ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeff Schlesinger Jeffrey A. Modisett
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
SHIRWANDA SHERI BOONE, ) ) Appellant (Defendant Below ), ) ) v. ) No. 45S00-9903-CR-155 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
May 12, 2000
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.
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 Campbells disapproval. Boone had
several encounters with Campbell during Suttons 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 Suttons sister, to
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 Suttons 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, Lets 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 Suttons 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, Im 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 Suttons 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 Campbells house with a loaded gun and found Campbell on her way out the door. An argument erupted, and Boone shot Campbell.
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 defendants 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 States 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 797 (Ind. 1993); Evid. R. 403. When a
defendant alleges in trial a particular contrary intent, whether in opening statement, by
cross-examination of the States 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 defendants 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 Boones defense was her claim that the killing arose
out of sudden heat, thus reducing the crime from murder to voluntary manslaughter.
In light of Boones decision to defend herself by claiming the killing
occurred due to the heat of the moment, the State was entitled to
submit evidence that tended to show that Boones intent to inflict fatal harm
was one of longer standing.
Sudden heat is a mitigating factor that reduces otherwise murderous conduct to voluntary
manslaughter, but is not an element of voluntary manslaughter.
See footnote Furthermore, sudden heat
requires sufficient provocation to engender passion, which is demonstrated by anger, rage, sudden
resentment, or terror that is sufficient to obscure the reason of an ordinary
person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection.
Horan v. State, 682 N.E.2d 502 (Ind. 1997).
On February 14, 1998, an altercation ensued between Boone and Campbell at Suttons house that was defused by officers. The record indicates that Boone spent the night at a friends house where she got some sleep, giving her time to cool off. The next morning she telephoned Sutton, and he hung up on her. Boone then drove to Campbells home with a gun, and shot her.
Even if she woke up on February 15th still angry, and the telephone
call made her more angry, the ride over to Campbells home should have
given Boone ample opportunity to think about the action she was about to
undertake. The jury could have concluded that sufficient time elapsed affording Boone
time for cool reflection. Furthermore, the jury could have concluded that Boone
was making good on her earlier declaration to get that bitch.
Existence of sudden heat is a classic question of fact to be determined by the jury. Fisher v. State, 671 N.E.2d 119, 121 (Ind. 1996). Enough evidence was introduced for the jury to infer that sudden heat was not present.
Boone may well be correct, but this is the sort of call we
place in the hands of the judges who try cases day by day.
Moreover, not all trial errors provide grounds for reversal. Monegan v.
State, 721 N.E.2d 243 (Ind. 1999). An error is not ground for
setting aside a conviction unless such error affects the substantial rights of the
parties. See Ind. Trial Rule 61; Fleener v. State, 656 N.E.2d 1140
If an error occurred it was harmless at best and does not warrant
setting aside the verdict.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.