ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Katherine A. Cornelius            Steve Carter
Marion County Public Defender        Attorney General of Indiana
Office
Indianapolis, IN                Adam M. Dulik
        Deputy Attorney General
            Indianapolis, Indiana

KERRIE PRICE,                    )
                                   )
    Appellant (Defendant Below     ),    )
                                   )
        v.                         )  No. 49S00-0006-CR-385 
                                   )
STATE OF INDIANA,                  )
                                   )
    Appellee (Plaintiff Below      ).    )

Price hid in a nearby apartment until a friend sneaked him into a car and drove him to another location. In the succeeding days he changed locations three more times, once in the trunk of a car, to evade the police. On February 22 nd, a SWAT team forced Price out of hiding with tear gas after a five-hour effort to persuade him to voluntarily release a hostage and surrender. During the standoff Price told a police negotiator that he was not present at the shootings, although he later changed his story and claimed he shot Black and Northern in self-defense. See footnote
    
    Black died from multiple gunshot wounds. Northern died after several weeks in the hospital of infection caused by multiple gunshot wounds.

    The State charged Price with two counts of murder and sought the death penalty. The jury found Price guilty on both counts and recommended a sentence of life without parole, which the court imposed.

A. The Photographs of Price. At trial the State introduced two photographs found at the crime scene. Each showed Price at a club with four companions. He was gesturing in a manner that could be interpreted as a gang sign.
The defense argued that the photographs were prejudicial and irrelevant because identification was not an issue. The State acknowledged that the defense was not contesting Price’s presence at the shooting, but argued that the photographs were relevant “to show the guilty knowledge of the defendant” by demonstrating that he had changed his hairstyle and had gold caps removed from his teeth. See footnote (R. at 5539-40.)

Defense counsel took responsibility for advising Price to change his appearance “to look proper and dignified here in a court of law, in a death penalty case.” (R. at 5540.) Nonetheless, the court admitted the photographs as “minimally relevant,” saying, “[O]bviously his looks have dramatically changed. I think it’s fair for the . . . jurors on their own to observe what he looked like at that time.” (R. at 5541.)

We agree with Price that the court erred in admitting the photographs. There is no contention here that Price changed his appearance as part of his efforts to evade capture, or to otherwise foil identification before or during trial.

Because identification was not at issue, the photographs were irrelevant. See Ind. Evidence Rule 402. Mostly, they seemed designed as character evidence inadmissible under Ind. Evid. R. 404(a) (“Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; . . . .”).

A defendant does not open the door to otherwise inadmissible character evidence merely by dressing and grooming in a manner appropriate for court. Tailoring one’s appearance to that occasion may indicate consciousness of social stereotypes as easily as consciousness of guilt, because “[f]or unnumbered ages the external appearance has been deemed to be an index to the internal man.” Henry Hardwicke, The Art of Winning Cases or Modern Advocacy 153 (1894) (quoted in Richard H. Underwood, Truth Verifiers: From the Hot Iron to the Lie Detector, 84 Ky. L.J. 597, 622 (1995)).

Photographs showing how a defendant looked at the time of the crime are frequently probative. Here, however, they largely invited jurors to evaluate guilt based on whether the defendant looked like the type of person who would commit this sort of crime. This is what Rule 404(a) prohibits.

Nevertheless, "[w]e disregard error in the admission of evidence unless it affects the substantial rights of a party." Willey v. State, 712 N.E.2d 434, 444 (Ind. 1999) (citing, inter alia, Ind. Trial Rule 61). In light of other evidence that Price shot the two security guards multiple times while receiving no injuries himself and later confessed to two friends that he fired first and without provocation, the erroneous admission of the two photographs was harmless.

B. The Autopsy Photographs. The State introduced seven photographs from Black’s autopsy to illustrate a pathologist’s testimony concerning the number and location of Black’s gunshot wounds. The defense objected to two photographs that showed wounds caused by surgical procedures performed on Black during lifesaving efforts, and one that showed an autopsy wound to Black’s head.

The court allowed all the photographs because each of the seven uniquely illustrated Black’s wounds. The pathologist identified and explained the wounds that resulted from surgical and autopsy procedures.

One of the challenged photographs illustrated, in perspective, a gunshot wound that struck Black in his back. Another illustrated a chest wound Black suffered when “bent forward, if he was on his feet; or . . . already on the ground.” (R. at 6701, 6759.) Both were relevant to Price’s claim of self-defense.

The defense also objected to all three autopsy photographs of Northern that were offered as evidence, arguing that they were irrelevant because the pathologist could not distinguish bullet entry wounds from surgical wounds. The State countered that the photographs supported the pathologist’s testimony that he found possible entry wounds consistent with bullet holes in the shirt Northern was wearing when he was shot and with Northern’s internal gunshot injuries. The photographs also showed manifestations of sepsis from gunshot wounds, which the pathologist testified caused Northern’s death. The court allowed all three photographs.

Although these photographs were unpleasant, all were unique and relevant to establishing cause of death and the number and nature of wounds the victims suffered. The trial court did not abuse its discretion in concluding that any potential prejudice did not substantially outweigh the photographs’ probative value. See Evid. R. 403.

C. Evidence of a Victim’s Character. Price argues that he should have been allowed to attack Black’s character by introducing evidence that Black entered into an illicit arrangement with the Rocky Ripple town marshal so that he and employees of his security company could be deputized. (Appellant’s Br. at 9-13.) Price also challenges the exclusion of evidence that on three prior occasions Black “forced his way into apartments when he had no authority.” (Appellant’s Br. at 12-13.)

Price does not assert that he was aware of this information at the time of the shooting, so he cannot claim that it was relevant to show that he acted in self-defense because he had reason to fear Black. Rather, he argues that repeated references to the victims as “officers” opened the door to evidence of their character, because “[t]he designation of ‘police officer’ carries with it a belief by most people that the [officer] will be more calm in the face of opposition, relaxed and ready to respond in times of danger, show more integrity and be more truthful.” (Appellant’s Br. at 9-10.)

He cites no authority to support this argument. He acknowledges that defense counsel read a stipulation to the jury that neither victim had police powers. (Appellant’s Br. at 10; R. at 7319.)

Indiana Evidence Rule 404 generally excludes character evidence, but provides an exception for “[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused.” Evid. R. 404(a)(2). Evidence Rule 405 governs methods of proving character. Rule 405(a) allows direct examination in the form of testimony as to reputation or in the form of an opinion. Inquiry into specific instances of conduct is limited to cross-examination or when character or a trait of character is an essential element of a charge, claim, or defense. Evid. R. 405(a), (b).

In Brooks v. State, 683 N.E.2d 574 (Ind. 1997), we discussed how these rules operate in a situation similar to the one at hand. Brooks fatally shot a man after an argument that began at a bar. Id. at 575. He sought to introduce testimony that the victim had been charged with two counts of battery three years earlier and convicted on one of the counts. Id. at 576. We said:
Indiana Evidence Rule 405 permits proof of the violent character of the victim by reputation or opinion testimony. In this case, however, Brooks did not seek to introduce reputation or opinion testimony. Instead, he attempted to introduce direct testimony of two specific prior batteries to show [the victim’s] violent propensities. Evidence of specific incidents is permissible only on cross-examination of a character witness pursuant to Rule 405(a), or when character ‘is an essential element of a charge, claim, or defense’ pursuant to Rule 405(b). Neither situation is presented here. In an offer to prove, defense counsel stated that he proposed to call the witness to testify about the incidents, not that he intended to cross-examine a character or opinion witness. Nor was the victim’s character an essential element of Brooks’ claim of self-defense. Whether or not [the victim] had violent propensities, the jury could still determine that Brooks did not act in self-defense.

Id. at 576-77 (citations and footnotes omitted).

    The same is true here. Price sought to introduce evidence of specific instances of Black’s prior conduct to show that Black had violent propensities. The trial court appropriately refused to admit this evidence. See footnote

D. A Witness’s Plea Agreement. Turkessa Guthrie, Price’s former girlfriend, helped Price escape from the Meadows on the day of the shootings and hide from police for the next three days. The State charged Guthrie with assisting a criminal as a class C felony. See footnote It reduced the charge to assisting a fugitive from justice, a class A misdemeanor, in return for Guthrie’s guilty plea and testimony against Price.

Price argues that “Ms. Guthrie’s altered testimony was obtained through illegal conduct by the State in the form of an illegal plea agreement.” (Appellant’s Br. at 24.) We need not elaborate on the reasoning behind this argument because even if Price is correct, he lacks standing to raise this issue.

In Bedwell v. State, 481 N.E.2d 1090, 1092 (Ind. 1985), a defendant argued without success that he should be allowed to attack the legality of a suspended sentence offered to a State’s witness as part of a plea agreement. We said:
This is, after all, an appeal of Appellant's convictions and any challenge to the legality of the plea agreement between [the State witness] and the State must be made by [that witness] in his own independent action. . . . [T]he plea agreement was relevant only with regard to [the witness’s] credibility before this jury and its legality would not affect [the witness’s] duty to testify truthfully while under oath. Moreover, Appellant was allowed to fully cross-examine [the witness] and had every opportunity to discredit or otherwise challenge [the witness’s] credibility.

Id.

Similarly, here, the circumstances of Guthrie’s testimony were fully disclosed. The jury heard about the plea agreement and a copy of that agreement was entered into evidence. Guthrie testified that she was originally charged with a C felony for assisting Price. Price therefore had a full opportunity to attack Guthrie’s credibility, and any challenge to the legality of her plea agreement would be her claim, not his.

    E. Other Rule 404 Challenges. Price raises four additional challenges to evidence he claims was improperly admitted to impeach his character. (Appellant’s Br. at 20-23.) He claims error in admitting evidence, first, about the history of the gun used in the shooting and, second, about his flight and ultimate capture. Because he made no objection at trial, he has not preserved these claims for appeal.

    Third in this list is a claim involving State witness Dorain Moore, at whose house Price was hiding when he was finally apprehended. At trial Moore claimed to have forgotten his activities the day those events occurred. He contradicted his own deposition testimony by denying that he saw Price when he arrived home the night of the standoff.

The defense stipulated to admission of Moore’s deposition and prior statement because “he’s come really close to committing perjury . . . he’s making a mockery of this trial and we want him out of here.” (R. at 6160.) The judge then pointed out for the record that Moore greeted Price in the courtroom by saying, “Hey man, what’s up?”, which might imply a rapport between the two. (R. at 6160.) The defense asked that Moore not be brought back into the courtroom based on his unpredictable demeanor and behavior, and the court agreed.

    The court allowed the State to present evidence that after Moore’s testimony, as the jury exited the courtroom, Moore asked Price whether he was “doing all right” and Price nodded in the affirmative, then both men laughed. (R. at 6633.) The court reasoned that the incident was relevant to show Moore’s bias.

    Price now argues that this testimony improperly highlighted irrelevant behavior and “discredit[ed] Mr. Price by drawing attention to a situation created by a witness already recognized as uncontrollable.” (Appellant’s Br. at 21.) We disagree. The incident was relevant to show that Moore was biased in favor of Price, see Evid. R. 616, which could support an inference that Moore’s memory lapses were deliberate efforts to help his friend. It was not unduly prejudicial and, as the defense pointed out, the exchange occurred in open court and may well have been observed by some jurors. (R. at 6620.) See Evid. R. 402, 403.

    As a fourth point, Price says the court should not have allowed testimony that Lisa Wooden, whom Price claimed was present in the apartment with him when the shooting occurred, was arrested for assisting a criminal. The State successfully argued that the testimony was relevant to explain why Wooden was unavailable to testify, and because she could have been the second person a witness saw running from the crime scene. We agree that this evidence was relevant and not, as Price argues, an impermissible attack on his character.

A. Preliminary Self-Defense Instruction. Price claims the preliminary instruction on self-defense denied him a fair trial. (Appellant’s Br. at 14.) The court instructed the jury that self-defense was an issue in the case and gave a definition of self-defense, but not on the burden of proof for self-defense. The court advised the jurors, “In the event self-defense is an issue in this case, you will be informed by the Court in the Final Instructions as to the burden of proof on this legal defense.” (R. at 2140.) Price acknowledges that the final instructions properly explained the burden of proof. (See Appellant’s Br. at 14-16.)

Preliminary and final instructions are considered as a whole, not in isolation. Bonham v. State, 644 N.E.2d 1223, 1227 (Ind. 1994). Therefore, the court adequately instructed this jury on self-defense. See footnote

B. Lesser Included Offenses. Price also challenges the trial court’s preliminary instructions that the defendant was not on trial for any offenses not charged, and that the charges were two counts of murder. He contends that these instructions misstated the law and misled the jury by precluding a verdict that Price was guilty of a lesser included offense such as voluntary manslaughter. (Appellant’s Br. at 30-32.)

This ignores several final instructions on lesser included offenses. See footnote Price does not argue that any of these instructions misstated the law, and the instructions made it quite clear that the jury could and should consider lesser included offenses as part of its deliberations.

Price’s argument that two preliminary instructions denied him a defense is meritless.

In Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999), the defendant said, “I’m remorseful for all what happened. I was just in the wrong place at the wrong time . . . I just don’t know what went wrong.” We rejected his claim that the trial court erred by not finding remorse as a mitigating circumstance, noting that this statement was equivocal at best and “well short of a full acceptance of responsibility.” Id. The same is true here.

The court found, however, that both the State and defense were guilty of violating the discovery deadline, and assessed each party $2,118.60, saying, “The cost to the County of the jury selection process, to date, is $4,145.20, plus mailing fees of $92 (400 summonses at 23 cents per summons), for a total of $4,237.20.” (R. at 1606.)

Indiana Trial Rule 37(B) authorizes trial courts to impose costs arising out of failure to comply with a discovery order on the party that disobeyed the order. Trial courts “are granted deference in determining what constitutes substantial compliance with discovery orders, and we will affirm their determinations as to violations and sanctions absent clear error and resulting prejudice.” Dye v. State, 717 N.E.2d 5, 11 (Ind. 1999), cert. denied, 531 U.S. 957 (2000).

Price’s attorney argues that the order was improper because the State was entirely to blame, and that the court did not adequately explain the basis for the amount assessed. (Appellant’s Br. at 37-41.) We elect not to elaborate on the contentions of the two combatants (“defense noticed tardy depositions” and “State wrongly delayed turning over documents” (see Appellee’s Br. at 37-38; Appellant’s Br. at 37-39)), inasmuch as we are satisfied that the trial judge was within her discretion in finding fault on both sides.

On the other hand, Price is correct that a court imposing penalties of $4,145.20 needs to be somewhat more descriptive about the basis for its calculation than “cost to the county of jury selection, to date.” (R. at 1606-07.) It may be that this represents the cost of selecting 400 names from the prospective juror database and printing summonses, but we are left only to guess. The court added the cost of mailing summonses (“400 summonses at 23 cents per summons” (Id.)), a completely adequate explanation of that element of the penalty.

Of course, if there is more to be known about why the court’s calculation was appropriate, neither party has much incentive to document it. We affirm the postage portion of the penalty and authorize the trial court to enter a more particularized order concerning its penalty should it desire to do so.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.