Burks v. State
| Decision Date | 06 December 2005 |
| Docket Number | No. 45A03-0410-CR-479.,45A03-0410-CR-479. |
| Citation | 838 N.E.2d 510 |
| Parties | Elton L. BURKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Supreme Court |
Marce Gonzalez, Jr., Merrillville, for Appellant.
Steve Carter, Attorney General of Indiana, Maureen Ann Bartolo, Deputy Attorney General, Indianapolis, for Appellee.
Elton Burks brings a separate appeal of his two convictions for Attempted Murder1 after a joint jury trial with co-defendant, Victor Wiggins.2 As restated, Burks presents four issues for our review:
1. Did the trial court abuse its discretion by failing to grant Burks's motion for mistrial based upon testimony that Burks had shot someone in an incident unrelated to the offenses for which he was charged?
2. Were the jury's verdicts as to Wiggins and Burks inconsistent, thereby requiring the trial court to grant Burks's motion for judgments on the evidence as to attempted murder?
3. Was the trial court required to halt further questioning of a witness?
4. Did the sentence imposed by the trial court violate the principles of Blakely v. Washington?
We affirm.
The facts relevant to the appeal disclose that on July 27, 2003, at approximately 6:45 p.m., Markale Bolden was walking between 11th Street and Burr in Gary, Indiana when he saw Burks driving a white Lexus. Burks pointed a .40 caliber Glock handgun at Bolden. Wiggins was sitting in the passenger seat of the Lexus. Bolden overheard Wiggins tell Burks not to shoot Bolden because Bolden had "nothing to do with it" and is a cousin of Wiggins's girlfriend. Transcript at 348. Approximately 45 minutes later, Bolden rode in a car driven by Dupree Jackson to Garrett Smith's grandmother's house in Gary. Smith was outside.
A short time later, Smith and Bolden observed Burks driving the white Lexus with gold trim. Burks stared with a "hateful" look. Id. at 57. Wiggins was in the passenger seat. Smith had known Burks for approximately ten years and had known Wiggins for approximately seven years. Bolden knew Burks for approximately fifteen years and had known Wiggins for approximately seven years.
After Burks drove by, Smith sat on a car parked on the street and waited for Bolden to walk over. Within a few minutes Smith heard a noise that he thought was attributable to "fireworks." Id. at 62. He walked toward the noise. Then he saw "dust flying up from the concrete and [saw] ... Burks in his yellow shirt, [and Wiggins] in his ... black and red shirt." Id. at 61. Burks and Wiggins had "assault-type weapons" pointed at Smith and Bolden. Id. at 118. When Smith saw Burks and Wiggins with the weapons, Smith "took off running and they started jogging toward" him. Id. at 64. Burks and Wiggins were firing the guns at Smith and Bolden.
Before Bolden heard the shooting start, he heard someone state, "Repent from redemption and recognize me as the Lord Prince Amin." Id. at 252. Bolden knew that Burks referred to himself as "Prince Amin." Id. at 253. Immediately thereafter, Bolden heard gunshots.
After Smith had initially walked southbound toward the shots, he turned and ran in the same direction as Bolden. They both ran northbound toward a church and a field. Smith ran "straight up the sidewalk, then got in the street, because the gunfire got heavy ...." Id. at 65. Smith was shot in the hand. He continued to run through a field until he collapsed after being shot in the hip.3 Smith "laid all the way on the ground because [he] was still hearing shots." Id. at 67.
Bolden ran up the street toward the church. When he neared the doorway, he was shot in his upper arm. Bolden continued to run. He was shot again in the forearm. He heard a voice that he knew to be Wiggins's shout an obscenity at him. Bolden heard shots that sounded as though two different caliber weapons were being fired—a small caliber weapon and an assault rifle. Bolden continued running; however, he was bleeding and began to feel weak. After kneeling near some shrubs, he proceeded to a fire station for assistance. An ambulance was called.4
Smith's uncle and a friend came to assist Smith in the field and an ambulance arrived. A police officer was able to question Smith briefly while Smith was in the ambulance. Smith was able to tell the officer that Elton Burks shot at him and gave a description of the car Burks had been driving. Smith was questioned further at the hospital.
Later that evening, while the investigation was ongoing, a police officer saw a white Lexus near the church where Bolden was shot. Burks was driving, and he was still attired in the yellow shirt he had been wearing earlier. The front-seat passenger was wearing a black shirt. From the silhouettes, it appeared that a third person was in the back seat. The officer activated the lights on the squad car he was driving and attempted to stop the Lexus. Burks slowed the Lexus, then "accelerated through the intersection." Id. at 387. Burks continued to accelerate, driving through stop signs and traffic signals without attempting to slow or stop. Several police officers in squad cars joined the pursuit. At one point, Burks's Lexus almost struck one of the squad cars; the officer was able to see Burks driving and saw that the front-seat passenger was wearing a black shirt. He also observed a woman in the back seat wearing a yellow shirt. Because the officers were slowing at traffic signals and signs, they lost sight of the Lexus.
An auxillary police officer then reported that people were running through his yard. The officers arrived in the area and observed Wiggins wearing a black shirt and black pants, and a woman wearing a yellow shirt. The two were walking on the sidewalk but they seemed to be out of breath as though they had been running. One officer recognized Wiggins as the front-seat passenger in the Lexus. The woman, Jacqueline Adamson, identified herself as Wiggins's sister. Both Wiggins and Adamson were arrested. Burks was discovered nearby when he was running across the street and almost collided with a squad car. Burks was arrested. Shortly thereafter, the officers discovered the Lexus parked two or three blocks from the location of the arrests.
One of the officers at the scene, Officer Ryan Martens, began to inventory the items within the Lexus prior to it being towed. He discovered a small amount of marijuana in the door handle. When he discovered $3,360 cash in the center console of the Lexus, Officer Martens stopped the inventory search and had the car towed to the crime scene investigation ("CSI") garage. Id. at 477.
Burks was charged with two counts of attempted murder and two counts of battery, as class C felonies. Wiggins was charged with the same offenses.
At Burks and Wiggins's jury trial, Bolden testified that prior to the shooting, at a time when he and Smith were on friendlier terms with Burks, Burks had commented that "he had problems with Garrett Smith and that he was going to knock off his block." Id. at 297. Bolden further testified that Burks then included Bolden in the threat. At the conclusion of the trial, Burks was convicted on all counts. Wiggins was found not guilty of the two attempted murder counts, but he was found guilty of the two battery counts.
On August 19, 2004, Burks's sentencing hearing was held. The trial court found no factors in mitigation of Burks's sentence. The trial court found five aggravating factors. The court imposed two thirty-eight-year sentences for the two attempted murder convictions and ordered the sentences to be served consecutively. The trial court did not enter judgments upon the two battery charges.
Burks contends that the trial court abused its discretion by failing to grant his motion for a mistrial based upon Smith's testimony that Burks had shot someone in an incident unrelated to offenses at issue at trial. Specifically, Burks urges that the trial court erroneously allowed a jury question directed to matters he had successfully sought to have excluded through a motion in limine. Burks, in essence, argues that the trial court's ruling allowing the juror's question inappropriately allowed Ind. Evid. Rule 614, regarding juror's questions, to override the weighing process of Ind. Evid. Rules 403 and 404(b) with regard to relevance and the admission of evidence of other bad acts. Thus, according to Burks, the evidence of the uncharged shooting of a person other than Smith and Bolden Appellant's Brief at 9.
At the trial, the jurors submitted written questions for the witnesses. After Smith testified, two jurors submitted proposed questions as to whether Smith knew "the reason that Burks and Wiggins would want to shoot you". Transcript at 211. Burks objected on the ground that the answer would likely lead to matters that had been excluded by the grant of the motion in limine; specifically, the evidence that Burks had asked Smith to join his gang and sell drugs. The trial court acknowledged the possibility of such but indicated the question should be posed to Smith because identity and motive were at issue. The trial court stated:
It's a highly relevant question. This issue is identi[t]y. The question goes to his motive. I'm looking at rule 404 at this time. And, quite frankly, I think that it is, in fact, a proper question, in light of the — the defense has been raised, the issue is before the jury. And, quite frankly, everything that I've heard, this raises — I understand that this is going to raise a lot of issues that were not already discussed by either side, but it's a question by the jury. I think the court of appeals have to now deal with the consequences of allowing these juror questions. We had a motion in limine. [The State] was not going to get into it. But in...
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