ATTORNEY FOR APPELLANT
Ernest P. Galos
South Bend, Indiana
ATTORNEYS FOR APPELLEE
Karen Freeman-Wilson
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
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IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
SHEMIKA LEE, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 71S00-0002-CR-44
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jerome Frese, Judge
Cause No. 71D02-9806-CF-267
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
October 6, 2000
BOEHM, Justice.
Shemika Lee was convicted of felony murder for the death of Kevin McLoughlin
and sentenced to sixty years imprisonment. On direct appeal, Lee presents three
issues for review: (1) whether the trial court erred in denying a
change of judge based on the judge’s having presided over hearings dealing with
a plea agreement by an accomplice; (2) whether the trial court abused its
discretion by admitting allegedly prejudicial photographic evidence; and (3) whether the felony murder
conviction was based on sufficient evidence. We affirm the trial court.
Factual and Procedural Background
In the early morning hours of May 30, 1998, Kevin McLoughlin and his
wife Jennifer drove to the six hundred block of Cottage Grove Avenue in
South Bend to pick up a friend. The friend was not at
home when they arrived and they decided to wait in the car for
his return. Kevin then noticed another acquaintance and left the car to
chat with her. Jennifer remained in the car and, after a few
minutes, saw Kevin walk down the street to talk with a group of
ten to fifteen people.
Meanwhile, DeCarlos Avance, a neighborhood resident, approached Janice Boyd and Shemika Lee in
Boyd’s yard and announced his plan to rob a man down the street.
Avance was an acquaintance of both women. Lee had told Boyd
earlier that day that Avance had given Lee a gun. Avance asked
Lee if she had “that” and if she would “walk with him.”
Lee agreed. Avance and Lee approached Kevin on the street and Avance
grabbed Kevin’s wrist and attempted to steal his wallet. As they struggled,
Kevin was shot once. The bullet pierced his heart and he died
at the scene.
Avance was taken into custody a few days after the shooting and told
police that Lee was the shooter. Police contacted Lee’s sister and Boyd
in an effort to reach Lee. In response, Lee voluntarily went to
the police station accompanied by Boyd, Lee’s sister, and another acquaintance. Lieutenant
William Thompson conducted an unrecorded interview with Lee. According to Thompson, Lee
told him that the gun was in her hand when it discharged and
killed Kevin. Lee was allowed to leave the police station immediately after
the interview, but she was later arrested and charged with conspiracy to commit
robbery, robbery, and felony murder.
In the meantime, Avance entered into an agreement to plead guilty to robbery
with a recommendation of an executed sentence of twenty years. He also
agreed to testify at Lee’s trial, but, for reasons not apparent from the
record, he did not do so. Judge Jerome Frese presided at Avance’s
plea hearing and elicited the factual basis of the guilty plea, including Avance’s
repeated claim that Lee fired the gun that killed Kevin. The plea
was accepted, but a few months later, Avance sent the judge a handwritten
note asking to withdraw his guilty plea. Judge Frese held a hearing,
expressed his belief that Avance had been offered a good deal by the
State, and indicated that he was not inclined to allow Avance to withdraw
his plea. Avance then withdrew his pro se motion.
Judge Frese also presided over Lee’s jury trial. After each of the
two hearings related to Avance’s plea agreement, Lee filed a motion for a
change of judge on the ground that Judge Frese presided over the hearing
and thereby acquired information bearing on Lee’s trial. The judge denied both
motions, finding that there was no showing of actual bias against Lee.
During trial, the State dismissed the charges of conspiracy to commit robbery and
robbery against Lee and added a charge of attempted robbery. Lee was
convicted by a jury of felony murder and attempted robbery. The latter
was dismissed by the trial court as a lesser included offense of the
former and Lee was sentenced to sixty years for felony murder.
I. Motion for Change of Judge
Lee asserts that the trial court erred by refusing to grant her motions
for a change of judge under Indiana Criminal Rule 12(B). Lee argues
that by presiding over the hearings related to Avance’s plea agreement, Judge Frese
acquired knowledge of Lee’s case that required his recusal under Canon 3(E)(1)(a) of
the Code of Judicial Conduct. That canon provides, in relevant part:
(1) A judge shall disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be questioned, including but not limited to
instances where:
(a) the judge has . . . personal knowledge of disputed evidentiary
facts concerning the proceeding.
The personal knowledge that requires recusal is knowledge acquired from extrajudicial sources.
Jones v. State, 416 N.E.2d 880, 881 (Ind. Ct. App. 1981). It
is obvious in this case that Judge Frese was acting in his official
capacity during both hearings dealing with Avance’s plea agreement. Any knowledge he
gained through his service as a sitting judge is not “personal” within the
established meaning of the canon. Although this Court has not addressed the
specific points Lee raises, the Court of Appeals has previously held that a
judge need not disqualify himself merely because he has made an adverse ruling
against a defendant in a related action, Stanger v. State, 545 N.E.2d 1105,
1118 (Ind. Ct. App. 1989), or because he has presided over the trial
of a co-defendant, Jones, 416 N.E.2d at 882.
Further, the law presumes that a judge is unbiased and unprejudiced in the
matters before him. Clemens v. State, 610 N.E.2d 236, 244 (Ind. 1993).
The record must show actual bias or prejudice of the judge against
the defendant before a conviction will be reversed on the ground that the
trial judge should have disqualified himself. Sturgeon v. State, 719 N.E.2d 1173,
1181-82 (1999). Lee alleges that Judge Frese demonstrated bias by peremptorily denying
a defense counsel objection during the cross-examination of Officer Thompson. As we
read the record, it shows only that the judge denied defense counsel’s request
to go off the record. This is clearly within the trial court’s
discretion. We find no indication that Judge Frese demonstrated any actual bias
or prejudice against Lee. Accordingly, the trial court did not err in
denying the motions for a change of judge.
II. Photographic Evidence
Lee claims that the trial court abused its discretion by admitting a photograph
of Kevin’s body at the crime scene. Lee argues that the relevance
of the photograph, which shows Jennifer kneeling over her husband’s bloody body, was
clearly outweighed by the likelihood that it would inflame the jury.
This Court reviews the trial court's decision to admit photographic evidence for an
abuse of discretion. Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000).
Although a photograph may arouse the passions of the jurors, it is
admissible unless “its probative value is substantially outweighed by the danger of unfair
prejudice.” Ind. Evidence Rule 403; accord Cutter, 725 N.E.2d at 406.
Photographs depicting matters that a witness describes in testimony are generally admissible, and
photographs depicting the crime scene are admissible as long as they are relevant
and competent aids to the jury. Woods v. State, 677 N.E.2d 499,
504 (Ind. 1997). The fact that a photograph or videotape may depict
gruesome details of a crime is not a sufficient basis for exclusion.
Isaacs v. State, 659 N.E.2d 1036, 1043 (Ind. 1995).
The photograph here offered probative value by accurately depicting the crime scene as
described in the testimony of an officer who arrived at the scene shortly
after Kevin was shot. Lee claims that Jennifer’s presence in the photograph
serves only to “harden the jury” against Lee and suggests that the prejudice
inspired by sympathy for the victim’s wife outweighs any probative value. The
scene is sad and disturbing, but Jennifer’s face is largely blocked and any
expression of grief or shock is hidden in the photograph. The most
striking feature of the photograph is Kevin’s bloody corpse, and, although the victim’s
death mask and the pool of blood are unpleasant to view, the photograph
is not so gruesome as to be unduly prejudicial. It does not
show a graphic close-up of the wound or the victim’s body in an
altered state. Because the probative value was not substantially outweighed by the
danger of unfair prejudice, the trial court did not abuse its discretion in
admitting this exhibit.
III. Sufficiency of Evidence
Finally, Lee argues that there was insufficient evidence to support her conviction for
felony murder. Specifically, she claims that the “sole basis of the conviction
appears to be Lt. Thompson’s testimony” that Lee confessed to him and that
his testimony invokes the “incredible dubiosity doctrine.”
Lee’s reliance on “incredible dubiosity” is misplaced. That doctrine is limited to
cases where a sole witness presents inherently contradictory testimony that is equivocal or
the result of coercion and there is a complete lack of circumstantial evidence
of the appellant's guilt. Tillman v. State, 642 N.E.2d 221, 223 (Ind.
1994). Although Thompson was the only testifying witness to Lee’s confession while
in police custody, he was not the only witness to testify against her.
His testimony was uncorroborated, but it was not inherently improbable. Nor
was there a lack of circumstantial evidence of Lee’s guilt.
Our standard of review for sufficiency claims is well settled. We will
not reweigh the evidence or assess the credibility of witnesses. Rather, we
look to the evidence and reasonable inferences drawn therefrom that support the verdict
and will affirm the conviction if there is probative evidence from which a
reasonable jury could have found the defendant guilty beyond a reasonable doubt.
Carr v. State, 728 N.E.2d 125, 129 (Ind. 2000). In addition to
Thompson’s testimony concerning Lee’s confession, Boyd’s testimony concerning Lee’s and Avance’s behavior immediately
before Kevin’s death, and Boyd’s limited eyewitness account of the shooting corroborated the
State’s view of the crime. The credibility of these two witnesses was
for the jury to determine. We cannot conclude that there was insufficient
evidence for the jury to convict Lee of felony murder.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.