Demeko Bradley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be Nov 22 2016, 9:06 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Gregory F. Zoeller
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Demeko Bradley, November 22, 2016
Appellant-Defendant, Court of Appeals Case No.
82A01-1602-CR-294
v. Appeal from the Vanderburgh
Superior Court
State of Indiana,
The Honorable Robert J. Pigman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82D03-1412-MR-5429
Brown, Judge.
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[1] Demeko Bradley appeals his conviction and sentence for murder. Bradley
raises three issues which we revise and restate as:
I. Whether the evidence is sufficient to disprove his claim of
self-defense;
II. Whether the trial court abused its discretion in admitting
photographic evidence; and
III. Whether his sentence is inappropriate based on the nature
of the offense and the character of the offender.
We affirm.
Facts and Procedural History
[2] Bradley began dating Erin Harvell when she was approximately fourteen years
old, and Bradley and Harvell had a child when Harvell was nineteen years old.
When Harvell was seventeen or eighteen years old, she started dating Decedric
Williams.
[3] At some point after midnight on December 27, 2014, Bradley, Derrick Johnson,
and another person arrived at a gas station in Evansville, Indiana, in a blue
Tahoe. A short time later, while Bradley was between the driver’s side of the
Tahoe and the gas pump, Williams, Harvell, and two others arrived at the gas
station in a black Cadillac and pulled up on the right side of the Tahoe. Harvell
exited the Cadillac, briefly stopped near the front passenger door of the Tahoe,
and then walked toward the rear of the Tahoe. Bradley walked around the rear
of the Tahoe, and he and Harvell stopped near the rear of the Tahoe and spoke
to each other. Williams exited the Cadillac, walked a few steps to the front
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passenger door of the Tahoe, and spoke with Johnson. Bradley then moved
around Harvell, fired five shots at Williams, and then fled the scene.
[4] Police responded to the shooting and discovered Williams face down in some
bushes by a fence. Williams was unresponsive, and police discovered a nine-
millimeter firearm underneath him. Williams was transported to the hospital,
where he later died. Police took photographs of the crime scene and of
Williams’s body at the scene and at the hospital. Police discovered ten shell
casings at the scene, five of which were .380 and the other five of which were
nine-millimeter. Police did not locate the gun used by Bradley, who was later
taken into custody in Louisville, Kentucky.
[5] On December 29, 2014, the State charged Bradley with murder. The State later
alleged Bradley was an habitual offender. At the trial, the jury heard testimony
from, among others, Harvell, Johnson, Bradley, and police investigators, and
the court admitted photographs of Williams’s body, an autopsy report, and
video recordings taken from surveillance cameras at the gas station.
[6] When asked what she and Bradley were discussing when he moved around her,
Harvell testified “[n]othing. He just moved around me” and “he just slightly
pushed me to the back and I just heard a lot of gunshots.” Transcript at 95-96.
When asked if she recalled what she told a detective about the manner in which
Bradley moved around her, Harvell testified that “I honestly thought he like
pushed me out of the way but I see he just kind of shoves me out of the way”
and that “[h]e was just trying to push me out of the way,” and when asked why
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she thought that he moved around her, she answered “[b]ecause I was in front
of him.” Id. at 98. On cross-examination, when asked “didn’t [Bradley] also
kind of push you behind the Tahoe,” Harvell responded affirmatively. Id. at 99.
When asked “shortly before he made that move to get around you and push
you behind the Tahoe, there was kind of a change in his facial expression
wasn’t there,” Harvell answered “[y]es,” and when asked “[h]is facial
expression changed to one of surprise or fear, didn’t it” and “his eyes got a little
bigger, correct,” she responded affirmatively. Id. She further testified that
Bradley “kept like looking around me a little bit too. He wasn’t like all the way
focused on me while I was talking.” Id. at 100. Harvell further testified that she
had observed Williams in possession of a gun earlier that day, that Williams
was driving the Cadillac and stopped on Main Street, that someone honked at
him, and that Williams pulled his weapon on the person who honked at him.
Harvell stated that Williams was out of the Cadillac when he brandished the
gun on Main Street, that the vehicle of the person who honked at Williams was
a black “Jeep kind of looking car” or “SUV,” and that she knew the person,
Shayla, who had honked. Id. at 104.
[7] On redirect, Harvell indicated that she did not mention Bradley’s facial
expressions to the police that evening, that she had been drinking a lot that
evening, and that she remembered the facial expressions after she thought about
what happened that night. When asked if she originally told police that Bradley
grabbed her by the neck and threw her to the ground, Harvell replied “[y]eah . .
. because that’s how I remembered it” but that her testimony was that “he just
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kind of shoved me.” Id. at 116. She indicated that she had talked to Bradley
probably more than ten times following the shooting, including two and three
days prior to trial. Evansville Police Officer Doug Hamner testified that he was
a crime scene investigator and that, when he arrived at the scene and
interviewed Harvell, she stated that she was across the street from the gas
station when the shooting occurred.
[8] Johnson testified that, on the night of the shooting, Bradley picked him up in
the blue Tahoe and that, while they were stopped on Main Street, there was
a“kind of altercation like,” which occurred about ten minutes before they
arrived at the gas station. Id. at 195. He testified “well [Williams] like pointed
a gun at the, at the truck” on Main Street at a stoplight. Id. at 196. When asked
what happened, he said “[t]wo people was – somebody was talking. It was two
cars stopped right there,” and when asked who was driving those vehicles, he
said “not all the way 100 percent sure, I just – you know what I’m saying.” Id.
When asked “[w]ho was there that you know that you can tell us about,”
Johnson answered “[Williams]. That’s all I know for sure.” Id. When asked if
he knew which vehicle Williams was in, Johnson replied “[n]o. He was talking
to somebody at the window,” and when asked if there were “[t]wo cars other
than the Tahoe,” he replied affirmatively. Id. at 197. He stated the first car at
the light was a gray or white Impala and the second vehicle was a truck. When
asked if he had “any idea which car [Williams] was likely in,” he replied “I
would think he was in the first one,” and when asked if he was the driver or a
passenger, he stated he did not know because Williams was out of the car. Id.
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at 198. When asked “[s]o how did it come about that [Williams] is pointing a
gun at the truck,” Johnson answered “I couldn’t even tell you. You know we
were just right there at the light stopped and that’s what happened.” Id.
[9] Johnson further testified that, at the gas station, Williams drove up next to the
Tahoe, exited the car and started “loudly talking towards” the Tahoe, he had a
gun in his right hand, and he “was talking to me and shots got to firing off.” Id.
at 202. He testified that Williams was “waving [the gun] around and pointing
it” and that “[h]e was coming towards the car on violence.” Id. at 204. When
asked what he thought would have happened if Bradley did not shoot at
Williams, Johnson answered “[i]t probably went the other way around.” Id. at
207.
[10] On cross-examination, Johnson stated that Williams drove up in a Cadillac at
the gas station but was in a gray Impala on Main Street ten minutes earlier.
When asked if Williams had been driving the gray Impala, he replied “I’m
thinking.” Id. at 211. He stated that Williams was “[t]alking to the car behind
him” and that car was “like a gray truck . . . [l]ike a little SUV Trailblazer.” Id.
When asked “[d]id you ever see a gun at that point,” Johnson answered
affirmatively, and when asked “[w]hen,” he answered “[w]hen he like noticed
that we was behind him. When he noticed that we was behind the gray
Trailblazer.” Id. at 213. When asked “what did [Williams] do after you saw
him with a gun,” Johnson said “[t]ook off running,” and when asked how the
Impala moved, he answered that “[s]omebody jumped over there and drove it.”
Id. at 214-215. Johnson indicated that at one point after the shooting he went
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back to the gas station, and when asked “it appears that you pick up a black
object that’s on the ground,” he replied that it was his cell phone and not a gun.
Id. at 226.
[11] Bradley testified that, on Main Street, Williams drew a gun and pointed it at the
vehicle Bradley was in and then ran away, and that, when the Cadillac pulled
up, Harvell exited and started yelling at him. Bradley testified that he fired a
weapon at Williams, and when asked what led him to make that decision, he
stated that he and Harvell were “arguing back and forth but I’m listening and I
heard him and I’m watching him and then I see, see the gun in his hand and he
turns” and that Williams was turning the gun towards him. Id. at 249. When
asked what went through his mind, he testified “[t]hat he was about to shoot. I
was scared.” Id. When asked the length of time from when he saw Williams’s
gun until he made the decision to fire at him, Bradley replied “[a] few seconds
because I’m moving my daughter’s mother out of the way and I started
shooting.” Id. at 250. Bradley stated that he was the first one to shoot. He
further testified that he began to run and dropped the gun across the street from
the gas station, and that he traveled to Louisville several hours later because he
was scared. Bradley stated that he thought he was the person Williams was
there to hurt and that he thought that, if he had not shot, he would have been
dead or shot.
[12] The video from the surveillance cameras at the gas station shows the shooting
and the activity at the gas station before and after the shooting. The video
shows the Cadillac pull up next to the Tahoe, Harvell exit the Cadillac and
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briefly stop near the front passenger side of the Tahoe and then walk toward the
rear of the vehicle, Bradley walk around the rear of the Tahoe and stand near
Harvell while facing towards the front of the Tahoe, and Williams exit the
Cadillac and stand near the front passenger door of the Tahoe speaking to the
person seated in the passenger seat. The video shows that, after approximately
sixteen seconds, Bradley took about four steps forward around the right side of
Harvell, using his left arm to move her slightly to the left, and toward Williams,
and while he was moving toward Williams he drew a gun with his right hand
and started to fire shots at Williams. After firing his weapon five times, Bradley
ran behind the Tahoe and out of view.
[13] The autopsy report states Williams’s death “is attributed to exsanguination,
secondary to a non-contact gunshot wound of the left abdomen with near
transection of the left common iliac artery.” Joint Exhibit 1 at 1. The projectile
from this wound was recovered from the right side of Williams’s abdomen.
The report further states that Williams sustained a gunshot wound to his
posterior right arm and a gunshot wound to his lateral left buttock. The court
admitted photographs of Williams showing in part his wounds. The court
instructed the jury regarding self-defense.
[14] In closing argument, Bradley’s defense counsel argued that Bradley acted in
self-defense and pointed to the video of the shooting and the testimony of
Johnson and Bradley. The prosecutor argued Bradley intentionally shot
Williams and that he did not act in self-defense. The prosecutor argued there
was no factual basis to support a theory of self-defense in this case, asked the
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jury to look at the position of Williams in the video at the time Bradley started
to shoot, argued Williams was facing and talking to Johnson at the time, and
stated the autopsy report is consistent with the video. The prosecutor also
discussed the testimony of Harvell and Johnson regarding what occurred on
Main Street and at the gas station.
[15] The jury found Bradley guilty of murder, and Bradley admitted to being an
habitual offender. The court sentenced Bradley to sixty years for murder and
enhanced the sentence by ten years for being an habitual offender.
Discussion
I.
[16] The first issue is whether the evidence is sufficient to support Bradley’s
conviction and negate his claim of self-defense. When reviewing claims of
insufficiency of the evidence, we do not reweigh the evidence or judge the
credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g
denied. Rather, we look to the evidence and the reasonable inferences therefrom
that support the verdict. Id. We will affirm the conviction if there exists
evidence of probative value from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. Id. The uncorroborated testimony
of one witness is sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d
1070, 1072-1073 (Ind. 1991). “Because intent is a mental function and usually
must be determined from a person’s conduct and resulting reasonable
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inferences, the element of intent may properly be inferred from circumstantial
evidence.” Beatty v. State, 567 N.E.2d 1134, 1139 (Ind. 1991).
[17] The offense of murder is governed by Ind. Code § 35-42-1-1, which provides in
part that a person who knowingly or intentionally kills another human being
commits murder, a felony. Ind. Code § 35-41-2-2 provides that a person
“engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his
conscious objective to do so” and that a person “engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.”
[18] Bradley asserts the State produced no relevant evidence to contradict his claim
of self-defense, the video and autopsy report showed only that a homicide took
place, and the recording does not show whether Williams verbally provoked
Bradley or Bradley was reasonably afraid of Williams. He also argues, without
citation to the record, that “[t]he State asked the jury . . . to hold that two pieces
of evidence with no probative value or relationship as to any of the elements of
self-defense be held to disprove the elements of self-defense by themselves.”
Appellant’s Brief at 9. In the facts section of his brief, Bradley also states that
Williams had flashed a gun at Bradley earlier on Main Street and that, after
Harvell and Bradley had been talking for a short period at the gas station,
Bradley’s expression changed to one of surprise or fear.
[19] The State maintains that Bradley’s arguments are invitations to reweigh the
evidence and re-determine the credibility of the witnesses, that there is sufficient
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evidence showing Bradley did not act from a fear of great harm or death, and
that Johnson’s testimony that Williams brandished a gun earlier in the evening
was confusing and contradicted by Harvell’s testimony. The State also argues
that Bradley fled the state within hours of the murder and fired multiple shots at
Williams, undercutting his claim of self-defense.
[20] Self-defense is governed by Ind. Code § 35-41-3-2. A valid claim of self-defense
is legal justification for an otherwise criminal act. Wilson v. State, 770 N.E.2d
799, 800 (Ind. 2002). In order to prevail on a self-defense claim, a defendant
must demonstrate he was in a place he had a right to be; did not provoke,
instigate, or participate willingly in the violence; and had a reasonable fear of
death or great bodily harm. Id. The amount of force a person may use to
protect himself depends on the urgency of the situation. Harmon v. State, 849
N.E.2d 726, 730-731 (Ind. Ct. App. 2006). However, “[w]hen a person uses
more force than is reasonably necessary under the circumstances, the right of
self-defense is extinguished. Id. at 731.
[21] When a claim of self-defense is raised and finds support in the evidence, the
State has the burden of negating at least one of the necessary elements. Wilson,
770 N.E.2d at 800. If a defendant is convicted despite his claim of self-defense,
we will reverse only if no reasonable person could say that self-defense was
negated by the State beyond a reasonable doubt. Id. at 800-801. A mutual
combatant, whether or not the initial aggressor, must declare an armistice
before he or she may claim self-defense. Id. at 801. The standard of review for
a challenge to the sufficiency of the evidence to rebut a claim of self-defense is
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the same as the standard for any sufficiency of the evidence claim. Id. We
neither reweigh the evidence nor judge the credibility of witnesses. Id. If there
is sufficient evidence of probative value to support the conclusion of the trier of
fact, then the verdict will not be disturbed. Id.
[22] The jury was able to view the video from the surveillance cameras at the gas
station which depicted the shooting, the position of the Tahoe and Cadillac,
and the actions of Bradley, Harvell, and Williams before, during, and after the
shooting. The video shows Bradley taking steps forward around Harvell and
toward Williams, drawing a gun, and firing multiple times at Williams before
running away. The jury could assess the mannerisms and actions of Bradley
and Williams immediately prior to the shooting, the extent to which Bradley
moved Harvell as he stepped around her, and the relative positions of Bradley
and Williams. Additionally, the jury was able to review the autopsy report and
the photographic evidence of Williams’s body, including the position of the
bullet wound to his left abdomen and the wounds to his arm and buttock.
Further, the jury heard Harvell’s testimony with respect to Bradley’s facial
expressions prior to the shooting, Johnson’s testimony regarding Williams’s
behavior at the gas station, and the testimony of Harvell, Johnson, and Bradley
regarding Williams brandishing a weapon on Main Street prior to arriving at
the gas station. The jury was able to consider the extent to which the testimony
of each witness was consistent or inconsistent with the testimony of the other
witnesses and the other evidence and was able to assess the demeanor and
credibility of the witnesses and weigh their testimony. The jury also heard
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extensive arguments by the prosecutor and defense counsel regarding the
evidence and testimony related to Bradley’s claim of self-defense.
[23] Based upon the evidence, the jury could infer that Bradley participated willingly
in the violence, that he did not have a reasonable fear of death or great bodily
harm, or that the amount of force he used was unreasonable under the
circumstances. We conclude based upon the record that the State presented
evidence of a probative nature from which a reasonable trier of fact could have
determined beyond a reasonable doubt that Bradley did not validly act in self-
defense and that he was guilty of murder. See Wallace v. State, 725 N.E.2d 837,
840 (Ind. 2000) (affirming the defendant’s convictions for murder and
attempted murder, noting the defendant claimed that he acted in self-defense
and testified one of the victims threatened him with harm if he did not pay
money and the other victim reached for him and that at that point he produced
a handgun and fired, observing that the trial court gave the jury a self-defense
instruction and that the jury nonetheless convicted the defendant of murder,
declining to reweigh the evidence, and holding that the State presented
sufficient evidence to negate the defendant’s claim of self-defense); Milam v.
State, 719 N.E.2d 1208, 1210-1211 (Ind. 1999) (affirming the defendant’s
conviction for murder, noting that the defendant and victim had a violent past,
the defendant had stated that she shot the victim when he threatened to hit her,
the victim was shot four times, and there was no evidence of a struggle, and
holding a reasonable trier of fact could have found the defendant did not have a
reasonable fear of death or great bodily harm and that the evidence was
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sufficient to rebut the defendant’s claim of self-defense); Birdsong v. State, 685
N.E.2d 42, 45-46 (Ind. 1997) (affirming the defendant’s convictions for murder
and attempted murder, noting that the victims were the initial aggressors was
not dispositive as to whether deadly force was a reasonable response, and
holding that the evidence supported the State’s argument that the defendant
used unreasonable force and did not validly act in self-defense); Rodriguez v.
State, 714 N.E.2d 667, 670-671 (Ind. Ct. App. 1999) (noting that the defendant’s
version of events differed from other testimony, declining to reweigh the
evidence, and holding that sufficient evidence existed to rebut the defendant’s
claim of self-defense), trans. denied.
II.
[24] The next issue is whether the trial court abused its discretion in admitting
photographic evidence. The court admitted into evidence, over Bradley’s
objection, a photograph depicting a portion of Williams’s body and right arm
after he died. Specifically, Evansville Police Officer Ben Gentry testified that he
was assigned to the crime scene unit and that he had been asked by Officer
Hamner to visit the hospital and photograph Williams after he had passed away
in the surgery center of the hospital. Outside the presence of the jury, the State
offered State’s Exhibit 32, and Officer Gentry testified that the photograph
showed a bullet injury to Williams’s arm, that Williams was deceased at the
time the photograph was taken, that he took approximately ten photographs
showing other parts of Williams’s body and other wounds, and that the
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photograph showed “the table and the medical patches and stuff on his body
but that’s about it.” Transcript at 173.
[25] Bradley’s counsel asked “[t]here’s also visible in that photograph a substantial
amount of blood, is that correct,” and the officer replied “[t]hat’s correct, yes.”
Id. at 174. Bradley’s counsel then objected to the admission of the photograph,
stated that Bradley had conceded by stipulation that Williams is deceased, the
time of death, the nature of his death, and the cause of his death, and argued
that any type of post-mortem photographs were inadmissible and are more
prejudicial than probative. The State responded that “[i]t’s hardly anything
about that photograph that’s prejudicial,” that the fact the defense stipulated
that Williams was dead did not prohibit the State from presenting evidence,
that “[t]he wounds are a significant piece in this trial and in this puzzle for the
jury and the State ought to have an opportunity to display those wounds to the
jury,” and that “[t]he State’s held back lots of photographs that may have
caused alarm. This certainly isn’t one of them. It’s an arm, Your Honor.” Id.
at 174-175. The court admitted the photograph as State’s Exhibit 32. In the
presence of the jury, Officer Gentry testified that State’s Exhibit 32 was taken
after Williams passed away, shows a bullet wound to the upper right arm, and
that the medical bandaging on the arm could be seen.
[26] Bradley asserts on appeal that, “[a]fter the defense had stipulated that the victim
had been shot, the probative value of photographs of the victim’s body
depicting the bullet wounds without explanation of how those wounds came to
be, did not outweigh their prejudicial value.” Appellant’s Brief at 9. He
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contends that photographic evidence does not need to be particularly gruesome
in order to fail the balancing test under Ind. Evidence Rule 403, that the State
did not delve into the origin or nature of the wounds, and that the photograph
was not relevant to the issue of whether he was acting in self-defense.
[27] The State responds that the photograph in State’s Exhibit 32 weighs against
Bradley’s claim of self-defense because it shows Bradley shot Williams multiple
times, that Bradley does not point to precedent which requires a witness
through whom a photograph is introduced to describe the origin or angle of
bullet holes or whether the defendant acted in self-defense, that the photograph
shows a bullet wound to Williams’s arm and bandaging, and that the State
refrained from introducing other potentially graphic photographs.
[28] The admission of photographic evidence is within the sound discretion of the
trial court, and we review the admission of photographic evidence only for
abuse of discretion. Helsley v. State, 809 N.E.2d 292, 296 (Ind. 2004) (citing
Corbert v. State, 764 N.E.2d 622, 627 (Ind. 2002)). Photographs, as with all
relevant evidence, may be excluded only if their probative value is substantially
outweighed by the danger of unfair prejudice. Id. (citing Ind. Evidence Rule
403; Corbert, 764 N.E.2d at 627). Admission of cumulative evidence alone is
insufficient to warrant a new trial. Id. An appellant must establish that the
probative value of the evidence was outweighed by the unfair prejudice flowing
from it. Id. The Indiana Supreme Court has stated:
Relevant evidence, including photographs, may be excluded only
if its probative value is substantially outweighed by the danger of
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unfair prejudice. Even gory and revolting photographs may be
admissible as long as they are relevant to some material issue or
show scenes that a witness could describe orally. Photographs,
even those gruesome in nature, are admissible if they act as
interpretative aids for the jury and have strong probative value.
Corbert, 764 N.E.2d at 627 (internal citations and quotation marks omitted). A
defendant is not entitled to have his actions sanitized when evidence is
presented to a jury. See Reaves v. State, 586 N.E.2d 847, 859 (Ind. 1992).
Evaluating whether an exhibit’s probative value is substantially outweighed by
the danger of unfair prejudice is a discretionary task best performed by the trial
court. Helsley, 809 N.E.2d at 296.
[29] The trial court admitted into evidence approximately twenty-seven photographs
introduced by the State, including photographs of Williams, the crime scene,
shell casings on the pavement, and bullet holes in the Tahoe. The court
admitted into evidence, without objection, three photographs depicting
Williams’s body which were taken at the scene of the shooting. Officer
Hamner testified that he took a number of photographs of the scene, the State
moved to admit the photographs, defense counsel stated there was no objection,
and the court admitted the photographs. State’s Exhibit 21 shows a portion of
Williams’s abdomen and his right arm while he is on his back on a gurney,
State’s Exhibit 22 shows Williams’s left arm while he is on the gurney, and
State’s Exhibit 24 shows a portion of Williams’s body on the gurney from his
waist area to his chest and depicts the bullet wound to his abdomen.
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[30] The photograph to which Bradley objected at trial and appears to challenge on
appeal, State’s Exhibit 32, shows a portion of the side of Williams’s body
partially covered by a medical patch or drape, his right arm, and a bullet wound
to the arm. Officer Gentry testified he had taken the photograph after Williams
had passed away and that he had taken about ten photographs showing other
parts of Williams’s body and other wounds. The photograph illustrates the
testimony related to the gunshot injury to Williams’s right arm, and we cannot
say the photograph could not have helped the jury understand the testimony
and evidence related to the shootings. In addition, while State’s Exhibit 32
depicts a medical patch or drape and blood, the photograph is not particularly
gruesome. After reviewing the challenged exhibit in light of the other exhibits
and all the evidence, we cannot say that the prejudicial impact of the admission
of the photograph outweighs its probative value. The trial court did not abuse
its discretion in admitting the photograph. See Helsley, 809 N.E.2d at 296
(holding that the trial court did not abuse its discretion in admitting several
photographs showing gunshot wounds to the victims’ heads where the
defendant argued the photographs were cumulative and he did not contest that
the victims died from gunshot wounds); Wallace, 725 N.E.2d at 839 (holding
photographs were not particularly gruesome, the probative value of the
photographs outweighed any prejudicial impact, and the court did not err by
allowing the photographs into evidence).
III.
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[31] The next issue is whether Bradley’s sentence is inappropriate based on the
nature of the offense and his character. Ind. Appellate Rule 7(B) provides that
we “may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, [we find] that the sentence is inappropriate in light of
the nature of the offense and the character of the offender.” Under this rule, the
burden is on the defendant to persuade the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[32] Bradley argues he did not have a history of committing violent crimes, he had
been threatened with a gun by the victim earlier in the evening, Williams pulled
up next to him with a weapon, and Bradley responded by shooting at the
victim, but only after moving Harvell out of the way. He argues that the nature
of the crime and his character do not indicate that justice requires that he serve
a sentence above the advisory range.
[33] The State responds that Bradley senselessly shot Williams five times and fled
the state within a couple of hours, Bradley and Williams knew each other and
both dated Harvell, Bradley did not receive the maximum sentence, and that he
has a criminal history including numerous prior felony convictions.
[34] A person who commits murder shall be imprisoned for a fixed term of between
forty-five and sixty-five (65) years, with the advisory sentence being fifty-five
(55) years. Ind. Code § 35-50-2-3. The trial court sentenced Bradley to sixty
years and ordered that his sentence be enhanced by ten years for being an
habitual offender.
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[35] With respect to the nature of the offense, the record reveals that Bradley stepped
toward Williams and shot him five times, resulting in Williams’s death, and
then traveled to Louisville. With respect to the character of the offender, the
presentence investigation report (“PSI”) indicates that as a juvenile Bradley was
adjudicated delinquent for an act that would constitute theft as a class D felony
if committed by an adult in 2001 and an act that would constitute burglary as a
class B felony if committed by an adult in 2003. His adult criminal history
consists of possession of cocaine or a narcotic drug as a class B felony in 2004,
false informing as a class B misdemeanor in 2005, and dealing in a narcotic
drug as a class A felony in 2009. The PSI further indicates that Bradley was a
participant in the court’s re-entry program when he committed the instant
offense and that the results of the Indiana risk assessment show that he is a very
high risk to reoffend.
[36] After due consideration, we conclude Bradley has not met his burden of
establishing that his aggregate sentence is inappropriate in light of the nature of
the offense and his character.
Conclusion
[37] For the foregoing reasons, we affirm Bradley’s conviction and sentence for
murder.
[38] Affirmed.
Robb, J., and Mathias, J., concur.
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