–CR–622.

• Citation: 40 N.E.3d 935
• Case Date: July 31, 2015
• Court: Court of Appeals of Indiana

40 N.E.3d 935

Harold BISHOP, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1409–CR–622.

Court of Appeals of Indiana.

July 31, 2015.

Matthew D. Anglemeyer, Marion County Public Defender, Appellate Division, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, for Attorneys for Appellee.

Opinion

BROWN

, Judge.

[1] Harold Bishop appeals his conviction for murder. Bishop raises four issues, which we consolidate and restate as whether the trial court abused its discretion in admitting certain evidence. We affirm.

Facts and Procedural History

[2] On the morning of Saturday, September 1, 2012, at about 8:00 a.m., Pamela Dunlap and her neighbor Michael Armbruster were biking near the State Fairgrounds heading toward the Monon Trail in Indianapolis. As they approached the intersection at 38th Street and Winthrop Avenue, they observed a man, later identified as Khalfani Shabazz, on a porch sitting down, halfway in the doorway with his body propping open the front door, yelling “[o]h my God, oh my God,” and “help.” Transcript at 283. Armbruster and Dunlap dialed 911 and told Shabazz help was on the way.

[3] Indianapolis Metropolitan Police Department (“IMPD”) Officer Haskell Shaffer received the run to the scene and arrived about three to four minutes later. Armbruster and Dunlap flagged down Officer Shaffer and directed him to the porch, and Officer Shaffer approached Shabazz, observed that Shabazz had suffered trauma to his chest and stomach area and was bleeding, and asked him who he was and who had shot him. Shabazz did not respond and stared at Officer Shaffer with a blank stare, and Officer Shaffer could not determine whether Shabazz was aware of his surroundings. Soon after, other officers arrived and “cleared” the home to make sure others were not inside, and paramedics Kimberly Johnson and Adrian Foster arrived and approached Shabazz on the porch and found a driver's license in his pocket. Id. at 299. The paramedics observed that Shabazz had suffered five gunshot wounds

including shots to the chest, the left shoulder, the left arm, the third right finger, which was almost amputated by a bullet that was still lodged within it, and a graze wound to the top of the head. The paramedics administered oxygen using a nano-breather to Shabazz, who was sweating profusely. Johnson observed that Shabazz was trying to catch his breath and unable to speak in complete sentences, and she believed he was in shock. Johnson believed that, based on Shabazz's physical state, he required immediate transport to Wishard Hospital, and the paramedics loaded him into the ambulance for transport.

[4] In the ambulance, the paramedics noticed that Shabazz was starting to “compensate,” which meant that his blood was collecting in and around the areas of his major organs in order to keep him alive. Id. at 418. Shabazz had no blood pressure, and the paramedics administered two IVs using “the largest angio” that they could “so that a lot of fluid can get in the veins quickly” in an attempt to raise his blood pressure. Id. at 419. However, even after the IVs were provided, Shabazz's blood pressure “was only 80 which is pretty low.” Id. at 421. Shabazz asked multiple times while in the ambulance if he was going to die, and although Johnson believed he would not live, she told him “he was going to be okay” to try and comfort him. Id. at 420.

[5] When the ambulance arrived at the hospital, Shabazz was taken to a shock room for immediate medical attention. While he was awaiting surgery, IMPD Sergeant and Investigator John Maloney, with the aggravated assault division, as well as IMPD Homicide Detective Mark Prater, arrived, and each spoke with Shabazz separately. Detective Prater first spoke with him, asked who shot him, and Shabazz responded: “Zimbabwe.” Id. at 363. Shabazz also told him that Zimbabwe drove a grey car and that the shooting “was over a job they were doing on South Meridian Street.” Id. at 364. The conversation lasted for about ten or fifteen seconds. Sergeant Maloney then met with Shabazz and asked who shot him, and at first he could not understand Shabazz's response “[b]ecause [Shabazz] was speaking very low and he had the oxygen mask on,” and he noticed that Shabazz was having trouble breathing. Id. at 346. After removing the oxygen mask, Sergeant Maloney asked again and Shabazz responded: “Zimbabwe.” Id. Shabazz told him that Zimbabwe was black, that he had a grey vehicle, and that Shabazz and Zimbabwe “had worked together on a job on the south side on Meridian Street” and that a dispute over money from that job had arisen. Id. at 346–347. Sergeant Maloney was able to speak with Shabazz for about a minute before he was wheeled off to surgery.

[6] Shabazz died in surgery at 1:41 p.m. that day. Upon his death, IMPD Homicide Detective Charles Benner was assigned as lead detective, and he met with the officers who had taken part in the investigation, as well as friends and family of Shabazz including his fiancée Shelinda Kerr. During Detective Benner's interview with Kerr, she identified the man she knew as Zimbabwe from a photo array, and the person she identified was Bishop. Kerr had known Zimbabwe since July of 1998 as a friend and partner in construction work with Shabazz. Detective Benner also met with a man named Carl Alsum, who was referred to him by Kerr, and who also identified Bishop as Zimbabwe from a photo array.

[7] Also, on September 1, 2012, IMPD Crime Lab Investigator Michael Hasty went to Shabazz's home to collect evidence which included, among other things, three spent shell casings, and he transported the evidence to the Crime Lab. On September 2, 2012, Dr. Joyce Carter conducted an autopsy of Shabazz's body and noted that he suffered gunshot wounds

including an abrasion to the top of his head, a wound in his left arm, a wound in the back of his left shoulder, a wound to the right side of his chest, and a wound to his third right finger that nearly amputated the finger. The shot to his chest caused serious damage to his body, including fracturing two ribs, a huge tear to his liver of approximately eight inches in length, holes in his diaphragm, damage to his hepatic vein, a hole in his right lung, as well as tremendous bleeding. She noted that the doctors during surgery applied eleven gauze sponges to the wound, each of which is capable of holding a cup to a cup and a half of blood, which, combined with the blood found in the abdomen and right chest cavity, amounted to about four and a half liters of blood loss.

[8] On September 7, 2012, the State charged Bishop with the murder of Shabazz. On September 12, 2012, Boone County Sheriff Deputies Bradley Dunn and Jesse Boggs were dispatched to the area of 600 South 650 West, which was a rural location surrounded by corn fields, farm land, and some woods to investigate a suspicious person. When the deputies arrived on the scene, they observed a black male sitting on a phone utility box near the northwest corner of the intersection. Deputy Dunn approached the man, later identified as Bishop, and asked him what he was doing, and Bishop responded that “he has warrants.” Id. at 454. Deputy Dunn asked what the warrants were for, and Bishop said “for shooting people.” Id. Bishop spelled his name for the deputies, and Deputy Dunn then realized that he was the person they “were supposed to be looking for.”¹ Id. The deputies confirmed that there were warrants out for Bishop, and Bishop told them that “[h]is car was in the woods.” Id. at 455. Deputy Dunn arrested Bishop and took him to jail where he was handed off to IMPD. Other Boone County Sheriff's Deputies later discovered Bishop's car, a grey Mazda which had been smeared with mud to act as camouflage, about two to three hundred feet from the road in a wooded area.

[9] On December 11, 2012, the State filed a motion for joinder of offenses for the purposes of trial under the instant cause number as well as under cause numbers 49G06–1209–FA–061989 (“Cause No. 61989”) and 49G06–1209–FA–061225 (“Cause No. 61225”). In its motion, the State noted that the conduct underlying Cause No. 61989 involved “the attempted murder and aggravated battery of Shana Ford–Gogoua and Zackery Joseph that took place on September 1, 2012 (at around 6:44 am),” and that Cause No. 61225 involved “the attempted murder and aggravated battery of William Cullens that took place on August 31, 2012 (at around 10:50 pm)....” Appellant's Appendix at 54. The State argued that “.45 caliber shell casings [were] recovered from each scene” and Firearms and Toolmarks Examiner Timothy Spears determined that they “were in fact fired from the same weapon” and “of the same manufactured brand....” Id. at 55. The State further argued that the three separate shooting incidents were committed over a ten-hour period, were of the same or similar character, and were geographically close in proximity. On January 7, 2013, Bishop filed a notice of objection to the State's request for joinder, and the court denied the State's motion the following day.

[10] On November 8, 2013, in Cause No. 61989, the case involving the shootings of Shana Ford–Gogoua and Zackery Joseph, the State filed a Notice of Intent to Offer Evidence Pursuant to Ind. Evidence Rule 404(b)

and Request for Hearing to Address Admissibility of Evidence (the “Rule 404(b) Motion”) in which it stated that it intended to present evidence regarding the murder of Shabazz and the attempted murder of Cullens using “the same .45 caliber handgun” and that such evidence is “essential and relevant to proving the identity of [Bishop] as the same person who attempted to murder Ms. Ford–Gogua and Mr. Joseph....” Id. at 250–251. On November 19, 2013, Bishop filed his response arguing that the crimes were not sufficiently similar to earmark them as one person's handiwork. The Rule 404(b) Motion was incorporated into the record...