Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015 Page 1 of 33

ATTORNEY FOR APPELLANT

Matthew D. Anglemeyer

Marion County Public Defender

Appellate Division

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Harold Bishop,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 31, 2015

Court of Appeals Case No.

49A02-1409-CR-622

Appeal from the Marion Superior 

Court

The Honorable Mark D. Stoner, 

Judge

Cause No. 49G06-1209-MR-61990

Brown, Judge.
Court of Appeals of Indiana | Opinion 49A02-1409-CR-622 | July 31, 2015 Page 2 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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 crossexamination.” 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 18 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 19 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 20 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 21 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 22 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 23 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 postCrawford 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 24 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 25 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 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 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.