Court of Appeals of Indiana | Memorandum Decision 49A02-1408-CR-541 | April 13, 2015 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Ellen M. O’Connor

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana 

Katherine Modesitt Cooper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jerrick Matthews,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 13, 2015

Court of Appeals Case No.

49A02-1408-CR-541

Appeal from the Marion Superior 

Court

The Honorable Lisa Borges, Judge

Case No. 49G04-1309-MR-62921

Bradford, Judge.

Case Summary

[1] On the afternoon of August 30, 2013, Appellant-Defendant Jerrick Matthews, 

a/k/a “JayJay,” visited with his friend Ashley Diggs at her apartment in the 
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Arlington Green Apartments in Indianapolis. Later, Diggs was outside talking 

to neighbor Linda White and Matthews. Henderson arrived and walked onto 

the porch of building 2130. Matthews approached, holding a gun. Matthews 

and Henderson argued. As Henderson turned and began to walk away, 

Matthews shot him four times in the back, killing him. 

[2] Appellee-Plaintiff the State of Indiana (“the State”) charged Matthews with 

murder. At trial, the trial court admitted a picture of Matthews taken at the 

Arlington Green Apartments a few weeks before the shooting. The State also 

offered into evidence, without objection, evidence that a handgun unrelated to 

Henderson’s murder was found in the car Matthews was in when he was 

arrested. A jury found Matthews guilty as charged and the trial court sentenced 

him to sixty years of incarceration. Matthews contends that the trial court 

abused its discretion in admitting the photograph of Matthews posted on 

Berry’s Facebook page and the admission of evidence that he possessed a 

handgun at the time of his arrest amounts to fundamental error. We affirm. 

Facts and Procedural History

[3] On the afternoon of August 30, 2013, Diggs was visited in her apartment at the 

Arlington Green Apartments in Indianapolis by Matthews, who complained of 

“Dre” “talking s***” about him. Tr. p. 318. Later, Diggs went outside to talk 

to White and found White “talking and smoking” with Matthews. Tr. p. 322. 

At around 7:00 p.m., Henderson appeared, and he and Matthews exchanged 

words. Matthews, holding a gun, approached Henderson as Henderson stood 
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on the porch in front of building 2130. The two exchanged words, and 

Henderson said, “what you holding your gun for, if you’re going to shoot then 

shoot[.]” Tr. p. 330. As Henderson walked away, Matthews shot him four 

times in the back, killing him. 

[4] White summoned her niece Berry from her apartment in Arlington Green and 

Berry attempted to administer CPR to Henderson. Berry considered Matthews 

to be a friend and had posted a picture of Matthews captioned “JayJay” which 

showed Matthews gesturing with his middle finger extended and Arlington 

Green building 2132 in the background on her Facebook page on August 10, 

2013. Henderson’s girlfriend eventually learned that police were investigating a 

person named “JayJay” in connection with Henderson’s death, found the 

photograph on Berry’s Facebook page, and provided it to police. The 

photograph allowed police to learn Matthews’s identity and prepare a photo 

array, from which White and Diggs identified Matthews as the shooter. On 

September 18, 2013, Rush County Sheriff’s Deputy Matthew Hedrick stopped a 

car in which Matthews was a passenger. Deputy Hedrick searched the interior 

of the car and found a loaded handgun inside the passenger-side door panel. 

The handgun was later determined not to be the handgun that had been used to 

kill Henderson. 

[5] On September 23, 2013, the State charged Matthews with Murder, a felony, 

and sought a sentence enhancement by virtue of Matthews’s use of a firearm. 

On June 16-18, 2014, jury trial was held. The trial court admitted the 

photograph of Matthews over objection. Evidence related to the handgun 
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found in Rush County was admitted without objection. After trial, the jury 

found Matthews guilty of murder, and the State dismissed the firearm 

enhancement. On July 11, 2014, the trial court sentenced Matthews to sixty 

years of incarceration. 

Discussion and Decision

I. Whether the Trial Court Abused its Discretion in 

Admitting Evidence

[6] Matthews contends that the trial court abused its discretion in admitting the 

photograph of him standing in Arlington Green Apartments. In general, the 

admissibility of evidence is within the sound discretion of the trial court. Curley 

v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002), trans. denied. We will reverse a 

trial court’s decision on the admissibility of evidence only upon a showing of an 

abuse of that discretion. Id. An abuse of discretion may occur if the trial 

court’s decision is clearly against the logic and effect of the facts and 

circumstances before the court, or if the court has misinterpreted the law. Id. 

The Court of Appeals may affirm the trial court’s ruling if it is sustainable on 

any legal basis in the record, even though it was not the reason enunciated by 

the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. 

denied. We do not reweigh the evidence, and consider the evidence most 

favorable to the trial court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind. 

Ct. App. 2006), trans. denied. “Errors in the admission of evidence are to be 

disregarded as harmless unless they affect the substantial rights of the 
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defendant.” Goudy v. State, 689 N.E.2d 686, 694 (Ind. 1997). “[A]n error in the 

admission of evidence is harmless if the erroneously admitted evidence is 

cumulative of other evidence appropriately admitted.” Collins v. State, 826 

N.E.2d 671, 679 (Ind. Ct. App. 2005), trans. denied. 

[7] Matthews contends that whatever probative value the picture might have had 

was substantially outweighed by the prejudice caused by the image of Matthews 

“flipping off” the photographer. Indiana Evidence Rule 403 provides: 

“Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury, or by considerations of undue delay, or needless 

presentation of cumulative evidence.” Matthews contends that the image 

bolstered the idea that he was an angry person with the implication that he was 

angry enough to kill, and this prejudice substantially outweighed any probative 

value the picture might have had. We disagree.

[8] The picture had probative value, as it corroborated testimony that Matthews 

spent time in Arlington Green around the time of Henderson’s murder and was 

known to at least some of the residents. Moreover, we agree with the State that 

the picture is essentially innocuous. In the picture, although Matthews is 

gesturing with his middle finger extended, we agree with the State’s 

characterization and detect no signs of anger. Matthews is clearly smiling and, 

although some might find the obscene gesture to be offensive, it was directed at

his friend Berry and seems much more playful than angry. We conclude that 
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Matthews has failed to establish that the trial court abused its discretion in this 

regard. 

II. Fundamental Error

[9] Matthews also contends that evidence regarding the handgun found in the car 

in Rush County was erroneously admitted, but acknowledges that he did not 

make any objection to this evidence at trial. As such, Matthews must establish 

that fundamental error occurred. 

A claim that has been waived by a defendant’s failure to raise a 

contemporaneous objection can be reviewed on appeal if the 

reviewing court determines that a fundamental error occurred. 

See, e.g., Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002); 

Hayworth v. State, 904 N.E.2d 684, 694 (Ind. Ct. App. 2009). The 

fundamental error exception is “extremely narrow, and applies 

only when the error constitutes a blatant violation of basic 

principles, the harm or potential for harm is substantial, and the 

resulting error denies the defendant fundamental due process.” 

Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The error 

claimed must either “make a fair trial impossible” or constitute 

“clearly blatant violations of basic and elementary principles of 

due process.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009). 

This exception is available only in “egregious circumstances.” 

Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003). 

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). 

A “finding of fundamental error essentially means that the trial 

judge erred ... by not acting when he or she should have,” even 

without being spurred to action by a timely objection. Whiting v. 

State, 969 N.E.2d 24, 34 (Ind. 2012). An error blatant enough to 

require a judge to take action sua sponte is necessarily blatant 

enough to draw any competent attorney’s objection. But the 
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reverse is also true: if the judge could recognize a viable reason 

why an effective attorney might not object, the error is not 

blatant enough to constitute fundamental error. 

Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014). 

[10] We do not see any relevance of the handgun in this case because it was not tied 

to the crime being tried. In addition, the admission of the handgun did carry 

some risk of prejudice to Matthews. With that being said, the harm or potential 

for harm presented by the admission of the handgun does not rise to the level of 

fundamental error. Diggs and White, whose stories were entirely consistent, 

both testified that they saw Matthews shoot Henderson in the back following an

argument. Moreover, the State did not even mention the handgun in its final 

argument, so the risk of prejudice was further diminished. In light of the 

relative strength of the State’s evidence and the fact that it did not rely on the 

handgun evidence to any great extent, the erroneous admission of the handgun 

did not render a fair trial impossible or deny Matthews fundamental due 

process. Matthews has failed to establish that fundamental error occurred. 

[11] We affirm the judgment of the trial court. 

Vaidik, C.J., and Kirsch, J., concur.