                                                                   Jul 31 2015, 9:41 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                      Gregory F. Zoeller
Marion County Public Defender                              Attorney General of Indiana
Appellate Division
                                                           J.T. Whitehead
Indianapolis, Indiana
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Harold Bishop,                                             July 31, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1409-CR-622
        v.                                                 Appeal from the Marion Superior
                                                           Court

State of Indiana,                                          The Honorable Mark D. Stoner,
                                                           Judge
Appellee-Plaintiff.                                        Cause No. 49G06-1209-MR-61990




Brown, Judge.




Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015                   Page 1 of 33
[1]   Harold Bishop appeals his conviction for murder. Bishop raises four issues,

      which we consolidate and restate as whether the trial court abused its discretion

      in admitting certain evidence. We affirm.


                                       Facts and Procedural History

[2]   On the morning of Saturday, September 1, 2012, at about 8:00 a.m., Pamela

      Dunlap and her neighbor Michael Armbruster were biking near the State

      Fairgrounds heading toward the Monon Trail in Indianapolis. As they

      approached the intersection at 38th Street and Winthrop Avenue, they observed

      a man, later identified as Khalfani Shabazz, on a porch sitting down, halfway in

      the doorway with his body propping open the front door, yelling “[o]h my God,

      oh my God,” and “help.” Transcript at 283. Armbruster and Dunlap dialed

      911 and told Shabazz help was on the way.


[3]   Indianapolis Metropolitan Police Department (“IMPD”) Officer Haskell

      Shaffer received the run to the scene and arrived about three to four minutes

      later. Armbruster and Dunlap flagged down Officer Shaffer and directed him to

      the porch, and Officer Shaffer approached Shabazz, observed that Shabazz had

      suffered trauma to his chest and stomach area and was bleeding, and asked him

      who he was and who had shot him. Shabazz did not respond and stared at

      Officer Shaffer with a blank stare, and Officer Shaffer could not determine

      whether Shabazz was aware of his surroundings. Soon after, other officers

      arrived and “cleared” the home to make sure others were not inside, and

      paramedics Kimberly Johnson and Adrian Foster arrived and approached

      Shabazz on the porch and found a driver’s license in his pocket. Id. at 299. The
      Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 2 of 33
      paramedics observed that Shabazz had suffered five gunshot wounds including

      shots to the chest, the left shoulder, the left arm, the third right finger, which

      was almost amputated by a bullet that was still lodged within it, and a graze

      wound to the top of the head. The paramedics administered oxygen using a

      nano-breather to Shabazz, who was sweating profusely. Johnson observed that

      Shabazz was trying to catch his breath and unable to speak in complete

      sentences, and she believed he was in shock. Johnson believed that, based on

      Shabazz’s physical state, he required immediate transport to Wishard Hospital,

      and the paramedics loaded him into the ambulance for transport.


[4]   In the ambulance, the paramedics noticed that Shabazz was starting to

      “compensate,” which meant that his blood was collecting in and around the

      areas of his major organs in order to keep him alive. Id. at 418. Shabazz had

      no blood pressure, and the paramedics administered two IVs using “the largest

      angio” that they could “so that a lot of fluid can get in the veins quickly” in an

      attempt to raise his blood pressure. Id. at 419. However, even after the IVs

      were provided, Shabazz’s blood pressure “was only 80 which is pretty low.” Id.

      at 421. Shabazz asked multiple times while in the ambulance if he was going to

      die, and although Johnson believed he would not live, she told him “he was

      going to be okay” to try and comfort him. Id. at 420.


[5]   When the ambulance arrived at the hospital, Shabazz was taken to a shock

      room for immediate medical attention. While he was awaiting surgery, IMPD

      Sergeant and Investigator John Maloney, with the aggravated assault division,

      as well as IMPD Homicide Detective Mark Prater, arrived, and each spoke

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015     Page 3 of 33
      with Shabazz separately. Detective Prater first spoke with him, asked who shot

      him, and Shabazz responded: “Zimbabwe.” Id. at 363. Shabazz also told him

      that Zimbabwe drove a grey car and that the shooting “was over a job they

      were doing on South Meridian Street.” Id. at 364. The conversation lasted for

      about ten or fifteen seconds. Sergeant Maloney then met with Shabazz and

      asked who shot him, and at first he could not understand Shabazz’s response

      “[b]ecause [Shabazz] was speaking very low and he had the oxygen mask on,”

      and he noticed that Shabazz was having trouble breathing. Id. at 346. After

      removing the oxygen mask, Sergeant Maloney asked again and Shabazz

      responded: “Zimbabwe.” Id. Shabazz told him that Zimbabwe was black, that

      he had a grey vehicle, and that Shabazz and Zimbabwe “had worked together

      on a job on the south side on Meridian Street” and that a dispute over money

      from that job had arisen. Id. at 346-347. Sergeant Maloney was able to speak

      with Shabazz for about a minute before he was wheeled off to surgery.


[6]   Shabazz died in surgery at 1:41 p.m. that day. Upon his death, IMPD

      Homicide Detective Charles Benner was assigned as lead detective, and he met

      with the officers who had taken part in the investigation, as well as friends and

      family of Shabazz including his fiancée Shelinda Kerr. During Detective

      Benner’s interview with Kerr, she identified the man she knew as Zimbabwe

      from a photo array, and the person she identified was Bishop. Kerr had known

      Zimbabwe since July of 1998 as a friend and partner in construction work with

      Shabazz. Detective Benner also met with a man named Carl Alsum, who was




      Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 4 of 33
      referred to him by Kerr, and who also identified Bishop as Zimbabwe from a

      photo array.


[7]   Also, on September 1, 2012, IMPD Crime Lab Investigator Michael Hasty

      went to Shabazz’s home to collect evidence which included, among other

      things, three spent shell casings, and he transported the evidence to the Crime

      Lab. On September 2, 2012, Dr. Joyce Carter conducted an autopsy of

      Shabazz’s body and noted that he suffered gunshot wounds including an

      abrasion to the top of his head, a wound in his left arm, a wound in the back of

      his left shoulder, a wound to the right side of his chest, and a wound to his third

      right finger that nearly amputated the finger. The shot to his chest caused

      serious damage to his body, including fracturing two ribs, a huge tear to his

      liver of approximately eight inches in length, holes in his diaphragm, damage to

      his hepatic vein, a hole in his right lung, as well as tremendous bleeding. She

      noted that the doctors during surgery applied eleven gauze sponges to the

      wound, each of which is capable of holding a cup to a cup and a half of blood,

      which, combined with the blood found in the abdomen and right chest cavity,

      amounted to about four and a half liters of blood loss.


[8]   On September 7, 2012, the State charged Bishop with the murder of Shabazz.

      On September 12, 2012, Boone County Sheriff Deputies Bradley Dunn and

      Jesse Boggs were dispatched to the area of 600 South 650 West, which was a

      rural location surrounded by corn fields, farm land, and some woods to

      investigate a suspicious person. When the deputies arrived on the scene, they

      observed a black male sitting on a phone utility box near the northwest corner

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 5 of 33
      of the intersection. Deputy Dunn approached the man, later identified as

      Bishop, and asked him what he was doing, and Bishop responded that “he has

      warrants.” Id. at 454. Deputy Dunn asked what the warrants were for, and

      Bishop said “for shooting people.” Id. Bishop spelled his name for the

      deputies, and Deputy Dunn then realized that he was the person they “were

      supposed to be looking for.”1 Id. The deputies confirmed that there were

      warrants out for Bishop, and Bishop told them that “[h]is car was in the

      woods.” Id. at 455. Deputy Dunn arrested Bishop and took him to jail where

      he was handed off to IMPD. Other Boone County Sheriff’s Deputies later

      discovered Bishop’s car, a grey Mazda which had been smeared with mud to

      act as camouflage, about two to three hundred feet from the road in a wooded

      area.


[9]   On December 11, 2012, the State filed a motion for joinder of offenses for the

      purposes of trial under the instant cause number as well as under cause numbers

      49G06-1209-FA-061989 (“Cause No. 61989”) and 49G06-1209-FA-061225

      (“Cause No. 61225”). In its motion, the State noted that the conduct

      underlying Cause No. 61989 involved “the attempted murder and aggravated

      battery of Shana Ford-Gogoua and Zackery Joseph that took place on

      September 1, 2012 (at around 6:44 am),” and that Cause No. 61225 involved

      “the attempted murder and aggravated battery of William Cullens that took




      1
       Deputy Dunn testified that Bishop stated his name was “Balagoon Sankofa,” which is a known alias of
      Bishop and which appears on the charging information. Transcript at 454.

      Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015                      Page 6 of 33
       place on August 31, 2012 (at around 10:50 pm) . . . .” Appellant’s Appendix at

       54. The State argued that “.45 caliber shell casings [were] recovered from each

       scene” and Firearms and Toolmarks Examiner Timothy Spears determined that

       they “were in fact fired from the same weapon” and “of the same manufactured

       brand . . . .” Id. at 55. The State further argued that the three separate shooting

       incidents were committed over a ten-hour period, were of the same or similar

       character, and were geographically close in proximity. On January 7, 2013,

       Bishop filed a notice of objection to the State’s request for joinder, and the court

       denied the State’s motion the following day.


[10]   On November 8, 2013, in Cause No. 61989, the case involving the shootings of

       Shana Ford-Gogoua and Zackery Joseph, the State filed a Notice of Intent to

       Offer Evidence Pursuant to Ind. Evidence Rule 404(b) and Request for Hearing

       to Address Admissibility of Evidence (the “Rule 404(b) Motion”) in which it

       stated that it intended to present evidence regarding the murder of Shabazz and

       the attempted murder of Cullens using “the same .45 caliber handgun” and that

       such evidence is “essential and relevant to proving the identity of [Bishop] as

       the same person who attempted to murder Ms. Ford-Gogua and Mr. Joseph . . .

       .” Id. at 250-251. On November 19, 2013, Bishop filed his response arguing

       that the crimes were not sufficiently similar to earmark them as one person’s

       handiwork. The Rule 404(b) Motion was incorporated into the record in the

       instant case.


[11]   On February 11, 2014, Bishop filed a motion to suppress the statements of

       Shabazz identifying him as the person that shot him and argued that the

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 7 of 33
       statements were inadmissible because they did not qualify as dying declarations

       and were testimonial and therefore admission would violate his Sixth

       Amendment right of confrontation. Also, on February 27, 2014, Bishop filed a

       Motion to Dismiss Due to Destruction of Evidence or in the Alternative for

       Exclusion of Evidence stating that he had been notified by the State on January

       30, 2014, that the shell casings recovered from the scene of the attempted

       murder of Cullens were mistakenly destroyed by order of the responding officer

       following the completion of the firearms report prepared by Spears. The State

       filed its response to the motion to dismiss on March 4, 2014, and its response to

       the motion to suppress on March 7, 2014. Following evidentiary hearings on

       the three motions, on May 5, 2014, the court entered an order denying Bishop’s

       motion to suppress, and granting the State’s motion “to allow 404(b) evidence .

       . . as it relates to the identification of [Bishop] and the recovery of ballistics

       information . . . .” Id. at 160.


[12]   The court commenced a jury trial on August 4, 2014, in which evidence

       consistent with the foregoing was presented. During the trial, Bishop renewed

       his objection to testimony relating to statements made by Shabazz to Sergeant

       Maloney and Detective Prater that he was shot by Zimbabwe on the same

       grounds as raised in his motion to suppress, and the court overruled each of his

       objections and admitted the statements as dying declarations.


[13]   The State called Angela Allen, a friend of Bishop’s for about twenty years, who

       testified that on August 31, 2012, she and Bishop went to the bank and that

       Bishop wanted her to keep some money for him, which is something she had

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015       Page 8 of 33
       previously done for him, and that Bishop gave her $300 and stated that “he was

       going to, uh, go find Will or talk to Will . . . .” Transcript at 513. She testified

       that she had previously met a person known as “Big Will” through Bishop. Id.

       at 511. She further testified that Bishop “just showed up” at her house on

       September 1, 2012, at about 8:00 a.m., which she thought was unusual because

       he had never come without calling beforehand. Id. at 514. At this time, Bishop

       objected and renewed his argument that evidence relating to the Cullens

       shooting should not be admitted under Ind. Evidence Rule 404(b), and the

       court overruled the objection. Allen then testified that she had been trying to

       reach Bishop and asked where he had been, and he responded: “You don’t

       want to know.” Id. at 524. She indicated that she gave him his money and he

       left.


[14]   The State also called William Cullens, again Bishop renewed his objection

       under Ind. Evidence Rule 404(b), and the court overruled his objection.

       Cullens testified that he had been a friend of Bishop for five years and they

       would see each other a few times a month. He testified that earlier in the

       summer of 2012 he borrowed $500 from Bishop, that they had agreed he would

       repay Bishop after receiving proceeds from an annuity settlement which was

       being structured in court, and that the payment had been delayed because the

       court had granted multiple continuances.


[15]   Cullens indicated that, as of August 31, 2012, he had not received the payment

       and had not paid Bishop back on the loan, and on that evening he was at his

       home on Wind Drift Drive in Indianapolis with his girlfriend Yvonne Johnson.

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015     Page 9 of 33
       That night, Yvonne asked him to drive her to a night club not far from their

       house because she did not want to drive herself, and around 11:00 p.m. they left

       to do so. Cullens testified that as the two were leaving the house and walking

       towards his vehicle, he heard a voice say: “Will, where’s my money?” Id. at

       634. He stated that he turned toward the sound of the voice and observed

       Bishop standing fifteen feet away and holding a gun, that he saw Bishop raise

       the gun at him, and Cullen turned and ran in the opposite direction. Cullens

       heard a gunshot and felt the shot enter his back under the shoulder blade, but he

       was able to keep running. He testified that he ran past the entrance to the

       apartments, stopped to dial 911, and told the operator that Zimbabwe, referring

       to Bishop, had shot him. He also stated that he told a responding officer and a

       detective at the hospital that Zimbabwe shot him. In response to a juror’s

       question, Cullen also testified that he did not know Khalfani Shabazz.


[16]   The State next called IMPD Detective Harry Dunn, the lead investigator into

       the Cullens shooting. Detective Dunn testified that he interviewed Cullens at

       the hospital, that Cullens told him he had been shot by a man named

       Zimbabwe, and that upon researching the name he found one person who used

       Zimbabwe as an alias and that person was Bishop. He indicated that based

       thereon, he put together a photo array which contained a picture of Bishop

       taken in 1991, and that Cullens identified the picture of Bishop as Zimbabwe.

       At this point, Bishop again renewed his objection on Rule 404(b) grounds, and

       the court overruled his objection and admitted the photo array as State’s

       Exhibit 49. On cross-examination, Detective Dunn stated that at one point he


       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 10 of 33
       became aware that the shell casings from the Cullens shooting had been

       destroyed.


[17]   Bishop also renewed his objection to the testimony of IMPD Evidence

       Technician Christopher Clouse, who testified that he collected the shell casings

       at the Cullens crime scene, on both Rule 404(b) grounds and on grounds that

       the evidence had been lost or destroyed, and the court overruled the objections

       and admitted the evidence of the shell casings. Bishop objected to the

       testimony of Spears, and again the court overruled the objection and admitted

       Spears’s testimony, as well as photographs of the spent bullets. Spears testified

       consistent with his earlier report that he analyzed the shell casings and bullets

       recovered from both the Shabazz and Cullens crime scenes and that his tests

       concluded the casings and bullets were 45 caliber, were fired by the same gun,

       and were the same brand of bullet.


[18]   On three different occasions, the court gave the jury a limiting instruction

       regarding the evidence related to the Cullens shooting that such evidence was

       admitted for the limited purpose of proving motive, knowledge, intent, or

       identity. During the court’s first instance of giving this instruction, it

       specifically instructed the jury that “[y]ou may use the evidence on August 31st,

       if you wish, to determine the issue of the defendant’s motive, his knowledge, his

       intent, and/or his identity for the issue on September 1,” that “that is the only

       way you may use the information from the August 31st incident,” that “you

       may not [] in any way [] determine that this is a character trait of the

       defendant,” and that “the August 31st incident is for another jury, another court,

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015      Page 11 of 33
       another day.” Id. at 575-576. The court instructed the jury to consider State’s

       Exhibit 49 “for the limited purpose of motive, identity, knowledge or intent.”

       Id. at 665. Also, in Final Juror Instruction No. 5, the court instructed the jury:

               Sometimes evidence is admitted for a limited purpose. You have
               heard testimony from multiple complaining witnesses. You may
               consider the testimony of such witnesses as it relates to the other
               incidents for the limited purpose of determining the defendant’s
               motive, intent, knowledge, and on the issue of identity.
               You may not consider such testimony for any other purpose.
               Specifically, you may not consider the evidence as proof of the
               defendant’s character. You may not draw any inference that, because
               the defendant acted in a certain way on one occasion, he must have
               acted the same way on a different occasion because of that character
               trait. Each incident must be viewed and considered on its own
               individual facts.


       Appellant’s Appendix at 222.


[19]   On August 6, 2014, the jury found Bishop guilty as charged. On August 12,

       2014, the court held a sentencing hearing and sentenced him to sixty-five years

       in the Department of Correction.


                                                     Discussion

[20]   The issue is whether the court abused its discretion in admitting certain

       evidence. Generally, we review the trial court’s ruling on the admission or

       exclusion of evidence for an abuse of discretion. Noojin v. State, 730 N.E.2d

       672, 676 (Ind. 2000). We reverse only where the decision is clearly against the

       logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386,

       390 (Ind. 1997), reh’g denied. Even if the trial court’s decision was an abuse of

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015       Page 12 of 33
       discretion, we will not reverse if the admission constituted harmless error. Fox

       v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.


[21]   Bishop challenges the court’s decision to admit three separate pieces of

       evidence: (A) Shabazz’s identification of Bishop as the person who shot him;

       (B) evidence of the similarity between the fired cartridge casings recovered from

       the Shabazz shooting crime scene and the Cullens shooting crime scene; and

       (C) the circumstances of the Cullens shooting pursuant to Ind. Evidence Rule

       404(b). We address each of Bishop’s challenges separately.


       A. Shabazz’s Identification of Bishop


[22]   Bishop challenges the court’s decision to admit certain statements made by

       Shabazz to Sergeant Maloney and Detective Prater identifying Zimbabwe, later

       determined to be Bishop, as the person who shot him. Bishop asserts in his

       brief that a dying declaration under the hearsay exception in Ind. Evidence Rule

       804(b)(2), which is testimonial in nature, is subject to Confrontation Clause

       scrutiny under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and

       its progeny, that the statements of Shabazz are testimonial and thus should not

       have been admitted, and that even if Shabazz’s statements are judged to be

       nontestimonial or otherwise not subject to confrontation analysis, such

       statements do not fit within the dying declaration hearsay exception.


[23]   We first discuss whether the court abused its discretion by admitting the

       statements of Shabazz as dying declarations. Bishop argues that the

       circumstances surrounding the statements of Shabazz reveal that Shabazz did

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 13 of 33
       not believe his death was imminent and had not abandoned all hope of

       recovery, and accordingly the hearsay exception does not apply. Specifically,

       Bishop asserts that Shabazz was assured by paramedics that he was going to be

       okay, noting that “[p]aramedics are skilled in life-saving, and persons with no

       medical background would rightly give much weight to what they say.”

       Appellant’s Brief at 20. He argues that “[a]lthough Shabazz’s blood pressure

       was low, his heart rate, respiration rate, and oxygen levels were all normal,”

       and that “he scored the maximum on the Glasgow Coma Score, which

       measures alertness to person, place, and thing.” Id. at 19.


[24]   The State argues that the evidence reveals that Shabazz believed his death to be

       imminent, noting that he asked Paramedic Johnson multiple times if he was

       going to die, which demonstrates “that the prospect of death was at the center

       of his thoughts.” Appellee’s Brief at 21. The State notes that Shabazz exhibited

       shortness of breath and difficulty breathing and that his body began to

       “compensate” in order to survive. Id. It asserts that “Shabazz’s queries were

       perfectly consistent with the objective medical reality” that he had suffered

       multiple gunshot wounds and was bleeding, and it argues that the fact Johnson

       told him he would not die does not refute the conclusion that Shabazz believed

       his death was imminent, underscoring that he made the inquiry multiple times.

       Id.


[25]   Out-of-court statements offered in court for the truth of the matter asserted are

       generally inadmissible hearsay. Ind. Evidence Rule 802. However, one among

       many exceptions to the inadmissibility of hearsay is an out-of-court statement

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 14 of 33
       that is “[a] statement that the declarant, while believing the declarant’s death to

       be imminent, made about its cause or circumstances.” Ind. Evidence Rule

       804(b)(2). The admissibility of such a “dying declaration” is based on “the

       belief that persons making such statements are highly unlikely to lie.” Idaho v.

       Wright, 497 U.S. 805, 820, 110 S. Ct. 3139, 3149 (1990).


[26]   The crux of Bishop’s challenge to the admissibility of Shabazz’s statements as

       dying declarations centers on Paramedic Johnson telling him that “he was

       going to be okay,” which she indicated at trial was not a reflection of her true

       thoughts but was an effort to try and comfort him. Transcript at 420. It is true

       that, to be admissible as a dying declaration, the statement “must be made by a

       person who knew death was imminent and had abandoned all hope of

       recovery,” but

               [i]n order to determine if a declarant made statements with the belief
               that death was imminent while having abandoned all hope of
               recovery, the trial court may consider the general statements, conduct,
               manner, symptoms, and condition of the declarant, which flow as the
               reasonable and natural results from the extent and character of his
               wound, or state of his illness.


       Wright v. State, 916 N.E.2d 269, 275 (Ind. Ct. App. 2009) (quotations omitted),

       trans. denied.


[27]   Here, we find that the court acted within its discretion when it concluded that

       Shabazz’s statements were admissible dying declarations. Shabazz had been

       shot five times, inflicting wounds to the top of his head, his left arm, his left

       shoulder, the right side of his chest, and his third right finger, nearly amputating

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015      Page 15 of 33
the finger. The shot to his chest caused serious damage to his body, including

two fractured two ribs, a huge tear to his liver approximately eight inches long,

holes in his diaphragm, damage to his hepatic vein, a hole in his right lung, as

well as tremendous bleeding. During surgery the doctors applied eleven gauze

sponges to the wound, each of which is capable of holding a cup to a cup and a

half of blood, which, combined with the blood found in the abdomen and right

chest cavity, amounted to about four and a half liters of blood loss. Also, when

Dunlap and Armbruster came upon Shabazz while riding their bikes, they

heard him yelling “[o]h my God, oh my God,” and “help.” Transcript at 283.

Paramedics at the scene observed that Shabazz was sweating profusely and

administered oxygen using a nano-breather, and he was trying to catch his

breath and unable to speak in complete sentences. Johnson believed Shabazz

was in shock and required immediate transport to the hospital. In the

ambulance, she noticed that Shabazz was starting to “compensate,” which

meant that his blood was collecting in and around the areas of his major organs

in order to keep him alive. Id. at 418. Shabazz had no blood pressure, and the

paramedics administered two of their largest IVs in an attempt to raise his blood

pressure, but they were not very successful at doing so. Shabazz asked

paramedics on multiple occasions if he was going to die despite assurances that

“he was going to be okay.” Id. at 420. He died at 1:41 p.m., which was within

hours of his transport to the hospital. In light of his statements, conduct,

manner, symptoms, and condition, as well as the reasonable and natural results

from the extent and character of his extensive wounds, the trial court properly

concluded that Shabazz’s statements were admissible dying declarations.
Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 16 of 33
[28]   Having determined that statements were properly adjudged to be dying

       declarations and admissible under Ind. Evidence Rule 804(b)(2), we next

       address Bishop’s challenge under the Confrontation Clause of the Sixth

       Amendment. First, we note that in the landmark case of Crawford v.

       Washington, the United States Supreme Court held that “testimonial statements

       of a witness who did not appear at trial” are inadmissible “unless he was

       unavailable to testify, and the defendant had had a prior opportunity for cross-

       examination.” 541 U.S. at 53-54, 124 S. Ct. at 1365. In a footnote, the Court

       acknowledged that a historical exception to the right of confrontation “involves

       dying declarations,” specifically noting that “[t]he existence of that exception as

       a general rule of criminal hearsay law cannot be disputed” and that “[a]lthough

       many dying declarations may not be testimonial, there is authority for

       admitting even those that clearly are.” Id. at 56 n.6, 124 S. Ct. at 1367 n.6. The

       Court reserved the question of whether the Sixth Amendment incorporated “an

       exception for testimonial dying declarations” and stated that such exception

       would be “sui generis.”2 Id., 124 S. Ct. at 1367 n.6. Four years later, the Court

       examined the limited exceptions to a defendant’s right of confrontation and

       observed that Crawford stands for the proposition “that the Confrontation

       Clause is ‘most naturally read as a reference to the right of confrontation at

       common law, admitting only those exceptions established at the time of the




       2
        Sui generis is Latin for “of its own kind” and means “[o]f its own kind or class; unique or peculiar.”
       BLACK’S LAW DICTIONARY 1662 (10th ed. 2014).

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015                            Page 17 of 33
       founding.’” Giles v. California, 554 U.S. 353, 358, 128 S. Ct. 2678, 2682 (2008)

       (quoting Crawford, 541 U.S. at 54, 124 S. Ct. at 1354). The Court noted that it

       had “previously acknowledged that two forms of testimonial statements were

       admitted at common law even though they were unconfronted” and that “[t]he

       first of these were declarations made by a speaker who was both on the brink of

       death and aware that he was dying.”3 Id., 128 S. Ct. at 2682.


[29]   The Court’s statements in Giles have been accepted as providing an exception to

       a defendant’s right of confrontation for dying declarations in other jurisdictions.

       Recently, the Court of Appeals of Maryland, its highest court, joined the chorus

       of jurisdictions that have formally held that the Confrontation Clause does not

       apply to dying declarations. Hailes v. State, 113 A.3d 608, 621 (Md. 2015). The

       Maryland court discussed the relevant provisions of Crawford and Giles

       discussed above and further noted that those cases “were not the first cases in

       which the Supreme Court indicated that the Confrontation Clause does not

       apply to dying declarations,” observing that

               [f]or example, in Maryland v. Craig, 497 U.S. 836, 847-48, 110 S. Ct.
               3157, 111 L.Ed.2d 666 (1990), the Supreme Court stated:
                        We have repeatedly held that the [Confrontation] Clause
                        permits, where necessary, the admission of certain hearsay
                        statements against a defendant despite the defendant’s inability
                        to confront the declarant at trial. See, e.g., Mattox [v. United
                        States, 156 U.S. 237, 243, 15 S. Ct. 337 (1895)] (“[T]here could



       3
        The Court termed the second exception, the scope of which was at issue in the case, as “forfeiture by
       wrongdoing,” which “permitted the introduction of statements of a witness who was ‘detained’ or ‘kept
       away’ by the ‘means or procurement’ of the defendant.” Giles, 554 U.S. at 359, 128 S. Ct. at 2683.

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015                       Page 18 of 33
                   be nothing more directly contrary to the letter of the
                   [Confrontation Clause] than the admission of dying
                   declarations”4); Pointer v. Texas, 380 U.S. 400, 407, 85 S. Ct.
                   1065, 13 L.Ed.2d 923 (1965) (noting exceptions to the
                   confrontation right for dying declarations and “other analogous
                   situations”).
        Similarly, in Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S. Ct. 330, 78
        L.Ed. 674 (1934), the Supreme Court stated that the Confrontation
        Clause has not
                   at any time been without recognized exceptions, as, for
                   instance, dying declarations. Dowdell v. United States, 221 U.S.
                   325, 330, 31 S. Ct. 590, 55 L.Ed. 753 (1911) (“Dying
                   declarations, although not made in the presence of the accused,
                   are uniformly recognized as competent [evidence].” (Citing
                   Mattox [], 156 U.S. at 243-44, 15 S. Ct. 337)). Cf. Robertson v.
                   Baldwin, 165 U.S. 275, 282 17 S. Ct. 326, 41 L.Ed. 715 (1897)
                   (The Confrontation Clause does not “prevent the admission of
                   dying declarations[.]”); Motes v. United States, 178 U.S. 458, 472,
                   473 20 S. Ct. 993, 44 L.Ed. 1150 (1900)5.
        (Italics added). Likewise, in Kirby v. United States, 174 U.S. 47, 61, 19
        S. Ct. 574, 43 L.Ed. 890 (1899), the Supreme Court stated: “[T]he
        admission of dying declarations is an exception [to the Confrontation
        Clause] which arises from the necessity of the cause. This exception
        was well established before the adoption of the [C]onstitution, and
        was not intended to be abrogated.” (Emphasis added).




        4
            In Mattox [], 156 U.S. at 243-44, 15 S. Ct. 337 the Supreme Court continued:

                   [Y]et from time immemorial[, dying declarations] have been treated as
                   competent [evidence], and no one would have the hardihood at this
                   day to question their admissibility. They are admitted, not in
                   conformity with any general rule regarding the admission of [evidence],
                   but as an exception to such rules, simply from the necessities of the
                   case, and to prevent a manifest failure of justice.
        5
          In Motes, 178 U.S. at 472, 20 S. Ct. 993 the Supreme Court actually referred to
        statements that fall under the “forfeiture by wrongdoing” exception to the rule against
        hearsay, not dying declarations.

Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015                           Page 19 of 33
       113 A.3d at 619-620 (some brackets omitted). The court stated that, as

       highlighted by the U.S. Supreme Court in Kirby, “the Confrontation Clause

       does not apply to dying declarations” because they “were an exception to the

       common law right of confrontation when the Sixth Amendment was ratified,”

       and further observed that “[t]his accords with Crawford and its progeny, in

       which the Supreme Court has held that the Confrontation Clause applies to

       testimonial statements of types as to which—in contrast to dying declarations—

       there was no exception to the common law right of confrontation when the

       Sixth Amendment was ratified.” Id. at 620-621 (citing Crawford, 541 U.S. at 40,

       68, 124 S. Ct. 1354 (statements against penal interest); Giles, 554 U.S. at 357,

       359, 377, 128 S. Ct. 2678 (“forfeiture by wrongdoing” under California law);

       Davis v. Washington, 547 U.S. 813, 819, 821, 834, 126 S. Ct. 2266 (2006)

       (excited utterances); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S.

       Ct. 2527 (2009) (purported business records and public records). The court held

       that the victim’s identification of defendant Hailes was a dying declaration, that

       “thus, the Confrontation Clause does not apply,” and that accordingly “we

       need not, and do not, address whether [the victim’s] identification of Hailes was

       testimonial or non-testimonial, as the distinction is irrelevant in the context of

       dying declarations.” Id. at 623.


[30]   In the same matter, the Court of Special Appeals of Maryland, as affirmed by

       the Maryland Court of Appeals, provided a thorough recitation of what it

       termed a “juggernaut of persuasive authority” for excepting dying declarations

       from Crawford as follows:


       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 20 of 33
        Sixteen of our sister states have considered whether the Dying
        Declaration is exempted from the coverage of the Confrontation
        Clause. Sixteen out of sixteen have concluded that it is. In People v.
        Monterroso, 34 Cal. 4th 743, 765, 22 Cal. Rptr. 3d 1, 101 P.3d 956, 972
        (2004), the California Supreme Court addressed the issue squarely:
                 Thus, if, as Crawford teaches, the confrontation clause “is most
                 naturally read as a reference to the right of confrontation at
                 common law, admitting only those exceptions established at
                 the time of the founding,” it follows that the common law pedigree
                 of the exception for dying declarations poses no conflict with the Sixth
                 Amendment.
        (Emphasis supplied). See also Walton v. State, 278 Ga. 432, 603 S.E.2d
        263, 265-66 (2004); People v. Gilmore, 356 Ill. App. 3d 1023, 293 Ill.
        Dec. 323, 828 N.E.2d 293, 302 (2005) (“Although the statement just
        quoted [from Crawford] is dicta, we view it as a strong indication that
        the Court does not believe that admitting testimonial dying
        declarations violates the confrontation clause.”); Wallace v. State, 836
        N.E.2d 985, 996 (Ind. [Ct.] App. 2005) (“[W]e are convinced that
        Crawford neither explicitly, nor implicitly, signaled that the dying
        declaration exception to hearsay ran afoul of an accused’s right of
        confrontation under the Sixth Amendment.”)[, trans. denied]; State v.
        Jones, 287 Kan. 559, 197 P.3d 815, 822 (2008) (“Accordingly, we are
        confident that, when given the opportunity to do so, the Supreme
        Court would affirm that a dying declaration may be admitted into
        evidence, even when it is testimonial in nature and is unconfronted.”);
        Commonwealth v. Nesbitt, 452 Mass. 236, 892 N.E.2d 299, 310-11
        (2008) (“Thus, in the unique instance of dying declarations, we ask
        only whether the statement is admissible as a common-law dying
        declaration, and not whether the statement is testimonial.”); People v.
        Taylor, 275 Mich. App. 177, 737 N.W.2d 790, 795 (2007) (“For the
        reasons stated by the Supreme Court of California, we hold that, under
        Crawford, dying declarations are admissible as an historic exception to
        the Confrontation Clause.”); State v. Martin, 695 N.W.2d 578, 585-86
        (Minn. 2005) (“We hold that the admission into evidence of a dying
        declaration does not violate a defendant’s Sixth Amendment right to
        confrontation within the meaning of Crawford because an exception for
        dying declarations existed at common law and was not repudiated by
        the Sixth Amendment.”); Grindle v. State, 134 So.3d 330, 341-44 (Miss.
        App. 2013) ( “[W]e are swayed by the United States Supreme Court’s

Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015               Page 21 of 33
        commentary in Crawford and Giles that, were the matter properly
        before the Court, the exception would be held to apply.”); Harkins v.
        State, 122 Nev. 974, 143 P.3d 706, 711 (2006) (“The Confrontation
        Clause, like other provisions in the Bill of Rights, is subject to
        exceptions, ‘recognized long before the adoption of the Constitution,
        and not interfering at all with its spirit.’ A dying declaration is one
        such exception to the Confrontation Clause.”); People v. Clay, 88
        A.D.3d 14, 26-27, 926 N.Y.S.2d 598 (N.Y. App. Div. 2011) (“Thus,
        we read Crawford to signify that the substance of the right of
        confrontation enshrined in the Constitution is informed by the
        contemporaneous understanding of that right at common law, and is
        not, instead, an abrogation of it. We therefore conclude that the
        Supreme Court, having suggested that the common-law right did not
        encompass dying declarations, would likely determine that the same is
        true of the Sixth Amendment.”); State v. Calhoun, 189 N.C. App. 166,
        657 S.E.2d 424, 428 (2008) (“We ... follow the majority of the states
        that have decided this issue and hold that a dying declaration is a
        ‘special exception’ under Crawford to the Sixth Amendment right to
        confrontation.”); State v. Kennedy, 998 N.E.2d 1189, 1202 (Ohio Ct.
        App. 2013) (“In light of this case law, we hold that the Sixth
        Amendment incorporates an exception for ‘the common law pedigree’
        of dying declarations, even testimonial ones, and that Crawford did not
        alter the rule.”); State v. Lewis, 235 S.W.3d 136, 148 (Tenn. 2007)
        (“Because the admissibility of the dying declaration is also deeply
        entrenched in the legal history of this state, it is also our view that the
        single hearsay exception survives the mandate of Crawford regardless of
        its testimonial nature.”); Satterwhite v. Commonwealth, 56 Va. App. 557,
        695 S.E.2d 555, 560 (2010) (“[W]e hold Crawford did not upend the
        traditional view that dying declarations serve as an exception both to
        the common law hearsay rule and the constitutional right of a
        defendant to confront his accusers.”); State v. Beauchamp, 333 Wis. 2d
        1, 796 N.W.2d 780, 784-85 (2011) (“Those principles compel the
        conclusion that allowing this hearsay exception comports with the
        protections of the Confrontation Clause.”). Contra United States v.
        Mayhew, 380 F.Supp.2d 961, 964-65 (S.D. Ohio 2005) (Mayhew
        admitted the dying declaration but rationalized the exemption from
        the Confrontation Clause as an instance of forfeiture by wrongdoing.).
        The academic authorities are in solid accord. [2] MCCORMICK ON
        EVIDENCE,[§ 309, at 507-508 (7th ed. 2013)], stated:

Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015         Page 22 of 33
                 The fact that dying declarations were received at the time the
                 Constitution and the Bill of Rights were formed when the
                 hearsay rule was not yet settled led the Supreme Court in
                 Crawford v. Washington to suggest that even if such a statement is
                 testimonial it would be admissible as an exception to the Confrontation
                 Clause objection.
        (Emphasis supplied).
        [6A LYNN] MCLAIN, MARYLAND EVIDENCE: STATE AND FEDERAL, §
        804(3):1b, at 771 [(3d ed. 2013)], observed . . . :
                 In Crawford v. Washington the U.S. Supreme Court opined that
                 although some dying declarations might be “testimonial” for
                 purposes of the confrontation clause, they would nonetheless be
                 admissible against a criminal accused.
        (Emphasis supplied).
        Professor [Peter Nicholas, “I’m Dying to Tell You What Happened”: The
        Admissibility of Testimonial Dying Declarations Post-Crawford, 37
        HASTINGS CONST. L.Q. 487, 491-492 (2010)], observed in that regard:
                 In footnote six, the Court took pains to point out that Crawford
                 did not technically decide the issue of the admissibility of dying
                 declarations vis-à-vis the Confrontation Clause. But if the post-
                 Crawford era to date is any guide, this dictum will, like other dicta
                 in Crawford, soon become the Law of the Land. ... In any event, the
                 Court’s holding in Giles v. California four years later effectively
                 assumes that a dying declaration exception to the Confrontation Clause
                 exists. Moreover, lower federal courts and state courts that have
                 addressed the issue have, with near unanimity, read footnote
                 six of Crawford as creating a dying declaration exception to the
                 Confrontation Clause.
        (Emphasis supplied).
        Professors [Tim Donaldson and J. Preston Frederickson, Dying to
        Testify? Confrontation vs. Declaration In Extremis, 22 REGENT U.L. REV.
        35, 77 (2010)], have also noted:
                 Crawford acknowledged the existence of authority for admitting
                 testimonial dying declarations. The Supreme Court left no doubt in
                 Giles about its understanding of the status of the dying declaration
                 exception at the time of founding when it confirmed: “We have

Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015               Page 23 of 33
                        previously acknowledged that two forms of testimonial statements
                        were admitted at common law even though they were unconfronted ...
                        The first of these were declarations made by a speaker who was both on
                        the brink of death and aware that he was dying.” There is no
                        foundation for the assertion that the dying declaration
                        exception was nonexistent at the time that the Bill of Rights
                        was designed.
                        ... Whatever construction a court places on the Confrontation
                        Clause, it is irrefutable that dying declarations were admitted at
                        common law before and after ratification of the Bill of Rights.
                        If something must yield when reconciling theory and history in this
                        area, the permanence of history should withstand the winds of changing
                        thought.
               (Emphasis supplied).


       State v. Hailes, 92 A.3d 544, 565-567 (Md. Ct. Spec. App. 2014), aff’d, 113 A.3d

       608 (2015).


[31]   The Court of Special Appeals opinion in Hailes cited this court’s decision in

       Wallace v. State, which observed that defendant Wallace cited Crawford without

       further argument and inferred that Wallace was challenging the admissibility of

       statements made by the decedent as dying declarations as a violation of his right

       of confrontation. 836 N.E.2d at 996. The court disagreed and noted “that

       Crawford neither explicitly, nor impliedly, signaled that the dying declaration

       exception to hearsay ran afoul of an accused right of confrontation under the

       Sixth Amendment.” Id. Then, in Wright, defendant Wright conceded, as the

       court noted approvingly, “that the rule in Crawford has a well-recognized

       exception for dying declarations.” 916 N.E.2d at 275. Today, we formally

       recognize that dying declarations as provided by Ind. Evidence Rule 804(b)(2)


       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015              Page 24 of 33
       are excepted from the right of confrontation provided by the Sixth Amendment.

       Accordingly, we need not decide whether the statements of Shabazz were

       testimonial in nature. The court did not abuse its discretion in admitting such

       statements.6


       B. Cartridge Casings


[32]   Bishop challenges the trial court’s decision to admit the testimony of Spears that

       the casings recovered from the Cullens scene were fired from the same gun as

       was used in the murder of Shabazz because the casings from the Cullens scene

       were mistakenly destroyed by the State. He argues specifically that “there was

       some indication that the casings possessed an exculpatory value that, however

       tenuous, was evident to the State prior to its destruction.” Appellant’s Brief at

       26.


[33]   A defendant’s due process rights are violated when the State fails to disclose or

       preserve material exculpatory evidence. See United States v. Agurs, 427 U.S. 97

       (1976). For evidence to be constitutionally material, it “must both possess an

       exculpatory value that was apparent before the evidence was destroyed, and be

       of such a nature that the defendant would be unable to obtain comparable

       evidence by other reasonably available means.” California v. Trombetta, 467

       U.S. 479, 489 (1984). When the evidence at issue is material exculpatory




       6
        The State also suggests in its brief that the statements of Shabazz were admissible as excited utterances
       under Ind. Evidence Rule 803(2). However, because we conclude that the statements were admissible as
       dying declarations, we need not address the State’s argument.

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015                          Page 25 of 33
       evidence, it is irrelevant whether the State’s failure to disclose or preserve the

       evidence was in good or bad faith. Illinois v. Fisher, 540 U.S. 544, 547 (2004).


[34]   In contrast, when the evidence at issue is “potentially useful evidence,” as

       opposed to material exculpatory evidence, failure to preserve that evidence does

       not amount to a due process violation “unless a criminal defendant can show

       bad faith” on the State’s behalf. Arizona v. Youngblood, 488 U.S. 51, 58 (1988),

       reh’g denied. Evidence that is “potentially useful” was described by the Supreme

       Court as “evidentiary material of which no more can be said than that it could

       have been subjected to tests, the results of which might have exonerated the

       defendant.” Id. at 57. At the heart of the Youngblood decision was the Court’s

       unwillingness to impose under the Due Process Clause “an undifferentiated and

       absolute duty to retain and to preserve all material that might be of conceivable

       evidentiary significance in a particular prosecution.” Id. at 58.


[35]   Here, Bishop does not assert that the State acted in bad faith and argues simply

       that loss of the shell casings is significant because it deprived him of the

       opportunity to test the casings and contradict the State’s expert testimony that

       the casings came from the same firearm. We find, however, that it is clear the

       destroyed shell casings fall under the category of “potentially useful evidence”

       because they did not have “exculpatory value that was apparent before the

       evidence was destroyed.” Trombetta, 467 U.S. at 489, 104 S. Ct. at 2534.

       Indeed, Bishop concedes that their significance is contingent upon the chance

       that additional testing would yield a result inconsistent with that of the State’s

       expert (i.e., potentially useful), and therefore his due process argument must fail

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015    Page 26 of 33
       without a showing of bad faith. We conclude that the court did not abuse its

       discretion by allowing the State to present expert testimony regarding the

       casings.


       C. Cullens Shooting


[36]   Bishop contends that the court abused its discretion in admitting evidence of the

       Cullens shooting under Ind. Evidence Rule 404(b) because the circumstances of

       the Cullens shooting and the Shabazz shooting do not share enough similarity

       for the Cullens shooting to be used as evidence of Bishop’s identity. He argues

       that to qualify under the rule “the crimes must be so strikingly similar that it can

       be said with ‘reasonable certainty’ that the same person committed them” and

       that the circumstances of the two crimes do not meet that threshold.

       Appellant’s Brief at 28. Bishop argues that “[t]he only relevance the Cullens

       case had to the Shabazz case was to show that Bishop shot Cullens, so he

       probably shot Shabazz,” that “[t]his is the ‘forbidden inference’ precluded by

       Evid. Rule. 404(b),” and that even if it had relevance outside of Bishop’s

       propensity to commit crimes the evidence should have been excluded under

       Ind. Evidence Rule 403. Id. at 32. He further asserts that the admission of such

       evidence was not harmless, noting that although the court admonished the jury

       that evidence of the Cullens shooting could only be used on the issue of

       knowledge, intent, identity, and motive, “this admonishment could not remove

       the taint of the facts of the Cullens case. The jury’s apparent decision to believe

       Shabazz’s identification of Bishop as his shooter may have turned on the



       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 27 of 33
       wrongly admitted evidence and caused it to decide the case based on Bishop’s

       propensity to commit crimes.” Id. at 34.


[37]   The State argues that the evidence of the Cullens shooting demonstrated that

       the same firearm used to shoot Cullens was used to shoot Shabazz. It asserts

       that such evidence was probative as to Bishop’s motive, noting that both

       shootings occurred during the same twenty-four hour period and involved

       financial disputes. The State asserts that it had the burden of proving identity

       and in that regard “had relevant evidence [of] another shooting, in the same 24-

       hour period, involving the same firearm, same caliber weapon, evincing the

       same intent . . . to find people who owed him money, and evidencing the same

       motive for shooting his victims,” and that the probative weight of such evidence

       was greater than its prejudice. Appellee’s Brief at 40. The State further

       contends that, even if admitting such evidence was error, any error was

       harmless at most because the court “insulated the jury from its misuse with

       prophylactic jury instructions” and “the law presumes that the jury will follow

       the trial court’s admonition” which “cures any error in the admission of

       evidence.” Id. at 41.


[38]   Ind. Evidence Rule 404(b), titled “Crimes, Wrongs, or Other Acts,” states:

               (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
               admissible to prove a person’s character in order to show that on a
               particular occasion the person acted in accordance with the character.
               (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
               admissible for another purpose, such as proving motive, opportunity,
               intent, preparation, plan, knowledge, identity, absence of mistake, or


       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015          Page 28 of 33
               lack of accident. On request by a defendant in a criminal case, the
               prosecutor must:
                        (A) provide reasonable notice of the general nature of any such
                        evidence that the prosecutor intends to offer at trial; and
                        (B) do so before trial—or during trial if the court, for good
                        cause, excuses lack of pretrial notice.


[39]   Rule 404(b) “was designed to assure that ‘the State, relying upon evidence of

       uncharged misconduct, may not punish a person for his character.’” Lee v.

       State, 689 N.E.2d 435, 439 (Ind. 1997) (quoting Wickizer v. State, 626 N.E.2d

       795, 797 (Ind. 1993) (citing Lannan v. State, 600 N.E.2d 1334, 1338 (Ind.

       1992))), reh’g denied. The standard for assessing the admissibility of Rule 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 defendant’s

       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. Boone v. State, 728 N.E.2d 135, 137-138 (Ind. 2000), reh’g denied; Hicks v.

       State, 690 N.E.2d 215, 221 (Ind. 1997). “To determine whether the trial court

       abused its discretion, we employ the same test.” Wilhelmus v. State, 824 N.E.2d

       405, 414 (Ind. Ct. App. 2005) (quoting Iqbal v. State, 805 N.E.2d 401, 406 (Ind.

       Ct. App. 2004)).


[40]   The evidence is inadmissible when the State offers it only to produce the

       “forbidden inference” that the defendant has engaged in other, uncharged

       misconduct and the charged conduct was in conformity with the uncharged

       misconduct. Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000). The trial court

       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015          Page 29 of 33
       has wide latitude, however, in weighing the probative value of the evidence

       against the possible prejudice of its admission. Id. 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. Boone, 728

       N.E.2d at 138.


[41]   Evidence of other crimes admitted under the identity exception are generally

       evaluated based upon whether such crimes are “‘signature’ crimes with a

       common modus operandi.” Thompson v. State, 690 N.E.2d 224, 234 (Ind.

       1997). The rationale behind this exception “is that the crimes, or means used to

       commit them, were so similar and unique that it is highly probable that the

       same person committed all of them.” Id. (citing Lockhart v. State, 609 N.E.2d

       1093, 1097 (Ind. 1993)). While the “signature crime” test focuses on similarity

       and uniqueness between the charged and uncharged conduct, we note that in

       addition courts have long considered “whether or not the evidence is so

       specifically and significantly related to the charged crime in time, place and

       circumstance as to be logically relevant to one of the particular excepted

       purposes.” Malone v. State, 441 N.E.2d 1339, 1346 (Ind. 1982) (citing

       Montgomery v. State, 274 Ind. 544, 548, 412 N.E.2d 793, 795 (1980), reh’g denied;

       Duvose v. State, 257 Ind. 450, 451, 275 N.E.2d 536, 537 (1971)). Both “the

       timing and similarity of the incidents are factors in the larger inquiry into

       whether the incidents were relevant to a matter in issue.” Hicks, 690 N.E.2d at

       222.




       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 30 of 33
[42]   Here, the evidence elicited by the State related to the Cullens shooting included

       that Angela Allen saw Bishop on the evening of August 31, 2012, the night

       before Shabazz was discovered shot at his home, and that Bishop gave her $300

       and stated that “he was going to, uh, go find Will or talk to Will,” whom she

       knew through Bishop. Transcript at 513. Bishop showed up at about 8:00 a.m.

       on the morning of September 1, 2012, and when asked where he had been he

       responded: “You don’t want to know.” Id. at 524. Allen gave Bishop his

       money and he left. Cullens testified that he owed Bishop $500 and on August

       31, 2012, at about 11:00 p.m., he encountered Bishop outside of his home as he

       was walking to his car. Bishop asked “Will, where’s my money?” and Cullens

       observed Bishop holding a gun. Id. at 634. Bishop raised the gun, Cullens ran

       in the opposite direction, Bishop shot Cullens, but Cullens was able to keep

       running and call 911. Cullens told a responding officer that he had been shot by

       Zimbabwe. Detective Dunn testified that Cullens identified Bishop as

       Zimbabwe, the same alias provided by Shabazz to detectives. Spears testified

       that shell casings and bullets recovered from both the Cullens and Shabazz

       crime scenes were fired from the same 45 caliber handgun and were the same

       brand of bullet.


[43]   We find that this evidence was relevant to the identity and motive of Bishop as

       the person who shot Shabazz, and was not merely evidence supporting the

       “forbidden inference” of Bishop’s propensity to commit the charged act,

       because the time, place, and circumstances of the Cullens shooting are logically

       relevant to those excepted purposes under Ind. Evidence Rule 404(b). The


       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 31 of 33
       Cullens shooting occurred within hours of the shooting of Shabazz during the

       same overnight period. Both shootings occurred in the city of Indianapolis.

       Also, the evidence revealed that both shootings concerned financial disputes

       between Bishop and the victims. Importantly, there is strong circumstantial

       evidence linking the shootings in that shell casings and bullets recovered from

       the Cullens shooting, in which Cullens identified Bishop as the shooter,

       matched shell casings and bullets recovered from the Shabazz crime scene as

       being fired from the same gun and were the same brand of bullet. The

       probative value of such evidence vastly outweighed any prejudicial effect it

       might have had on Bishop.


[44]   To the extent Bishop suggests that the evidence from the Cullens shooting was

       inadmissible under Ind. Evidence Rule 404(b) because it did not rise to the level

       of a “signature crime,” we note that our precedent takes care to note that “[t]he

       identity exception to the general prohibition on propensity evidence is crafted

       primarily for ‘signature’ crimes with a common modus operandi.” Thompson,

       690 N.E.2d at 234 (emphasis added). The test for whether identity evidence

       constitutes a signature crime does not focus on the timeframe between the

       different criminal episodes. See, e.g., Nicholson v. State, 963 N.E.2d 1096, 1098-

       1100 (Ind. 2012) (holding that evidence of a prior conviction and surrounding

       circumstances stemming from conduct occurring twenty-two months prior to

       the instant crime was admissible under Ind. Evidence Rule 404(b) as evidence

       of a signature crime). It is for this reason that our precedent has set a high bar

       for admitting signature crime evidence, focusing instead on whether the crimes


       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 32 of 33
       are “so strikingly similar that one can say with reasonable certainty that one

       and the same person committed them.” Davis v. State, 598 N.E.2d 1041, 1048

       n.2 (Ind. 1992), reh’g denied, cert. denied, 510 U.S. 948, 114 S. Ct. 392 (1993). In

       this case, the evidence of the Cullens shooting was relevant to show Bishop’s

       identity based upon the closeness in time (during the same evening), place (the

       city of Indianapolis), and circumstance (financial disputes between Bishop and

       both Cullens and Shabazz, and the same firearm was used in each shooting).


[45]   We conclude that based upon the closeness in time, place, and circumstances,

       of the two shootings, including the forensic evidence showing that the same

       firearm was used at each shooting within hours of each other, the evidence

       presented of the Cullens shooting was relevant, and its probative value

       outweighed any prejudice to Bishop. The court did not abuse its discretion in

       admitting this evidence.


                                                     Conclusion

[46]   For the foregoing reasons, we affirm Bishop’s conviction for murder.


[47]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015   Page 33 of 33
