Pickens v. State

• Decision Date: 08 March 2002
• Docket Number: No. 49A04-0106-CR-278.,49A04-0106-CR-278.
• Citation: 764 N.E.2d 295
• Parties: Delon PICKENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

764 N.E.2d 295

Delon PICKENS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-0106-CR-278.

Court of Appeals of Indiana.

March 8, 2002.

Patricia Caress McMath, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Delon Pickens appeals his conviction for murder, a felony.¹ He raises two issues, which we restate as:

1. Whether the trial court abused its discretion by admitting evidence that Pickens robbed and shot another person two weeks before the crime charged herein occurred; and 2. Whether the trial court abused its discretion by admitting evidence that police officers observed an assault rifle in Pickens's residence two years before the crime charged herein occurred.

We affirm.

The facts most favorable to the conviction follow. On December 7, 1998, Adderse Bradley was riding in Pickens's car when Pickens drove the car into an alley. Pickens pointed a gun at Bradley and took Bradley's shoes, coat, watch, and money. When Pickens let Bradley out of the car, Bradley shot at Pickens. Pickens then shot at Bradley, hitting him in the thigh.

On December 13, 1998, Bradley was sitting on a porch at Deborah Wells's house on North Kenwood Avenue in Indianapolis, Indiana. Bradley and his mother lived at Wells's house. Pickens stopped his car at the curb and asked Bradley if their dispute was over. Bradley responded that it was "cool" but he wanted his "stuff back." Transcript at 58.

On the evening of December 23, 1998, Wells had several guests at her home, including Bradley and Keith Whitfield. Whitfield was Wells's nephew and also lived with Wells occasionally. Whitfield left the house while wearing Bradley's coat. A few minutes later, shots were fired at the Wells residence. Although the police were called, Whitfield's body was not discovered until the next morning. His body was found on a walkway between Wells's residence and the neighboring house. The police found shell casings for an assault rifle and a shotgun at the scene.

In July 1999, Donald Carter told police that he had information regarding the shooting of Whitfield. Carter told police that in January 1999, Pickens informed him that Pickens and another man shot Whitfield but they were trying to kill Bradley. Carter also told police that Pickens had shown Carter a 12 gauge pump shotgun and an AK-47 assault rifle at Pickens's house. Julius Johnson, Pickens's cellmate, also informed police that Pickens had confessed to shooting Whitfield.

Pickens was charged with murder, a felony. Following a jury trial, Pickens was convicted and sentenced to sixty-five years in the Indiana Department of Correction.

Pickens argues that the trial court abused its discretion by admitting certain evidence. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Timberlake v. State, 690 N.E.2d 243, 255 (Ind.1997), reh'g denied, cert. denied, 525 U.S. 1073, 119 S.Ct. 808, 142 L.Ed.2d 668 (1999). An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh'g denied.

However, if a trial court abused its discretion by admitting the challenged evidence, we will only reverse for that error if "the error is inconsistent with substantial justice" or if "a substantial right of the party is affected." Timberlake, 690 N.E.2d at 255. Any error caused by the admission of evidence is harmless error for which we will not reverse a conviction if the erroneously admitted evidence was cumulative of other evidence appropriately admitted. Stephenson v. State, 742 N.E.2d 463, 481 (Ind.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 905, 151 L.Ed.2d 874 (2002).

I.

The first issue is whether the trial court abused its discretion by admitting evidence that Pickens robbed and shot Bradley two weeks before Whitfield was shot. Despite Pickens's objection, the trial court permitted the testimony under Ind. Evidence Rule 404(b) as evidence of Pickens's motive. However, the trial court instructed the jury to consider the testimony only on the issue of motive and not "to show that [Pickens] acted in a similar fashion on December 23rd." Transcript at 20.

Ind. Evidence Rule 404(b) provides, in part, that:

"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...."

The rule is "designed to prevent the jury from assessing a defendant's present guilt on the basis of his past propensities." Hicks v. State, 690 N.E.2d 215, 218-219 (Ind.1997). In determining whether to admit evidence under Ind. Evidence Rule 404(b), the trial court must: (1) determine whether 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) balance the probative value of the evidence against its prejudicial effect pursuant to Ind. Evidence Rule 403.² Id. at 221. To determine whether the trial court abused its discretion, we employ the same test. See, e.g., id. at 221-223.

Consequently, we must first determine whether Pickens's incident with Bradley is relevant to a matter at issue other than Pickens's propensity to murder Whitfield. The State's theory of the case was that Pickens intended to kill Bradley but mistakenly killed Whitfield because Whitfield was wearing Bradley's coat on the night in question. The trial court admitted the evidence at issue to show Pickens's motive. Pickens contends that evidence of the relationship between Bradley and Pickens was not relevant to his motive for shooting Whitfield. We disagree.

The evidence of Pickens's dispute with Bradley was relevant to show Pickens's motive to shoot Bradley. The fact that Pickens mistakenly shot Whitfield instead of Bradley does not eliminate the motive for the shooting. Thus, the evidence was relevant to a matter at issue other than Pickens's propensity to commit the murder. See, e.g., Swanson v. State, 666 N.E.2d 397, 398 (Ind.1996), reh'g denied.

We must next determine whether the trial court abused its discretion in balancing the probative value of the evidence of Pickens robbing and shooting Bradley against its prejudicial effect. Pickens argues that the evidence is highly prejudicial because it shows him "to be a person capable of shooting someone else." Appellant's Brief at 6. Moreover, Pickens argues that the danger of unfair prejudice is high because of the violent nature of the incident.

Our supreme court previously considered whether testimony that a defendant had been accused of child molesting by the victim was unfairly prejudicial when the defendant had been charged with murdering that victim. Taylor v. State, 659 N.E.2d 535, 543 (Ind.1995). Our supreme court held that:

The State introduced the information to demonstrate Taylor's motive for killing Tawana. Its theory was that Taylor became so angry at Tawana and Phyllis for accusing him of child molesting that he lashed out at them. While evidence of past sexual misconduct with children may be highly prejudicial, its probative value in this case was not substantially outweighed.

Id. (footnote omitted). Similarly, in this case, while the evidence that Pickens robbed and shot Bradley may be prejudicial, its probative value regarding Pickens's motive to shoot Whitfield was not outweighed. Moreover, the trial court specifically instructed the jury to consider the testimony only on the issue of motive. The trial court did not abuse its discretion by admitting the evidence that Pickens robbed and shot Bradley. See, e.g., Ortiz v. State, 716 N.E.2d 345, 350 (Ind.1999).

II.

The next issue is whether the trial court abused its discretion by admitting evidence that police officers had seen an assault rifle in Pickens's residence two years before the crime charged herein occurred. Over Pickens's objection, the State presented evidence that police searched a residence where Pickens lived with his parents pursuant to a search warrant in 1996. During the search, the police officers saw an assault rifle in the basement of the home. However, because the rifle was not the object of the search and possession of the weapon was not illegal, the police officers left the assault rifle in the residence.

At trial, Pickens argued that this evidence was inadmissible under Ind. Evidence Rule 404(b) as a "prior bad act" and was also irrelevant. The State argued that the evidence was not a "bad act" under Ind. Evidence Rule 404(b). The trial court found that the evidence was relevant because shell casings from an assault rifle were found at the scene of Whitfield's murder and admitted the evidence.

On appeal, Pickens argues that the evidence is inadmissible under Ind. Evidence Rule 404(b). However, it is "by no means clear that weapons possession, evidence of gun sales, and the like, are necessarily prior `bad acts' for 404(b) purposes." Williams v. State, 690 N.E.2d 162, 174 (Ind.1997). Nevertheless,...