Boone v. State, 45S00-9903-CR-155.

• Decision Date: 12 May 2000
• Docket Number: No. 45S00-9903-CR-155.,45S00-9903-CR-155.
• Citation: 728 N.E.2d 135
• Parties: Shirwanda Sheri BOONE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

728 N.E.2d 135

Shirwanda Sheri BOONE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 45S00-9903-CR-155.

Supreme Court of Indiana.

May 12, 2000.

Jeff Schlesinger, Appellate Public Defender, Crown Point, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

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 795 (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...