ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Terrance W. Richmond Karen Freeman-Wilson
Milan, Indiana Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
INDIANA SUPREME COURT
STEPHANIE DUNLAP )
v. ) 49S00-0002-CR-104
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9801-CF-012097
On Direct Appeal
January 29, 2002
The defendant was convicted of murder
for the January 23, 1998, killing of
Tamika Ballard in Indianapolis. The defendant appeals claiming insufficiency of the evidence,
erroneous admission of an autopsy photograph, erroneous admission of evidence related to a
gun that was not the murder weapon, and erroneous exclusion of a transcript
of a witness's prior inconsistent statement. We affirm the trial court.
Sufficiency of the Evidence
The defendant claims there was insufficient evidence to show that she knowingly killed.
In reviewing a claim of insufficient evidence, we will affirm the conviction
unless, considering only the evidence and reasonable inferences favorable to the judgment and
neither reweighing the evidence nor judging the credibility of the witnesses, we conclude
that no reasonable fact-finder could find the elements of the crime proven beyond
a reasonable doubt. Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000);
Webster v. State, 699 N.E.2d 266, 268 (Ind. 1998); Hodge v. State, 688
N.E.2d 1246, 1247-48 (Ind. 1997). "A person engages in conduct 'knowingly' if,
when [s]he engages in the conduct, [s]he is aware of a high probability
that [s]he is doing so." Ind.Code § 35-41-2-2(b). A knowing killing
may be inferred from the use of a deadly weapon in a manner
likely to cause death. Hawkins v. State, 748 N.E.2d 362, 363 (Ind.
2001)("Evidence that [the defendant] pointed and fired a shotgun at [the victim] striking
him in the neck and chest is sufficient to sustain the murder conviction.");
Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996)("Firing three shots in the
direction of the victim undoubtedly constitutes using a deadly weapon in a manner
likely to cause death.").
The facts favorable to the judgment show that, at the time of the
incident, the defendant, Stephanie Dunlap, was living with Terrell Cole, and that Tamika
Ballard, pregnant by Cole, was living with Cole's mother, Tina Westbrook. On
the day of the incident, the defendant came to the Westbrook home and
engaged in an argument with Ballard. The defendant left and returned, armed
with an assault rifle. She then fired the rifle once into the
air outside the home. Westbrook and Ballard rushed to the front door
to find the defendant in the front yard pointing the rifle toward them.
Ballard stayed on the porch, and Westbrook jumped off the porch and
went around behind the defendant and attempted to persuade her to leave.
At some point after Westbrook reached the defendant, the defendant fired two or
three shots toward the screen door where Ballard was standing. One of
these bullets struck Ballard, eventually killing her.
The defendant contends that Westbrook grabbed her and spun her around "at which
point the gun discharged two to three times, one of the bullets somehow,
probably by ricochet, striking Ballard . . . ." Br. of Defendant-Appellant
at 18. She argues that the discharge of the weapon was accidental,
and that the evidence fails to establish that she "knowingly" killed Ballard.
On direct examination Westbrook's testimony included the following description of the incident:
Q. . . . When you get out to where [the defendant]
is, tell the jury what happens.
A. I get in the back of her and I ask her
would she get in the van, don't shoot at my house and she
had started shooting.
Q. How close are you to [the defendant] when this is happening?
A. I'm right behind her, up right in the back of her.
Q. And what direction is the gun pointed?
A. Towards the porch.
Q. Towards the porch?
A. Yes, toward the screen door where Tamika [Ballard] was standing at.
Q. Does she fire the gun?
Q. About how many times do you think she fires the gun?
A. Approximately three times.
Q. What are you doing while she's firing the gun, Miss Westbrook?
A. I'm just standing back there. There wasn't nothing I could
Q. After she fires the gun, what happens?
A. She-- After she fired the gun, Tamika ran in the
house and she gets in the van and takes off. And I
goes back in the house and Tamika said she had been--
she had been shot.
Q. Did you actually have your hands on [the defendant] as she's
firing the gun?
A. Before she started firing I was asking her, you know, trying
to turn her around to go to her van, asking her, "Don't shoot,"
you know. "Don't shoot at my house. Don't shoot up there
at the porch," you know. And when she started shooting, I kind-of
Q. You kind-of backed away?
Q. Do you think your hands were on her when she actually
fired the gun in the direction of the house?
A. I'm not sure.
Record at 245-47. On cross examination, her testimony included:
Q. Now, I think you told Mr. Pitzer, Miss Westbrook, that you're
not sure if you were grabbing [the defendant] while she was shooting.
Is that what you're telling us today?
A. Yes, I am. I don't-- I don't-- I don't know
if I was holding her. All I know when I-- when I
said I was trying to turn her around to go to her van,
then she got to shooting.
Record at 252-53.
From the evidence that, after an earlier argument with Ballard, the defendant returned
to the Westbrook home armed with an assault rifle, and thereafter fired it
two or three times at the screen door where Ballard was standing, a
reasonable jury could have found beyond a reasonable doubt that the defendant knowingly
Photograph of Victim
The defendant contends that the trial court erred in admitting State's Exhibit 15,
an autopsy photograph of the victim, because the photograph's prejudicial effect outweighed its
probative value. The defendant argues that she stipulated to the victim's identity
and cause of death, and that the photograph shows the victim in an
altered condition. The challenged photograph portrays the face of the victim with
tubes extending from the victim's mouth and nose.
The admission and exclusion of evidence falls within the sound discretion of the
trial court, and is reviewed only for abuse of discretion. Byers v.
State, 709 N.E.2d 1024, 1028 (Ind. 1999); Amburgey v. State, 696 N.E.2d 44,
45 (Ind. 1998). Relevant evidence, including photographs, may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice. Ind.Evidence
Rule 403; Byers, 709 N.E.2d at 1028.
The defendant first argues that the photograph was not relevant to any issue
at trial because there was no dispute about the identity of the victim
or that a living person was killed. The autopsy report regarding Ballard
and two autopsy photographs were admitted by stipulation of the parties. This
occurred at the end of the State's case. Record at 438-40.
But, at the point in the trial when Exhibit 15 was admitted, the
State still had the burden of proving the identity of the alleged victim.
Photographs of a victim's corpse in a homicide case are relevant to
prove the identity of the victim.
Butler v. State, 647 N.E.2d 631,
633-34 (Ind. 1995); Hughes v. State, 546 N.E.2d 1203, 1211 (Ind. 1989); Brown
v. State, 503 N.E.2d 405, 409 (Ind. 1987). The photograph was relevant
to show the identity of the victim. The relevance of the exhibit
is only part of the inquiry, however. Rule 403 permits the exclusion
of relevant evidence if its probative value is substantially outweighed by the danger
of unfair prejudice.
The defendant refers us to cases in which we have found the danger
of prejudicial effect to be high in photographs where the body depicted has
been altered in some way. See, e.g., Turbin v. State, 726 N.E.2d
1245, 1247 (Ind. 2000)(finding photograph showing gloved hands manipulating a bloody mass with
a probe inadmissible); Allen v. State, 686 N.E.2d 760, 776 (Ind. 1997)("[A]utopsy photographs
are generally inadmissible if they show the body in an altered condition."); Loy
v. State, 436 N.E.2d 1125, 1128 (Ind. 1982); Warrenburg v. State, 260 Ind.
572, 574, 298 N.E.2d 434, 435 (1973)(finding it error to admit autopsy photograph
which showed a partially resewn corpse, nude from the waist up, with the
right arm of the corpse severed completely and the left arm re-attached with
gaping sutures); Kiefer v. State, 239 Ind. 103, 111-12, 153 N.E.2d 899, 904-05
(1958)(finding it reversible error to admit autopsy photographs showing hands and instruments of
surgeon inside chest of victim).
Evaluation of whether the exhibit's probative value is substantially outweighed by the danger
of unfair prejudice is a discretionary task best performed by the trial court.
We are not persuaded that the court abused its discretion in admitting
Similar Gun Evidence
The defendant contends that the trial court erred in allowing the State to
show and demonstrate a 7.62 assault rifle
See footnote despite the fact that no weapon
was found related to the victim's fatal gunshot wound. The State offered
the rifle as a demonstrative exhibit during expert testimony from a tool marks
and firearm examiner.
"Demonstrative evidence is evidence offered for purposes of illustration and clarification."
v. State, 719 N.E.2d 1192, 1196 (Ind. 1999). Demonstrative evidence may be
admissible if it sufficiently explains or illustrates relevant testimony as to be a
potential help to the trier of fact. Id. The admissibility of
demonstrative evidence must also meet the requirements of Rule 403, which balances probative
value against prejudicial effect. Id. Trial courts are given wide latitude
in weighing probative value against the danger of unfair prejudice, and we review
that determination for abuse of discretion. Houston v. State, 730 N.E.2d 1247,
1251 (Ind. 2000).
Emphasizing that the murder weapon was not found and that the defendant claimed
that the shooting was accidental, the State argues that this demonstrative evidence was
important so that the jury could view a weapon similar to the one
used in the killing and be told "about how such a weapon works
in order to determine whether [the defendant] knowingly killed [the victim]. Br.
of Appellee at 9. We agree that the exhibit has significant probative
value on the issue of accident.
The potential danger that this exhibit could mislead the jury is low, particularly
when considering that the court admonished the jury, "There was no weapon found
in this case. The weapon that m[a]y be displayed is a demonstrative
exhibit that is going to be used by the State to demonstrate or
show you what a similar type weapon could or should look like."
Record at 416. The probative value of the exhibit on the issue
of accident is sufficient to support the trial court's decision to admit the
evidence, especially in light of the admonishment given.
See footnote We decline to find
that the trial court abused its discretion in admitting the evidence.See footnote
Prior Inconsistent Statement
The defendant contends that the trial court erred in excluding a transcription of
a tape-recorded statement Westbrook gave to police. The defendant sought to admit
a transcription of the statement into evidence as a prior inconsistent statement.
The State objected to the exhibit on the grounds that the testimony at
trial was not inconsistent with the previous statement. The defendant contends that
the statement should have been admitted pursuant to Indiana Evidence Rule 613(b), which
provides in relevant part:
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible
unless the witness is afforded an opportunity to explain or deny the same
and the opposite party is afforded an opportunity to interrogate the witness thereon,
or the interests of justice otherwise require. . . .
Evid. R. 613(b). The issue presented is whether the prior statement is
inconsistent with the witness's trial testimony.See footnote
At trial Westbrook testified that she tried to turn the defendant around but
was not sure whether she was holding on to or touching the defendant
when the shots were fired. The defense then confronted her with excerpts
from a transcription of her statement to the police when interviewed a year
and a half earlier and cross-examined her regarding it. Westbrook acknowledged making
the statement. The defense then read the following from the transcript and
asked Westbrook if she remembered saying this to police:
Q. Where was [defendant], where was [defendant] standing when you saw her
with the gun?
A. She was in the yard.
Q. Okay, front yard?
A. The front yard, so I try to run at there to
make one like on the side where the gun when point to make--
make her turn her around slowly to go into the van and she
shoots it, then.
Q. Did she shoot before you got a hold of her?
A. One, the first one was.
Record at 257. Westbrook replied: "I don't remember saying this."
Then directing Westbrook's attention to a later part of her statement, the
defendant's trial counsel asked whether it would be "fair to say . .
. that at least certainly the statements on page 15 where you told
Detective Burks you grabbed her while [defendant] was shooting,
See footnote that's different from what
you're telling us today, right?"
Id. Westbrook answered, "Yes, because I
don't exactly remember it from the time I made this statement." Id.
Shortly thereafter, the defense offered as an exhibit the entire 18-page typewritten
transcript into evidence for the purpose of impeachment as a prior inconsistent statement.
The State objected, arguing that it was not inconsistent, and the trial
court refused to admit the exhibit. Record at 265. For the
purposes of Rule 613(b), a statement at trial of "I am not sure"
or "I don't remember" is not necessarily inconsistent with an earlier statement that
provides the answer to the question being asked. We consider the differences
between Westbrook's trial testimony and her statements in the transcribed police interview to
be within the ambit of the trial court's discretion to determine inconsistency.
We decline to find that the trial court erred in sustaining the State's
objection asserting that the prior statements were not inconsistent.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur
SULLIVAN, J., dissents with separate opinion.
Attorney for Appellant
Terrance W. Richmond
Attorneys for Appellee
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
INDIANA SUPREME COURT
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below ).
) Supreme Court No.
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9801-CF-012097
ON DIRECT APPEAL
January 29, 2002
SULLIVAN, Justice, dissenting
I respectfully dissent. It seems to me that the testimony of Westbrook
does not support a reasonable inference that the defendant was aware of a
high probability that Tamika Ballard would be killed as a result of her
Even if I were to conclude that this evidence was sufficient to support
such an inference, the inference would be so weak that at least one
of what I perceive to be three trial court errors would require reversal.
See Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995) (trial court
error assessed on basis of its probable impact on the jury, in light
of all of the evidence in the case). I see no relevance,
first, of the autopsy photograph or, second, the assault rifle demonstration. Because
this evidence was admitted in violation of Indiana Evidence Rule 402 (Evidence which
is not relevant is not admissible.), the trial court abused its discretion in
Finally, I disagree with the majority that it was proper for a police
officer to testify as to the trigger pull on the weapon the defendant
fired. There was literally no foundation whatsoever for this testimony the
weapon was never found. Without any foundation, allowing this testimony was highly
improper given that the defense here was accident and the officer's testimony on
trigger pull was effectively an opinion on the likelihood of accident. Without
the weapon, he did not have the requisite facts or data to give
such an opinion. See Evid. R. 703.
Ind.Code § 35-42-1-1.
Footnote: As there were no wounds to the victim's face, the photograph in
this case is not unlike using a photograph of a victim as they
appeared shortly before death, which we have held to be admissible.
Evans v. State, 563 N.E.2d 1251, 1263-64 (Ind. 1990), reh'g granted in part,
598 N.E.2d 516 (Ind. 1992); Minnick v. State, 544 N.E.2d 471, 478 (Ind.
1989)(finding pictures admissible for identification of victim by witnesses who had observed the
victim's movements on day of murder); Raub v. State, 517 N.E.2d 80, 83
(Ind. 1987); Heald v. State, 492 N.E.2d 671, 682-83 (Ind. 1986), overruled on
other grounds by Spradlin v. State, 569 N.E.2d 948 (Ind. 1991); Shelton v.
State, 490 N.E.2d 738, 742-43 (Ind. 1986)("perpetrators of such acts are not entitled
to have their deeds completely sanitized when evidence is submitted to a jury");
Averhart v. State, 470 N.E.2d 666, 685 (Ind. 1984)(finding picture of victim with
granddaughter was relevant to show his appearance on day of murder and claim
that photograph was unduly prejudicial waived).
Ballistics testimony at trial from David Brundage, a tool marks and firearm
examiner for the Indianapolis Marion County Forensic Services Agency, concerning two spent shell
casings and two bullet jacket fragments found at the murder scene
the victim was shot by either an AK-47 or an SKS, the common
names for a 7.62 assault rifle. Record at 412-414. Also, Westbrook's
description of the gun the defendant was carrying as a rifle with a
belt that went around the defendant's neck is consistent with an AK-47 or
SKS. Id. at 239-40.
See Berry v. State, 715 N.E.2d 864, 867 (Ind. 1999)(holding that the
trial court was within its discretion when it admitted similar shotgun as used
in crime because although marginally relevant, prejudice also low given that the court
had admonished the jury).
The defendant also challenges Brundage's "trigger pull" testimony as lacking foundation because
"he had no gun used in the incident to examine or test."
Br. of Defendant-Appellant at 13. At trial, the defendant lodged this objection
when Brundage was asked, "[W]ould there be a trigger pull that you would
associate with that type of weapon [referring to the semi-automatic assault rifle used
by the prosecution for demonstrative purposes]?" Record at 421. After the defendant's
objection was overruled, Brundage testified that a weapon of the type being demonstrated
"has somewhere between a five and seven pound or five and eight pound
trigger pull." Record at 422. He then explained that among various types
of guns, a trigger pull of less than one and one half pounds
was considered "extremely light" such that barely touching the trigger "might set the
id. at 423; that a trigger pull of two and a
half pounds is "very light" and the minimum allowable in pistol matches, id.
at 422; and that a trigger pull above ten or eleven pounds is
considered "quite heavy." Id. at 423. This testimony did not purport
to be based on any test of the weapon used in the killing
but only provided general trigger pull information regarding the type of weapon that
would produce the shell casings and bullet jacket fragments found at the murder
scene. The trial court did not err in overruling the defendant's objection
asserting lack of foundation.
Comparing two statements by a witness to test for inconsistency is not
an exact science. Given the varying nuances that arise in a person's
account of historical events, the trial judge must be given wide discretion in
determining whether two statements are sufficiently inconsistent.
See United States v. Higa,
55 F.3d 448, 453 (9th Cir. 1995)("The trial judge has a 'high degree
of flexibility' in deciding how much inconsistency is enough to permit use of
a prior statement for impeachment."); United States v. McCrady, 774 F.2d 868, 873
(8th Cir. 1985)("The trial judge has considerable discretion in determining whether trial testimony
is inconsistent with prior statements."); 1 McCormick on Evidence § 34 (John W.
Strong ed., 5th ed. 1999)("[A] fair range of discretion must be accorded the
trial judge."). Notwithstanding the inherent ambiguity of the inquiry, attempts have been
made to put a definition on the exact degree of inconsistency required to
meet the threshold for impeachment. See, e.g., United States v. Winchenbach, 197
F.3d 548, 558 (1st Cir. 1999)("irreconcilably at odds"); United States v. Cody, 114
F.3d 772, 776-77 (8th Cir. 1997); United States v. Trzaska, 111 F.3d 1019,
1024-25 (2d Cir. 1997)(finding statements need not be diametrically opposed but at least
do need to reveal variance that has reasonable bearing on credibility); United States
v. Gravely, 840 F.2d 1156, 1163 (4th Cir. 1988)("To be received as a
prior inconsistent statement, the contradiction need not be in plain terms. It
is enough if the 'proffered testimony, taken as a whole, either by what
it says or by what it omits to say' affords some indication that
the fact was different from the testimony of the witness whom it sought
to contradict."); Abdul-Wadood v. State, 521 N.E.2d 1299, 1301 (Ind. 1988)("[S]light discrepancy in
the two statements by [the witness] is not of fundamental importance nor necessarily
inconsistent.") Sanger v. Brown, 180 Ind. 322, 328, 101 N.E. 1001, 1003 (1913)("[C]ontradiction
must appear after the evidence is construed most favorably to the witness sought
to be impeached."); Myers v. Manlove, 164 Ind. 128, 131, 71 N.E. 893,
894 (1904)("The contradiction need not be in terms, but the impeaching declaration must
be inconsistent with the testimony of the witness in some material particular."); Wagner
v. State, 116 Ind. 181, 184, 18 N.E. 833, 835 (1888)("If the two
statements are consistent and reconcilable with each other, the statement made out of
court will not be received to impeach the witness."); Seller v. Jenkins, 97
Ind. 430 (1884)("material inconsistency" and "differs in material particular"); Commonwealth v. Pickles, 364
Mass. 395, 402, 305 N.E.2d 107, 111 (Mass. 1973)("[A] 'prior inconsistent statement' need
not directly contradict the testimony of the witness. It is enough if
its implications tend in different direction."); McCormick, supra, at § 34 ("The pretrial
statement need 'only bend in a different direction' than the trial testimony." (quoting
McNaught & Flannery, Massachusetts Evidence: A Courtroom Reference 13-5 (1988))); 4 Weinstein's Federal
Evidence §613.04 (Joseph M. McLaughlin ed., 2d ed. 2001)("Any statement is inconsistent if
under any rational theory it might lead to any relevant conclusion different from
any other relevant conclusion resulting from anything the witness said."); 3A Wigmore on
Evidence § 1040(1) (James H. Chadbourn ed., rev. ed. 1970)("As a general principle,
it is to be understood that this inconsistency is to be determined, not
by individual words or phrases alone, but by the whole impression or effect
of what has been said or done. On a comparison of the
two utterances, are they in effect inconsistent? Do the two expressions appear
to have been produced by inconsistent beliefs?"); William G. Hale, Impeachment of Witnesses
by Prior Inconsistent Statements, 10 S.Cal. L. Rev. 135, 161 (1937)(suggesting need only
find one inconsistent reasonable inference (out of two or more possible inferences)).
This question was apparently referring to the following colloquy:
Q. OK, and then what happened, did you actually get hold of
[defendant], grabbed her?
A. Yeah, because
Q. While she was shooting?
A. Yeah cause one of one of ah, I guess it was
a shell, cause that what scared me, made leave her (unknown), pull away
from her, is one of the shells had, when she shot had came
back on me and it cut and (unknown) I didn't have no car
and done touch my arm and I just moved on back, so then
Record at 281 (page 15 of the interview transcript).